Opinion of the Advocate General — ECLI:EU:C:2010:304
Date: 2010-06-02
Language of the case: Greek
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Greece

summary, it can be stated that Articles 43 EC and 48 EC preclude a national provision such as Article 4(3) of Law No 2328/1995. c) Free movement of capital i) Applicability of Article 56 EC 109. The question of compatibility with the Treaty provisions on free movement of capital need be considered only to the extent that, in the light of those provisions, the contested national provision is such as to involve a separate restriction and the Treaty provisions concerning freedom of establishment do not apply. (98) 110. Having regard to my statements in points 63 to 66 of this Opinion regarding the scope of Articles 43 EC and 48 EC, it would appear necessary to conduct an examination on the basis of Article 56 EC only for members who have a share of more than 2.5% of the company’s capital, but nevertheless do not have a holding which would enable them to exercise definite influence on the company’s decisions and to determine its activities. (99) ii) Restriction of free movement of capital 111. According to consistent case-law, (100) Article 56(1) EC generally prohibits restrictions on movements of capital between Member States. 112. In the absence of a definition in the EC Treaty of ‘movements of capital’ for the purposes of Article 56(1) EC, the Court has recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (an article repealed by the Treaty of Amsterdam) as having indicative value. (101) Movements of capital for the purposes of Article 56(1) EC thus include in particular direct investments in the form of participation in an undertaking through the holding of shares which confers the possibility of participating effectively in its management and control (‘direct’ investments) and the acquisition of securities on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (‘portfolio’ investments). (102) – Article 56 EC as a comprehensive prohibition on restrictions 113. With respect to both these forms of investment, the Court has stated that national measures must be regarded as ‘restrictions’ within the meaning of Article 56(1) EC if they are liable to prevent or limit the acquisition of shares in the undertakings concerned or to deter investors of other Member States from investing in their capital. (103) 114. As has already been explained, (104) the risk of joint personal liability of members may deter potential investors, especially since participation in such an undertaking involves an additional financial risk which goes beyond the normal commercial risk. In this connection, reference is made again to the findings of the referring court, according to which extending liability to the members makes the purchase of shares in these particular companies unattractive, as in the case of the applicant in the main proceedings. 115. According to this broad definition, which has been adopted by the Court thus far, a restriction within the meaning of Article 56(1) EC would have to be taken to exist in the present case. – Possibility of a teleological delimitation of the prohibition on restrictions 116. As with freedom to provide services, the Court has intimated in its previous case-law the possibility of a teleological delimitation of the prohibition on restrictions for free movement of capital too. (105) With a view to the furthest possible convergence of fundamental freedoms it would therefore be perfectly conceivable also to effect a teleological delimitation of the prohibition of restrictions in the field of free movement of capital and to distinguish according to whether the national provision in question establishes ‘specific obstacles to access’ or merely defines the ‘conditions applying locally’. A different interpretation of the two fundamental freedoms would inevitably lead to a discrepancy in the treatment of large and small shareholders, since while large shareholders would be prevented from relying on freedom of establishment, small shareholders would be permitted to take action against the contested national provision on the ground that there is a restriction on free movement of capital. If large shareholders may not derive from the fundamental freedoms any right to the approximation of conditions applying locally, (106) this should certainly not be possible for small shareholders. In addition, there is no reason for a difference in treatment, since both categories of shareholder are in precisely the same position. 117. As regards the contested national provision itself, it should be stated that it does not in itself restrict the possibility of shareholders participating in the company with a view to establishing or maintaining lasting and direct economic links with it such as to enable them to participate effectively in the management of that company or in its control. There are neither de jure nor de facto obstacles to the influx of direct investments. Nor does the provision specifically regulate the nature of and the arrangements for investments in companies in the Greek media sector. Rather, in accordance with my above statements, (107) the contested national provision should really be classified in the category of ‘conditions applying locally’ which, in so far as a narrow teleological interpretation is accepted, would not be construed as a restriction within the meaning of Article 56(1) EC. 118. As I have already explained, (108) however, aside from isolated cases, there is nothing to suggest that the Court would be prepared to abandon its existing broad interpretation of the notion of restriction. The following considerations are therefore based on the concept of a comprehensive prohibition on restrictions. 119. There is consequently a restriction of free movement of capital. It must also be examined whether this may be justified and whether it stands up to a proportionality test. iii) Justification – Protection of fundamental rights as a legitimate interest 120. In so far as the national provision in question seeks to protect the fundamental right to respect for private life, it pursues an aim which is recognised by the European Union legal order, is therefore legitimate and can in principle justify a restriction. (109) – Proportionality test 121. In so far as under that provision members who have no definite influence on the company’s decisions are also liable, the following provision would not appear to be capable of protecting the abovementioned legal interests, especially since that category of members can do less to prevent infringements of legislation and rules of good conduct governing the operation of television stations. 