According to recent press reports (for instance, Reuters or CincoDias), the Spanish government is seeking to privatise 50%+ of the capital of AENA, the Spanish airport operator. This process of privatisation and the strategy apparently devised by the government raise some issues of compatibility with EU Law that, in my view, might be highly relevant--particularly after the recent CJEU Judgment in Essent, where the application of free movement of capital to privatisation processes has been re-energised.
According to the most complete account of the government's strategy, up to 60% of AENA's capital would be privatised. A first package of around 30% would be divided between 3 to 5 'core (institutional) investors' and the other 30% would be floated in the (Madrid?) stock exchange.
The worrying part of the privatisation strategy lies, in my view, on the conditions of selection and participation of the 'core (institutional) investors'. These would be chosen on the basis of a restricted (tender) procedure, whereby they would be assigned 5-10% capital packages on the basis of the price offered and their commitments to both hold the investment at that level and not to increase it above 10% for the longest possible time period.
Therefore, the main selection criteria (other than price) will revolve around a 'voluntary' refusal to exercise investment freedom (both in terms of acquiring additional shares and divesting the ones acquired in the privatisation process). This clearly rings a bell of similarity with the Essent case, where an absolute prohibition to dispose of the shares (ie an absolute prohibition on privatisation) was subjected to a proportionality analysis.
The Spanish government's intention behind this privatisation strategy is to retain a sort of 'joint' control over AENA despite reducing its shareholding to 40% of the capital, and it (seems to) expect the selected 'core (institutional) investors' to remain faithful and to support the government's airport management strategy. In my view, there seems to be no clear public interest justifying such a strategy, as airport management can (easily) be regulated and there are clear indications of successful privatisation in other EU countries (pertinently enough, the privatisation of the London Luton airport, precisely managed by AENA).
Further, even if such a public interest could be fleshed out by the Spanish government, the (contractual) restrictions on the disposition of the investments (or their enlargement) by the 'core (institutional) investors' will now need to be subjected to a proportionality test under the Essent line of authority. In my view, the Spanish government's strategy is unlikely to pass legal muster. Only time will tell if the CJEU will have an opportunity to rule on this one.