Federconsumatori and Others (C-463/04) and Associazione Azionariato Diffuso dell’AEM SpA and Others (C-464/04) v Comune di Milano.
Date: 2007-12-06
19. According to settled ca se-law, Article 56(1) EC lays down a general prohibition on restrictions on movements of capital between Member States (see, inter alia, Joined Cases C-282/04 and C-283/04 Commission  v Netherlands  [2006] ECR I‑9141, paragraph 18, and the case-law cited, and Case C-112/05 Commission  v Germany  [2007] ECR I-0000, paragraph 17).
20. In the absence of a definition in the EC Treaty of ‘movement of capital’ within the meaning of Article 56(1) EC, the Court has previously recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value. Movements of capital within the meaning of Article 56(1) EC therefore include direct investments, that is to say, as that nomenclature and the related explanatory notes show, investments of any kind undertaken by natural or legal persons and which serve to establish or maintain lasting and direct links between the person providing the capital and the undertaking to which that capital is made available in order to carry on an economic activity. As regards shareholdings in new or existing undertakings, as those explanatory notes confirm, the objective of establishing or maintaining lasting economic links presupposes that the shares held by the shareholder enable him, either pursuant to the provisions of the national laws relating to companies limited by shares, or in some other way, to participate effectively in the management of that company or in its control (see Commission  v Germany , paragraph 18, and the case-law cited).
21. Concerning that form of investment, the Court has stated that national measures must be regarded as ‘restrictions’ within the meaning of Article 56(1) EC if they are liable to prevent or limit the acquisition of shares in the undertakings concerned or to deter investors of other Member States from investing in their capital (see Commission  v Germany , paragraph 19, and the case-law cited).
23. Article 2449 enables public shareholders to participate in a more significant manner in the activity of the board of directors of a company limited by shares than their status as shareholders would normally allow (see, by analogy, Commission  v Germany , paragraph 62).
24. Those public shareholders thereby have an instrument which gives them the possibility of exercising influence which exceeds their levels of investment. As a corollary, the influence of the other shareholders may be reduced below a level commensurate with their own levels of investment (see Commission  v Germany , paragraph 64).
29. By giving public shareholders an instrument enabling them to restrict the possibility of the other shareholders participating in the company with a view to establishing or maintaining lasting and direct economic links with it such as to enable them to participate effectively in the management of that company or in its control, a national provision such as that at issue in the main proceedings is liable to deter direct investors from other Member States from investing in the company’s capital (see, to that effect, Commission  v Germany , paragraph 66).
39. The free movement of capital may be restricted, however, by national measures justified on the grounds set out in Article 58 EC or by overriding reasons in the general interest to the extent that there are no Community harmonising measures providing for measures necessary to ensure the protection of those interests (see Commission  v Germany , paragraph 72, and the case-law cited).
40. In the absence of such Community harmonisation, it is generally for the Member States to decide on the degree of protection which they wish to afford to such legitimate interests and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality, which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it ( Commission  v Germany , paragraph 73, and the case-law cited).
41. In that regard, it should be noted in particular that, according to the case-law of the Court, it is undeniable that, depending on the circumstances, certain concerns may justify the retention by Member States of a degree of influence within undertakings that were initially public and subsequently privatised, where those undertakings are active in fields involving the provision of services in the public interest or strategic services (Case C-463/00 Commission v Spain [2003] ECR I-4581, paragraph 66, and the case-law cited).