PART THREE, TITLE III, Chapter 2, Art. 43 to 48. The current, consolidated text of the Treaty can be downloaded under http://europa.eu.int/eur-lex/de/search/search_treaties.html.Google Scholar

PART THREE, TITLE I, Art. 23 (duties on import and export and charges having equivalent effect), Art. 28 to 30 (quantitative restrictions and measures having equivalent effect).Google Scholar

PART THREE, TITLE III, Chapter 1, Art. 39.Google Scholar

PART THREE, TITLE III, Chapter 2 Art. 49 to 55.Google Scholar

PART THREE, TITLE III, Chapter 4, Art. 56 to 58.Google Scholar

ECJ Case 8/74: Dassonville [1974] ECR 873.Google Scholar

ECJ Case 26/62: van Gend en Loos [1963] ECR 1.Google Scholar

Since ECJ Case 26/62: van Gend en Loos [1963] ECR 1 (duties on import and export and charges having equivalent effect) gradually established for all fundamental freedoms. See: ECJ Case 13/68: Salgoil [1968] ECR 453 (free movement of goods, quantitative restrictions and measures having equivalent effect), ECJ Case 41/74: van Duyn [1974] ECR 1337 (free movement of persons), ECJ Case 2/74: Reyners [1974] ECR 631 (freedom of establishment), ECJ Case 33/74: van Binsbergen [1974] ECR 1299 (free movement of services) and ECJ Cases C-163/94, C-165/94 and C-250/94: Sanz de Lera [1995] ECR I-4830 (free movement of capital).Google Scholar

ECJ Cases C-46/93 and 48/93 Brasserie du Pěcheur/Factortame [1996] ECR I-1029 (liability for national legislation that was incompatible with free movement of goods and of services, respectively). In this judgment, the European Court of Justice applied to a violation of the Treaty the principles it had developed with respect to the failure to implement a Directive into national law in ECJ Cases C-6 & C-9/90: Francovich [1991] ECR I-5357. For an account of the struggle between the European Court of Justice and national constitutional courts over this issue see HARTLEY, The Foundations of European Community Law, 4th ed. (Oxford, 1998), pp. 187 et seq.Google Scholar

ECJ Case C-55/94: Gebhard [1995] ECR I-4165. For a critical discussion of this decision and the transformation of prohibitions on unjustified discrimination into prohibitions on unjustified non-discriminatory restrictions see EVERLING, Liber Amicorum (Gedächtnisschrift) Knobbe-Keuk (Cologne, 1997), pp. 607 et seq.Google Scholar

ECJ Case 8/74: Dassonville [1974] ECR 873 and ECJ Case 120/78: Cassis de Dijon [1979] ECR 649, as qualified by ECJ Cases C-267/268/91: Keck and Mithouard [1993] ECR I-6097. With respect to the distinction between regulations on products and regulations on selling arrangements see ECJ Case C-315/92: Clinique [1994] ECR I-317.Google Scholar

ECJ Case C-415/93: Bosman [1995] ECR I-4921.Google Scholar

ECJ Case 33/74: van Binsbergen [1974] ECR 1299; ECJ Case 279/80: Webb [1981] ECR 3305.Google Scholar

ECJ Case C-148/91: Veronica [1993] ECR I-513 and now the three \“golden share\” judgements ECJ Case C-367/98: Commission vs. Portugal, case C-483/99: Commission vs. France; C-503/99: Commission vs. Belgium; these judgments can be downloaded under http://curia.eu.int/en/jurisp/index.htm. See also GRUNDMANN, Zeitschrift für Schweizerisches Recht 1996, pp. 103, 105 et seq., MÜLBERT, Wertpapiermitteilungen (WM) 2001, pp. 2085, 2088 et seq.Google Scholar

Case C-367/98: Commission vs. Portugal, case C-483/88: Commission vs. France; case C-503/99: Commission vs. Belgium; these judgments can be downloaded under the URL in footnote 14.Google Scholar