122. Since less onerous measures are conceivable which offer the same prospect of success, above all liability for members who actually exercise influence on the company’s management body and the television station’s decision-making structures or to whom an infringement can actually be attributed, liability on the part of the group of members relevant in this instance cannot be regarded as necessary. 123. The doubts which were expressed in connection with a restriction of freedom of establishment apply all the more to free movement of capital. A restriction of that fundamental freedom, without it being beneficial for the protection of the fundamental right, does not satisfy the requirement of reasonableness. Free movement of capital protects only members who are not in a position to exercise definite influence on the company’s decisions and to determine its activities. The fact that a fine may nevertheless be imposed on them proves to be an unreasonable restriction of that fundamental freedom. 124. Consequently, the contested national provision cannot be regarded, all in all, as proportionate. It is based on a balance between free movement of capital as a fundamental freedom and the fundamental right to respect for private and family life which is not consistent with Community law. iv) Interim conclusion 125. In summary, it can be stated that Article 56(1) EC precludes a national provision such as Article 4(3) of Law No 2328/1995. VII – Conclusion 126. In the light of the above considerations, I propose that the Court answer the question referred by the Simvoulio tis Epikratias as follows: (1) First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, does not preclude a national provision such as Article 4(3) of Law No 2328/1995, which specifies that the fines provided for in the preceding paragraphs of that article for infringement of legislation and rules of good conduct governing the operation of television stations are imposed jointly and severally, not only on the company which holds the licence to found and operate the television station but also on all shareholders with a holding of over 2.5%. (2) On the other hand, Articles 43 EC, 48 EC and 56 EC preclude a national provision such as that described in (1) above. 1 – Original language: German. 2 – In accordance with the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007 C 306, p. 1), the preliminary ruling procedure is now regulated in Article 267 of the Treaty on the Functioning of the European Union. 3 – OJ, English Special Edition 1968 (I), p. 41. 4 – Directive of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (OJ 2009 L 258, p. 11). 5 – OJ 1979 L 291, p. 89. 6 – OJ 1989 L 395, p. 40. 7 – See Behrens, P., ‘Gesellschaftsrecht’, Handbuch des EU-Wirtschaftsrechts (ed. Manfred A. Dauses), E. III, Section 3, p. 3. 8 – See Rondinelli, M., ‘Il proceso di armonizzazione del diritto societario europeo’, Percorsi di diritto societario europeo, Turin, 2000, p. 38, who points out the close connection between the harmonisation of European Union company law and freedom of establishment. See also Grünwald, A., Europäisches Gesellschaftsrecht, Vienna, 1999, p. 12, and Mustaki, G. and Engammare, V., Droit européen des sociétés, Basle, 2009, p. 105. 9 – In the view of Rondinelli, M., loc. cit. (footnote 8), p. 38, the approximation of the laws should prevent decisions on location and capital movements from being taken not on the basis of economic factors, but according to where there is the most favourable environment from the point of view of company law. 10 – See Habersack, M., Europäisches Gesellschaftsrecht, 3rd edition, Munich, 2006, Section 5, paragraph 1, p. 82. 11 – Corresponds to Article 50(2) of the Treaty on the Functioning of the European Union. 12 – See Hempel, K., in Kommentar zu EU- und EG-Vertrag (ed. Heinz Mayer), Article 44, paragraph 19, p. 19; Rondinelli, M., loc. cit. (footnote 8), p. 42. 13 – The system of European company law as a field of law in which there is at least a Community law component covers largely only companies with share capital (see Behrens, P., loc. cit. (footnote 7), paragraph 15, p. 8). Freedom of establishment (Articles 43 EC and 48 EC) and Article 44(2)(g) EC, as the primary rule governing competence in European Union company law, apply to all profit-making companies, even those governed by public law. However, aside from the fundamental freedoms, the regulatory content of European company law for commercial partnerships amounts to nothing more than one legal act: the statute for the European Economic Interest Grouping (see Grundmann, S., Europäisches Gesellschaftsrecht, Heidelberg, Section 1, paragraph 12, p. 6). The reason for the legislative emphasis on public limited companies may be that because of its structure this type of company is to be regarded as the optimal form for undertakings operating throughout the Community (see Grünwald, A., loc. cit. (footnote 8), p. 13). 14 – See, with regard to the principle of separation of corporate and shareholders’ assets, Kraft, A. and Kreutz, P., Gesellschaftsrecht, 10th edition, Berlin, 1997, p. 50 et seq., or, with regard to the separation of corporate and shareholder liability in the case of companies with share capital, Kocbek, M., Zakon o gospodarskih družbah (ZGD) s komentarjem, 2nd edition, GV Založba, 2002, Vol. I, p. 127. 