Case C-98/01

«(Failure of a Member State to fulfil obligations – Articles 43 EC and 56 EC – Rights attaching to the United Kingdom's Special Share in BAA plc)»

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 6 February 2003

Judgment of the Court, 13 May 2003

Summary of the Judgment

Free movement of capital – Restrictions – National rules limiting the acquisition of shareholdings in a company and laying down a system of prior consent in relation to disposal of the company's assets, to control of its subsidiaries and to its winding-up – Not permissible (Art. 56 EC)

The fact that restrictions on the acquisition of shares apply without distinction to both residents and non-residents does not mean that they fall outside the scope of Article 56 EC, since they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, to affect access to the market. A Member State which maintains in force rules limiting the possibility of acquiring voting shares in a company as well as a procedure requiring consent to the disposal of the company's assets, to control of its subsidiaries and to winding-up, fails to fulfil its obligations under Article 56 EC.see paras 46, 48, 51, operative part

JUDGMENT OF 13 May 2003 (1)

(Failure by a Member State to fulfil its obligations – Articles 43 EC and 56 EC – Rights attaching to the United Kingdom's Special Share in BAA plc)

In Case C-98/01,

Commission of the European Communities, represented by F. Benyon and M. Patakia, acting as Agents, with an address for service in Luxembourg,

applicant,

United Kingdom of Great Britain and Northern Ireland, represented by R. Magrill, acting as Agent, and by D. Wyatt QC and J. Crow, Barrister, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that the provisions limiting the possibility of acquiring voting shares in BAA plc as well as the procedure requiring consent to the disposal of the company's assets, to control of its subsidiaries and to winding-up are incompatible with Articles 43 EC and 56 EC,

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet and R. Schintgen (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris, F. Macken, N. Colneric, S. von Bahr and A. Rosas, Judges,

Advocate General: D. Ruiz-Jarabo Colomer, <br>Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 5 November 2002, at which the Commission was represented by F. Benyon and M. Patakia and the United Kingdom of Great Britain and Northern Ireland by J. E. Collins, acting as Agent, and by D. Wyatt and J. Crow,

after hearing the Opinion of the Advocate General at the sitting on 6 February 2003,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]’

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

the expression dispose of shall include sell, transfer, surrender, mortgage, charge, create any estate or interest in or right over, part with possession of or control over and dispose of in any other way;

the expression airport operator shall have the meaning ascribed to it by section 82(1) of the Airports Act 1986.

The directors of the Company will exercise all powers of control exercisable by the Company in relation to its subsidiaries so as to secure (so far as by such exercise they can secure) that no subsidiary shall take any action which (either alone or when taken together with any other action) would involve a variation of any of the rights attached to the Special Share.

The Special Shareholder shall be entitled to receive notice of, and to attend and speak at, any general meeting or any meeting of any class of shareholders of the Company, but the Special Share shall carry no right to vote nor any other rights at any such meeting.

In a distribution of capital in a winding up of the Company, the Special Shareholder shall be entitled to repayment of the capital paid up on the Special Share in priority to any repayment of capital to any other member. The Special Share shall confer no other right to participate in the capital or profits of the Company.

The Special Shareholder may, subject to the provisions of the Act, require the Company to redeem the Special Share at par at any time by serving written notice upon the Company and delivering the relevant share certificate.

Article 40(1) of BAA's Articles of Association provides: The purpose of this article is to prevent any person (other than a Permitted Person) being, or being deemed or appearing to the directors to be, interested in shares of the Company which carry (or may in accordance with their terms in certain circumstances carry) the right to more than 15% of the votes which could be cast on any resolution at any general meeting of the Company (whether or not the votes could be cast in relation to all resolutions at all general meetings).

Paragraphs (2) and (3) of Article 40 describe in detail the procedures for implementing the rule laid down by paragraph (1).

Pre-litigation procedure

By letter of 3 February 1999 the Commission informed the United Kingdom Government that the special powers conferred on it by BAA's Articles of Association might infringe the EC Treaty provisions on free movement of capital and freedom of establishment. The Commission granted the government a two-month period in which to submit its observations.

The United Kingdom Government did not reply to the letter of formal notice.

The Commission therefore sent the United Kingdom a reasoned opinion on 6 August 1999 requiring it to comply therewith within two months.