Art. 56 para. 1 of the Treaty.Google Scholar

Case C-367/98: Commission vs. Portugal, para. 40Google Scholar

Case C-367/98: Commission vs. Portugal, para. 49; case C-483/88: Commission vs. France; C-503/99, para. 45; case C-503/99: Commission vs. Belgium, para. 45.Google Scholar

Case C-367/98: Commission vs. Portugal, para. 52Google Scholar

Case C-483/99: Commission vs. France, para. 49 et seq.Google Scholar

Case C-483/99: Commission vs. France, para. 49 et seq.Google Scholar

Cf., for example, the comments on the Opinion of Advocate General COLOMER (footnote 23) by JENNEN, KLAU and THIELE under www.legal500.com/devs/germany/eu/deeu_005.htm.Google Scholar

Opinion of Advocate General COLOMER on cases C-367/98, C-483/99 and C-503/99 (\“Golden Shares\”) delivered on July 3, 2001; this document can be downloaded under http://curia.eu.int/en/jurisp/index.htm.Google Scholar

With respect to the concept of a market for corporate control, which derives, in its modern form, from MANNE, Mergers and the Market for Corporate Control, 73 J.Pol.Econ. 110 (1965), see EASTERBROOK/FISCHEL, Corporate Control Transactions, 91 Yale L.J. 689 (1982); EASTERBROOK/FISCHEL, The Economic Structure of Corporate Law (1991), S. 109ff.; POSNER, Economic Analysis of Law, (4th ed., 1992), S. 412ff; ROMANO in: HOPT/WYMEERSCH (eds.), European Takeovers, Law and Practice (1992), pp. 3 et seq. and ROMANO, Foundations of Corporate Law, (New York, 1993), pp. 1993 et seq. For the application of this theory to the law pertaining to corporate control transactions in Germany see REUL, Die Pflicht zur Gleichbehandlung der Aktionäre bei privaten Kontrolltransaktionen (Tübingen, 1990), pp. 102 et seq.; BAUMS, Zeitschrift für Wirtschaftsrecht (ZIP) 1989, 1376f; HOPT, Zeitschrift für Unternehmens- und Gesellschaftsrecht (ZGR) 1993, 534, 544f; HOPT, Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht (ZHR) 161 (1997), pp. 368, 370 et seq.Google Scholar

See the Commission\'s Action Plan of May 11, 1999: \“Implementing the Framework for the Financial Markets\”, COM(1999)232; this document and the Progress Reports pertaining to it are available under http://europa.eu.int/comm/internal_market/en/finances/actionplan/index.htm. The Action Plan has been explicitly endorsed by a number of European Councils, including the recent Seville Council, see Presidency Conclusions Seville European Council 21 and 22 June 2002, para. 49: \“The European Council ….reaffirms its commitment to the timely and full implementation of the Financial Services Action Plan.\” This document is available under http://europa.eu.int/comm/seville_council/index_en.html. The dynamics of the integration process can be expected to be accelerated considerably as a consequence of the endorsement of the suggestions made by the LAMFALUSSY group of wise men of February 2001 (Final Report available under http://europa.eu.int/comm/internal_market/en/finances/general/lamfalussyen.pdf) by the Stockholm European Council in March 2001 and by the European Parliament in February 2002 (see for an account of these events: http://europa.eu.int/comm/internal_market/de/finances/general/02-195.htm); for a discussion of the compatibility of this group\'s suggestions with the system of institutional checks and balances under the Treaty see: LANGENBUCHER, Zeitschrift für Europäisches Privatrecht [ZEuP] 2002, pp. 265 et seq.). Arguably, the effort to integrate the European financial markets is, after harmonization of company law has suffered a number of serious setbacks (see HOPT, Zeitschrift für Wirtschaftsrecht [ZIP] 1998, pp. 96 et seq.), in the process of becoming the major force in the pursuit of common European governance structures determining the way economic resources are put to use by (publicly listed) corporations in the Member States of the EU, cf. HOPT, Europäisches Kapitalmarktrecht - Rückblick und Ausblick, in GRUNDMANN (ed.): Systembildung und Systemlücken in Kerngebieten des Europäischen Privatrechts, pp. 307 et seq.; WYMEERSCH, Report for the 1st European Jurist Forum (Baden-Baden, 2001), pp. 110 et seq.; HELLWIG, EWS 2001 pp., 580 et seq.; MÜLBERT, Wertpapiermitteilungen (WM) 2001, pp. 2085 et seq.Google Scholar

