CELEX: C2002/169/06
Language: en
Date: 2002-07-13 00:00:00
Title: Judgment of the Court 4 June 2002 in Case C-503/99: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Articles 52 of the EC Treaty (now, after amendment, Article 43 EC) and 73b of the EC Treaty (now Article 56 EC) — Rights attaching to the "golden shares" held by the Kingdom of Belgium in Société nationale de transport par canalisations SA and in Société de distribution du gaz SA)

C 169/4                  EN                       Official Journal of the European Communities                                          13.7.2002
(b) the right to oppose any decision to transfer or use as                                    JUDGMENT OF THE COURT
      security the assets listed in the annex to the Decree — the
      assets in question being the majority of the capital of four
      subsidiaries of the parent company, namely Elf-Aquitaine
      Production, Elf-Antar France, Elf-Gabon SA and Elf-                                                4 June 2002
      Congo SA (Article 2(3) of the Decree),
                                                                             in Case C-503/99: Commission of the European Communi-
and by failing to lay down sufficiently precise and objective                                 ties v Kingdom of Belgium (1)
criteria for approval of, or opposition to, the abovementioned
operations, the French Republic has failed to comply with its
obligations under Articles 52 (now, after amendment,
                                                                             (Failure by a Member State to fulfil its obligations —
Article 43 EC) to Article 58 of the EC Treaty (now Article 48
                                                                             Articles 52 of the EC Treaty (now, after amendment,
EC) and Article 73b of the EC Treaty (now Article 56 EC), the
                                                                             Article 43 EC) and 73b of the EC Treaty (now Article 56
Court, composed of: G.C. Rodrı́guez Iglesias, President, P. Jann
                                                                             EC) — Rights attaching to the ‘golden shares’ held by the
(Rapporteur), N. Colneric and S. von Bahr (Presidents of
                                                                             Kingdom of Belgium in Société nationale de transport par
Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, J.-
                                                                              canalisations SA and in Société de distribution du gaz SA)
P. Puissochet, R. Schintgen, V. Skouris and J.N. Cunha Rodrigu-
es, Judges; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 4 June 2002, in which it:
                                                                                                       (2002/C 169/06)
1.    Declares that, by maintaining in force Article 2(1) and (3) of
      Decree No 93-1298 of 13 December 1993 vesting in the                                       (Language of the case: French)
      State a ‘golden share’ in Société Nationale Elf-Aquitaine,
      according to which the following rights attach to the ‘golden
      share’ held by the French Republic in that company:                    (Provisional translation; the definitive translation will be published
                                                                                                in the European Court Reports)
      (a)   any direct or indirect shareholding by a natural or legal
            person, acting alone or in conjunction with others, which
            exceeds the ceiling of one tenth, one fifth or one third of
            the capital of, or voting rights in, the company must first
            be approved by the Minister for Economic Affairs;                In Case C-503/99, Commission of the European Communities
                                                                             (Agent: M. Patakia) v Kingdom of Belgium (Agent: A. Snoecx,
                                                                             assisted by F. de Montpellier, M. Picat and A. Theissen),
      (b) the right to oppose any decision to transfer or use as             supported by United Kingdom of Great Britain and Northern
            security the assets listed in the annex to the Decree — the      Ireland (Agent: R. Magrill, assisted by J. Crow, barrister,
            assets in question being the majority of the capital of          and D. Wyatt, QC): Application for a declaration that, by
            four subsidiaries of that company, namely Elf-Aquitaine          maintaining in force
            Production, Elf-Antar France, Elf-Gabon SA and Elf-
            Congo SA,
                                                                             —     the provisions of the Royal Decree of 10 June 1994
                                                                                   vesting in the State a ‘golden share’ in Société nationale
      the French Republic has failed to comply with its obligations                de transport par canalisations (Moniteur belge of 28 June
      under Article 73b of the EC Treaty (now Article 56 EC);                      1994, p. 17333), which carries the following rights:
                                                                                   a)   advance notice of any transfer, use as security or
2.    Orders the French Republic to pay the costs;                                      change in the intended destination of the company’s
                                                                                        system of lines and conduits which are used or are
                                                                                        capable of being used as major infrastructures for
3.    Orders the Kingdom of Spain and the United Kingdom of                             the domestic conveyance of energy products must
      Great Britain and Northern Ireland to bear their own costs.                       be given to the Minister responsible, who shall be
                                                                                        entitled to oppose such operations if he considers
                                                                                        that they adversely affect the national interest in the
                                                                                         energy sector;
(1) OJ C 79 of 18.3.2000.
