The Government wants to move from words and criticism to deeds, and has put the legal services of the State to work to study all the regulatory formulas at their disposal to prevent the transfer of the tax headquarters to the Netherlands that Ferrovial proposes. One of the main legal avenues being considered is to veto the absorption of the Spanish parent company by the Dutch subsidiary of Ferrovial, necessary as a step prior to the transfer of the headquarters, taking advantage of the anti-foreign takeover regulations approved during the pandemic, as EL PAÍS has learned. from sources familiar with the matter.
The Vice President and Minister for the Ecological Transition, Teresa Ribera, this weekend gave a hint about the Executive’s plans by admitting that it was analyzing whether it can act within the “monitoring framework regarding investment in strategic sectors” established due to the coronavirus pandemic crisis. The minister was referring to the regulations for armoring strategic companies, popularly known as anti opas shieldwhich the Government approved at the beginning of the coronavirus pandemic in 2020 to prevent the collapse in the price of these companies from being taken advantage of by foreign investors to take control of them at a bargain price.
The Council of Ministers approved last December the extension for two more years of this regulation, until the end of 2024. It is about analyzing whether “explicit authorization is required from the Council of Ministers or if the decision can be made without no problem and move to another EU country”, explained Ribera in an interview on Radio Galicia-Cadena SER.
Along the same lines, the First Vice President of the Government and Minister of Economy, Nadia Calviño, indicated yesterday Monday that, based on the technical analyzes and the information available to date, there were “serious doubts” about the arguments that Ferrovial has publicly used to explain the transfer of its registered office to the Netherlands. Calviño acknowledged, although in a more ambiguous way than Ribera, that the Government is studying to what extent there is a difference in Spanish regulations with respect to that of other European countries.
And then he launched a dialectical dart at the president of the construction company, Rafael del Pino, questioning his justification that listing on Wall Street or a better credit rating are the true motivations for the flight from Spain. “There has been talk of the ‘AAA’ of the Netherlands, but they could have gone to Germany if they were looking for that triple A. This is very relevant for sectors such as finance, but much less for a sector such as infrastructure. That is what I mean by the fact that the technical analysis casts serious doubts on the arguments”, specified the economic vice president.
A disputed legal framework
All in all, the application of the anti-opas law of the pandemic has a disputed fit in the case of Ferrovial because it is designed to prevent a foreign investor from taking over 10% of a Spanish listed company, for which they must have, previously, with the authorization of the Council of Ministers. And Ferrovial is completely Spanish. But it is not so clear that its subsidiaries abroad are.
Sources familiar with the conflict consulted point out to this newspaper that this anti-takeover shield would be “perfectly applicable”, since in the corporate process that Ferrovial must now follow to change its headquarters, the company based in the Netherlands, the Dutch subsidiary (FISE) ( “officially foreign”), must absorb the Spanish parent company of Ferrovial to become the head of the group. And that operation, apparently a mere corporate procedure, can be interpreted as a takeover of a Spanish company by a foreign one.
Ferrovial has already taken the first step in this operation, which is the communication in the Mercantile Registry of the merger project. Subsequently, it will convene the general shareholders’ meeting, which must be held within a maximum period of 35 days from its announcement. The board of directors needs the support of more than 50% of the capital for the proposal to prosper in the assembly, but both the del Pino family and the international funds, the main shareholders, are in favor, so it will pass this process without any mishap.
The real stumbling block will be in the dissatisfied minority shareholders who can exercise their right of separation. If an investor does not want to participate in the exchange of his shares for those of the future Dutch parent company, Ferrovial will buy the titles at 26 euros each. The construction company has conditioned its transfer of headquarters to not having to indemnify the holders of shares for more than 500 million euros, which represents 2.6% of the capital. The media noise around the transfer may scare some shareholders into saying yes and paralyzing the operation.
Escalation of political conflict
The decision to move the Ferrovial headquarters has transcended the financial sphere and has become the focus of political brawl. From the majority section of the PSOE the Executive charges against the company and its president, but concrete measures have not yet been announced and, they warn that, if adopted, it will always be with respect for the free market. Calviño pointed out yesterday about a possible retaliation in the awarding of public contracts “that the law and equal treatment and all national and international rules with regard to public contracting must be applied.”
Much more forceful have been the members of the Cabinet from United We Can. This parliamentary group has presented a bill so that companies that relocate their fiscal or social headquarters return the public aid received. The effect of the law would be retroactive, so it would affect Ferrovial if it completes its departure before it is approved.
This was stated yesterday by the spokesman for the Podemos Executive, Pablo Fernández, who guaranteed that, by virtue of this proposal, if a company like Ferrovial “has received subsidies, it would have to return that money” if it moves its headquarters in the following 10 years to perceive it.
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