15 – The national legal orders prescribe a limitation of liability for companies with share capital, although the formulations differ. In some cases creditors may claim only corporate assets in respect of the company’s liabilities; other legal orders provide that the members are liable only for a certain contribution or that they are not personally liable. The idea always is that the members are not liable vis-à-vis the company’s creditors, that is to say externally (see Schwarz, G.C., Europäisches Gesellschaftsrecht, 1st edition, Baden-Baden, 2000, Section 289, p. 187). Germany: Paragraph 1(1) of the Aktiengesetz (Law on public limited companies, AktG) and Paragraph 13(2) of the Gesetz betreffend die Gesellschaften mit beschränkter Haftung (Law on limited liability companies, GmbHG) provide that only the company with its assets is liable in respect of the company’s liabilities vis-à-vis its creditors. France: Article L. 223-1(1) of the Code de commerce (Commercial Code) provides that the limited liability company (société à responsabilité limitée) is formed by one or more persons who are liable only for losses up to the amount of their shares. Article L. 225‑1 of the Code de commerce expressly stipulates that the members of a public limited company (société anonyme) are liable only for losses up to the amount of their shares. Austria: Paragraph 48 of the Bundesgesetz über Aktiengesellschaften (Federal Law on public limited companies, AktG) and Paragraph 61(2) of the Gesetz über Gesellschaften mit beschränkter Haftung (Law on limited liability companies, GmbHG) provide that only the company with its assets is liable in respect of the company’s liabilities vis-à-vis its creditors. Slovenia: under Article 7(2) of the Zakon o gospodarskih družbah (Commercial Companies Code, ZGD-1), the law defines when and how the members are liable alongside the company. Under Article 168(2) of the ZGD-1, a company with share capital is liable for its obligations vis-à-vis creditors with its entire assets. Under Article 168(3) of the ZGD-1, the shareholders are not liable vis-à-vis creditors for the company’s obligations. Similarly, under Article 472 the members are not liable for the obligations of a limited liability company (see Kocbek, M., loc. cit. (footnote 14), Vol. I, pp. 122, 530, and Vol. II, p. 336). United Kingdom: companies with share capital, such as the public company limited by shares and the private company limited by shares, are regulated in the Companies Act 2006. The former is comparable to the German Aktiengesellschaft, whilst the latter is comparable to the German Gesellschaft mit beschränkter Haftung (see Just, C., Die englische Limited in der Praxis, Munich, 2005, p. 4). Article 1(1) of the Companies Act provides that a company is a limited company if the liability of its members is limited by its constitution and that the liability may be limited by shares or limited by guarantee. Spain: Article 1 of Law 2/1995 of 23 March 1995 on limited liability companies (Ley de Sociedades de Responsabilidad Limitada) states that the company’s capital is composed of shares, consisting of the members’ holdings, and that the members are not liable for the company’s obligations. The same provision is made in Article 1 of Law 1564/1989 on public companies (Ley de Sociedades Anónimas). 16 – Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (OJ 2001 L 294, p. 1). 17 – Under Article 1 of Regulation No 2157/2001, the European public limited liability company has autonomous legal personality. As a legal person, the company (and not the totality of its members) has rights and obligations vis-à-vis third parties. Under the second sentence of Article 1(2) of the regulation, the liability of each individual shareholder, that is to say, member, is limited to the nominal amount of the shares he has subscribed. It is not evident from the provisions whether liability in relation to capital contributions is only internal or whether creditors of the European public limited liability company can also take direct action against shareholders. The fact that the company is a legal person does not automatically preclude external liability. However, because a legal person has rights and obligations itself, a special provision is required in principle to establish the external liability of its members. The creditors have a legal relationship only with the company, and not with the members. As Schröder, A., Europäische Aktiengesellschaft SE (eds Gerhard Manz, Barbara Mayer and Albert Schröder), Baden-Baden, 2005, Article 1 of the SE Regulation, paragraphs 25 to 29, p. 49 et seq., rightly explains, there is no basis for general external liability of the company’s shareholders vis-à-vis the company’s creditors. In the view of the writer, the second sentence of Article 1(2) of the regulation does not create such a basis, but limits the shareholder’s obligation to contribute his capital to a certain amount without defining whether the obligation applies only internally or also externally. He states that only in exceptional cases can the principle of separation between the company and its members be breached and action be taken against the members, where the interests of creditors cannot be satisfied in some other way. 18 – This is also the view taken by Behrens, P., loc. cit. (footnote 7), paragraph 15, p. 8, who refers to numerous characteristics distinguishing European Union law on public limited companies. 19 – See, in this connection, Schwarz, G.C., loc. cit. (footnote 15), paragraph 289, p. 187, according to whom the limitation of liability to corporate assets is regarded in legal literature as a characteristic of the companies covered by Directive 68/151. 20 – Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11). 21 – The single-member company is a company with share capital where all the shares are held by one natural or legal person. In practice, it is therefore a sole trader (individual undertaking), who participates in legal relations through his company with limited liability, but whose liability is limited to the amount of his contributions. 22 – See also Grundmann, S., loc. cit. (footnote 13), Section 9, paragraph 286, p. 127. 23 – See, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43; Case C‑357/98 Yiadom [2000] ECR I‑9265, paragraph 26; Case C‑245/00 SENA [2003] ECR I‑1251, paragraph 23; Case C‑55/02 Commission v Portugal [2004] ECR I‑9387, paragraph 45; Case C‑188/03 Junk [2005] ECR I‑885, paragraphs 27 to 30; and Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 31. 24 – See Ekro, cited above in footnote 23, paragraph 14. 