Idryma Typou AE v Ypourgos Typou kai Meson Mazikis Enimerosis.
Date: 2010-10-21
31. However, the fact that a national court has, formally speaking, worded the question referred for a preliminary ruling with reference to certain provisions of European Union law does not preclude the Court from providing to the national court all the guidance on points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to the points in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of European Union law which require interpretation, having regard to the subject-matter of the dispute (see Case C‑115/08 ČEZ  [2009] ECR I‑10265, paragraph 81).
35. It should, however, be recalled that, as is apparent from settled case-law, the procedure laid down in Article 267 TFEU is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered only to rule on the interpretation or the validity of the acts of European Union law referred to in that article. In that context, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court’s interpretation of them is correct (see Case C-220/05 Auroux and Others  [2007] ECR I-385, paragraph 25).
47. Provisions of national law which apply to the possession by nationals of one Member State of holdings in the capital of a company established in another Member State allowing them to exert a definite influence on the company’s decisions and to determine its activities fall within the ambit ratione materiae  of Article 49 TFEU on freedom of establishment (see to this effect, in particular, Case C‑251/98 Baars [2000] ECR I‑2787, paragraph 22; Case C‑112/05 Commission  v Germany [2007] ECR I‑8995, paragraph 13; and Case C‑326/07 Commission  v Italy  [2009] ECR I‑2291, paragraph 34).
48. Article 63 TFEU on the free movement of capital covers in particular direct investments in the form of participation in an undertaking through the holding of shares which confers the possibility of participating effectively in its management and control, and also portfolio investments, that is to say, the acquisition of securities on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (see, to this effect, Case C-182/08 Glaxo Wellcome  [2009] ECR I‑8591, paragraph 40).
49. National legislation not intended to apply only to those shareholdings which enable the holder to have a definite influence on a company’s decisions and to determine its activities but which applies irrespective of the size of the holding which the shareholder has in a company may fall within the ambit of both Article 49 TFEU and Article 63 TFEU (see Case C‑326/07 Commission  v Italy , paragraph 36).
51. Depending on the manner in which the remainder of a company’s capital is distributed, in particular if it is spread among a large number of shareholders, a holding of 25% may be sufficient to have control of a company or at least to exert a definite influence on the company’s decisions and determine its activities for the purposes of the case-law established in Baars  set out in paragraph 47 of the present judgment (see, to this effect, Case C‑326/07 Commission  v Italy , paragraph 38). The Greek legislation can therefore fall within the scope of Article 49 TFEU.
54. It is settled case-law that the term ‘restriction’ within the meaning of Article 49 TFEU covers measures which prohibit or impede the exercise of freedom of establishment or render it less attractive (Case C-518/06 Commission  v Italy  [2009] ECR I‑3491, paragraph 62).
55. Also, national measures must be regarded as ‘restrictions’ within the meaning of Article 63(1) TFEU 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 ( Commission  v Germany , paragraph 19).
62. A restriction on freedom of establishment and the free movement of capital can be accepted where it serves overriding requirements in the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (for freedom of establishment, see, to this effect, Case C-518/06 Commission  v Italy , paragraph 72, and for the free movement of capital, see, to this effect, Commission  v Germany , paragraphs 72 and 73).
69. Furthermore, to assume that all the shareholders of a public limited company are engaged professionally in the sector within which the company objects fall is the very negation of the free movement of capital, which applies inter alia to portfolio investments, that is to say, the acquisition of securities on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (Joined Cases C-282/04 and C-283/04 Commission  v Netherlands  [2006] ECR I‑9141, paragraph 19). It is precisely this type of investment that investors from other Member States who are seeking to diversify their investments would be liable to make.