Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
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1 . Measures adopted by the Community institutions - Directives - Implementation by Member States - Need to ensure the effectiveness of directives - Obligations of the national courts
( EEC Treaty, Art . 5 and Art . 189, third paragraph )
2 . Freedom of movement for persons - Freedom of establishment - Companies - Directive 68/151 - Rules on nullity - Exhaustive list of cases in which nullity can arise - Obligation on the part of the national court not to allow nullity in other cases - Nullity on account of the illegality of a company' s objects - Concept of the objects of a company
( Council Directive 68/151, Art . 11 )
Summary
1 . The Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts . It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by it and thereby comply with the third paragraph of Article 189 of the Treaty .
2 . A national court hearing a case which falls within the scope of Directive 68/151 on the coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, is required to interpret its national law in the light of the purpose and the wording of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive . Those grounds must themselves be strictly interpreted, in the light of that purpose, so as to ensure that nullity on the ground that the objects of the company are unlawful or contrary to public policy must be understood as referring exclusively to the objects of the company as described in the instrument of incorporation or the articles of association .
Parties
In Case C-106/89,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Juzgado de Primera Instancia e Instrucción ( Court of First Instance and Examining Magistrates' Court ) No 1, Oviedo, Spain, for a preliminary ruling in the proceedings pending before that court between
Marleasing SA
and
La Comercial Internacional de Alimentación SA
on the interpretation of Article 11 of the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community ( Official Journal, English Special Edition 1968 ( I ), p . 41 ),
THE COURT ( Sixth Chamber ),
composed of : G . F . Mancini, President of Chamber, T . F . O' Higgins, M . Díez de Velasco, C . N . Kakouris and P . J . G . Kapteyn, Judges,
Advocate General : W . van Gerven
Registrar : H . A . RUEhl, Principal Administrator,
after considering the written observations submitted on behalf of
Marleasing SA, by José Ramón Buzón Ferrero, of the Oviedo Bar,
the Commission of the European Communities, by its Legal Adviser Antonio Caeiro and by Daniel Calleja, a member of its Legal Department, acting as Agents,
having regard to the Report for the Hearing and further to the hearing on 6 June 1990,
after hearing the Opinion of the Advocate General delivered at the sitting on 12 July 1990,
gives the following
Judgment
Grounds
1 By order of 13 March 1989, which was received at the Court on 3 April 1989, the Juzgado de Primera Instancia e Instrucción No 1, Oviedo, referred a question to the Court pursuant to Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of Article 11 of Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community .
2 Those questions arose in a dispute between Marleasing SA, the plaintiff in the main proceedings, and a number of defendants including La Comercial Internacional de Alimentación SA ( hereinafter referred to as "La Comercial "). The latter was established in the form of a public limited company by three persons, including Barviesa SA, which contributed its own assets .
3 It is apparent from the grounds set out in the order for reference that Marleasing' s primary claim, based on Articles 1261 and 1275 of the Spanish Civil Code, according to which contracts without cause or whose cause is unlawful have no legal effect, is for a declaration that the founders' contract establishing La Comercial is void on the ground that the establishment of the company lacked cause, was a sham transaction and was carried out in order to defraud the creditors of Barviesa SA, a co-founder of the defendant company . La Comercial contended that the action should be dismissed in its entirety on the ground, in particular, that Article 11 of Directive 68/151, which lists exhaustively the cases in which the nullity of a company may be ordered, does not include lack of cause amongst them .
4 The national court observed that in accordance with Article 395 of the Act concerning the Conditions of Accession of Spain and the Portuguese Republic to the European Communities ( Official Journal 1985 L 302, p . 23 ) the Kingdom of Spain was under an obligation to bring the directive into effect as from the date of accession, but that that had still not been done at the date of the order for reference . Taking the view, therefore, that the dispute raised a problem concerning the interpretation of Community law, the national court referred the following question to the Court :
"Is Article 11 of Council Directive 68/151/EEC of 9 March 1968, which has not been implemented in national law, directly applicable so as to preclude a declaration of nullity of a public limited company on a ground other than those set out in the said article?"
5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
6 With regard to the question whether an individual may rely on the directive against a national law, it should be observed that, as the Court has consistently held, a directive may not of itself impose obligations on an individual and, consequently, a provision of a directive may not be relied upon as such against such a person ( judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 ).
7 However, it is apparent from the documents before the Court that the national court seeks in substance to ascertain whether a national court hearing a case which falls within the scope of Directive 68/151 is required to interpret its national law in the light of the wording and the purpose of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive .
8 In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts . It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty .
9 It follows that the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the directive in question .
10 With regard to the interpretation to be given to Article 11 of the directive, in particular Article 11(2)(b ), it should be observed that that provision prohibits the laws of the Member States from providing for a judicial declaration of nullity on grounds other than those exhaustively listed in the directive, amongst which is the ground that the objects of the company are unlawful or contrary to public policy .
11 According to the Commission, the expression "objects of the company" must be interpreted as referring exclusively to the objects of the company as described in the instrument of incorporation or the articles of association . It follows, in the Commission' s view, that a declaration of nullity of a company cannot be made on the basis of the activity actually pursued by it, for instance defrauding the founders' creditors .
12 That argument must be upheld . As is clear from the preamble to Directive 68/151, its purpose was to limit the cases in which nullity can arise and the retroactive effect of a declaration of nullity in order to ensure "certainty in the law as regards relations between the company and third parties, and also between members" ( sixth recital ). Furthermore, the protection of third parties "must be ensured by provisions which restrict to the greatest possible extent the grounds on which obligations entered into in the name of the company are not valid ". It follows, therefore, that each ground of nullity provided for in Article 11 of the directive must be interpreted strictly . In those circumstances the words "objects of the company" must be understood as referring to the objects of the company as described in the instrument of incorporation or the articles of association .
13 The answer to the question submitted must therefore be that a national court hearing a case which falls within the scope of Directive 68/151 is required to interpret its national law in the light of the wording and the purpose of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive .
Decision on costs
Costs
14 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .
Operative part
On those grounds,
THE COURT ( Sixth Chamber ),
in answer to the question referred to it by the Juzgado de Primera Instancia e Instrucción No 1, Oviedo, by order of 13 March 1989, hereby rules :
A national court hearing a case which falls within the scope of Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, is required to interpret its national law in the light of the wording and the purpose of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive .
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