25 – In the view of Jung, P. and Müller-Huschke, W., EU-Kommentar (ed. Jürgen Schwarze), 2nd edition, Baden-Baden, 2009, Article 44 EC, paragraph 14, it follows from the wording of Article 44(2)(g) EC (‘coordinating’, ‘making equivalent’) and its schematic connection with the rule on competence laid down in Article 44(1) EC, which is restricted to the adoption of directives, that the aim is not to make the law uniform, but only to approximate it. See also Hempel, K., loc. cit. (footnote 12), Article 44, paragraph 13, p. 17. Prats Jané, S., Evolución del Derecho societario europeo, Badajoz, 2007, p. 13, emphasises the fundamental difference between approximation of laws and unification of the law. Mustaki, G. and Engammare, V., loc. cit. (footnote 8), p. 105, point out that the EC Treaty lays down only a duty to coordinate the law, not to make it uniform, which allows the Member States to maintain national features in company law. 26 – See also Schwarz, G.C., loc. cit. (footnote 15), paragraph 201, p. 129. 27 – In legal literature, the view is taken that the exercise of this coordination competence is subject to proportionality within the meaning of the third paragraph of Article 5 EC. Some writers are of the opinion that the requirement of necessity in Article 44(2)(g) EC is fleshed out in the principle of subsidiarity (see Behrens, P., loc. cit. (footnote 7), paragraph 6a, p. 4). On the other hand, Schwarz, G.C., loc. cit. (footnote 15), paragraph 198, p. 128, sees it as an early expression of the principle of subsidiarity. 28 – In Case 244/78 Union laitière normande [1979] ECR 2663, paragraph 5, the Court stated that whilst Article 234 EC does not permit the Court to evaluate the grounds for making the reference, the need to afford a helpful interpretation of Community law may make it essential to define the legal context in which the interpretation requested should be placed. In the view of Lenaerts, K., Arts, A. and Maselis, I., Procedural Law of the European Union, 2nd edition, p. 188, Section 6-021, there is nothing to prevent the Court setting out its understanding of the facts in the main proceedings and of certain aspects of national law as the basis for a helpful interpretation of the applicable Community legislation and principles of Community law. 29 – See, inter alia, Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 8; Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 24; Case C‑380/05 Centro Europa 7 [2008] ECR I‑349, paragraphs 49 and 50; and Case C‑213/07 Michaniki [2008] ECR I‑9999, paragraph 51. 30 – See, inter alia, Michaniki, cited above in footnote 29, paragraph 52. 31 – See point 39 of this Opinion. 32 – See point 43 of this Opinion. 33 – See Hempel, K., loc. cit. (footnote 12), Article 44, paragraph 13, p. 17. 34 – See also Grünwald, A., loc. cit. (footnote 8), p. 13, who points out that the European Union’s directives in the field of company law relate only to the formal criterion of legal form. In view of this fact and in the light of the different distribution of public limited companies, there is in fact a very different level of harmonisation in the Member States. Schwarz, G.C., loc. cit. (footnote 15), paragraph 282, p. 182, states that the European Union’s directives in the field of company law do not cover all companies which also enjoy freedom of establishment. Rather, the scope of the directives covers only certain, specifically listed forms of company in the individual Member States. Preference is, he states, therefore given to the regulatory technique of enumeration, rather than general notions requiring interpretation. In Article 1 of the relevant directive or proposal for a directive, mention is made of the legal forms of company for which the coordination measures are intended to apply. 35 – See Werlauff, E., EU-Company Law, 2nd edition, Copenhagen, 2003, p. 40. The author states, first of all, that the provisions of the directives in the field of company law do not require the Member States, as an essential element of their definition of public limited company, to stipulate that the company’s liability is limited to the corporate assets, even though such provisions do exist in many national legal orders. Secondly, the author points out that the existing provisions of the directives will not prevent the Member States from retaining, either by operation of law or through case-law, provisions which in certain cases impose on members direct liability for company debts in accordance with the principle of piercing the corporate veil (German: ‘Haftungsdurchgriff’; Danish: ‘ansvarsgenombrott’). 36 – See also Grundmann, S., loc. cit. (footnote 13), Section 9, paragraph 288, p. 128. 37 – See paragraphs 9 and 10 of the written observations submitted by the Greek Government. 38 – See Case C‑104/96 Coöperatieve Rabobank [1997] ECR I‑7219, paragraphs 22 to 24, in which the Court recognised the regulatory competence of the national legislature in the absence of express provision in Directive 68/151. That case concerned the question whether national law may also lay down restrictions on the power to represent the organs for individual cases where a third party was not positively aware of an infringement. The Court answered that question in the affirmative on the ground that the Community legislature did not intend to regulate such cases (of conflicts of interest and self-dealing) and there was a loophole. The loophole had to be closed by national law. 39 – See point 54 of this Opinion. 40 – See Grundmann, S., loc. cit. (footnote 13), Section 9, paragraph 311, p. 136, who apparently adopts this approach. The author considers whether the Member States have the power to define exceptions to the principle of limitation of the liability of companies with share capital. The author takes the view that it would also be conceivable to argue that there is no power to prohibit the national legislature from extending liability further and the directive should be interpreted in that manner (in conformity with primary law). The author would appear to propose an examination having regard to the rules of primary law on freedom of establishment. Habersack, M., loc. cit. (footnote 10), Section 1, paragraph 3, p. 1, points out that the fundamental freedoms impose limits on the national legislature’s organisational freedom irrespective of the creation of secondary law. 41 – Case C‑97/96 [1997] ECR I‑6843 42 – Ibid., paragraph 18. The Court stated: ‘It must be pointed out that Article 54(3)(g) must be read in the light not only of Articles 52 and 54 of the EC Treaty, which clearly show that the coordination of systems of company law forms part of the general programme for the abolition of restrictions on freedom of establishment, but also of Article 3(h) of that Treaty, which provides that the activities of the Community are to include the approximation of national laws to the extent required for the functioning of the common market.’ 