                                                                                   b)    the Minister may appoint two representatives of the
                                                                                         Federal Government to the board of directors of the
                                                                                         company. Those representatives may propose to the
                                                                                         Minister the annulment of any decision of the board
 ---pagebreak--- 13.7.2002                EN                    Official Journal of the European Communities                                             C 169/5
            of directors which they regard as contrary to the                               JUDGMENT OF THE COURT
            guidelines for the country’s energy policy, including
            the Government’s objectives concerning the coun-                                       (Second Chamber)
            try’s energy supply;
                                                                                                       16 May 2002
—     the provisions of the Royal Decree of 16 June 1994
      vesting in the State a ‘golden share’ in Distrigaz (Moniteur        in Case C-508/99 (Reference for a preliminary ruling
      belge of 28 June 1994, p. 17347), which carries the                 from the Verwaltungsgerichtshof): Palais am Stadtpark
      following rights:                                                   Hotelbetriebsgesellschaft mbH & Co. KG v Finanzlandes-
                                                                           direktion für Wien, Niederösterreich und Burgenland (1)
      a)    advance notice of any transfer, use as security or            (Raising of capital — Directive 69/335/EEC — Scope of
            change in the company’s strategic assets must be              application — Limited partnership — Assignment of limited
            given to the Minister responsible, who shall be               partner’s share to a company with limited liability — Levy,
            entitled to oppose such operations if he considers            after the assignment and the entry into force of the directive,
            that they adversely affect the national interest in the       of duty directly proportional to the amount of the contri-
            energy field;                                                                                 bution)
                                                                                                     (2002/C 169/07)
      b)    the Minister may appoint two representatives of the
            Federal Government to the board of directors of the                               (Language of the case: German)
            company. Those representatives may propose to the
            Minister the annulment of any decision of the board
                                                                          (Provisional translation; the definitive translation will be published
            of directors or of the management committee which
                                                                                              in the European Court Reports)
            they regard as contrary to the guidelines for the
            country’s energy policy,
                                                                          In Case C-508/99: Reference to the Court under Article 234
and by failing to lay down precise, objective and stable criteria         EC by the Verwaltungsgerichtshof (Austria) for a preliminary
for approval of, or opposition to, the operations referred to             ruling in the proceedings pending before that court between
above, the Kingdom of Belgium has failed to comply with its               Palais am Stadtpark Hotelbetriebsgesellschaft mbH & Co. KG
obligations under Articles 52 of the EC Treaty (now, after                and Finanzlandesdirektion für Wien, Niederösterreich und
amendment, Article 43 EC) and 73b of the EC Treaty (now                   Burgenland, on the interpretation of Council Directive 69/
Article 56 EC), the Court, composed of: G.C. Rodrı́guez                   335/EEC of 17 July 1969 concerning indirect taxes on the
Iglesias, President, P. Jann (Rapporteur), N. Colneric and S. von         raising of capital (OJ, English Special Edition 1969 (II), p. 412)
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,                 as amended by the Act concerning the conditions of accession
A. La Pergola, J.-P. Puissochet, R. Schintgen, V. Skouris                 of the Kingdom of Norway, the Republic of Austria, the
and J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer,                 Republic of Finland and the Kingdom of Sweden and the
Advocate General; H.A. Rühl, Principal Administrator, for the             adjustments to the Treaties on which the European Union is
Registrar, has given a judgment on 4 June 2002, in which it:              founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the
                                                                          Court (Second Chamber), composed of: N. Colneric, President
                                                                          of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
                                                                          Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
1.    Dismisses the application;                                          given a judgment on 16 May 2002, in which it has ruled:
                                                                          The provisions of Council Directive 69/335/EEC of 17 July 1969
2.    Orders the Commission of the European Communities to pay            concerning indirect taxes on the raising of capital, as amended by the
      the costs;                                                          Act concerning the conditions of Accession of the Kingdom of
                                                                          Norway, the Republic of Austria, the Republic of Finland and the
                                                                          Kingdom of Sweden and the adjustments to the Treaties on which the
                                                                          European Union is founded must be interpreted as not precluding the
3.    Orders the United Kingdom of Great Britain and Northern             levy of capital duty upon the conversion of a partnership into a capital
      Ireland to bear its own costs.                                      company within the meaning of that directive, where, before the entry
                                                                          into force of that directive, a duty such as that provided for in
                                                                          Paragraph 33, item 16(1), point 1(b), of the Gebührengesetz has
                                                                          already been levied on all the capital contributions made for the
(1) OJ C 79 of 18.3.2000.                                                 acquisition of shares in the partnership.
                                                                          (1) OJ C 79 of 18.3.2000.