Judgment — ECLI:EU:C:2002:328
Date: 2002-06-04
Language of the case: French
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of capital
Concepts: Free movement of capital and freedom of payments
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Belgium

Summary of the Judgment 
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 
(EC Treaty, Art. 222 (now Art. 295 EC)) 
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SUMMARY — CASE C-503/99 
2. Free movement of capital — Restrictions — National rules vesting in the State a 
'golden share' in a company — Right to oppose any transfer, use as security or change 
in the destination of certain strategic assets and to oppose certain management 
decisions — justification — Safeguarding of energy supplies in the event of a crisis 
(EC Treaty, Arts 73b and 73d(1)(b) (now Arts 56 EC and 58(1)(b) EC)) 
1. Depending on the circumstances, cer­
tain 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 provi­
sion of services in the public interest or 
strategic services. However, those con­
cerns cannot entitle Member States to 
plead their own systems of property 
ownership, referred to in Article 222 of 
the Treaty (now 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. 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 does not fail to fulfil 
its obligations under Article 73 b of the 
Treaty (now Article 56 EC) by main­
taining in force national rules vesting in 
that State a 'golden share' in two 
companies engaged in transportation 
and the supply of gas and conferring on 
that State, first, a right to oppose any 
transfer, use as security or change in 
the destination of certain strategic 
assets and, second, a right to oppose 
certain management decisions regarded 
as contrary to the guidelines for the 
country's energy policy. 
Although the restrictions resulting 
from the rules in issue fall within the 
scope of the free movement of capital, 
those rules are justified by the objective 
of guaranteeing energy supplies in the 
event of a crisis. That objective is based 
on public-security considerations 
which may justify, in accordance with 
Article 73d(1)(b) of the Treaty (now 
Article 58(1)(b) EC), an obstacle to the 
free movement of capital, provided 
that it does not go beyond what is 
necessary to attain that objective. 
(see paras 40, 46, 48, 55) 
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