The United Kingdom Government responded to the reasoned opinion on 5 November 1999. In that letter it defended the view that Member States have the right to define, within the framework of national company law, the essential characteristics of shares in private companies, which are available on the market, and that use of that right does not impede access to the market in those shares.

The Commission was unconvinced by that reply and decided to bring the present action before the Court of Justice.

Pleas and arguments of the parties

In its application the Commission refers, first, to its Communication of 19 July 1997 on certain legal aspects concerning intra-EU investment (97/C 220/06) (OJ 1997 C 220, p. 15; the 1997 Communication). It observes that in the Communication it publicised its view on the interpretation of the Treaty provisions concerning the free movement of capital and freedom of establishment in relation to measures taken by a Member State in the course of privatisation of a public undertaking.

In the Commission's submission, the provisions of Article 40 of BAA's Articles of Association limiting the possibility of acquiring voting shares in BAA as well as the procedure requiring consent to disposal of the company's assets, to the control of subsidiaries and to the company's winding-up (Article 10 of the Articles of Association) do not comply with the conditions set out in the 1997 Communication and accordingly are in breach of Articles 43 EC and 56 EC.

The national provisions at issue, although they apply without distinction, could create obstacles to the right of establishment of nationals of other Member States as well as to the free movement of capital within the Community, since they may hinder, or render less attractive, the exercise of those freedoms. As regards the free movement of capital, account should be taken of Annex I to Directive 88/361 which refers, first, to portfolio investment, that is to say, acquiring shares without seeking to influence the way in which the company is managed, and, second, direct investment, a characteristic of which is the fact that the shareholding owned by a person enables him to participate effectively in the management of the company or in its control.

Although it is true that the Member States may, by reason of exceptions provided for by the Treaty, impose restrictions on those freedoms in certain circumstances linked to the exercise of official authority, to public policy, to public security and to public health, the exceptions must be restrictively interpreted and their scope cannot be determined unilaterally by the Member States. Furthermore, they must pass the proportionality test, be in conformity with the principle of legal certainty and must not be implemented for purely economic ends (see Case C-19/92 Kraus [1993] ECR I-1663 and Case C-55/94 Gebhard [1995] ECR I-4165).

Article 40 of BAA's Articles of Association is clearly incompatible with the Treaty provisions. The United Kingdom Government has not even argued that there is any general interest so far as it is concerned: nor has it relied on special circumstances to justify such a measure.

Similarly, Article 10(2) of BAA's Articles of Association, which makes a number of important decisions concerning the company's activities conditional upon obtaining consent from the Special Shareholder, confers on the United Kingdom a wholly discretionary power, the exact scope of which is not defined. That power restricts the ability (which is none the less an integral part of direct investment) of other shareholders to participate in the management of the company. Consequently, it hinders, or renders less attractive, the exercise of the freedoms concerned.

In relation to the argument put forward by the United Kingdom Government in its reply to the reasoned opinion, namely that the application of private company-law mechanisms is prima facie not covered by the requirements of the Treaty, the Commission claims that, although the measures concerned are permitted by national company law, they do not arise from the normal operation of that law but have been adopted by the Member State through an Act of Parliament and must therefore be examined as actions of the State.

In its defence, the United Kingdom Government contends that the rights conferred on the Special Shareholder by Articles 10 and 40 of BAA's Articles of Association do not amount to restrictions on the Treaty freedoms. The Commission's action is therefore unfounded and should be dismissed.

The government explains that under national company law in force in the United Kingdom different classes of shares may exist and that the rights attached to them may be different, both in relation to sharing in the company's profits and to its management. The Special Share concerned merely falls within one of those classes. In particular, shares without voting rights are commonly found in certain companies.

The measures at issue are quite compatible with Community law, since they apply to all Member State nationals without discrimination on grounds of nationality and do not restrict access to the market. No justification for those measures is therefore called for.

The Commission is wrong to defend the proposition that any measure which hinders, or renders less attractive, the exercise of the fundamental freedoms must be justified from the point of view of the requirements of the principle of proportionality when those requirements apply only to measures restricting access to the market. In the context of the free movement of goods, an over-extensive application of the Court's case-law was corrected by the judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097. The consequence of the Commission's argument in this case would be that all the difficulties which led to that judgment would be replicated in the context of freedom of establishment and free movement of capital.