This article does not address the new Takeover Act (Wertpapiererwerbs- und Übernahmegesetz) which Germany has adopted subsequent to the failure of the European Takeover Directive and which it will have to revise if a second attempt to adopt a European Takeover Directive should succeed. For a review of the new regulatory framework in Germany see ADOLFF/MEISTER/RANDELL/STEPHAN, Public Company Takeovers in Germany (Munich/London, 2002).Google Scholar

This principle, which had already been a part of the Schuman Declaration of 1950, was spelled out by the Drafting Committee on December 5, 1956 to read: \”Le présent Traité ne préjuge en rien le régime de propriété des moyens de production existant dans la Communauté\” (\“This Treaty shall in no way prejudice the system of ownership of means of production which exists within the Community\”). In a slightly modified version, it has been incorporated into the Treaty as currently in force: \“This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership\” (Art. 295). The relevance of this principle in the context of scrutinizing \“golden shares\” under European law has been stressed, in particular, by Advocate General COLOMER in his opinion on cases C-367/98, C-483/99 and C-503/99 delivered on July 3, 2001 (see footnote 23).Google Scholar

To give a (fairly undisputed) example: the mere fact that it occurs in the context of a privatization or nationalization procedure does not, as such, legalize the grant of state aid beyond the scope of the general framework provided for in Art. 87 et seq. of the Treaty.Google Scholar

An arrangement of this type, which obviously provides for a formal discrimination on the grounds of nationality, has been a part of Portuguese Law No 11/90 that has been found to be incompatible with Art. 56 para. 1 of the Treaty in the ECJ-judgment of June 4, 2002 (C-367/98).Google Scholar

An arrangement of this type, which does not contain a formal discrimination on grounds of nationality but may nonetheless be capable of impeding cross-border movements of capital, has been a part of Portuguese Law No 11/90 that has been found incompatible with Art. 56 para. 1 of the Treaty in the ECJ-judgment of June 4, 2002 (C-367/98). A provision of this type has also been included in the French Decree No 93-1298 of 13 December 1993 concerning Société Nationale Elf-Aquitaine that has been found incompatible with Art. 56 para. 1 of the Treaty in the ECJ-judgment of June 4, 2002 (C-483/99).Google Scholar

An arrangement of this type has been a part of the French Decree No 93-1298 of 13 December 1993 concerning Société Nationale Elf-Aquitaine that has been found incompatible with Art. 56 para. 1 of the Treaty in the ECJ-judgment of June 4, 2002 (C-483/99). A provision of this type has also been included in the Belgian Royal Decree of 16 June 1994 concerning Société de distribution du gaz SA which has, because of its different structure, been found to be compatible with the requirements of the Treaty by the European Court of Justice in its judgment of June 4, 2002 (503/99). See section (E) for a discussion of the differences between the French and the Belgian arrangement.Google Scholar

This is also the terminology that the European Court of Justice uses in cases C-483/99 (French \“golden shares\”) and C-503/99 (Belgian \“golden shares\”) but not in case C-367/98 (protective arrangements in Portugal).Google Scholar

See above footnotes 29 and 30.Google Scholar

See above footnotes 30 and 31.Google Scholar

See above footnotes 30 and 31.Google Scholar

The Commission has challenged \“golden share\” arrangements in the UK in case C-463/00 pending before the European Court of Justice. It concerns the provisions of Law No 5/1995 establishing the rules applying to public transfers in certain undertakings, and the corresponding implementing decrees creating special powers in respect of Repsol SA, Telefónica de España SA, Tabacalera SA and Endesa.Google Scholar

