Keywords
Summary

Keywords

1. Free movement of capital - Restrictions - Obstacles resulting from privileges retained by Member States in the management of privatised undertakings - Justification - Systems of property ownership - None

(Arts 56 EC and 295 EC)

2. Free movement of capital - Restrictions - National rules vesting in the State a golden share in a company - Power to grant prior authorisation where certain limits on shareholdings are exceeded and right to oppose the transfer or use as security of the capital of the company - Not permissible - Justification on grounds of public security - None

(Arts 56 EC and 58(1)(b) 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, as referred to in Article 295 EC, by way of justification for obstacles, resulting from privileges attaching to their position as shareholder in a privatised undertaking, to the exercise of the freedoms provided for by the Treaty, such as the free movement of capital between Member States. 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 43-44 )

2. A Member State which maintains in force national rules vesting in that State a golden share in an oil company, according to which the following rights attach to that golden share:

- a right of prior authorisation by the State where certain ceilings in respect of shareholdings or voting rights are exceeded;

- a right to oppose any decision to transfer or use as security the majority of the capital of various subsidiaries of the company,

fails to comply with its obligations under Article 56 EC.

Such rules constitute a restriction on the movement of capital within the meaning of that article which cannot be justified. Although, in that regard, the objective of safeguarding supplies of petroleum products in the event of a crisis falls within the ambit of public-security considerations which may justify an obstacle to the free movement of capital, in accordance with Article 58(1)(b) EC, such rules go beyond what is necessary in order to attain that objective, since the structure of the system established does not include any precise, objective criteria.

( see paras 42, 47, 53, operative part 1 )