Staat der Nederlanden v Essent NV (C‑105/12), Essent Nederland BV (C‑105/12), Eneco Holding NV (C‑106/12) and Delta NV (C‑107/12).
Date: 2013-10-22
29. Article 345 TFEU is an expression of the principle of the neutrality of the Treaties in relation to the rules in Member States governing the system of property ownership.
30. In that regard, it is apparent from the Court’s case-law that the Treaties do not preclude, as a general rule, either the nationalisation of undertakings (see, to that effect, Case 6/64 Costa [1964] ECR 585, at 598) or their privatisation (see, to that effect, Case C‑244/11 Commission  v Greece [2012] ECR I‑0000, paragraph 17).
36. However, Article 345 TFEU does not mean that rules governing the system of property ownership current in the Member States are not subject to the fundamental rules of the FEU Treaty, which rules include, inter alia, the prohibition of discrimination, freedom of establishment and the free movement of capital (see, to that effect, Case 182/83 Fearon [1984] ECR 3677, paragraph 7; Case C‑302/97 Konle [1999] ECR I‑3099, paragraph 38; Case C‑452/01 Ospelt and Schlössle Weissenberg [2003] ECR I‑9743, paragraph 24; Case C‑171/08 Commission  v Portugal [2010] ECR I‑6817, paragraph 64; Case C‑271/09 Commission  v Poland [2011] ECR I‑0000, paragraph 44; and Commission  v Greece , paragraph 16).
37. Consequently, the fact that the Kingdom of the Netherlands has established, in the sector of electricity or gas distribution system operators active in its territory, a body of rules relating to public ownership covered by Article 345 TFEU does not mean that that Member State is free to disregard, in that sector, the rules relating to the free movement of capital (see, by analogy, Commission  v Poland , paragraph 44 and the case‑law cited).
39. In that regard, it should be noted that, according to settled case-law, Article 63(1) TFEU generally prohibits restrictions on movements of capital between Member States (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‑171/08 Commission  v Portugal , paragraph 48).
40. In the absence, in the FEU Treaty, of a definition of the concept of ‘movement of capital’ within the meaning of Article 63(1) TFEU, the Court has previously recognised as having indicative value the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the [EC] Treaty (OJ 1988 L 178, p. 5). The Court has therefore held that movements of capital within the meaning of Article 63(1) TFEU include in particular ‘direct’ investments, namely investments in the form of participation in an undertaking through the holding of shares which confers the possibility of effectively participating in its management and control, and ‘portfolio’ investments, namely investments in the form of the acquisition of shares 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 Commission  v Netherlands , paragraph 19, and Case C‑171/08 Commission  v Portugal , paragraph 49).
41. Concerning those two forms of investment, the Court has stated that national measures must be regarded as ‘impediments’ for the purposes 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 (see Case C‑367/98 Commission  v Portugal [2002] ECR I‑4731, paragraphs 45 and 46; Case C‑483/99 Commission  v France  [2002] ECR I‑4781, paragraph 40; Case C‑463/00 Commission  v Spain  [2003] ECR I‑4581, paragraphs 61 and 62; Case C‑98/01 Commission  v United Kingdom [2003] ECR I‑4641, paragraphs 47 and 49; Case C‑174/04 Commission  v Italy  [2005] ECR I‑4933, paragraphs 30 and 31; and Commission  v Netherlands , paragraph 20).
42. It is also apparent from the Court’s case-law that a provision of national law which imposes quantitative or qualitative restrictions on investments made in other Member States has a restrictive effect in relation to companies established in other Member States in that such a provision constitutes an obstacle to the raising, by such companies, of capital, since the acquisition of, inter alia, shares is restricted (see, to that effect, Commission  v Poland , paragraphs 51 and 52 and the case-law cited).
50. The Court of Justice has repeatedly held that the free movement of capital may be limited by national legislation only if it is justified by one of the reasons mentioned in Article 65 TFEU or by overriding reasons in the public interest within the meaning of the Court’s case-law (see the judgment of 14 February 2008 in Case C‑274/06 Commission  v Spain , paragraph 35, and Commission  v Poland , paragraph 55).