43 – See pages 5 and 7 of the order for reference. 44 – See Case C‑241/89 SARPP [1990] ECR I‑4695, paragraph 8; Case C‑315/92 Verband Sozialer Wettbewerb [1994] ECR I‑317 (‘Clinique’), paragraph 7; Case C‑87/97 Consorzio per la tutela del formaggio Gorgonzola [1999] ECR I‑1301, paragraph 16; Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 38; and Case C‑215/03 Oulane [2005] ECR I‑1215, paragraph 47. 45 – See, inter alia, Case C‑251/98 Baars [2000] ECR I‑2787, paragraph 22; Case C‑436/00 X and Y [2002] ECR I‑10829, paragraph 37; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 31; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 27; Case C‑112/05 Commission v Germany [2007] ECR I‑8995, paragraph 13; Case C‑298/05 Columbus Container Services [2007] ECR I‑10451, paragraph 29; the judgment of 17 July 2008 in Case C‑207/07 Commission v Spain, paragraph 60; Case C‑282/07 Truck Center [2008] ECR I‑10767, paragraph 25; Case C‑303/07 Aberdeen Property Fininvest Alpha [2009] ECR I‑0000, paragraph 34; and Case C‑311/08 SGI [2010] ECR I‑0000, paragraph 27. Order in Joined Cases C‑439/07 and C‑499/07 KBC Bank and Others [2009] ECR I‑0000, paragraph 70. 46 – See, for example, Baars, cited above in footnote 45, paragraph 22. The case concerned a national of a Member State who resided in that State and owned all the shares in a company having its seat in another Member State. The Court held that a 100% holding in the capital of a company having its seat in another Member State undoubtedly brings such a taxpayer within the scope of application of the Treaty provisions on the right of establishment. 47 – See Randelzhofer and Forsthoff, Das Recht der Europäischen Union (eds Grabitz and Hilf), Article 43, paragraph 115, p. 31, and Ress and Ukrow, Article 56, paragraph 156, p. 68. See also the Opinion of Advocate General Alber in Case C‑251/98 Baars [2000] ECR I‑2787, point 33, in which the Advocate General explained that the border between the simple investment of capital in shares in an undertaking established in another Member State and actual establishment in that Member State should probably be set at the point where a shareholder ceases to confine himself to the mere provision of capital in support of a particular business activity carried on by another person, and begins to become involved himself in conducting the business. Such involvement requires the shareholder to go beyond simply exercising his voting rights, and to participate in a way which will enable him to exercise real influence over the company’s business decisions. In determining whether such is the case, regard should be had to the rules of company law in the State in which the undertaking is established. See, most recently, SGI, cited above in footnote 45, paragraphs 36 and 37, and Aberdeen Property Fininvest Alpha, cited above in footnote 45, paragraphs 34 and 35. 48 – See Randelzhofer and Forsthoff, loc. cit. (footnote 47), Article 43, paragraph 115, p. 31, and Ress and Ukrow, Article 56, paragraph 156, p. 68. The latter point out that, according to the Court’s case-law, an interest of less than 25% may possibly be sufficient for a determinative influence if the owner of the shares in some other way obtains a dominant influence in the holding company in which he is involved with other shareholders. They state, however, that the Court has held that a holding of only 10% of the voting rights is not sufficient as a rule to give them definite influence on the company’s decisions and allow them to determine its activities. 49 – Cited above in footnote 45, paragraph 19. 50 – See X and Y, cited above in footnote 45, paragraph 37; Commission v Germany, cited above in footnote 45, paragraph 14; Commission v Spain, cited above in footnote 45, paragraphs 35 to 39 and 61; and Case C‑326/07 Commission v Italy [2009] ECR I‑2291, paragraphs 38 and 39. 51 – See page 4 of the order for reference. 52 – See Troberg and Tiedje, in Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft (eds Hans von der Groeben and Jürgen Schwarze), Article 48, paragraph 1, p. 1596. 53 – See, inter alia, Case C‑19/92 Kraus [1993] ECR I‑1663, paragraph 32; Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37; Case C‑212/97 Centros [1999] ECR I‑1459, paragraph 34; Case C‑108/96 Mac Quen and Others [2001] ECR I‑837, paragraph 26; Case C‑79/01 Payroll and Others [2002] ECR I‑8923, paragraph 26; Case C‑299/02 Commission v Netherlands [2004] ECR I‑9761, paragraph 15; Case C‑167/01 Inspire [2003] ECR I‑10155, paragraph 133; Case C‑140/03 Commission v Greece [2005] ECR I‑3177, paragraph 27; and Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 33. Article 43 EC is substantively identical to Article 31 of the EEA Agreement, for the interpretation of which the EFTA Court has jurisdiction (in relation to the EFTA/EEA States). In accordance with the requirement of uniform case-law within the European Economic Area, the EFTA Court has applied the abovementioned case-law of the Court of Justice to that provision of the agreement. See, inter alia, Case E-2/06 ESA v Norway [2007] EFTA Court Report 163, paragraph 64, and Case E‑7/07 Seabrokers v Norway [2008] EFTA Court Report 171, paragraph 50. With regard to the requirement of uniformity and the need for dialogue between the Court of Justice and the EFTA Court, see Baudenbacher, C., ‘The EFTA Court, the ECJ, and the latter’s Advocates General: a tale of judicial dialogue’, Continuity and change in EU law: essays in honour of Sir Francis Jacobs, 2008, p. 120 et seq. 54 – See Schwarz, G.C., loc. cit. (footnote 15), paragraph 136, p. 89. 55 – See Mustaki, G. and Engammare, V., loc. cit. (footnote 8), p. 40; Prats Jané, S., loc. cit. (footnote 25), p. 94, and Forsthoff, U. and Schulz, M., ‘Gläubigerschutz bei EU-Auslandsgesellschaften’, Grenzüberschreitende Gesellschaften (eds Heribert Hirte and Thomas Bücker), 2nd edition, Berlin, 2006, paragraph 38, p. 82, with reference to the Court’s case-law. As a traditional example of a restriction on freedom of establishment within the meaning of the first paragraph of Article 43 EC, Jung, P, EU-Kommentar (ed. Jürgen Schwarze), 2nd edition, Baden-Baden, 2009, Article 48 EC, paragraph 21, mentions charges for entering companies or their branches in the commercial register. 