Novela energetického zákona ohledně transakcí s kritickou infrastrukturou

Amendment to the Energy Act regarding critical infrastructure transactions

On 1 January 2024, an amendment to the Act on Linear Buildings came into force (full text of the amendment HERE), which amends a number of other acts. One of these acts is the Energy Act. Based on a parliamentary amendment, the Energy Act newly contains the obligation to obtain prior approval from the Ministry of Industry and Trade in case of disposal of ownership rights to critical infrastructure elements in the energy sector.

The consent will have to be obtained in a wide range of cases - both in the situation when individual critical infrastructure elements are disposed of as separate items (i.e. so-called "asset deals") and in the case when critical infrastructure elements are disposed of indirectly through the transfer of shares or stocks of the company that owns the critical infrastructure element (so-called "share deal"). "In the case of a share deal, the amendment sets a relatively low threshold for the share of voting rights or share capital from which the transaction must be approved by the Ministry of Industry and Trade, where only 10 % is sufficient.

In addition, the amendment sets out other cases where consent will have to be obtained, but these are defined in a rather vague way and in practice it may be difficult to determine when consent will have to be obtained and when it will not. In particular, this is the case when a certain entity acquires "other means of influence over or other rights to the strategic unit within the energy sector, the consequence of which is the ability of the entity to gain access to information, systems or technologies related to the strategic unit within the energy sector that are important in terms of the energy security of the Czech Republic or internal or public order in relation to the strategic unit within the energy sector".

The amendment does not only apply to transactions where the acquirer is an entity from a non-EU country, as is the case, for example, in the case of foreign investment screening legislation (the so-called FDI regime), but also to purely "domestic" transactions, including situations where the transfer will take place between two Czech entities with Czech ultimate owners. In addition, the amendment is likely to apply to certain intra-group transactions where there is no effective change of control.

Without obtaining the approval of the Ministry of Industry and Trade, the transaction cannot be implemented. In addition, if the consent is refused, the law provides for the obligation to offer the transfer to the state at the usual price with a duration of the offer of at least 6 months under the penalty of invalidity of the transfer to another person. Disposal rights and voting rights acquired without the consent of the Ministry may not be exercised until the consent is subsequently granted.

The amendment thus follows a trend that can be observed within the EU, but also elsewhere in the world - the tightening of the regulatory framework for the implementation of transactions, especially within strategic industries and services. As a result, there is an overall increase in complexity and transaction costs.

For more detailed information, please contact the authors of this article or other members of the EY team with whom you work.

Authors:

Vladimír Petráček

František Schirl

Veronika Juhasová