See ECJ Case C-58/99: Commission vs. Italy [2000] ECR I-3811 concerning special powers retained by the Italian Government regarding ENI SpA and Telecom Italia SpA. In the proceedings before the European Court of Justice, Italy did not contest the incompatibility with European law of the arrangements challenged by the Commission; also see Opinion of Advocate General COLOMER on cases C-367/98, C-483/99 and C-503/99 delivered on July 3, 2001, paras. 73 et seq.Google Scholar

The Commission has challenged \“golden share\” arrangements in Spain in case C-98/01 pending before the European Court of Justice. It concerns the rights and powers of the British authorities within BAA plc, formerly the public authority which managed British airports.Google Scholar

Gesetz über die Überführung der Anteilsrechte an der Volkswagenwerke Gesellschaft mit beschränkter Haftung in private Hand of 21 July 1960 (Bundesgesetzblatt 1960 I 585).Google Scholar

The Gesetz über die Überführung der Anteilsrechte an der Volkswagenwerke Gesellschaft mit beschränkter Haftung in private Hand provides for a combination of limited voting rights, restrictions on the use of proxy voting in the shareholders\’ assembly, exclusive rights of the state of Niedersachsen and the Federal Republic of Germany to appoint, outside the shareholders\’ assembly, shareholder representatives to the co-determined supervisory board and supermajorities under which, in particular, the construction and transfer of production facilities requires the consent of a majority of 80% of the share capital represented at the passing of the resolution.Google Scholar

See Communication of the Commission on certain legal aspects concerning intra EU-investments, OJ C 220, 19.07.1997, p. 15. This document is available under http://europa.eu.int/eur-lex/de/search/search_oj.html.Google Scholar

This motive is especially apparent with regard to the Portuguese cap restricting foreign shareholdings (see above footnote 29). As is evident from the Opinion of Advocate General COLOMER on cases C-367/98, C-483/99 and C-503/99 (above footnote 23), para 26, the Portuguese government had to take into consideration national sentiments when re-privatising, in 1990, enterprises that had been nationalized at the time of the revolution of 1974: \“In 1990 the legislature considered that it was only fair that assets which had been nationalised to the detriment of Portuguese citizens should be returned to the Portuguese people, and that this ought to facilitate the reorganisation of national economic groups.\”Google Scholar

Instead, they sometimes asked for leeway to implement a smooth transition to non-discriminatory regulations. Cf. for example, the arguments brought forward Case C-367/98: Commission vs. Portugal, para. 16 et seq.Google Scholar

If an element of discrimination is not a requirement, the class of national regulations potentially qualifying as a \“restriction\” is very large. Consequently, additional criteria need to be identified to distinguish them from regulations falling outside the scope of a fundamental freedom. The necessity to find a method for this delineation has induced the ECJ to establish, with respect to free movement of goods, the distinction between national rules relating to products and national rules relating to selling arrangements (ECJ Cases C-267 and 268/91: Keck and Mithouard [1993] ECR I-6097, para. 16). It has not yet made an equivalent distinction with respect to Art. 56, thus retaining the capability to construe \“free movement of capital\” in the broadest possible terms and to apply Art. 56 to an extremely wide range of non-discriminatory laws, regulations and administrative practices in the Member States. Nonetheless a functional equivalent of the Keck-qualification appears to be necessary with respect to all fundamental freedoms, if their application to non-discriminatory restrictions is not to entail the Court\'s involvement in the scrutiny of national regulations that lies beyond the reach of the Treaty even if most dynamically construed. See for a discussion of this problem with regard to the freedom of establishment, ROTH, Liber Amicorum (Gedächtnisschrift) Knobbe-Keuk (Cologne, 1997), pp. 729 et seq.Google Scholar