56 – Ulmer, P., ‘Schutzinstrumente gegen die Gefahren einer Geschäftstätigkeit inländischer Zweigniederlassungen von Kapitalgesellschaften mit fiktivem Auslandssitz’, Juristenzeitung 1999, p. 665, points out that the Cassis de Dijon formula, developed for free movement of goods, also applies in relation to freedom of establishment, as is recognised in the Court’s more recent case-law. See also Habersack, M., loc. cit. (footnote 10), Section 3, paragraph 4, p. 4, who points out the breadth of the notion of restriction on establishment developed by the Court in the judgments in Kraus and Gebhard, both cited above in footnote 53. 57 – Regard should be had in this connection to the Court’s judgment in Case 81/87 Daily Mail [1988] ECR 5483, paragraph 25, according to which in the present state of Community law Articles 43 EC and 48 EC, properly construed, confer no right on a company incorporated under the legislation of a Member State and having its registered office there to transfer its central management and control to another Member State. On the other hand, in Centros, cited above in footnote 53, the Court recognised the right of companies to set up a branch in another Member State. See Maranelli, K., ‘Il diritto comunitario di stabilimento delle società’, Percorsi di diritto societario europeo, Turin, 2000, p. 122 et seq. 58 – See page 4 of the order for reference. 59 – See Grundmann, S., loc. cit. (footnote 13), Section 9, paragraph 311, p. 137, who likewise considers an extension of liability to shareholders prescribed by law to be a restriction, but puts it another way. In his view, freedom of establishment is certainly encouraged, in cross-border situations at least, if there is no fear of the corporate veil being pierced abroad. Müller-Graff, P.‑C., EUV/EGV-Kommentar (ed. Rudolf Streinz), Article 48, paragraph 22, p. 692, addresses the rules on piercing the corporate veil for the sake of protection of creditors in examining whether restrictions on a company becoming resident in another Member State are compatible with Article 43 EC. In his opinion, these can be justified in individual cases. Thus, the author evidently takes the view that rules on piercing the corporate veil are restrictions on freedom of establishment within the meaning of Article 43 EC. Ulmer, P., loc. cit. (footnote 56), p. 665, also clearly considers there to be a restriction on freedom of establishment where liability is extended to shareholders, but it would probably stand up to the proportionality test. 60 – See Skouris, V., ‘Das Verhältnis von Grundfreiheiten und Grundrechten im europäischen Gemeinschaftsrecht’, Die Öffentliche Verwaltung, 2006, p. 94, who points out that in the interrelationship between the fundamental freedoms there is a parallel trend (‘uniform dogmatism of basic rights’). In examining the limits, this allows the specific limits provided for in relation to each fundamental freedom to be combined with the general notion of imperative requirements in the general interest. He adds that the ‘Gebhard formula’ which has been used on many occasions (see point 70 of this Opinion) is not applicable specifically in relation to one fundamental freedom, but to all fundamental freedoms. 61 – Joined Cases C‑267/91 and C‑268/91 [1993] ECR I‑6097. 62 – See Forsthoff, U., ‘Mobilität von Gesellschaften im Binnenmarkt – Spielraum für Erstreckung deutschen Rechts auf EU-Auslandsgesellschaften’, Grenzüberschreitende Gesellschaften (eds Heribert Hirte and Thomas Bücker), 2nd edition, Berlin, 2006, paragraphs 38 and 39, p. 82 et seq. 63 – National provisions which concern the identity of the company in any case act as obstacles to access. That identity should not be affected by crossing a border. Provisions which encroach on the company’s identity cannot be construed as part of the conditions applying locally, since they are not brought to the economic operator from outside, but change the form of the beneficiary of freedom of establishment, the company, from within, as it were. The idea of protecting identity can be found in the Court’s case-law (see Case C‑208/00 Überseering [2002] ECR I‑9919, paragraph 80 et seq.) 64 – See Forsthoff, U., loc. cit. (footnote 62), paragraphs 73 and 74, p. 544 et seq. Habersack, M., loc. cit. (footnote 10), Section 3, paragraph 7, p. 13, takes the view that Articles 43 EC and 48 EC contain a prohibition on restrictions in so far as market access and thus establishment as such are concerned. As regards the exercise of a trade by the company once established in the territory of another Member State, on the other hand, it is subject to the general national rules. In particular, the obstacles connected with the mandatory, but non-discriminatory rules of national commercial, competition and employment law do not therefore fall within the protective scope of freedom of establishment. They are in fact simple ‘selling arrangements’ within the meaning of the Keck and Mithouard ruling. A review of national law having regard to the principle of proportionality cannot therefore take place. National law may be applied as against the companies resident in other Member States provided it is not discriminatory. 65 – See Case C‑384/93 Alpine Investments [1995] ECR I‑1141, paragraph 37. The judgment concerned a national prohibition on ‘cold calling’ which, in the view of the Court, directly affected access to the market in services in the other Member States. The Court therefore concluded that it was capable of hindering intra-Community trade in services. This shows that the Court understands the fundamental freedoms primarily as instruments for opening up markets. See also Joined Cases C‑51/96 and C‑191/97 Deliège [2000] ECR I‑2549, paragraph 60 et seq. 66 – See Case C‑463/00 Commission v Spain [2003] ECR I‑4581, paragraph 61, in connection with free movement of capital. In that judgment, the Court regarded national provisions which restrict investments as a restriction on the movement of capital within the meaning of Article 56 EC. In the view of the Court, although the relevant restrictions on investment operations applied without distinction to both residents and non-residents, it none the less had to be held that they affected the position of a person acquiring a shareholding as such and were thus liable to deter investors from other Member States from making such investments and, consequently, affected access to the market (see also the judgment of the same date in Case C-98/01 Commission v United Kingdom [2003] ECR I-4641, paragraph 47). 