# C_2012209EN.01000202.xml

| 14.7.2012 | EN | Official Journal of the European Union | C 209/2 |
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14.7.2012

EN

Official Journal of the European Union

C 209/2

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Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 12 April 2012 — Alfred Hirmann v Immofinanz AG

(Case C-174/12)

2012/C 209/03

Language of the case: German

Referring court

Referring court

Handelsgericht Wien

Parties to the main proceedings

Parties to the main proceedings

Applicant: Alfred Hirmann

Applicant:

Defendant: Immofinanz AG

Defendant:

Intervener: Aviso Zeta AG

Intervener:

Questions referred

Questions referred

| 1. | Is a national rule which provides for the liability of a public limited liability company, as issuer, towards a purchaser of shares for infringement of obligations relating to the provision of information laid down in legislation governing securities, in particular the following:






  — | Articles 6 and 25 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003, as amended by Directive 2008/11/EC of 11 March 2008; (1) |
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1.

Is a national rule which provides for the liability of a public limited liability company, as issuer, towards a purchaser of shares for infringement of obligations relating to the provision of information laid down in legislation governing securities, in particular the following:

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Articles 6 and 25 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003, as amended by Directive 2008/11/EC of 11 March 2008; (1)

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| — | Articles 7, 17 and 28 of Directive 2004/109/EC (2) of the European Parliament and of the Council of 15 December 2004; and |
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Articles 7, 17 and 28 of Directive 2004/109/EC (2) of the European Parliament and of the Council of 15 December 2004; and

2

| — | Article 14 of Directive 2003/6/EC (3) of the European Parliament and of the Council of 28 January 2003, |
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Article 14 of Directive 2003/6/EC (3) of the European Parliament and of the Council of 28 January 2003,

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compatible with Articles 12, 15, 16, 19 and 42 of Directive 77/91/EEC (4) of the Council of [13 December 1976], as amended?

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| 2. | Are the provisions of Articles 12, 15, 16 and in particular 18, 19 and 42 of Directive 77/91/EEC, as amended, to be interpreted as precluding national legislation which states that, as part of the liability referred to in Question 1, a public limited liability company must refund the purchase price to the purchaser and redeem the shares purchased? |
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2.

Are the provisions of Articles 12, 15, 16 and in particular 18, 19 and 42 of Directive 77/91/EEC, as amended, to be interpreted as precluding national legislation which states that, as part of the liability referred to in Question 1, a public limited liability company must refund the purchase price to the purchaser and redeem the shares purchased?

| 3. | Are the provisions of Articles 12, 15, 16, 18, 19 and 42 of Directive 77/91/EEC of the Council, as amended, to be interpreted as meaning that the liability of a public limited liability company as referred to in Question 1






  — | may also include the company’s net assets (subscribed capital plus reserves within the meaning of Article 15(1)(a) of the aforementioned directive), and |
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3.

Are the provisions of Articles 12, 15, 16, 18, 19 and 42 of Directive 77/91/EEC of the Council, as amended, to be interpreted as meaning that the liability of a public limited liability company as referred to in Question 1

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may also include the company’s net assets (subscribed capital plus reserves within the meaning of Article 15(1)(a) of the aforementioned directive), and

| — | may arise even if it is capable of rendering the company insolvent? |
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may arise even if it is capable of rendering the company insolvent?

| 4. | Are the provisions of Articles 12 and 13 of Directive 2009/101/EC (5) of the European Parliament and of the Council of 16 September 2009 to be interpreted as precluding national legislation which provides for the retroactive cancellation of a share acquisition in the sense that cancellation of the share purchase contract is to be regarded as producing ex nunc effects (see Case C-215/08 E. Friz GmbH v Carsten von der Heyden [2010] ECR I-02947)? |
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4.

Are the provisions of Articles 12 and 13 of Directive 2009/101/EC (5) of the European Parliament and of the Council of 16 September 2009 to be interpreted as precluding national legislation which provides for the retroactive cancellation of a share acquisition in the sense that cancellation of the share purchase contract is to be regarded as producing ex nunc effects (see Case C-215/08 E. Friz GmbH v Carsten von der Heyden [2010] ECR I-02947)?

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ex nunc

E. Friz GmbH

Carsten von der Heyden

| 5. | Are the provisions of Articles 12, 15, 16, 18, 19 and 42 of Directive 77/91/EEC of the Council, as amended, and Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council to be interpreted as meaning that liability is limited to the value of the shares — thus, in the case of a listed company, the price of those shares on the stock exchange — at the time when the claim is brought, with the result that the refund which the shareholder receives may be less than the price he originally paid for his shares? |
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5.

Are the provisions of Articles 12, 15, 16, 18, 19 and 42 of Directive 77/91/EEC of the Council, as amended, and Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council to be interpreted as meaning that liability is limited to the value of the shares — thus, in the case of a listed company, the price of those shares on the stock exchange — at the time when the claim is brought, with the result that the refund which the shareholder receives may be less than the price he originally paid for his shares?

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(1)  Directive 2008/11/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, as regards the implementing powers conferred on the Commission (Text with EEA relevance), OJ 2008 L 76, p. 37.

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(2)  Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, OJ 2004 L 390, p. 38.

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(3)  Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), OJ 2003 L 96, p. 16.

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(4)  Second Council Directive 77/91/EEC of 13 December 1976 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, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, OJ 1977 L 26, p. 1.

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(5)  Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (Text with EEA relevance), OJ 2009 L 258, p. 11.

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