OJ L 178, 8.7.1988, p. 5. Although it has been functionally replaced by Art. 56 et seq., the Directive is still part of the acquis communautaire, see GLAESER in: SCHWARZ (ed.), EU-Kommentar (2000), Annotation 2 to Art 56.Google Scholar

Art. 73b was inserted as a part of the Maastricht revisions of the Treaty; the ensuing Amsterdam revisions were of a formal, rather than a substantive nature. Art. 73b became Art. 56.Google Scholar

The term \“direct investments\” also appears in Art. 57 para. 2 of the Treaty.Google Scholar

See Communication of the Commission on certain legal aspects concerning intra EU-investments, OJ C 220, 19/07/1997, p. 15 (see footnote 41 for the URL).Google Scholar

This is part of the definition of \“direct investments\” in Annex I to Directive 88/361/EEC. With respect to the Commissions understanding see: Communication of the Commission on certain legal aspects concerning intra EU-Investments, OJ C 220, 19/07/1997, pp. 15 et seq.Google Scholar

ECJ Cases C-163/94, C-165/94 and C-250/94: Sanz de Lera [1995] ECR I-4830, para. 34. The nomenclatura of Directive 88/361/EEC is, however, not exhaustive; a transaction that is not covered by the nomenclatura may still fall within the ambit of \“movement of capital\” within the meaning of Art. 56, see ECJ Case C-222/07: Trummer and Mayer [1999] ECR I-1661, para. 20 and 21.Google Scholar

BRÖHMER in: CALLIESS/RUFFERT, (ed.), Kommentar des Vertrages über die Europäische Union (1999), Annotation 12 to Art. 56.Google Scholar

BRÖHMER in: CALLIESS/RUFFERT, (ed.), Kommentar des Vertrages über die Europäische Union, Annotation 12 to Art. 56. Also cf. SCHÖN, RabelsZ Vol. 64 (2000), pp. 11 et seq.Google Scholar

ECJ Case C-55/94: Gebhard [1995] ECR I-4165. para. 37; this formula has subsequently been applied to other freedoms, see: ECJ Case C-148/91: Veronica [1993] ECR 1993, I-487, para. 9; Bosman [1995] ECR I-4921, para. 104.Google Scholar

See Communication of the Commission on certain legal aspects concerning intra EU-investments, OJ C 220, 19/07/1997, pp. 17 et seq. (see footnote 41 for the URL).Google Scholar

For a thorough analysis of the overlapping scopes of application of the freedom of establishment and the prohibition on restrictions on free movement of capital (when applied to direct investments) see SCHÖN, RabelsZ Vol. 64 (2000), 1, 11 et seq., SCHÖN, Liber Amicorum (Gedächtnisschrift)Knobbe-Keuk (Cologne, 1997), pp. 743, 748 et seq., and MÜLBERT, Wertpapiermitteilungen (WM) 2001, pp. 2085, 2089 et seq.Google Scholar

See Report of the High Level Group of Company Law Experts on Issues Related to Takeover Bids of January 10, 2002, p. 21. This report is available under http://europa.eu.int/comm/internal_market/de/company/company/news/02-24.htm.Google Scholar

See Annex 4 to the group\'s report of January 10, 2002 (p. 74). This report is available under http://europa.eu.int/comm/internal_market/de/company/company/news/02-24.htm.Google Scholar

For a recent account of the legal restrictions that the acquirer of a majority in the shareholders\’ assembly of a German stock corporation (Aktiengesellschaft) must deal with if he seeks to exercise control in an effective manner, see ADOLFF/MEISTER/RANDELL/STEPHAN, Public Companies Takeover in Germany (Munich/London, 2002), p. 249 to p. 319.Google Scholar

