Case C-543/08: Action brought on 4 December 2008 — Commission of the European Communities v Portuguese Republic
Date: 2008-12-04
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, capital increase, merger, public service, right to vote, shareholder

24.1.2009

EN

Official Journal of the European Union

C 19/21

Pleas in law and main arguments

Action brought on 2 December 2008 — Commission of
the European Communities v Portuguese Republic

The period within which the directive had to be transposed
expired on 15 July 2007.

(1) OJ L 310, p. 28.

(Case C-531/08)

(2009/C 19/39)

Language of the case: Portuguese

Action brought on 2 December 2008 — Commission of
the European Communities v Republic of Hungary

(Case C-530/08)

(2009/C 19/38)

Language of the case: Hungarian

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by P. Guerra e Andrade and P. Demjek, Agents)

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2005/56/EC (1) of the European Parliament and of
the Council of 26 October 2005 on cross-border mergers of
in any case, by failing to
limited liability companies or,
communicate such provisions to the Commission, the Portu-
guese Republic has failed to fulfil its obligations under that
directive;

— an order that the Portuguese Republic should pay the costs.

Applicant(s): Commission of the European Communities (repre-
sented by: H. Støvlbaek and B. Béres, acting as Agent(s))

Pleas in law and main arguments

Defendant(s): Republic of Hungary

The period prescribed for the transposition of the Directive
expired on 15 December 2007.

Form of order sought

(1) OJ 2005 L 310, p. 1.

— Declare that by failing to adopt the laws, regulations and
administrative provisions necessary to implement Directive
2005/36/EC of the European Parliament and of the Council
of 7 September 2005 on the recognition of professional
qualifications (1) or, at least, by failing to communicate those
provisions to the Commission, the Republic of Hungary has
failed to fulfil its obligations under that directive.

— order the Republic of Hungary to pay the costs.

Action brought on 4 December 2008 — Commission of
the European Communities v Portuguese Republic

(Case C-543/08)

(2009/C 19/40)

Pleas in law and main arguments

Language of the case: Portuguese

The period prescribed for
2005/36/EC expired on 20 October 2007.

the implementation of Directive

Parties

(1) OJ 2005 L 255, p. 22.

Applicant: Commission of the European Communities (repre-
sented by G. Braun, P. Guerra e Andrade and M. Teles Romão,
Agents)

Defendant: Portuguese Republic

C 19/22

EN

Official Journal of the European Union

24.1.2009

Form of order sought

— a declaration that, by maintaining the State's special rights in
the EDP — Energias de Portugal, granted in connection with
the State's golden shares, the Portuguese Republic has failed
to fulfil its obligations under Articles 56 EC and 43 EC;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The EDP's articles of association provide for one vote for every
share, but do not take into consideration the votes attaching to
ordinary shares not held by the State cast by a shareholder
exceeding 5 % of all votes corresponding to share capital.

Under the Portuguese legislation, the State has special rights in
the EDP regardless of the number of shares it holds. Those
special rights are, in particular, the right to veto resolutions of
the general meeting relating to changes to the memorandum
and articles of association (including decisions to increase
capital, and merger, demerger and winding-up decisions), to the
conclusion of joint contracts relating to groups or subsidiaries
and to the abolition or limitation of the preferential subscription
right of shareholders on an increase of capital.

The State also has the special right to appoint an administrator
when it has voted against the choice of administrators proposed
and approved.

to a restriction of

The Commission believes that both the limiting of votes and the
special rights amount
the movement of
capital and of freedom of establishment. Those measures consti-
tute an obstacle to direct investment in the EDP, an obstacle to
portfolio investment and an obstacle to the exercise of freedom
of establishment.

Those special rights of the State constitute State measures, for
the golden shares do not stem from the normal application of
company law.

The limiting of votes, in the circumstances in which it was intro-
duced, also amounts to a State measure.

Those golden shares and the limiting of votes do not respond to
legitimate objectives in the common interest or, in particular, to
those pleaded by the Portuguese State, namely, public safety and
security of supply and the concession of a public service.

In any case, the Portuguese State has failed to observe the prin-
ciple of proportionality, for the measures in question are not
apt to ensure the attainment of the objectives pursued and they
go beyond what is necessary in order to achieve them.