# C_2004217EN.01001502.xml

| 28.8.2004 | EN | Official Journal of the European Union | C 217/15 |
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28.8.2004

EN

Official Journal of the European Union

C 217/15

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Action brought on 30 June 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-282/04)

(2004/C 217/29)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 30 June 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 Koninklijke KPN NV, 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 Koninklijke KPN NV, 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 Koninklijke KPN NV contain, alongside normal and preferential shares, a special nominal 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 KPN. 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 control 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.

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