67 – In general administrative law, a condition is distinguished by the fact that it makes the onset or the end of the effectiveness of an administrative act dependent on a certain event, whose occurrence is uncertain. It may be uncertain not only ‘when’ the event occurs, but also ‘if’ it actually occurs. The imposition of a duty, on the other hand, unlike a condition, contains its own substantive provision, namely the obligation of the party to whom the administrative act is addressed regarding a specific act, toleration or omission. The administrative act connected with the imposition of the duty is immediately legally effective, irrespective of whether or not the duty is performed. The conditional administrative act, on the other hand, becomes effective only when the condition is met. The imposition of the duty lays down an obligation and is enforceable. The suspensive condition is not binding and therefore not enforceable either. See Maurer, H., Allgemeines Verwaltungsrecht, 11th edition, Munich, 1997, paragraph 6 et seq., p. 315 et seq. 68 – See points 70 to 73 of this Opinion. 69 – See Kraus, cited above in footnote 53, paragraph 32, and Gebhard, cited above in footnote 53, paragraph 37. 70 – See Case C‑112/00 Schmidberger [2003] ECR I‑5659, paragraph 74. 71 – See point 56 of this Opinion. 72 – See, in particular, Case C‑260/89 ERT [1991] ECR I‑2925, paragraph 41; Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 37; Case C‑94/00 Roquette Frères [2002] ECR I‑9011, paragraph 25; Schmidberger, cited above in footnote 70, paragraph 71; Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 35; and Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 76. 73 – OJ 2000 C 364, p. 1. 74 – See Case C‑244/06 Dynamic Medien [2008] ECR I‑505, paragraph 42; Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I‑10779, paragraph 43; and Parliament v Council, cited above in footnote 72, paragraph 38. 75 – See, in particular, ERT, cited above in footnote 72, paragraph 41; Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 14; and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 284. 76 – See Schmidberger, cited above in footnote 70, paragraph 74, in connection with a restriction of free movement of goods. See also Case C‑250/06 UnitedPan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 41 (cultural policy and freedom of expression as restrictions of freedom to provide services); Dynamic Medien, cited above in footnote 74, paragraph 42; and Case C‑36/02 Omega [2004] ECR I‑9609, paragraph 35 (human dignity as a restriction of freedom to provide services). 77 – Expressly recognised in Case C‑62/90 Commission v Germany [1992] ECR I‑2601, paragraph 23. See also Case C‑200/02 Chen [2004] ECR I‑9925, paragraph 16, and Case C‑127/08 Metock and Others [2008] ECR I‑6241, paragraph 79. 78 – Under Article 8(1) (‘Right to respect for private and family life’) of the ECHR, everyone has the right to respect for his private and family life, his home and his correspondence. 79 – Under Article 7 (‘Respect for private and family life’) of the Charter of Fundamental Rights, everyone has the right to respect for his or her private and family life, home and communications. 80 – See my Opinion of 14 April 2010 in pending Case C‑271/08 Commission v Germany, points 187 and 188. Skouris, V., loc. cit. (footnote 60), p. 93, does not therefore consider that there is a hierarchical relationship between fundamental freedoms and basic rights. He cites various factors in support of the idea that they are essentially equally ranking, such as the character of basic rights which is similar to that of fundamental freedoms and the convergence of fundamental freedoms and basic rights in the Court’s case-law. 81 – See my Opinion in Commission v Germany, cited above in footnote 80, point 189. 82 – See Omega, cited above in footnote 76, paragraph 36; International Transport Workers’ Federation and Finnish Seamen’s Union, cited above in footnote 74, paragraph 75; and Dynamic Medien, cited above in footnote 74, paragraph 42. 83 – See Case C‑405/98 Gourmet International [2001] ECR I‑1795, paragraph 33; Case C‑220/98 Estée Lauder [2000] ECR I‑117, paragraph 30 et seq.; and Case C‑368/95 Familiapress [1997] ECR I‑3689, paragraph 28 et seq. 84 – According to Craig, P. and De Búrca, G., EU Law, 4th edition, Oxford, 2008, p. 492, although Article 234 EC confers upon the Court power to interpret the Treaty, it does not expressly confer power to apply the Treaty to the case in the main proceedings. They state that the demarcation between interpretation and application marks the distribution of powers as between the Court of Justice and the national courts. Consequently, the Court interprets the Treaty and the national courts apply that interpretation to the particular case. 85 – See page 4 of the order for reference. 86 – See paragraph 10 of the written observations submitted by the Greek Government. 87 – See point 66 of this Opinion. 88 – Property rights: rights to dividends; the right to allocation of new shares; the right to liquidation dividends; the right to interest for building finance (that is interest for the period required for the preparation and construction until the beginning of full operation of the undertaking, the right to use company facilities). Rights of participation: the right of invitation and notification of agenda; the right of request and the right to state an opinion; the right to be represented at the general meeting; the right to vote and to elect at the general meeting; the right to challenge decisions which are contrary to legislation or statutes. Protection rights: information rights, including the right of inspection and the right to demand information; the collective right to representation on the board of directors; the minority protection rights of the action for dissolution and the special audit and the right to convene a general meeting; the other rights to take action, including the right of rescission, annulment of decisions of the general meeting, and liability claims. 