Case C-282/04: Action brought on 30 June 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

28.8.2004

EN

Official Journal of the European Union

C 217/15

That obligation of
transparency which is imposed on the
contracting authority consists in ensuring, for the benefit of
any potential tenderer, a degree of advertising sufficient to
enable the services market to be opened to competition and
the impartiality of procurement procedures to be reviewed.

own resources, whose aim is identical to Article 10 of the
EC Treaty.

2. Order the Kingdom of Belgium to pay the costs.

In the Commission's opinion, it is wholly clear that the prin-
ciple of transparency referred to above was not observed by the
Italian authorities at the time of renewal of the aforementioned
329 licences for the collection and acceptance of bets on horse
races to 1 January 2006 in favour of the incumbent holders
outside a competitive tendering procedure.

(1) OJ L 209 of 24.7.1992, p. 1
(2) [2000] ECR I-10745
(3) [1999] ECR I-8291, paragraph 31

Action brought on 29 June 2004 against the Kingdom of
Belgium by the Commission of the European Commu-
nities

(Case C-275/04)

(2004/C 217/28)

An action was brought before the Court of Justice of the Euro-
pean Communities on 29 June 2004 by the Commission of the
European Communities, represented by C. Giolito and G.
Wilms, acting as Agents, with an address for service in Luxem-
bourg, against the Kingdom of Belgium.

The Commission claims that the Court should:

1. Declare that:

— by failing to enter in the accounts referred to in Article
6(3)(a) of Regulation No 1150/2000 (1) the entitlements
established within the prescribed periods;

and

— by failing to check whether since 1 January 1995 other
delays in making own resources available occurred
following a late entry in the accounts referred to in
Article 6(3)(a) of Regulation No 1150/2000, by
destroying the records covering that period and by
failing to communicate them to the Commission in
order to enable it to calculate the overdue interest owing
pursuant to Article 11 of Regulation No 1552/89 (2) due
to a delay in making own resources available;

Pleas in law and principal arguments:

The Kingdom of Belgium's disregard of the Community provi-
sions governing accounting entries has given rise to delays in
making own resources available. Member States are required to
enter the amounts of established, guaranteed and uncontested
entitlements in the accounts referred to in Article 6(3)(a) of
Regulation No 1150/2000 (‘A Accounts’), whereas the accounts
referred to in Article 6(3)(b) (‘B Accounts’) are reserved exclu-
sively for established entitlements which have not yet been
collected and for which no security has been provided. The
amounts covered by a guarantee issued under the external
transit system procedure (T1, TIR carnets, ATA carnets, etc.)
may be entered in the separate accounts only if they have been
duly contested, which implies inter alia that time-limits have
been complied with and the action has been commenced in
writing.

The Commission cannot accept the justifications put forward
by Belgium in support of the anomalies and delayed entries.

(1) Council Regulation (EC, Euratom) No 1150/2000 of 22.05.2000
implementing Decision 94/728/EC, Euratom on the system of the
Communities' own resources (OJ 2000 L 130, p. 1).

(2) Council Regulation (EEC, Euratom) No 1552/89 of 29.05.1989
implementing Decision 88/376/EEC, Euratom on the system of the
Communities' own resources (OJ 1989 L 155, p. 1).

(3) OJ 2000 L 293, p. 9.

Action brought on 30 June 2004 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-282/04)

(2004/C 217/29)

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

The applicant claims that the Court should:

the Kingdom of Belgium has failed to fulfil its obligations
under Articles 6(3), 9, 10 and 11 of Council Regulation (EC,
Euratom) No 1150/2000 of 22 May 2000 implementing
Decision 94/728/EC, Euratom on the system of the Commu-
nities' own resources (3), which, as from 31 May 2000,
repealed and replaced Council Regulation (EEC, Euratom)
No 1552/89 of 29 May 1989 implementing Decision
88/376/EEC, Euratom on the system of the Communities'

— declare that by retaining certain provisions

from the
statutes of the firm Koninklijke KPN NV, namely that the
shares of the firm contain a special named share which is
owned by the Netherlands 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 Netherlands has failed to fulfil
its obligations under
Articles 56 and 43 EC;

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.