Case C-112/05: Action brought on 4 March 2005 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2005-06-11
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, board of directors, free movement of capital, right of establishment, share capital

11.6.2005

EN

Official Journal of the European Union

C 143/15

Reference for a preliminary ruling from the Korsholms
tingsrätt by order of that court of 18 February 2005 in
Teemu Hakala v Oy L Simons Transport AB

Pleas in law and main arguments

(Case C-93/05)

(2005/C 143/21)

(Language of the case: Swedish)

Reference has been made to the Court of Justice of the Euro-
tingsrätt
pean Communities by order of
(Sweden) of 18 February 2005, received at the Court Registry
on 22 February 2005, for a preliminary ruling in the proceed-
ings between Teemu Hakala and Oy L Simons Transport AB on
the following question:

the Korsholms

The Federal Republic of Germany's Gesetz über die Überfüh-
rung der Anteilsrechte an der Volkswagen Gesellschaft mit
beschränkter Haftung in private Hand (Law on the privatisation
of equity in the Volkswagenwerk limited company; hereinafter
‘VW-Gesetz’) limits, by way of derogation from the provisions
of the Aktiengesetz (Company Law), each shareholder's voting
rights to a maximum of 20 % of the share capital. The Federal
Republic of Germany and the Land Lower Saxony are each
entitled to appoint two members of the supervisory board of
VW AG, provided that they hold shares in the company. Reso-
lutions of the general shareholders' meeting of Volkswagen AG,
for which a majority of 75 % of the share capital represented
the time of voting is required under the Aktiengesetz,
at
require a majority of more than 80 % of the share capital repre-
sented.

Is a pay scheme which is based on distance covered, in circum-
stances such as those of this case, contrary to Council Regu-
lation (EEC) No 3820/85 (1) and in particular to Article 10
thereof?

Those provisions are an infringement of the free movement of
capital under Article 56 EC and the freedom of establishment
under Article 43 EC.

(1) of 20 December 1985 on the harmonisation of certain social legisla-

tion relating to road transport (OJ L 370, 31.12.1985, p. 1).

Action brought on 4 March 2005 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-112/05)

(2005/C 143/22)

(Language of the case: German)

The Annex to Directive 88/361/EEC includes among move-
ments of capital not only investment in shares and securities,
but also participation in undertakings or their acquisition in
full.

liable to dissuade investors

The Court of Justice has previously held that the sphere of
protection afforded by the free movement of capital covers any
legislation which is
in other
Member States from investing in a company and participating
in its management and control. The aim of the prohibition in
Article 56 EC is not merely to prevent discrimination against
foreign market participants in relation to their domestic coun-
terparts, but it applies to any measure which inhibits the exer-
cise of the free movement of capital in any way. In the light of
the Court's findings in relation to the prohibition of restrictions
under Article 56 EC, the State-ordered ceiling on voting rights
in the VW-Gesetz constitutes an indirect restriction on earnings
and thus an infringement of the free movement of capital.

the Federal Republic of Germany was
An action against
brought before the Court of Justice of the European Commu-
nities on 4 March 2005 by the Commission of the European
Communities, represented by F. Benyon and G. Braun, with an
address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that Paragraphs 2(1), 4(1) and 4(3) of the VW-

Gesetz infringe Articles 56 EC and 43 EC;

2. order the Federal Republic of Germany to pay the costs.

At general shareholders' meetings — at which the voting
capital is not usually fully represented — the shares held by the
Land Lower Saxony give it the 20 % of votes needed to block
resolutions requiring more than 80 % of the capital repre-
sented. That provision of the VW-Gesetz constitutes an impedi-
ment by the exercise of State power, since it enables the Land
to prevent unwanted changes to the status quo in so far as
such changes have to be brought in under the category of reso-
lutions for which, according to the Aktiengesetz, a higher
quorum is required.

C 143/16

EN

Official Journal of the European Union

11.6.2005

The right of the Federal Republic of Germany and the Land
Lower Saxony to make appointments to the supervisory board
under the VW-Gesetz, notwithstanding the provisions of the
Aktiengesetz, restricts the rights of other shareholders to appro-
priate representation on the company's supervisory board.
Since, as the Court has held on several occasions, a provision
which restricts the acquisition of shares, or in some other way
restricts the possibility of actual participation in the manage-
ment of a company or in its control, constitutes a restriction
on the free movement of capital,
that statutory provision
constitutes a restriction on the free movement of capital,
contrary to Community law.

A restriction on the free movement of capital is justified only
on the grounds referred to in Article 58 EC or on so-called
overriding grounds relating to the public interest. According to
the criteria established by the Court, such public interest
measures must not be discriminatory, must be objectively
necessary and must be proportionate in relation to the objec-
tive being pursued. In particular, those grounds must apply to
all persons or undertakings pursuing an activity in the territory
of the host Member State. General financial interests which are
outside the scope of those grounds in Article 58 EC relating to
tax law, as well as other economic aims of the Member State
cannot, according to settled case-law,
justify any restriction
prohibited under the EC Treaty. By the standards of Article 56
EC and relevant case-law, the provisions of the aforementioned
VW-Gesetz constitute indirect
for
which there is no relevant justification under Community law.

restrictions on earnings

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 2 March 2005 in Hein-
rich Schulze GmbH & Co. KG i.L represented by the liqui-
dator, Ravensberger Honig GmbH v Hauptzollamt
Hamburg-Jonas

(Case C-120/05)

(2005/C 143/23)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg
(Hamburg Finance Court) (Germany) of 2 March 2005, received
at the Court Registry on 15 March 2005, for a preliminary
ruling in the proceedings between Heinrich Schulze GmbH &
Co. KG i.L represented by the liquidator, Ravensberger Honig
GmbH and Hauptzollamt Hamburg-Jonas, on the following
questions:

Can the documentary evidence provided for in the third sub-
paragraph of Article 7(1) of Commission Regulation (EC) No
1222/94 (1) of 30 May 1994 be disregarded and the exporter
permitted to adduce evidence as to the products actually used
in the manufacture of the exported goods by means of other
types of evidence if the exporter cannot (is no longer able to)
adduce the documents relating to production by reason of
force majeure?

Does the incidence of force majeure also lead to a reduction in
the standard of proof in the sense that the exporter merely has
to produce prima facie evidence of or plausibly demonstrate
the products actually used in the manufacture of the exported
goods?

(1) OJ L 136, p. 5.

Appeal brought on 15 March 2005 (fax: 11 March 2005)
by the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) against the judgment delivered
on 12 January 2005 by the Court of First Instance (Third
Chamber) in Case T-334/03 between Deutsche Post Euro
Express GmbH and the Office for Harmonisation in the
Internal Market.

(Case C-121/05 P)

(2005/C 143/24)

(Language of the case: German)

An appeal against the judgment delivered on 12 January 2005
by the Court of First Instance of the European Communities
in Case T-334/03 between Deutsche Post
(Third Chamber)
Euro Express GmbH and the Office for Harmonisation in the
Internal Market was brought before the Court of Justice of the
European Communities on 15 March 2005 (fax: 11 March
2005) by the Office for Harmonisation in the Internal Market,
represented by A. von Mühlendahl, Vice-President of the Office,
and G. Schneider, member of the litigation department in the
field of intellectual property.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance (Third
Chamber) of 12 January 2005 in Case T-334/03 (1) and
dismiss the application;

2. refer the case back to the Court of First Instance.