PRESS RELEASE No 06/03
6 February 2003
Opinion delivered by Advocate General Ruiz-Jarabo in Cases C-463/00 and C-98/01
Commission v Spain and Commission v United Kingdom
THE ADVOCATE GENERAL PROPOSES THAT THE COURT OF JUSTICE SHOULD DISMISS THE ACTION
AGAINST SPAIN IN THE "GOLDEN SHARES" CASES AND UPHOLD THE ACTION AGAINST THE
UNITED KINGDOM
Mr Ruiz-Jarabo calls on the Court to find in favour of Member States
retaining their ability to regulate systems of company ownership in so far as
those systems do not discriminate against nationals of other Member States
The Spanish rules. Law 5/1995 on the legal arrangements for disposal of public
shareholdings in certain undertakings lays down the rules for the privatisation of various
public-sector undertakings. That law and its implementing Royal Decrees have imposed on undertakings
like Repsol (petroleum and energy), Telefónica (telecommunications), Argentaria (banking), Tabacalera (tobacco) and Endesa
(electricity) a system of prior administrative approval, which applies to major company decisions
(winding-up, demerger, merger, change of company object, transfer of assets or share capital).
The United Kingdom rules. The Articles of Association of British Airports Authority plc
(BAA), the privatised company which owns the United Kingdom's international airports, create a
Special Share ("golden share") for the Government, whose consent is thus required for
certain operations by the company (winding-up, disposal of an airport). The Articles also
prevent any person from acquiring more than 15% of the voting shares in
the company's capital.
On 4 June 2002, following actions against Portugal, France and Belgium, the Court
of Justice delivered three judgments concerning the area known as "golden shares", in
which it stated that:
) a system of intervention which is based on prior administrative approval or rights
of veto is a restriction on the free movement of capital in so
far as it impedes the acquisition of shares in the undertakings concerned and
deters investors in other Member States. Failure to observe that freedom also entails
infringement of the freedom of establishment; and
) such restrictions are permitted if they do not discriminate on grounds of nationality,
respond to requirements relating to the general interest and are proportionate to the
aim pursued (and therefore must be adopted ex post facto, must be based
on objective and precise criteria, made known in advance to those concerned and
be subject to review by the courts). The Court found that only the
Belgian rules met those requirements.
Advocate General Ruiz-Jarabo is today delivering his Opinion in the Spanish and United
Kingdom cases.
The Advocate General's Opinion is not binding upon the Court of Justice. His role is, to propose to the Court, acting with complete independence, a decision on the legal points in order that the cases referred to it may be resolved. |
Mr Ruiz-Jarabo refers to the Treaty rule which provides that the Treaty in
no way prejudices the rules in Member States governing the system of property
ownership and calls on the Court to reconsider how that rule applies to
schemes creating special shares for the State. In this way the public authorities
can impose specific economic-policy objectives other than the pursuit of the greatest financial
gain which is characteristic of private business. Therefore, a national measure concerning the
public sector system for adopting decisions must be deemed compatible with the Treaty,
unless it is proved that it is being used in an unjustifiably discriminatory
manner.
Commission v Spain. Mr Ruiz-Jarabo considers that there are many similarities between the
Spanish and Belgian rules:
) the Spanish rules also pursue overriding requirements relating to the general interest, such
as concern for security of supply, economic and social stability and protection of
consumers' interest; and
The differences between the two sets of rules are as follows:
) the Spanish rules cover a wider range of matters, although this does not
affect the objectivity or precision of the criteria to which approval is subject;
The Advocate General considers that the potential restrictions on the free movement of
capital provided for by the Spanish rules are justified and proportionate to the
objective which they pursue. Mr Ruiz-Jarabo therefore expresses the view that the Commission's
action against Spain should be dismissed.
Note : The judges of the Court of Justice now begin their deliberation in
this case. The judgment will be delivered at a later date.
Available in English, French, German, Italian and Spanish. For the full text of the Opinion, please consult our internet page www.curia.eu.int at approximately 3 pm today. For further information, please contact Christopher Fretwell: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731. |
) Cases C-367/98, C-483/99 and C-503/99. See press release No 49/02. All the documents are available on the Court of Justice's web-site at www.curia.eu.int . |