WRITTEN QUESTION E-0476/03

by Erik Meijer (GUE/NGL) to the Commission

(20 February 2003)

Subject: Government's right of veto as a minority shareholder to safeguard continuity of operations and a universal postal service in the Netherlands

1. Can the Commission confirm that it does not intend to authorise the Netherlands government, as a minority shareholder in the former state post office PTT, later known as KPN and then TPG after the telephone sector was split off, to continue to exercise the casting vote held by a shareholder with a golden share, which would mean that the government would no longer have the right to veto strategic decisions, such as take-over by another firm?

2. Has the Commission taken account of the fact that a monopoly is still permitted for part of the postal service, namely the daily delivery of light items to private addresses, despite the fact that the Commission would prefer the situation to be otherwise, so that rural and outlying areas can continue to receive the same service as large towns and central areas and that any bankruptcy of the company would create insoluble problems?

3. How is this situation different from those where the Commission does allow Member States to hold golden shares, for instance in a comparable case in Spain, on which the Advocate-General of the European Court of Justice delivered an opinion on 6 February 2003?

4. Why did the Commission spring its demands on the Netherlands government instead of first trying to reach an agreement with it on a legally tenable solution for the problem that had come to its attention?

5. Is the re-acquisition by the government of a majority of ordinary shares in TPG the only way of maintaining the right to veto strategic decisions by the company without coming into conflict with the Commission?

6. Is there any way other than that described in paragraph 5 that the Netherlands government can regain the right to veto TPG's strategic decisions without coming into conflict with the Commission?

7. Does the Commission intend to provide the European Parliament and the Member States with full clarification of the criteria it applies or does it now want to leave any decisions in this whole area up to the European Court of Justice?

Source: De Volkskrant newspaper, 7 February 2003.

Answer given by Mr Bolkestein on behalf of the Commission

(25 March 2003)

1. The Commission considers that certain provisions in the articles of association of TNT Post Groep N.V. concerning the special representation of the Dutch State on its supervisory board, which appoints members of the firm's board of management and has control over management policy and the general running of the firm, are incompatible with Community legislation on the free movement of capital and with the right of establishment. The Commission also considers that the special rights to approve certain decisions taken by the firm's competent bodies conferred on the holder of the golden share (the Dutch State) are incompatible with Articles 56 and 43 of the EC Treaty. This prompted the Commission to initiate infringement proceedings against the Netherlands, as indicated in the press release published by the Commission on 5 February 2003.

Court of Justice case-law has established that Member States may retain a certain degree of influence in privatised firms which provide services of public or strategic interest. However, such restrictions on the free movement of capital must be justified either by means of the exceptions provided for in Article 58 of the EC Treaty or by compelling reasons of general interest, provided that the measures respect the principles of non-discrimination and proportionality.

2. The permanent provision of a universal postal service is defined in Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service(1). The Commission notes that the special rights conferred by the golden share do not relate solely to the services offered by the universal postal service but also apply to other postal services outside the scope of the universal service. Monopolies are allowed only if Community law is strictly observed.

3. The case on which the Advocate-General of the Court of Justice gave an opinion on 6 February 2003 concerned the special powers conferred on Spain by privatisation law No 5/1995 of 23 March 1995. The Commission considers that these special powers are incompatible with the free movement of capital and the right of establishment, which is why it decided to refer the case to the Court of Justice. The opinion expressed by the Advocate-General does not prejudice the ruling which the Court of Justice will hand down in this case.

4. On 28 July 2000, in line with the procedure provided for by Article 226 of the EC Treaty, the Commission sent a letter of formal notice concerning the special powers held by the Dutch State in TNT Post Groep N.V. This was followed by a technical meeting with the Dutch authorities on 26 September 2000 on the offending provisions in Dutch legislation. Moreover, the important rulings handed down by the Court of Justice on 4 June 2002, which largely confirmed the principles set out in the Commission's interpretative communication of 19 July 1997, were the subject of a Commission press release of the same date.

5. Article 295 of the EC Treaty stipulates that This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership. Member States therefore have the right to nationalise or to privatise. However, Court of Justice case-law has established that a decision to privatise, for example, must be carried through in accordance with the principles of Community law, particularly that of the free movement of capital. Consequently, while it is not the Commission's role to comment on the strategic and political choices of Member States regarding checks on the activities of private firms, it does have an obligation to ensure that Community law is respected. In this connection, see also the replies to questions 1 and 6.

6. As mentioned in the reply to question 1, Court of Justice case-law has established that Member States may retain a certain degree of influence in privatised firms which provide services of public or strategic interest. However, such restrictions on the free movement of capital must be justified either by means of the exceptions provided for in Article 58 of the EC Treaty or by compelling reasons of general interest, provided that the measures respect the principles of non-discrimination and proportionality.

7. To inform national authorities and economic operators in Member States of the way in which the Commission interprets the EC Treaty provisions on the free movement of capital and on freedom of establishment, the Commission adopted a communication on 19 July 1997 on certain legal aspects of Community investments. The principles outlined in this communication are based essentially on the EC Treaty and Court of Justice case-law, which remains, of course, the sole competent authority as regards the interpretation of Community law.

The above interpretative communication deals with two basic freedoms and is all the more justified as the provisions in question are directly applicable provisions of the EC Treaty. As the Court has often said, provisions of this type require no implementing measures as they are sufficiently clear and unconditional in themselves. Moreover, Community case-law confirms that the Community institutions cannot themselves limit the exercise of basic freedoms guaranteed by the EC Treaty. The essential principles of the Communication are largely confirmed by recent Court of Justice case-law (Court judgments of 4 June 2002 Commission v France, C-483/99, Commission v Belgium, C-503/99, Commission v Portugal, C-367/98).

(1) OJ L 15, 21.1.1998.