CELEX: C2001/134/13
Language: en
Date: 2001-05-05 00:00:00
Title: Case C-98/01: Action brought on 27 February 2001 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

5.5.2001               EN                    Official Journal of the European Communities                                           C 134/9
     iii)  By assimilating the position of the existing four            Pleas in law and main arguments
           global CRS operators with all other operators active
           on the relevant market such as system vendors,               Article 40 of BAA’s Articles, which prevents any person from
           airlines or subscribers and in so doing failed to apply      controlling more than 15 % of the company, restricts portfolio
           the case law of the Court of Justice and, in particular
                                                                        investment, and restricts direct investment and, by the same
           the Court’s decision in Bock and Piraiki-Patraiki.           token, establishment: such restrictions fall under Articles 56
                                                                        and 43 of the EC Treaty. While the restriction is not explicitly
b)   In finding that exceptional economic circumstances do              of a discriminatory nature, such a restriction, liable to hinder
     not mean that the Appellants are individually concerned            the exercise of these freedoms, must be justified by ‘imperative
     by the contested measure the Court of First Instance erred         requirements in the general interest’ and be necessary and
     as a matter of law:                                                appropriate for these requirements.
     i)    By failing to apply the principles laid down in the          The UK authorities have failed to demonstrate the imperative
           judgments of the Court of First Instance in Codorniu         requirements of general interest which are to be protected by
           v. Council and Extrament Industrie v. Council and            the rights attached to the Special share and by the 15 % equity
           subsequently applied by the Court of First Instance          limit and, thus, a fortiori, their proportionality, and it therefore
           and the Court of Justice and/or failing to distinguish       must be concluded that the restrictions on the free movement
           those cases adequately or at all.                            of capital and on establishment created thereby are in violation
                                                                        of the obligations of the Member State under Articles 43 and
     ii)   By failing to take account of the decision of the            56 of the Treaty.
           Court of First Instance in Case T-60/96, Merck and
           others.                                                      A breach of the Treaty may occur upon the introduction by a
                                                                        Member State of restrictions on establishment or capital
                                                                        movements, by whatever means. In relation to BAA the
(1) OJ C 226, 7.8.1999, p. 34.                                          measures introduced by mechanisms of company law were
                                                                        introduced by the State in its capacity as public authority and
                                                                        are clearly intended to remain thus since Article 10(1) of BAA’s
                                                                        Articles only allows the Special share to be transferred to ‘one
                                                                        of Her Majesty’s Secretaries of State, another Minister of the
                                                                        Crown or any other person acting on behalf of the Crown’.
                                                                        Consequently, and in order in particular to uphold the
                                                                        uniformity and supremacy of Community law, the adoption
                                                                        by a Member State of the mechanisms of private company law
                                                                        to introduce restrictions on Treaty freedoms can in no way
Action brought on 27 February 2001 by the Commission                    avoid the examination of the compatibility of such restrictions
of the European Communities against the United                          with the Treaty.
      Kingdom of Great Britain and Northern Ireland
                                                                        After such examination the Commission has reached the
                          (Case C-98/01)                                conclusion that the restrictions contained in Articles 10 and
                                                                        40 of the Articles of Association of BAA are incompatible
                                                                        with the provisions of Articles 43 and 56 of the Treaty on the
                         (2001/C 134/13)                                freedoms of establishment and capital movements.
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 27 February 2001 by the
Commission of the European Communities, represented by
Mr Frank Benyon and Ms Maria Patakia, acting as agents, with
an address for service in Luxembourg.
                                                                        Reference for a preliminary ruling made by the House of
                                                                        Lords by order of that court of 8 February 2001, in the
The Applicant claims that the Court should:                             case of 1) Consorzio del Prosciutto Di Parma 2) Salumi-
                                                                        ficio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hy-
a)   declare that the provisions setting a limitation on interests                            grade Foods Limited
     in voting shares in the BAA plc company (Article 40 of
     the Articles of Association), as well as the authorisation                                  (Case C-108/01)
     procedure on the disposal of assets of the company or
     control in subsidiaries and winding-up (Article 10 of the
     Articles of Association) are incompatible with Articles 43                                  (2001/C 134/14)
     and 56 of the EC Treaty;
                                                                        Reference has been made to the Court of Justice of the
b)   order the United Kingdom to pay the costs.                         European Communities by an order of the House of Lords, of