Keywords
Summary

Keywords

1. Free movement of capital - Restrictions - Obstacles resulting from a system of administrative authorisation relating to privatised undertakings - Justification - Systems of property ownership - None

(EC Treaty, Art. 222 (now Art. 295 EC))

2. Free movement of capital - Restrictions - National rules prohibiting the acquisition by investors from other Member States of more than a given number of shares and providing for a system of prior authorisation for the acquisition of a holding in certain national undertakings in excess of a specified level - Not permissible - Justification on economic grounds - None

(EC Treaty, Arts 73b and 73d(1) (now Arts 56 EC and 58(1) EC))

Summary

$$1. Depending on the circumstances, certain concerns may justify the retention by Member States of a degree of influence within undertakings that were initially public and subsequently privatised, where those undertakings are active in fields involving the provision of services in the public interest or strategic services. However, those concerns cannot entitle Member States to plead their own systems of property ownership, referred to in Article 222 of the Treaty (now Article 295 EC), by way of justification for obstacles, resulting from a system of administrative authorisation relating to privatised undertakings, to the exercise of the freedoms provided for by the Treaty. That article does not have the effect of exempting the Member States' systems of property ownership from the fundamental rules of the Treaty.

( see paras 47-48 )

2. A Member State which adopts and maintains in force national rules (a) prohibiting the acquisition by investors from other Member States of more than a given number of shares in certain national undertakings and (b) requiring the grant by the State of prior authorisation for the acquisition of a holding in certain national undertakings in excess of a specified level fails to comply with its obligations under Article 73b of the Treaty (now Article 56 EC).

Such rules constitute a restriction on the movement of capital within the meaning of that article which cannot be justified. In that regard, restrictions on the fundamental freedom concerned cannot be justified either by the economic policy objectives reflected in such national rules or by the objectives of choosing a strategic partner, strengthening the competitive structure of the market concerned or modernising and increasing the efficiency of means of production, inasmuch as all those grounds fall outside the ambit of the reasons set out in Article 73d(1) of the Treaty (now Article 58(1) EC).

( see paras 46, 52, operative part 1 )