51. Moreover, according to settled case-law, grounds of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaties (Case C‑388/01 Commission  v Italy [2003] ECR I‑721, paragraph 22, and Case C‑109/04 Kranemann  [2005] ECR I‑2421, paragraph 34).
52. However, the Court has accepted that national legislation may constitute a justified restriction on a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest (see, to that effect, Case C‑141/07 Commission  v Germany [2008] ECR I‑6935, paragraph 60 and the case-law cited).
58. The objective of undistorted competition on those markets is also pursued by the FEU Treaty, the preamble to which underlines the need for concerted action in order to guarantee, inter alia, fair competition, the ultimate aim of that action being to protect consumers. According to the Court’s settled case‑law, consumer protection constitutes an overriding reason in the public interest (Case C‑260/04 Commission  v Italy [2007] ECR I‑7083, paragraph 27; Case C‑393/05 Commission  v Austria [2007] ECR I‑10195, paragraph 52; and Case C‑458/08 Commission  v Portugal [2010] ECR I‑11599, paragraph 89).
59. It must also be observed that the objective of guaranteeing adequate investment in the electricity and gas distribution systems is designed to ensure, inter alia, security of energy supply, an objective which the Court has also recognised as being an overriding reason in the public interest (Case 72/83 Campus Oil and Others  [1984] ECR 2727, paragraphs 34 and 35; Case C‑503/99 Commission  v Belgium [2002] ECR I‑4809, paragraph 46; and Case C‑174/04 Commission  v Italy , paragraph 40).
60. Last, as stated in paragraphs 18 and 20 of this judgment, the group prohibition and the prohibition of activities which may adversely affect system operation were introduced by the Law on independent system operation, which itself, inter alia amended the provisions of national law adopted in order to transpose the 2003 Directives into the Netherlands legal system. In particular, those prohibitions amended the provisions which were introduced in order to transpose Article 15 of Directive 2003/54 and Article 13 of Directive 2003/55.
61. It can be seen from recitals 4 to 8 and 10 in the preamble to Directive 2003/54 and recitals 4 and 6 to 10 in the preamble to Directive 2003/55 that those directives sought, inter alia, to establish an open and transparent market, non‑discriminatory and transparent access to the network of the distribution system operator, and a level playing field.
62. In particular, it is apparent from recital 8 of Directive 2003/54 and recital 10 of Directive 2003/55, first, that the Member States are to develop measures to achieve those objectives. Further, those recitals underline the wish of the European Union legislature that distribution system operators should have available to them effective decision‑making rights with respect to assets necessary to maintain, operate, and develop networks.
63. Moreover, recital 23 of Directive 2003/54 and recital 23 of Directive 2003/55 state that the construction and maintenance of the necessary network infrastructure are important elements in ensuring a stable and secure supply of electricity of electricity and gas.
64. It follows that, even if the group prohibition and the prohibition of activities which may adversely affect system operation were not imposed by those directives, the Kingdom of the Netherlands pursued, by introducing those measures, objectives sought by the 2003 Directives.
65. That finding is supported by Directives 2009/72 and 2009/73 which are designed, inter alia, to achieve the same objectives, as can be seen both from recitals 3, 4, 9 to 12, 15, 25 and 44 in the preamble to Directive 2009/72 and from recitals 3, 4, 6 to 13, 22 and 40 of Directive 2009/73. In particular, recitals 4, 9, 11, 15, 25, 26 and 44 of Directive 2009/72 and recitals 4, 6, 8, 12, 22, 25 and 40 in the preamble to Directive 2009/73 disclose the wish of the European Union legislature to ensure non‑discriminatory access to electricity or gas distribution systems and transparency in the markets, to prevent cross-subsidisation, to ensure adequate investment in the networks in order to guarantee the stable security of supply of electricity and gas and to prevent exchanges of confidential information between the system operators and the generation/production and supply undertakings.
67. However, it is also necessary that the restrictions at issue are appropriate to the objectives pursued and do not go beyond what is necessary to attain those objectives (Case C‑451/05 ELISA [2007] ECR I‑8251, paragraph 82, and Commission  v Poland , paragraph 58), which it is for the referring court to determine.