Judgment of the Court 4 June 2002 in Case C-503/99: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Articles 52 of the EC Treaty (now, after amendment, Article 43 EC) and 73b of the EC Treaty (now Article 56 EC) — Rights attaching to the "golden shares" held by the Kingdom of Belgium in Société nationale de transport par canalisations SA and in Société de distribution du gaz SA)
Date: 2002-07-13
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, energy transport, gas, supply

C 169/4

EN

Official Journal of the European Communities

13.7.2002

(b)

the right to oppose any decision to transfer or use as
security the assets listed in the annex to the Decree — the
assets in question being the majority of the capital of four
subsidiaries of the parent company, namely Elf-Aquitaine
Production, Elf-Antar France, Elf-Gabon SA and Elf-
Congo SA (Article 2(3) of the Decree),

and by failing to lay down sufficiently precise and objective
criteria for approval of, or opposition to, the abovementioned
operations, the French Republic has failed to comply with its
obligations under Articles 52 (now, after amendment,
Article 43 EC) to Article 58 of the EC Treaty (now Article 48
EC) and Article 73b of the EC Treaty (now Article 56 EC), the
Court, composed of: G.C. Rodrı´guez Iglesias, President, P. Jann
(Rapporteur), N. Colneric and S. von Bahr (Presidents of
Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, J.-
P. Puissochet, R. Schintgen, V. Skouris and J.N. Cunha Rodrigu-
es, Judges; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 4 June 2002, in which it:

1. Declares that, by maintaining in force Article 2(1) and (3) of
Decree No 93-1298 of 13 December 1993 vesting in the
in Société Nationale Elf-Aquitaine,
State a ‘golden share’
according to which the following rights attach to the ‘golden
share’ held by the French Republic in that company:

(a)

(b)

any direct or indirect shareholding by a natural or legal
person, acting alone or in conjunction with others, which
exceeds the ceiling of one tenth, one fifth or one third of
the capital of, or voting rights in, the company must first
be approved by the Minister for Economic Affairs;

the right to oppose any decision to transfer or use as
security the assets listed in the annex to the Decree — the
assets in question being the majority of the capital of
four subsidiaries of that company, namely Elf-Aquitaine
Production, Elf-Antar France, Elf-Gabon SA and Elf-
Congo SA,

the French Republic has failed to comply with its obligations
under Article 73b of the EC Treaty (now Article 56 EC);

2. Orders the French Republic to pay the costs;

3. Orders the Kingdom of Spain and the United Kingdom of
Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 79 of 18.3.2000.

JUDGMENT OF THE COURT

4 June 2002

in Case C-503/99: Commission of the European Communi-
ties v Kingdom of Belgium (1)

(Failure by a Member State to fulfil its obligations —
Articles 52 of the EC Treaty (now, after amendment,
Article 43 EC) and 73b of the EC Treaty (now Article 56
EC) — Rights attaching to the ‘golden shares’ held by the
Kingdom of Belgium in Société nationale de transport par
canalisations SA and in Société de distribution du gaz SA)

(2002/C 169/06)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-503/99, Commission of the European Communities
(Agent: M. Patakia) v Kingdom of Belgium (Agent: A. Snoecx,
assisted by F. de Montpellier, M. Picat and A. Theissen),
supported by United Kingdom of Great Britain and Northern
Ireland (Agent: R. Magrill, assisted by J. Crow, barrister,
and D. Wyatt, QC): Application for a declaration that, by
maintaining in force

— the provisions of the Royal Decree of 10 June 1994
vesting in the State a ‘golden share’ in Société nationale
de transport par canalisations (Moniteur belge of 28 June
1994, p. 17333), which carries the following rights:

a)

advance notice of any transfer, use as security or
change in the intended destination of the company’s
system of lines and conduits which are used or are
capable of being used as major infrastructures for
the domestic conveyance of energy products must
be given to the Minister responsible, who shall be
entitled to oppose such operations if he considers
that they adversely affect the national interest in the
energy sector;

b)

the Minister may appoint two representatives of the
Federal Government to the board of directors of the
company. Those representatives may propose to the
Minister the annulment of any decision of the board

13.7.2002

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Official Journal of the European Communities

C 169/5

of directors which they regard as contrary to the
guidelines for the country’s energy policy, including
the Government’s objectives concerning the coun-
try’s energy supply;

JUDGMENT OF THE COURT

(Second Chamber)

16 May 2002

— the provisions of the Royal Decree of 16 June 1994
vesting in the State a ‘golden share’ in Distrigaz (Moniteur
belge of 28 June 1994, p. 17347), which carries the
following rights:

in Case C-508/99 (Reference for a preliminary ruling
from the Verwaltungsgerichtshof): Palais am Stadtpark
Hotelbetriebsgesellschaft mbH & Co. KG v Finanzlandes-
direktion für Wien, Niederösterreich und Burgenland (1)

advance notice of any transfer, use as security or
change in the company’s strategic assets must be
given to the Minister responsible, who shall be
entitled to oppose such operations if he considers
that they adversely affect the national interest in the
energy field;

(Raising of capital — Directive 69/335/EEC — Scope of
application — Limited partnership — Assignment of limited
partner’s share to a company with limited liability — Levy,
after the assignment and the entry into force of the directive,
of duty directly proportional to the amount of the contri-
bution)

a)

b)

the Minister may appoint two representatives of the
Federal Government to the board of directors of the
company. Those representatives may propose to the
Minister the annulment of any decision of the board
of directors or of the management committee which
they regard as contrary to the guidelines for the
country’s energy policy,

and by failing to lay down precise, objective and stable criteria
for approval of, or opposition to, the operations referred to
above, the Kingdom of Belgium has failed to comply with its
obligations under Articles 52 of the EC Treaty (now, after
amendment, Article 43 EC) and 73b of the EC Treaty (now
Article 56 EC), the Court, composed of: G.C. Rodrı´guez
Iglesias, President, P. Jann (Rapporteur), N. Colneric and S. von
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
A. La Pergola,
J.-P. Puissochet, R. Schintgen, V. Skouris
and J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 4 June 2002, in which it:

1. Dismisses the application;

2. Orders the Commission of the European Communities to pay

the costs;

3. Orders the United Kingdom of Great Britain and Northern

Ireland to bear its own costs.

(1) OJ C 79 of 18.3.2000.

(2002/C 169/07)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-508/99: Reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Palais am Stadtpark Hotelbetriebsgesellschaft mbH & Co. KG
and Finanzlandesdirektion für Wien, Niederösterreich und
Burgenland, on the interpretation of Council Directive 69/
335/EEC of 17 July 1969 concerning indirect taxes on the
raising of capital (OJ, English Special Edition 1969 (II), p. 412)
as amended by the Act concerning the conditions of accession
of the Kingdom of Norway, the Republic of Austria, the
Republic of Finland and the Kingdom of Sweden and the
adjustments to the Treaties on which the European Union is
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the
Court (Second Chamber), composed of: N. Colneric, President
of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
given a judgment on 16 May 2002, in which it has ruled:

The provisions of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital, as amended by the
Act concerning the conditions of Accession of the Kingdom of
Norway, the Republic of Austria, the Republic of Finland and the
Kingdom of Sweden and the adjustments to the Treaties on which the
European Union is founded must be interpreted as not precluding the
levy of capital duty upon the conversion of a partnership into a capital
company within the meaning of that directive, where, before the entry
into force of that directive, a duty such as that provided for in
Paragraph 33, item 16(1), point 1(b), of the Gebührengesetz has
already been levied on all the capital contributions made for the
acquisition of shares in the partnership.

(1) OJ C 79 of 18.3.2000.