# C_2004217EN.01001601.xml

| 28.8.2004 | EN | Official Journal of the European Union | C 217/16 |
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28.8.2004

EN

Official Journal of the European Union

C 217/16

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Action brought on 1 July 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-283/04)

(2004/C 217/30)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 1 July 2004 by the Commission of the European Communities, represented by Hans Støvlbæk and Albert Nijenhuis, acting as Agents.

The applicant claims that the Court should:

| — | declare that by retaining certain provisions from the statutes of the firm TPG, namely that the shares of the firm contain a special named share which is owned by the Netherlands State and to which special rights are attached with regard to the approval of certain decisions taken by the authorised organs of the firm, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 56 and 43 EC; |
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declare that by retaining certain provisions from the statutes of the firm TPG, namely that the shares of the firm contain a special named share which is owned by the Netherlands State and to which special rights are attached with regard to the approval of certain decisions taken by the authorised organs of the firm, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 56 and 43 EC;

| — | order the Kingdom of the Netherlands to pay the costs. |
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order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

In 1998 the Koninklijke PTT Nederland NV was split into two independent firms: the Koninklijke KPN NV (KPN), for telecommunications activities, and the TNT POSTGROEP NV (TPG), for logistics and distribution. The shares of the firm TPG contain, alongside normal and preferential shares, a special named share to which certain privileges are attached. That special share is currently owned by the Netherlands State.

Pursuant to the statutes, special rights are attached to that special share with regard to the approval of certain decisions taken by the competent organs of the firm.

According to the Commission, the rights attached to the special share restrict the free movement of capital and freedom of establishment. Those special powers may, even if they are not explicitly discriminatory, make it more difficult to purchase shares in the undertaking concerned and discourage investors from other Member States from investing in shares of that undertaking. In particular, those rights result in a considerable restriction of the rights which are normally associated with direct investments in TPG. They may therefore affect the free movement of capital and thus constitute a restriction on the movement of capital for the purposes of Article 56 of the EC Treaty.

As the special powers also make it possible for the Netherlands State to exercise an influence over the conduct of the firm and the general course of its business, they also influence direct investment and for that reason they may also constitute a restriction of the freedom of establishment laid down in Article 43 of the EC Treaty.

The Commission does not dispute that the ensuring of a well-functioning postal system, as intended by the Netherlands Government, can be a mandatory reason of public interest. The Commission states however that the rights attached to the ‘golden share’ also affect the postal services which do not fall within the meaning of universal services as defined in Directive 97/67/EC (for example express post or logistics services); services of that kind are thus not based on overriding reasons of general interest that justify restrictions of the fundamental principles of the EC Treaty. Moreover, the Netherlands authorities have not made use of all possibilities provided for in Directive 97/67/EC in order to ensure the provision of a universal postal service. In that connection, it points out that in Directive 2002/39/EC there is provision for the Member States to introduce controls and specific procedures to ensure that the reserved services are respected. The use of the mechanism of special powers is not proportionate to the objective pursued. Finally, the discretionary nature of the exercise of the special powers is incompatible with the requirements laid down in the case law of the Court.

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