Brussels, 5th February 2003
Free movement of capital: Commission decides to pursue infringement case on Copenhagen Airports
The European Commission has decided to send an additional formal request for information to the Danish Government concerning possible obstacles to investment from other Member States in Copenhagen Airports. The Commission is concerned that certain special rights given to the Danish Government in the Act on Copenhagen Airports and the Articles of Association of Copenhagen Airports could impede investment and so constitute barriers to the freedom of capital movements and the right of establishment (Articles 56 and 43). The additional request for information will take the form of a supplementary letter of formal notice under formal infringement procedures (Article 226 of the EC Treaty), to which the Danish Government is due to reply within two months. In the light of the information provided, or in the absence of a reply, the Commission will decide whether or not to request the Danish Government to amend the provisions in question.
The Commission sent a first letter of formal notice to the Danish Government in April 2000 concerning the privatisation of Copenhagen Airports. The Articles of Association of Copenhagen Airports restrict the ownership of shares to, at most, 10% for all owners other than the Danish State. Shares held in excess of this limit do not carry any votes and shall be disposed of. These provisions of Articles of Association, as well as specific provisions of the underpinning Act no 428 of 1990 on Copenhagen Airports could, in the Commission's view, constitute a barrier to direct and portfolio investments in the Company and so conflict with of the EC Treaty's rules on free movement of capital and freedom of establishment (Articles 56 and 43). At the time of sending the initial letter of formal notice, the State owned 51 % of the shares of Copenhagen Airports.
Supplementary letter of formal notice
Since the Commission sent the letter of formal notice, the position of the State with respect to Copenhagen Airports has changed. The State now is no longer the major shareholder, as it owns 33.8 % of the shares of Copenhagen Airports, i.e. a blocking minority, after selling 17.2 % of its shares in 2000.
Therefore, it would 'a fortiori' seem that, besides the 10 % ceiling, also other special rights, e.g. prior approval by the Minister of Transport for certain strategic business decisions or for any amendments to the Articles of Association and the right of the Minister of Transport to issue instructions to the company on carrying out the business, provided by Act no 428, may also be considered to be restrictions on capital movements. The Commission has consequently decided to send a supplementary letter of formal notice to Denmark in order to seek information on the new arrangements concerning Copenhagen Airports.
The Commission's analysis will take due account of the case law of the Court of Justice and in particular the Court's rulings of 4 June 2002 (on cases C-367/98, C-483/99 and C-503/99). These rulings noted that direct investment is characterised by the possibility of participating effectively in the management of a company or its control. The Court has, as a consequence, ruled that prior authorisation concerning the acquisition of shares which exceed certain limits, as well as the right of veto concerning important decisions, are liable to impede the acquisition of shares in the undertakings concerned, to dissuade investors in other Member States from investing in the capital of those undertakings and therefore to render, the free movement of capital illusory.
The Commission is in particular seeking information as to how the Danish Government would justify both the existing limit on acquisition of the share capital and the existing and largely discretionary veto/authorisation powers enjoyed by the State in the company in question.
The latest information on infringement procedures concerning all Member States can be found at the following website: