Case C-338/06: Judgment of the Court (First Chamber) of 18 December 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Second Directive 77/91/EEC — Articles 29 and 42 — Public limited liability companies — Capital increase — Right to pre-emptive subscription for shares and for bonds convertible into shares — Withdrawal — Protection of shareholders — Equal treatment)
Date: 2008-12-18
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, company law, protection of shareholders, public limited company, share capital

C 44/4

EN

Official Journal of the European Union

21.2.2009

Judgment of the Court (First Chamber) of 18 December
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-338/06) (1)

(Failure of a Member State to fulfil obligations — Second
Directive 77/91/EEC — Articles 29 and 42 — Public limited
to
liability
pre-emptive subscription for shares and for bonds convertible
into shares — Withdrawal — Protection of shareholders —
Equal treatment)

companies — Capital

increase — Right

(2009/C 44/05)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Braun and R. Vidal Puig, Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno,
Agent)

Interveners in support of the defendant: Republic of Poland (repre-
sented by: E. Ośniecka-Tamecka, Agent), Republic of Finland
(represented by: J. Heliskoski, Agent), United Kingdom of Great
Britain and Northern Ireland (represented by: V. Jackson, Agent,
assisted by J. Stratford, Barrister)

Re:

Failure by a Member State to fulfil obligations — Infringement
of Articles 29 and 42 of Second Council Directive 77/91/EEC
of 13 December 1976 on coordination of safeguards which, for
the interests of members and others, are
the protection of
required by Member States of companies within the meaning of
the second paragraph of Article 58 of the Treaty, in respect of
the formation of public limited liability companies and the
maintenance and alteration of
their capital, with a view to
making such safeguards equivalent (OJ 1977 L 26, p. 1) —
Failure to protect minority shareholders

Operative part of the judgment

The Court:

1) Declares that the Kingdom of Spain:

— by granting the right to pre-emptive subscription of shares in
the event of a capital
increase by consideration in cash, not
only to shareholders, but also to holders of bonds convertible
into shares;

— by granting the right to pre-emptive subscription rights for
bonds convertible into shares not only to shareholders, but also
to holders of bonds convertible into shares pertaining to earlier
issues; and

— by failing to provide that the shareholders' meeting may decide
to withdraw pre-emptive subscription rights for bonds conver-
tible into shares;

has failed to fulfil
its obligations under Article 29 of Second
Council Directive 77/91/EEC of 13 December 1976 on coordina-
tion of safeguards which,
the interests of
members and others, are required by Member States of companies
within the meaning of the second paragraph of Article [48] of the

for the protection of

Treaty, in respect of the formation of public limited liability compa-
nies and the maintenance and alteration of their capital, with a
view to making such safeguards equivalent;

2) Dismisses the action as to the remainder;

3) Orders the Kingdom of Spain to pay three quarters of all the costs.
The Commission of the European Communities is ordered to pay a
quarter of the costs;

4) Orders the Republic of Poland, the Republic of Finland and the
United Kingdom of Great Britain and Northern Ireland to bear
their own costs.

(1) OJ C 261, 28.10.2006.

Judgment of the Court (Third Chamber) of 22 December
2008 — British Aggregates Association v Commission of
the European Communities, United Kingdom of Great
Britain and Northern Ireland

(Case C-487/06 P) (1)

(Appeal — State aid — Environmental levy on aggregates in
the United Kingdom)

(2009/C 44/06)

Language of the case: English

Parties

Appellant: British Aggregates Association (represented by:
C. Pouncey, Solicitor, and L. Van den Hende, advocaat)

(represented by:

Other parties to the proceedings: Commission of the European
Communities
J. Flett, B. Martenczuk and
T. Scharf, Agents); United Kingdom of Great Britain and
Northern Ireland (represented by: T. Harris, M. Hall and
G. Facenna, Agents)

Re:

Extended Composition)

the Court of First
Appeal brought against the judgment of
Instance
of
(Second Chamber,
13 September 2006 in Case T-210/02 British Aggregates Associa-
tion v Commission, by which the Court of First Instance rejected
the partial annulment of
as unfounded an application for
Commission Decision C(2002) 1478 final of 24 April 2002 not
to raise objections to the system of levies on quarry aggregates
in the United Kingdom (State aid 863/01 — United Kingdom,
Aggregates Levy)

Operative part of the judgment

The Court (Third Chamber):

1. Sets aside the judgment delivered by the Court of First Instance of
the European Communities on 13 September 2006 in Case
T-210/02 British Aggregates Association v Commission;