From: news@paragraf.nbg.sub.org
Newsgroups: de.soc.recht
Subject: JUS 9242.10.1 Company law               
Date: Tue, 22 Dec 92 19:50:52 +0100
Organization: VDJ Nuernberg

ENR   : 2529
HD    : 10. Company Law
TI    : Judgment of the Court of Justice - Directive 77/91/EEC - Public limited
        liability company
RF    : JUS 9242.10.1
AB    : The second directive 77/91/EEC concerns the formation of public
        limited liability companies companies and the maintenance and
        alteration of their capital (O.J. 1977, L 26, p.1). Pursuant to
        its Article 25 (1), any increase in capital must be decided by the
        General Meeting of Shareholders. Moreover, at the time of any
        increase in capital, the shares must be offered preferentially to
        the shareholders.
        In compliance with the provisions of the Greek law No 1386/1983,
        the management of the company Kerafina was transfered to the OAE,
        a Greek public organization whose objective is the financial
        improvement of companies that are of particular importance to a
        Member State's national economy and are in a particular situation
        due to their indebtedness (see  JUS 9124.10.1 and  JUS
        9214.10.1).
        The OAE carried out two increases in Kerafina's capital and
        consequently held a majority of the shares. As Kerafina's
        shareholders contested the legality of these increases in capital
        before the Court of Appeal of Athens, the national court brought an
        action before the Court of Justice for a preliminary ruling to
        determine:
        - whether Article 25 (1) of the Second Directive 77/91/EEC may be
        invoked against public authorities before the national courts by an
        individual;
        - whether the provisions of a law such as No 1386/1983 fall under the
        scope of Article 25 of Directive 77/91/EEC;
        - whether the Greek Government is authorized to derogate from the
        Second Directive until 31 December 1987 in virtue of Commission
        Decision 88/167/EEC of 7 October 1987, in which the Commission
        stated that it did not object to the implementation of Law
        1986/1983, subject to certain reserves worded in that Decision.
        Concerning the two first questions, the Court of Justice referred
        the Greek court to its judgments of 30 May 1991, Case C-19/90 and
        C-20/90  Karella and Karellas (ECR 1991, p.I-2691) (See  JUS
        9124.10.1), and of 24 March 1992, Case C-381/89  Syndesmos melon
        tis eleftheras evangelikis ekklissias, not yet published (See JUS
        9214.10.1), in which it had ruled that:
         - Article 25 (1) of the Second Council Directive 77/91/EEC may be
        invoked against public authorities before the national courts by an
        individual;  - the combined provisions of Articles 25 and 41 (1) of
        the Second Directive must be interpreted as precluding national rules
        which, in order to ensure the survival and continued operation of
        companies of particular economic and social importance for society
        which, in view of their over-indebtedness, are in an exceptional
        situation, provide for the adoption by administrative act of a
        decision to increase the company capital, without prejudice to the
        preemptive right of the existing shareholders when the new shares are
        distributed. Concerning the third question, the Court of Justice
        noted that Commission Decision 88/167/EEC did not authorize the Greek
        Government to maintain in force until 31 December 1987 at the
        latest the provisions of Law 1386/1983 which are contrary to the
        Second Directive. Judgment of the Court of Justice of 12 November
        1992, Joined Cases C-134/91 and C-135/91,  Kerafina - Keramische und
        Finanz Holding AG and Vioktimatiki v. Greek State and Organismos
        Ikonomikis Anasinkrotisis Epikhiriseon AE, not yet published.
CT    : Company law
DT    : 921211
Xref: sparky de.soc.recht:1526 de.soc.verkehr:3535