# C_2016279EN.01001201.xml

| 1.8.2016 | EN | Official Journal of the European Union | C 279/12 |
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1.8.2016

EN

Official Journal of the European Union

C 279/12

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Request for a preliminary ruling from the Juzgado de lo Social No 30 de Barcelona (Spain) lodged on 27 April 2016 — Antonio Miravitlles Ciurana, Alberto Marina Lorente, Jorge Benito García and Juan Gregorio Benito García v Contimark S.A. and Jordi Socías Gispert

(Case C-243/16)

(2016/C 279/17)

Language of the case: Spanish

Referring court

Referring court

Juzgado de lo Social No 30 de Barcelona

Parties to the main proceedings

Parties to the main proceedings

Applicants: Antonio Miravitlles Ciurana, Alberto Marina Lorente, Jorge Benito García and Juan Gregorio Benito García

Applicants:

Defendants: Contimark S.A. and Jordi Socías Gispert

Defendants:

Questions referred

Questions referred

| 1. | Under Directives 2009/101/EC (1) and 2012/30/EU (2) and their transposing provisions in Articles 236, 237, 238, 241 and 367, inter alia, of the Law on Capital Companies (Ley de Sociedades de Capital), does a creditor of a company who pursues his employment-related claim before the competent Spanish courts — the social courts — have the right to bring simultaneously before the same court a direct action against the company for the establishment of employment-related debts and, cumulatively, an action against a natural person — the company director —, as a person with joint and several liability for the company’s debts, on the ground of non-fulfilment of the company obligations laid down in those directives and transposed in the Spanish Law on Capital Companies? |
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1.

Under Directives 2009/101/EC (1) and 2012/30/EU (2) and their transposing provisions in Articles 236, 237, 238, 241 and 367, inter alia, of the Law on Capital Companies (Ley de Sociedades de Capital), does a creditor of a company who pursues his employment-related claim before the competent Spanish courts — the social courts — have the right to bring simultaneously before the same court a direct action against the company for the establishment of employment-related debts and, cumulatively, an action against a natural person — the company director —, as a person with joint and several liability for the company’s debts, on the ground of non-fulfilment of the company obligations laid down in those directives and transposed in the Spanish Law on Capital Companies?

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inter alia

| 2. | Is it possible that the case-law of the Sala de lo Social (Social Division) of the Spanish Tribunal Supremo (Supreme Court), as expressed in the judgments of 28 February 1997 (RJ 1997\4220), 28 October 1997 (RJ 1997\7680), 31 December 1997 (RJ 1997\9644), 13 April 1998 (RJ 1998\4577), 17 January 2000 (RJ 2000\918), 9 June 2000 (RJ 2000\5109), 8 May 2002 and 20 December 2012 (summarised in the present order in the second point of the section dealing with applicable national case-law), might infringe Articles 2, 6, 7 and 8 of Directive 2009/101/EC and Articles 19 and 36 of Directive 2012/30/EU, in holding that Spanish social courts may not apply directly in relation to employment-related claims the safeguards, provided for in those directives and transposed into Spanish law in Articles 236, 237, 238, 241, 367 and others of the Law on Capital Companies, for creditors of companies when those ultimately in charge of such companies — natural persons — fail to comply with the formal requirements regarding disclosure of basic documents of the company laid down in Directive 2009/101 and Directive 2012/30 and transposed in the Spanish Law on Capital Companies? |
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2.

Is it possible that the case-law of the Sala de lo Social (Social Division) of the Spanish Tribunal Supremo (Supreme Court), as expressed in the judgments of 28 February 1997 (RJ 1997\4220), 28 October 1997 (RJ 1997\7680), 31 December 1997 (RJ 1997\9644), 13 April 1998 (RJ 1998\4577), 17 January 2000 (RJ 2000\918), 9 June 2000 (RJ 2000\5109), 8 May 2002 and 20 December 2012 (summarised in the present order in the second point of the section dealing with applicable national case-law), might infringe Articles 2, 6, 7 and 8 of Directive 2009/101/EC and Articles 19 and 36 of Directive 2012/30/EU, in holding that Spanish social courts may not apply directly in relation to employment-related claims the safeguards, provided for in those directives and transposed into Spanish law in Articles 236, 237, 238, 241, 367 and others of the Law on Capital Companies, for creditors of companies when those ultimately in charge of such companies — natural persons — fail to comply with the formal requirements regarding disclosure of basic documents of the company laid down in Directive 2009/101 and Directive 2012/30 and transposed in the Spanish Law on Capital Companies?

| 3. | Is it possible that the case-law of the Sala de lo Social (Social Division) of the Spanish Tribunal Supremo (Supreme Court), as expressed in the judgments of 28 February 1997 (RJ 1997\4220), 28 October 1997 (RJ 1997\7680), 31 December 1997 (RJ 1997\9644), 13 April 1998 (RJ 1998\4577), 17 January 2000 (RJ 2000\918), 9 June 2000 (RJ 2000\5109), 8 May 2002 and 20 December 2012 (summarised in the present order in the second point of the section dealing with applicable national case-law), might be contrary to Articles 20 and 21, in conjunction with Article 51, of the Charter of Fundamental Rights of the European Union in requiring an employment-related creditor — an employee — to bring two sets of legal proceedings, the first before the social courts for establishment of the claim against the employer and the second before the civil/commercial courts to obtain the joint and several guarantee of the company director or other natural persons, when that requirement is not laid down for any other type of creditor — regardless of the nature of his claim — in Directive 2009/101/EC, Directive 2012/30/EU or any of the domestic legal provisions (Law on Capital Companies) transposing those Community provisions into Spanish law? |
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3.

Is it possible that the case-law of the Sala de lo Social (Social Division) of the Spanish Tribunal Supremo (Supreme Court), as expressed in the judgments of 28 February 1997 (RJ 1997\4220), 28 October 1997 (RJ 1997\7680), 31 December 1997 (RJ 1997\9644), 13 April 1998 (RJ 1998\4577), 17 January 2000 (RJ 2000\918), 9 June 2000 (RJ 2000\5109), 8 May 2002 and 20 December 2012 (summarised in the present order in the second point of the section dealing with applicable national case-law), might be contrary to Articles 20 and 21, in conjunction with Article 51, of the Charter of Fundamental Rights of the European Union in requiring an employment-related creditor — an employee — to bring two sets of legal proceedings, the first before the social courts for establishment of the claim against the employer and the second before the civil/commercial courts to obtain the joint and several guarantee of the company director or other natural persons, when that requirement is not laid down for any other type of creditor — regardless of the nature of his claim — in Directive 2009/101/EC, Directive 2012/30/EU or any of the domestic legal provisions (Law on Capital Companies) transposing those Community provisions into Spanish law?

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(1)  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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(2)  Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 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 54 of the Treaty on the Functioning of the European Union, 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 (Text with EEA relevance) (OJ 2012 L 315, p. 74).

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