See above footnote 15.Google Scholar

OJ C 64, 14.3.1989, 8.Google Scholar

OJ C 240, 26.9.1990, 7.Google Scholar

OJ C 162, 6.6.1996, 5.Google Scholar

OJ C 378, 13.12.1997, 10.Google Scholar

See, the description at: http://www.xrefer.com/entry/447241; see the code at: http://www.thetakeoverpanel.org.uk/ (last visited 5 July 2002)Google Scholar

For an analysis from the German perspective reflecting the range of prevailing views on this issue prior to the failure of the European Takeover Directive see HOPT, Liber Amicorum (Festschrift) Lutter (Cologne, 2000), pp. 1361 et seq. When the European Takeover Directive failed in 2001, the German legislature seized the opportunity to adopt a Takeover Act which allows for considerably more maneuvering room for the management of a German target corporation wishing to frustrate an unsolicited bid; for a discussion of the new German arrangement see DRYGALA, Zeitschrift für Wirtschaftsrecht (ZIP) 2001, p. 1861, WINTER/HARBARTH, Zeitschrift für Wirtschaftsrecht (ZIP) 2002, p. 1, H. KRAUSE, Die Aktiengesellschaft (AG) 2002, p. 133 and ADOLFF/MEISTER/RANDELL/STEPHAN, Public Companies Takeover in Germany (Munich/London, 2002), pp. 200 et seq.Google Scholar

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See with respect to these amendments: Recommendations for the Second Reading of 29 November 2000 (Rapporteur: LEHNE) PE 294.900, which can be downloaded from the Internet under http://www.europarl.eu.int.Google Scholar

COM(2001) 77.Google Scholar

PE-CONS 3629/01.Google Scholar

Art. 9 para. 1 (a) sentence 1 of the proposed 13th Directive.Google Scholar

Recommendations for the Second Reading of 29 November 2000 (Rapporteur: LEHNE) PE 294.900, p. 23.Google Scholar

Recommendations for the Second Reading of 29 November 2000 (Rapporteur: LEHNE) PE 294.900, p. 24.Google Scholar

Under Art. 5 para. 1 of the proposed 13th Directive the acquirer of a certain percentages of the voting rights (to be determined individually by the Member States under Art. 5 para 5) conferring on him the control of the target must make an offer for the acquisition of the shares of his fellow shareholders for an adequate consideration.Google Scholar

See also Report of the High Level Group of Company Law Experts on Issues Related to Takeover Bids of January 10, 2002, p. 40.Google Scholar

See the text accompanying footnote 57.Google Scholar

See the Report of January 10, 2002, available at: http://europa.eu.int/comm/internal_market/en/company/company/news/02-24.htm (last visited 5 July 2002).Google Scholar

Report of January 10, 2002, p. 27.Google Scholar

Report of January 10, 2002, p. 28.Google Scholar

The Member States are to be allowed to determine a lower, but not a higher threshold. Report of January 10, 2002. p. 31.Google Scholar

Report of January 10, 2002, p. 32.Google Scholar

Report of January 10, 2002, p. 29.Google Scholar

Report of January 10, 2002, p. 34.Google Scholar

Under the Portuguese Law No 11/90 the legislation providing for privatization of nationalized industries may limit the overall amount of shares which may be acquired or subscribed for by foreign entities; see ECJ Case C-367/98: Commission vs. Portugal, para. 10.Google Scholar

Under the Portuguese Law No 11/90 the legislation providing for privatization of nationalized industries may lay down rules fixing the maximum value of the respective participations in the capital of any company. Accordingly, Decree-Law No 380/93 provides that \“the acquisition… by a single natural or legal person, of shares representing more than 10% of the voting capital….in companies which are to be re-privatized, shall require the prior authorisation of the Minister for Financial Affairs\”; see ECJ Case C-367/98: Commission vs. Portugal, para. 10 and para. 14.Google Scholar