In this case, neither the rules of private law which determine the characteristics of shares available on the market, nor those which entitle special shareholders to participate in the decisions of the company, or which require the consent of the special shareholders before certain decisions can be taken, amount to restrictions on access to the market.

The rights which the Special Shareholder may exercise under Article 10 of BAA's Articles of Association do not interfere with either the right of establishment or the free movement of capital, since companies are not obliged to sell assets and, until the assets are placed on the market, there can be no breach of the fundamental freedoms of persons who might wish to acquire them. There are obstacles to those freedoms only where a particular person is obliged to obtain approval in order to acquire assets put on the market, which is not the case here.

The United Kingdom Government explains that the rights of the Special Shareholder under Article 10 of BAA's Articles of Association, which require the government's prior written consent to the taking of certain decisions by the company, are wholly in accordance with the normal rules of company law in force in the United Kingdom, which allow the issue of different classes of shares. It is irrelevant whether those rules are usual or not. BAA's Articles of Association do not constitute national legislation and cannot be equated to it. Member States are entitled to engage in economic activities on the same basis as private market operators, within the framework of contracts governed by private law. In the absence of harmonisation of the rules of national company law, Community law cannot impose on a company which issues shares the obligation to place the control of that company on the market, or to attach to its shares the whole range of rights which all actual and potential investors might wish to see attached to them.

The same analysis is valid for Article 40 of BAA's Articles of Association. The purpose of that provision is to define the characteristics of shares put on the market, under the applicable company law, and not to make acquisition of a shareholding by a particular investor subject to approval, thereby restricting access to the market in those shares.

In its reply, the Commission argues that there cannot be any doubt that the measures at issue restrict access to the market for investors from other Member States and render the exercise of the freedoms concerned less attractive. Since the powers concerned are exercised by the United Kingdom qua State, it is irrelevant that they are exercised by means of national company law.

The principles laid down by the Court in Keck and Mithouard cannot apply to the present case. That judgment concerned a particular case of national selling arrangements in the context of the free movement of goods. Even if those principles could be applied to the free movement of capital and freedom of establishment ─ something the Court has already refused to do in several judgments such as those in Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraphs 36 to 38, and Case C-415/93 Bosman [1995] ECR I-4921, paragraph 103, ─ what is at issue here is not the manner in which shares may be acquired or dealt with, but the actual acquisition of shares and thus the negation of a fundamental aspect of the freedoms concerned, and a real restriction on their exercise.

In its rejoinder, the United Kingdom Government stresses the fact that the Special Share with which this action is concerned forms part of the rules deriving from national company law and that the measures in question do not therefore require justification. If the Special Share were open to challenge, so would be every class of share whose voting rights could be described, in one way or another, as being more extensive than those of another class of shares. The Commission's argument would mean that holders of ordinary shares could rely on the Treaty in order to renegotiate the rights attached to the shares that they had bought.

At the hearing the United Kingdom Government again insisted that the system of prior approval does not affect the independence of BAA's day-to-day management and that it relates to eventualities which are too uncertain and too indirect to amount to a restriction on the freedoms laid down by the Treaty.

At the hearing the Commission indicated that it concurred with the findings made by the Court in its judgments in comparable cases delivered after commencement of this action, namely the judgments of 4 June 2002 in Case C-367/98 Commission v Portugal [2002] ECR I-4731, Case C-483/99 Commission v France [2002] ECR I-4781; and Case C-503/99 Commission v Belgium [2002] ECR I-4809. The Court held in those judgments that systems of prior approval such as that at issue here are incompatible with the free movement of capital.

Findings of the Court

Article 56 EC

It must be recalled at the outset that Article 56(1) EC gives effect to free movement of capital between Member States and between Member States and third countries. To that end it provides, within the framework of the provisions of the chapter headed Capital and payments, that all restrictions on the movement of capital between Member States and between Member States and third countries are prohibited.

39Although the Treaty does not define the terms movements of capital and payments, it is settled case-law that Directive 88/361, together with the nomenclature annexed to it, may be used for the purposes of defining what constitutes a capital movement (Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraphs 20 and 21).

40Points I and III in the nomenclature set out in Annex I to Directive 88/361, and the explanatory notes appearing in that annex, indicate that direct investment in the form of participation in an undertaking by means of a shareholding or the acquisition of securities on the capital market constitute capital movements for the purposes of Article 56 EC. The explanatory notes state that direct investment is characterised, in particular, by the possibility of participating effectively in the management of a company or in its control.

