Action brought on 11 June 2009 — Commission of the European Communities v Portuguese Republic

(Case C-212/09)

2009/C 180/61

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: G. Braun, M. Teles Romão and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

Pleas in law and main arguments

Under the Portuguese legislation, the State holds golden shares in GALP. The State has the right to appoint the Chairman of the Board of Directors. In matters within its competence, company resolutions are subject to its approval.

Any resolutions which seek to alter the articles of association, authorise the entering into joint contracts between companies, stipulating a controlling company or joint control, or which may in any way endanger the supply of oil, gas or derivatives thereof to the country, are subject to the State’s approval.

The Commission considers that both the State’s right to appoint a director with powers to approve resolutions and its right of veto in significant corporate actions severely restrict direct investment and portfolio investment.

Those special rights of the State constitute State measures since the golden shares are not the result of the normal application of company law.

Secondary Community law does not allow the State special rights in retailers of oil and of petroleum products. GALP has no responsibility for guaranteeing supply. The State sought to make GALP a company whose centre of decision-making is in Portugal. In any event, the Portuguese State has failed to comply with the principle of proportionality since the measures in question are not apt to ensure the attainment of the objectives pursued and go beyond what is necessary in order to attain them.