Case C-93/05: 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
Date: 2005-06-11
Institutions: Court of Justice
Subjects: interpretation of the law, remuneration of work, road transport, transport staff

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.