WRITTEN QUESTION P-1615/01 by W.G. van Velzen (PPE-DE) to the Commission. Governments should have the right to stop state-owned foreign companies from taking over their privatised companies.
Date: 2001-05-28
Institutions: European Parliament, Provisional data
Subjects: EU investment, free movement of capital, liberalisation of the market, privatisation, public sector, restriction on competition, right of establishment, shareholding

16.5.2002

EN

Official Journal of the European Communities

C 115 E/5

Finally, recent trends in higher education in Europe to promote a Life Long Learning perspective and more
openness among higher education institutions to the needs of new groups of learners, challenge both the
structures of and access to higher education institutions. One of the results of this development may be an
increasing number of learners enrolled in tertiary education in Europe.

the Commission therefore cannot confirm the trends described by the Honourable
In this context,
Member. Nevertheless, the measures taken by the Commission to promote Life Long Learning, eLearning
and the links between education and employment will all help make higher education institutions more
open to society and to professional life.

(2002/C 115 E/005)

WRITTEN QUESTION P-1615/01

by W.G. van Velzen (PPE-DE) to the Commission

(28 May 2001)

Subject:

‘Governments should have the right to stop state-owned foreign companies from taking over their
privatised companies’

Does this statement of the point of view of a Commissioner also accurately reflect the point of view of the
Commission with regard to the ‘renationalisation of privatised firms by foreign raiders’?

Does the Commission take the view that the takeover of a previously privatised public utility by a public
utility from another EU country and which is still in part controlled by the government of the EU Member
State involved (whether by means of a golden share or share ownership or another form of part-
ownership) must be prohibited? If so, on which legal provision of the Treaty of Amsterdam does the
Commission base its opinion?

If the Commission does not share this view, what possibilities does it have to reprimand a Member State
which has unjustly refused a transfrontier alliance or merger on the basis of those arguments? Is the
Commission prepared to take definite action against a Member State which has acted in that way?

Answer given by Mr Bolkestein on behalf of the Commission

(5 November 2001)

The appropriate Community law framework for dealing with acquisitions of holdings, notably in
1.
privatised companies, by companies from other Member States was outlined by the Commission in its
1997 Communication on certain legal aspects concerning intra-EU investment (1).

The specific issue of the acquisition of shareholdings in privatised companies by companies from
2.
other Member States which are wholly or partly owned by the State was raised against the background of
the ongoing process of liberalisation and,
in particular, the ‘asymmetrical’ opening up of Community
energy markets.

On 20 June 2001 the Commission held a discussion on the subject which confirmed the principles spelt
out in the 1997 communication and clarified a number of aspects.

The principle that direct investments should benefit from the free movement of capital and freedom

3.
of establishment was reiterated.

Since these are two fundamental freedoms laid down in the EC Treaty, the only admissible derogations are
those explicitly and exhaustively defined in the Treaty and those resulting from Court of Justice case law,
i.e. derogations on the grounds of ‘overriding reasons of general interest’, provided that the measures taken
comply with the principles of non-discrimination and proportionality. In this context, the Commission
confirmed the position it had taken when examining a specific case in which, in the very first stage of a
privatisation, when the State still retained control of the company, a temporary limitation on shareholdings
by public enterprises, in accordance with clearly defined economic policy objectives and under conditions
that were precise, objective, non-discriminatory and determined in advance, was found to be in conformity
with the Treaty.

C 115 E/6

Official Journal of the European Communities

EN

16.5.2002

The Commission concluded that it would continue to be guided by the 1997 Communication when
examining the obstacles (and particularly ‘special rights’) introduced by Member States that hindered the
free movement of capital and freedom of establishment, subject to forthcoming judgments by the Court of
Justice in cases pending in this field. In its institutional role, the Commission will continue to exercise the
powers conferred on it by the Treaty as the ‘guardian’ of Community law.

4.
During the same discussion, however, after noting that the free movement of capital and freedom of
establishment are directly applicable fundamental freedoms enshrined in the Treaty, the Commission
observed that in most Member States the opening up of energy markets had progressed more quickly than
stipulated in the directives, possibly giving rise to some distortions in competition between firms.

The Commission took the view that this situation called for the rules on competition and on state aid
(including for the nuclear energy sector) to be applied strictly, for the second liberalisation package to be
adopted more quickly by the Council and Parliament and, if there were a delay in adopting this package,
for Article 86 > particularly paragraph 3 > to be applied and directives or decisions addressed to the
Member States with a view to removing any distortions in competition, while maintaining obligations to
provide services of general economic interest, and for a swift solution to be found to the problems
associated with charging in intra-Community trade and with the development of infrastructures that
hindered the effective opening of markets.

However, such distortions warrant neither the application of a principle of reciprocity nor the use of
retaliatory measures between Member States, these being concepts that are alien to the Treaty and, in
particular, to the principles of the single market. Indeed, it was pointed out that liberalisation does not give
the
rise to any privatisation obligation. Although liberalisation is going ahead on the initiative of
Commission, particularly through harmonisation, the Member States remain free to decide whether or not
to privatise their firms. Once the decision has been made, the rules of the Treaty still apply.

(1) OJ C 220, 19.7.1997.

(2002/C 115 E/006)

WRITTEN QUESTION E-1667/01

by Jan Mulder (ELDR) to the Commission

(14 June 2001)

Subject: Community provisions on the protection of new plant varieties and enlargement negotiations

It is very important that Community provisions on the protection of new varieties be adopted by the new
Member States upon accession at the latest and without any transitional periods. However, a situation may
arise with regard to the protection of varieties which could be detrimental to the functioning of the
internal market. In certain new Member States, it will be possible to cultivate varieties, which are protected
by national provisions in other Member States, without having to pay a licence fee thus giving rise to
distortions of competition and interfering with the proper functioning of the internal market.

1.
Can the Commission indicate what results have been achieved thus far with regard to plant variety
rights in the negotiations for accession? On the basis of these results, can the Commission give an
assurance that new varieties listed in the Community register of plant varieties, which have already been
rejected by candidate states pursuant to national provisions will be protected in future?

2.
Can the Commission indicate what possibilities there are in order to afford protection to plant
variety rights in any new Member States for varieties which currently enjoy protection in the Member
legislation but which pursuant to Regulation 2100/1994 (1) could not be not
States under national
included in the Community register of varieties despite the derogation under Article 116?

3.
In the enlargement negotiations, is the Commission prepared to offer the possibility of including
varieties, which currently only enjoy protection in candidate states, in the Community register of varieties,
in a manner comparable to that pursuant to the derogation under Article 116, provided that a specific
period is set to this end as of the date of accession and that the new Member States adopt the Community
register of varieties in its entirety upon accession?

(1) OJ L 227, 1.9.1994, p. 1.