Case C-283/04: Action brought on 1 July 2004 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2004-08-28
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, business management, company law, free movement of capital, government, postal and telecommunications services, right of establishment, shareholder

C 217/16

EN

Official Journal of the European Union

28.8.2004

— order the Kingdom of the Netherlands to pay the costs.

lands has failed to fulfil its obligations under Articles 56
and 43 EC;

Pleas in law and main arguments:

In 1998 the Koninklijke PTT Nederland NV was split into two
independent firms: the Koninklijke KPN NV (KPN), for telecom-
munications activities, and the TNT POSTGROEP NV (TPG), for
logistics and distribution. The shares of the firm Koninklijke
KPN NV contain, alongside normal and preferential shares, a
special nominal share to which certain privileges are attached.
That special share is currently owned by the Netherlands State.

Pursuant to the statutes, special rights are attached to that
special share with regard to the approval of certain decisions
taken by the competent organs of the firm.

the rights attached to the
According to the Commission,
special share restrict the free movement of capital and freedom
of establishment. Those special powers may, even if they are
not explicitly discriminatory, make it more difficult to purchase
shares in the undertaking concerned and discourage investors
from other Member States from investing in shares of that
undertaking. In particular, those rights result in a considerable
restriction of the rights which are normally associated with
direct investments in KPN. They may therefore affect the free
movement of capital and thus constitute a restriction on the
movement of capital for the purposes of Article 56 of the EC
Treaty.

As the special powers also make it possible for the Netherlands
State to exercise control over the conduct of the firm and the
general course of its business, they also influence direct invest-
ment and for that reason they may also constitute a restriction
of the freedom of establishment laid down in Article 43 of the
EC Treaty.

Action brought on 1 July 2004 by the Commission of the
the
European Communities against

the Kingdom of

Netherlands

(Case C-283/04)

(2004/C 217/30)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on 1
July 2004 by the Commission of the European Communities,
represented by Hans Støvlbæk and Albert Nijenhuis, acting as
Agents.

The applicant claims that the Court should:

— declare that by retaining certain provisions

from the
statutes of the firm TPG, namely that the shares of the firm
contain a special named share which is owned by the Neth-
erlands State and to which special rights are attached with
regard to the approval of certain decisions taken by the
authorised organs of the firm, the Kingdom of the Nether-

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

In 1998 the Koninklijke PTT Nederland NV was split into two
independent firms: the Koninklijke KPN NV (KPN), for telecom-
munications activities, and the TNT POSTGROEP NV (TPG), for
logistics and distribution. The shares of the firm TPG contain,
alongside normal and preferential shares, a special named share
to which certain privileges are attached. That special share is
currently owned by the Netherlands State.

Pursuant to the statutes, special rights are attached to that
special share with regard to the approval of certain decisions
taken by the competent organs of the firm.

According to the Commission,
the rights attached to the
special share restrict the free movement of capital and freedom
of establishment. Those special powers may, even if they are
not explicitly discriminatory, make it more difficult to purchase
shares in the undertaking concerned and discourage investors
from other Member States from investing in shares of that
undertaking. In particular, those rights result in a considerable
restriction of the rights which are normally associated with
direct investments in TPG. They may therefore affect the free
movement of capital and thus constitute a restriction on the
movement of capital for the purposes of Article 56 of the EC
Treaty.

As the special powers also make it possible for the Netherlands
State to exercise an influence over the conduct of the firm and
the general course of its business, they also influence direct
investment and for that reason they may also constitute a
restriction of the freedom of establishment laid down in Article
43 of the EC Treaty.

The Commission does not dispute that the ensuring of a well-
functioning postal system, as intended by the Netherlands
Government, can be a mandatory reason of public interest. The
Commission states however that the rights attached to the
‘golden share’ also affect the postal services which do not fall
within the meaning of universal services as defined in Directive
logistics services);
97/67/EC (for example express post or
services of that kind are thus not based on overriding reasons
of general interest that justify restrictions of the fundamental
principles of the EC Treaty. Moreover, the Netherlands authori-
ties have not made use of all possibilities provided for in Direc-
tive 97/67/EC in order to ensure the provision of a universal
postal service. In that connection, it points out that in Directive
2002/39/EC there is provision for the Member States to intro-
duce controls and specific procedures to ensure that
the
reserved services are respected. The use of the mechanism of
special powers is not proportionate to the objective pursued.
Finally, the discretionary nature of the exercise of the special
powers is incompatible with the requirements laid down in the
case law of the Court.