Proprietà pubblica e imprese strategiche: riflessioni sul caso Essent

The present work begins recalling the case law of the CJEU regarding article 345 TFUE, that is the neutrality clause of the EU Law with respect to the systems of property ownership of Member States. After having considered the different interpretations given by the CJEU and Advocate General Ruiz-Jarabo Colomer of the scope of article 345 TFEU and of its relation with the general principles and the freedoms of Treaties, the paper analyses the Essent case. This decision is important for two main reasons. Primarily, it is the first judgment of the CJEU regarding article 345 TFEU. Secondly, in this case the CJEU declares that a national measure which prohibits the privatisation of strategic enterprises of the energy sector is a restriction of article 63 TFEU, which nevertheless can be justified in the light of the objectives of an act of the EU. In the Essent case the measure adopted by the Dutch legislator was intended to protect fair competition in the electricity and natural gas markets, a goal that indeed corresponds to one of the objectives of the EU third energy package. With this judgment the CJEU settles that Member States can prohibit privatisation of strategic enterprises provided that this interdiction pursues the same targets pursued by the EU. In conclusion, this paper tries to verify whether the systems of property ownership of Member States can be considered as part of the national identities of Member States whose respect by EU Law is set out by article 4 (2) TEU.