Ferrovial and Abertis are fighting in court over the management of the Autema concessionaire (Terrassa-Manresa motorway), which operates the C-16 motorway between Sant Cugat (Valles Occidental) and Manresa (Bages). This company is 76.28% controlled by Ferrovial and 23.72% by Abertis.
The group chaired by Rafael del Pino sued the company owned by Mundys (the new Atlantia brand) and ACS before the Court of First Instance n.º 22 of Barcelona. The reason is the discrepancy that exists between the partners regarding the monetization of the inflation derivative (ILS) through which the company would have distributed a dividend and to which Abertis objected at an extraordinary meeting held in the summer of 2021.
On May 21, 2021, Autema requested the parties involved to consent to the monetization of a portion to be determined of the inflation derivative
Autema signed a debt refinancing agreement in 2008 with its creditors which included, as consideration for the refinancing agreements, an inflation protection agreement (the derivative), with the purpose of guaranteeing the cash flows from toll and subsidy revenues administration toll. Under it, variable inflation is paid and a fixed rate is received. This contract was linked to the system by which the Public Administrations initially remunerated the concessionaire. Later, the Generalitat de Catalunya, holder of the concession, changed the remuneration system, so Said hedging contract became a speculative swap which, in the opinion of the shareholders, could generate a very high financial burden for the company. This modification was the subject of a complaint by Autema, taking the matter to the European courts.
Given the volatility that changes in the value of the unallocated part of the ILS entail for the company (-77 million euros in Ferrovial’s net income in 2022), Autema requested consent for monetization on May 21, 2021 from the parties involved. to be determined from the inflation derivative based on the fulfillment of a series of minimum economic conditions. For this purpose, the society held an extraordinary meeting on the 21st of July of the same year in which Ferrovial asserted its majority, but without the favorable vote of Abertis. The execution deadline approved by the financial institutions was December 1, 2021 and since all the necessary approvals were not obtained in time and the valuation of the derivative was below the minimum authorized value to be able to carry out the monetization, no operation could be carried out.
In this step, Autema, at the request of Ferrovial, filed an action on 28 July 2022 before the court for possible damages caused by the impossibility of effecting the monetization of the ILS.
Abertis had requested the Mercantile Court nº 11 of Barcelona the precautionary suspension of the monetization of the derivative
Previously, in October 2021, Abertis, which participates in Autema through Acesa, had requested the precautionary suspension of the monetization of the derivative approved at the meeting of the Mercantile Court of Barcelona number 11, as it understood that in calling the conditions and destination of the operation were not cleared, violation of the Capital Companies Lawand that, moreover, it would be harmful for the company and for the benefit of the majority shareholder, since “the distribution of the dividend prevents the reduction of the company’s debt, which will continue to bear a high financial burden”.
Autema explained that the lack of agreement made it impossible to sign the minutes of the meeting, that the conditions for monetizing the derivative and, consequently, for the distribution of dividends, were not met. The judge rejected the injunctions. Ferrovial went to the tank and on October 18, 2022 Abertis received the dispute, to which it submitted a response on November 16, without having done no provision for amounts claimed by your partner.
The judicialization of derivative monetization shows the tensions between Autema’s partners. In the market, the possibility of Ferrovial or Abertis taking full control of the concession has already been pointed out on several occasions., but so far the talks in this regard have not materialized. According to well-informed sources, there has already been talk of economic figures for the transfer, but the expectations of both have remained distant.
Amidst the confrontation between Ferrovial and Abertis, last year the British bank HSBC sold its debt position in Autema to the special situations fund of the American bank Morgan Stanley.
loan in 2008
In 2008, Cintra, Ferrovial’s highway subsidiary, obtained a loan of 616 million euros from nine financial institutions. A 27-year loan with which it refinanced the 292 million debt of the Catalan highway and raised another 316 million for new projects and acquisitions.
The operation refinanced the concessionaire’s entire short-term debt, replacing it with a long-term intra-group loan, underwritten by a pool of 9 national and international entities: Banesto (Banco Santander), Caja Madrid (CaixaBank), Calyon, Dexia, Fortis, HSBC, ING, Royal Bank of Scotland and Société Générale.
Autema, owned by Ferrovial (73.6%) and Abertis (26.4%), manages the section of the C-16 between Sant Cugat (Vallès Occidental) and Manresa (Bages). The motorway, inaugurated in mid-1989, is part of the Llobregat C-16 axis which connects Barcelona with France as part of the European Axis called E-9 and connects San Cugat del Vallés with Manresa, passing through Terrassa and Sant Vicenç de Castellet, linking several high-capacity road axes, such as the AP-7 highway, the Axis Transversal de Catalunya C-25, the C-58 and the C-55 highway.
In 2015 and 2016, the Government enacted two decrees in which it modified the terms of the C-16 concession, a change in tariffs entailed a cost of 125 million to Ferrovial and Abertis. The company filed an amparo appeal before the Constitutional Court for the changes introduced in the concession, which was rejected in 2021. With the judicial process in Spain already exhausted, in February 2022, Autema filed a complaint with the European Commission for breach of European Union law.