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FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of October, 2005
Commission File Number: 333-07654
ENDESA, S.A.
(Translation of Registrant's Name into English)
Ribera del Loira, 60
28042 Madrid, Spain
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F:
Form 20-F X Form 40-F
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Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(1):
Yes No X
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Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(7):
Yes No X
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Indicate by check mark whether by furnishing the information
contained in this Form, the Registrant is also thereby furnishing
the information to the Commission pursuant to Rule 12g3-2(b) under the
Securities Exchange Act of 1934:
Yes No X
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If "Yes" is marked, indicate below the file number assigned to the registrant
in connection with Rule 12g3-2(b): N/A
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RELEVANT FACT
New York, October 21, 2005.- Given the confusion created by Gas Natural SDG
S.A.'s recent statement regarding the supposed existence of required
authorizations to effect the legal separation of its gas distribution and
transportation activities, Endesa S.A. deems it necessary to make the following
observations for the general knowledge of the market:
1. At the time it announced the tender offer for the acquisition of
Endesa S.A.'s shares, Gas Natural SDG S.A. had not undertaken the
separation of its gas distribution and transportation activities,
because it lacked -according to Endesa's legal advisors- the required
administrative approvals, as a result of which the National Energy
Commission cannot grant Gas Natural SDG S.A. any approval to acquire
share capital.
2. According to the information notified by Gas Natural SDG to the CNMV,
by Relevant Fact number 61.180, dated October 3, 2005 (available at
www.cnmv.es), its Board of Directors approved the separation of its
distribution assets project through a transfer to Gas Natural SDG,
S.A., "transfer [that] will be immediately completed through (...)
share capital increases in Gas Natural Distribucion SDG". Said
announcement expressly indicated that "from a legal, operational and
accounting perspective, the separation of activities will become
effective as of October 1, 2005". Nonetheless, Gas Natural did not
point out that such transaction required prior administrative
approval.
3. Gas Natural has repeated these statements in a Relevant Fact filed
with the CNMV on October 19, 2005 (number 61.519, available at
www.cnmv.es). In that announcement the gas company stated that "the
separation of activities became effective as of October 1, 2005, in
accordance with the respective Public Deed [of share capital
increase], which, in addition, has been registered with the commercial
Registry on October 17, 2005".
4. On October 4, Endesa requested that the National Energy Commission
(CNE) require Gas Natural to request to the Commission the required
prior authorizations for the creation of two companies (Gas Natural
SDG Transporte and Gas Natural SDG Distribucion) and for the
subsequent transfer of gas transportation and distribution assets.
Likewise, Endesa requested that the Commission suspend the
authorization process for Gas Natural's tender offer for Endesa.
5. On October 11, Gas Natural SDG requested the CNE's authorization for
the creation of the affiliates and for the transfer of transportation
and distribution assets, if it deemed necessary. On October 13 and
October 18, the CNE decided, with the dissenting vote of two
commissioners, that such authorizations should be processed
simultaneously with Gas Natural's tender offer for Endesa, without the
latter being suspended.
6. Gas Natural SDG persists today with the CNMV, by Relevant Fact number
61.584 (available at www.cnmv.es) in pretending to be in compliance
with respect to the separation of activities that it has undertaken,
indicating that the transaction has been reported to the CNE and that
transfer of distribution facilities is not subject to Madrid
Autonomous Community's approval, since "there are no rules regulating
this issue".
7. Nonetheless, Gas Natural SDG has omitted to mention that the
separation of activities requires "CNE's prior approval" and not an ex
post notification, pursuant to article 63.7 of the LSH and the
additional provision 11,3.1,14 of such Law. Therefore, Gas Natural
SDG's actions have been taken is in an irregular manner and Endesa
reserves such rights as it may have under applicable law.
8. In addition, Gas Natural SDG disregards the fact that the transfer of
natural gas distribution facilities also requires prior administrative
approval by the applicable regulatory entity, as established in
articles 86 and 87 of the RD 1434/2002, of December 27. This rule is
applicable both to Federal-regulated natural gas distribution
facilities and to those subject to the Autonomous Communities that
have not set their own regulation on this issue. Therefore, the
autonomous authorities regulate all distribution facilities that
affect a Community, while the rest of the facilities are subject to
Federal regulation.
9. Also untrue is Gas Natural SDG's statement in today's Relevant Fact
that articles 86 and 87 of the RD 1434/2002 are not legally
enforceable, and even less that they contradict the Hydrocarbons
Sector Law (LSH). To start with, every Royal Decree is presumed to be
legal and enforceable and also bears the State Council's approval,
which has not raised any objection to the authorization requirement
for the transfer of distribution facilities. Secondly, these rules
complete, in a perfectly consistent way, article 73.2 LSH which only
refers to the notification of assets transfer to the administrative
authority that has issued the original authorization. It would be
absurd to assume, and would invite all sorts of fraud, that a company
which requires an authorization to install and operate a natural gas
distribution facility (article 73.2, paragraph 1 LSH), could transfer
it to a third party by way of a simple notification, without giving
the competent authority the chance to assess the managerial, economic
and technical capabilities of the new owner. If the original owner of
a facility has to be authorized by the Administration, so do its
subsequent owners.
10. The transfer to Gas Natural Distribucion of the distribution
facilities, without having the corresponding administrative approvals,
suggests that Gas Natural SDG S.A. may have incurred "very serious"
administrative violations, set in article 109.1.a) LSH, in performing
regulated distribution activities (through the holding of ownership of
distribution facilities) without having the required approval. As very
serious violations, it may carry a fine "from 100,000,001 to
500,000,000 pesetas" and may give rise to termination or suspension of
the administrative authorization and the "subsequent temporary
prohibition to operate the business for a maximum term of a year"
(article 113.1.a and 113.4 of RD 1434/2002). It should be noted that
the administrative authorizations are required to be obtained in
advance, and therefore Gas Natural's actions have been taken is in an
irregular manner and Endesa reserves such rights as it may have under
applicable law.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ENDESA, S.A.
Dated: October 21st , 2005 By:/s/ Alvaro Perez de Lema
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Name: Alvaro Perez de Lema
Title: Manager of North America
Investor Relations