Under the French Decree No 93-1298 an ordinary share held by the State in Société Nationale Elf-Aquitaine was converted into a \“golden share\” to which, as a special right, the Decree attached a requirement for the prior approval by the Minister for Economic Affairs to \“any direct or indirect shareholding, whatever its nature or legal form, by a natural or legal person, acting alone or in conjunction with others, which exceeds the ceiling of one tenth, one fifth or one third of the capital of, or voting rights, in the company\”; see ECJ Case C-483/99: Commission vs. France, para. 9Google Scholar

The \“golden share\” arrangement under the French Decree No 93-1298 (see footnote 85) also provided that two representatives of the State, appointed by decree, shall sit on the board of directors of the company, without entitlement to vote; see ECJ Case C-483/99: Commission vs. France, para. 9Google Scholar

The Belgian Royal Decree of 10 June 1994 provided that a share in Société nationale de transport par canalisations (SNTC) which had, upon privatization, to be assigned to the state shall confer on a minister the right to appoint two representatives of the Federal Government to the board of directors who sit on the board in a non-voting advisory capacity and who may apply to the Minister, within four working days, for the annulment of any decision of the board of directors which they regard as contrary to the guidelines for the country\'s energy policy, including the Government\'s objectives concerning the country\'s energy supply; see case C-503/99: Commission vs. Belgium, para. 9. The Belgian Royal Decree of 16 June 1994 provided the same with respect to Société de distribution du gaz SA (Distrigaz).Google Scholar

The \“golden share\” arrangement under the French Decree No 93-1298 (see footnote 85) also provided that the state had a right to oppose a decision to transfer or use as security certain assets, namely the majority of the capital of Elf-Aquitaine Production, Elf-Antar France, Elf-Gabon SA and Elf-Congo SA; see ECJ Case C-483/99: Commission vs. France, para. 9 and para. 10.Google Scholar

The Belgian Royal Decree of 10 June 1994 provided that a share in Société nationale de transport par canalisations (SNTC) which had, upon privatization, to be assigned to the state shall confer on a minister the right to oppose any transfer, use as security or change in the intended destination of SNTC\'s system of lines and conduits which are used or are capable of being used as major infrastructures for the domestic conveyance of energy products, if the Minister considers that the operation in question adversely affects the national interest in the energy sector; see ECJ Case C-503/99: Commission vs. Belgium, para. 9. The Belgian Royal Decree of 16 June 1994 provided the same with respect to Société de distribution du gaz SA (Distrigaz).Google Scholar

ECJ Case C-367/98: Commission vs. Portugal, para. 40Google Scholar

ECJ Case C-367/98: Commission vs. Portugal, para. 52.Google Scholar

ECJ Case C-483/99: Commission vs. France, para. 47Google Scholar

ECJ Case C-503/99: Commission vs. Belgium, para. 46Google Scholar

See the text accompanying footnote 53.Google Scholar

See ECJ Case C-483/99: Commission vs. France, para. 45, ECJ Case C-503/99: Commission vs. Belgium, para. 45; also see the almost identical wording of: Communication of the Commission on certain legal aspects concerning intra EU-investments, OJ C 220, 19/07/1997, p. 17 that had been drawing on the language of ECJ Case C-55/94: Gebhard [1995] ECR I-4165 and the equivalent formulas in Case C-148/91: Veronica [1993] ECR 1993, I-487, para. 9; ECJ Case C-12/92: Kraus [1993] ECR I-1663, para. 32; also cf. ECJ Case C-415/93: Bosman [1995] ECR I-4921, para. 104.Google Scholar

ECJ Case C-483/99: Commission vs. France, para. 50 et seq. (with respect to the caps restricting substantial blockholdings) and para. 52 (with respect to the exclusive veto rights).Google Scholar

ECJ Case C-503/99: Commission vs. Belgium, para. 49 - 50.Google Scholar

For Germany it means, arguably, that the structures protecting Volkswagen Aktiengesellschaft will also have to be measured against these standards. HELLWIG, EWS 2001, 580, 582, for example, qualifies the arrangements pertaining the Volkswagen as \“golden shares\”.Google Scholar