Opinion of the Advocate General — ECLI:EU:C:2006:234
Date: 2006-04-06
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of capital
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

Summary of the Judgment Free movement of capital – Restrictions (Art. 56(1) EC) A Member State which holds special shares in companies, reserving to itself special rights of prior approval of certain very important management decisions by the organs of those companies, concerning both their business and their very structure, which are not limited to cases where the intervention of that State is necessary for overriding reasons in the general interest, fails to fulfil its obligations under Article 56(1) EC. Since the introduction of those special shares into the statutes of the companies in question is the result of decisions taken by the State concerned, those shares must be regarded as State measures. Moreover, those special shares are likely to deter investors of other Member States from investing in the capital of those companies. By making decisions of such importance subject to the prior approval of the Member State concerned and thereby limiting the possibility of other shareholders participating effectively in the management of the companies concerned, those special shares may have a negative influence on direct investments. Similarly, those special shares may have a deterrent effect on portfolio investments. A possible refusal by the Member State concerned to approve an important decision, proposed by the organs of the company concerned as being in the company’s interests, would be capable of depressing the (stock market) value of the shares of that company and thus reduces the attractiveness of an investment in such shares. (see paras 19, 22-24, 26-27, 44, operative part)