41In the light of those considerations it is appropriate to examine, first, whether the rules which, pursuant to Article 40 of BAA's Articles of Association, prevent any person (other than a Permitted Person) from acquiring or being interested in BAA shares carrying the right to more than 15% of the votes is a restriction on the movement of capital between Member States. Second, it is appropriate to consider whether the fact that the national authorities' prior approval is required for the decisions referred to in Article 10(2) of the Articles of Association, including the company's voluntary winding-up, amendment of the provisions of the Articles relating to the rights attaching to the Special Share, disposal of one of the company's airports or surrender of the right to exercise over half the voting rights in a subsidiary owning an airport, also amounts to a restriction on the movement of capital between Member States.

42The United Kingdom Government argues that the rules in question apply without distinction on grounds of nationality. There is thus no discrimination as regards nationals of other Member States. Consequently, those rules do not amount to a restriction on the free movement of capital.

43That argument cannot be accepted. It is clear from paragraphs 44 and 40 of the judgments in Commission v Portugal and Commission v France respectively that the prohibition laid down in Article 56 EC goes beyond the mere elimination of unequal treatment, on grounds of nationality, as between operators on the financial markets.

44Rules which limit the acquisition of shareholdings in the way that Article 40 of BAA's Articles of Association does, or which restrict in some other way the scope for participating effectively in the management of a company or in its control, as is the case of the system of prior approval provided for in Article 10(2) of the Articles, constitute a restriction on the free movement of capital.

45In particular, the United Kingdom Government's argument that the measures at issue do not restrict access to the market within the meaning of Keck and Mithouard cannot be accepted. The measures at issue are not comparable to the rules concerning selling arrangements which were found in that judgment not to fall within the scope of Article 30 of the EC Treaty (now, after amendment, Article 28 EC).

46According to that judgment, the application to products from other Member States of national provisions restricting or prohibiting, within the Member State of importation, certain selling arrangements is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and, second, they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The reason is that the application of such provisions is not such as to prevent access by the latter products to the market of the Member State of importation or to impede such access more than it impedes access by domestic products (Alpine Investments, paragraph 37).

47In this instance, although the relevant restrictions on investment operations apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market (see, also, the judgment of today's date in Case C-463/00 Commission v Spain [2003] ECR I-4579, paragraph 61).

48The United Kingdom Government's argument that what is concerned here is solely the application of private company-law mechanisms cannot be accepted. The restrictions at issue do not arise as the result of the normal operation of company law. BAA's Articles of Association were to be approved by the Secretary of State pursuant to the Airports Act 1986 and that was what actually occurred. In those circumstances, the Member State acted in this instance in its capacity as a public authority.

49Consequently, the rules at issue constitute a restriction on the movement of capital for the purposes of Article 56 EC. Since the United Kingdom Government expressly stated that it did not wish to rely on any justification based on possible overriding requirements relating to the general interest, there is no need to examine whether the rules can be justified on that basis.

50It must therefore be held that, by maintaining in force the provisions limiting the possibility of acquiring voting shares in BAA as well as the procedure requiring consent to the disposal of the company's assets, to control of its subsidiaries and to winding-up, the United Kingdom has failed to fulfil its obligations under Article 56 EC.

51The Commission is also seeking a declaration that there has been an infringement of Article 43 EC, namely freedom of establishment in so far as it relates to undertakings.

52In that regard, it is appropriate to point out that in so far as the rules in question entail restrictions on freedom of establishment, such restrictions are a direct consequence of the obstacles to the free movement of capital considered above, to which they are inextricably linked. Consequently, since an infringement of Article 56 EC has been established, there is no need for a separate examination of the measures at issue in the light of the Treaty rules concerning freedom of establishment.

Costs

53Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission sought an order for costs against the United Kingdom and the latter has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT,

hereby:

1.Declares that, by maintaining in force the provisions limiting the possibility of acquiring voting shares in BAA plc as well as the procedure requiring consent to the disposal of the company's assets, to control of its subsidiaries and to winding-up, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 56 EC;

2.Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Delivered in open court in Luxembourg on 13 May 2003.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

Language of the case: English.