89 – See Mustaki, G. and Engammare, V., loc. cit. (footnote 8), p. 189. As Schmidt, K., Gesellschaftsrecht, 4th edition, Cologne/Berlin/Bonn/Munich, 2002, p. 837, rightly states, the general shareholders’ meeting is the ‘seat of shareholders’ democracy’ in which the shareholders exercise their rights in the company’s business. 90 – Thus Grundmann, S., loc. cit. (footnote 13), Section 11, paragraph 394, p. 180, highlights the differences in the individual Member States in the appointment and dismissal of the bodies. There are differences, first of all, in the power to appoint members of the management body, simply because in some cases a one-part management body is appointed and in others a two-part body. Nevertheless, in the former case the power of the general meeting to appoint and dismiss members of the body is not protected in all Member States. In the latter case, the general meeting typically has the power only to appoint the supervisory body, and the influence is therefore only indirect. 91 – See Grundmann, S., loc. cit. (footnote 13), Section 11, paragraph 394, p. 180. 92 – See Schroeder, W., EUV/EGV – Kommentar (ed. Rudolf Streinz), Article 30 EC, Article 52, p. 476. 93 – See, inter alia, Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15; Case C‑339/92 ADM Ölmühlen [1993] ECR I‑6473, paragraph 15; Case C‑210/00 Käserei Champignon Hofmeister [2002] ECR I‑6453, paragraph 59; Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 97; and Case C‑380/03 Germany v Parliament and Council [2006] ECR I‑11573, paragraph 144. 94 – The media laws vary from one State to the next. Nevertheless, they have obvious common features. The withdrawal of a broadcasting licence is generally ordered as the most severe penalty only in the case of a repeat offence. In the case of a first infringement, a warning is given. In addition to the cancellation of the licence, another possibility is a temporary suspension of the licence or the imposition of subsequent conditions. Some media laws grant the media bodies which oversee private broadcasters the option to impose fines (see Kühn, F., Rundfunkrecht in Indien und Deutschland, Berlin, 2006, p. 208; Bayer, J. and Ricke, T., ‘Die Medienaufsicht in Ungarn’, Medien und Recht International, 2009, p. 32 et seq.; Kieserling, H., Das Fernsehrecht Spaniens, Frankfurt am Main, 2002, p. 159; Ruhle, E.-O., Freund, N., Kronegger, D. and Schwarz, M., Das neue österreichische Telekommunikations- und Rundfunkrecht, Vienna, 2004, p. 268). 95 – This in turn has human rights implications, above all as regards respect for freedom of the media. The third sentence of Article 10(1) of the ECHR gives the Contracting States the option to require a licence in order to monitor radio and television broadcasting in their territory, for example. Licences and other restrictions must be assessed on the basis of the requirements of Article 10(2), however. That provision states that media diversity may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 96 – See, inter alia, Maizena and Others, cited above in footnote 93, paragraph 15; ADM Ölmühlen, cited above in footnote 93, paragraph 15; Käserei Champignon Hofmeister, cited above in footnote 93, paragraph 59; Spain v Council, cited above in footnote 93, paragraph 97; and Germany v Parliament and Council, cited above in footnote 93, paragraph 144. 97 – The Court has recognised that the Member States enjoy a margin of discretion in determining what measures are most appropriate to eliminate breaches of fundamental freedoms on the ground that they retain exclusive competence as regards the maintenance of public order and the safeguarding of internal security (see Case C‑265/95 Commission v France [1997] ECR I‑6959, paragraph 33). 98 – See X and Y, cited above in footnote 45, paragraph 66. 99 – See X and Y, cited above in footnote 45, paragraph 68, and Commission v Spain, cited above in footnote 45, paragraphs 35 to 39. 100 – See, inter alia, Commission v Germany, cited above in footnote 45, paragraph 17; Joined Cases C‑282/04 and C‑283/04 Commission v Netherlands [2006] ECR I‑9141, paragraph 18; Commission v United Kingdom, cited above in footnote 66, paragraphs 38 and 43; Case C‑483/99 Commission v France [2002] ECR I‑4781, paragraphs 35 and 40. The same should also apply to Article 40 of the EEA Agreement, which is substantively the same as Article 56 EC. As the EFTA Court found in Case E‑1/04 Fokus Bank [2004] EFTA Court Report 11, paragraphs 22 and 23, with reference to the judgment of the Court of Justice in Case C‑452/01 Ospelt and Schlössle Weissenberg [2003] ECR I‑9743, paragraph 28, and the Opinion of Advocate General Jacobs in the same case (points 72 and 73), the provisions on free movement of capital in the EC Treaty and in the EEA Agreement are essentially identical. 101 – OJ 1988 L 178, p. 5. 102 – See Case C‑222/97 Trummer and Mayer [1999] ECR I‑1661, paragraph 21; Commission v France, cited above in footnote 100, paragraphs 36 and 37; Commission v United Kingdom, cited above in footnote 66, paragraphs 39 and 40; and Commission v Netherlands, cited above in footnote 100, paragraph 19. 103 – See Case C‑367/98 Commission v Portugal [2002] ECR I‑4731, paragraph 45; Commission v France, cited above in footnote 100, paragraph 41; Case C‑174/04 Commission v Italy [2005] ECR I‑4933, paragraphs 30 and 31; Case C‑265/04 Bouanich [2006] ECR I‑923, paragraphs 34 and 35; Commission v Netherlands, cited above in footnote 100, paragraph 20; and Commission v Germany, cited above in footnote 45, paragraph 19. 104 – See point 68 of this Opinion. 105 – See footnote 66 to this Opinion. 106 – In point 74 of this Opinion, I stated, in connection with freedom of establishment, that that fundamental freedom is not intended to be an instrument for economic operators to modify conditions applying locally vis-à-vis national competitors. This must also apply to free movement of capital. 107 – See point 76 of this Opinion. 108 – See point 78 of this Opinion. 109 – See point 85 of this Opinion.