# C_2021053EN.01001302.xml

| 15.2.2021 | EN | Official Journal of the European Union | C 53/13 |
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15.2.2021

EN

Official Journal of the European Union

C 53/13

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Judgment of the Court (Fourth Chamber) of 10 December 2020 (request for a preliminary ruling from the Augstākā tiesa (Senāts) — Latvia) — Euromin Holdings (Cyprus) Limited

(Case C-735/19) (1)

(Reference for a preliminary ruling - Company law - Directive 2004/25/EC - Takeover bid - First and second subparagraphs of Article 5(4) - Protection of minority shareholders - Mandatory bid - Method of calculating the share value to determine the equitable price - Power to adjust the equitable price - Exceptions to the standard calculation method under clearly defined circumstances and criteria - Liability of the Member State concerned - Damage suffered by the offeror resulting from a bid that is too high)

(2021/C 53/16)

Language of the case: Latvian

Referring court

Augstākā tiesa (Senāts)

Parties to the main proceedings

Applicant: Euromin Holdings (Cyprus) Limited

Other party: Finanšu un kapitāla tirgus komisija

Operative part of the judgment

| 1. | Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids must be interpreted as not precluding national legislation which prescribes three methods for determining the equitable price at which the offeror must buy back a company’s shares, including the method resulting from the application of the first subparagraph of Article 5(4) of that directive, and which provides that the method which leads to the highest price must always be used, provided that the methods for determining the equitable price other than that resulting from the application of the first subparagraph of Article 5(4) are applied by the supervisory authority in compliance with the general principles laid down in Article 3(1) of that directive and under circumstances and criteria that are defined by a clear, precise and transparent legal framework. |
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1.

Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids must be interpreted as not precluding national legislation which prescribes three methods for determining the equitable price at which the offeror must buy back a company’s shares, including the method resulting from the application of the first subparagraph of Article 5(4) of that directive, and which provides that the method which leads to the highest price must always be used, provided that the methods for determining the equitable price other than that resulting from the application of the first subparagraph of Article 5(4) are applied by the supervisory authority in compliance with the general principles laid down in Article 3(1) of that directive and under circumstances and criteria that are defined by a clear, precise and transparent legal framework.

| 2. | The second subparagraph of Article 5(4) of Directive 2004/25 must be interpreted as precluding national legislation which provides that, for the purposes of a takeover bid, the share value is obtained by dividing the net assets of the target company, including non-controlling minority interests, by the number of shares issued unless that method of determining the share price is based on an objective valuation criterion that is generally used in financial analysis and may be regarded as ‘clearly determined’, within the meaning of that provision, which is a matter for the referring court to verify. |
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2.

The second subparagraph of Article 5(4) of Directive 2004/25 must be interpreted as precluding national legislation which provides that, for the purposes of a takeover bid, the share value is obtained by dividing the net assets of the target company, including non-controlling minority interests, by the number of shares issued unless that method of determining the share price is based on an objective valuation criterion that is generally used in financial analysis and may be regarded as ‘clearly determined’, within the meaning of that provision, which is a matter for the referring court to verify.

| 3. | Directive 2004/25 must be interpreted as conferring, in the procedure for a takeover bid, rights on the offeror that may be enforced in an action for State liability. |
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3.

Directive 2004/25 must be interpreted as conferring, in the procedure for a takeover bid, rights on the offeror that may be enforced in an action for State liability.

| 4. | EU law must be interpreted as precluding national legislation which provides that, where a Member State is rendered liable for damage caused as a result of an infringement of a rule of EU law by a decision taken by an administrative authority of that State, compensation for the resulting material damage may be limited to 50 % of the amount of the damage. |
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4.

EU law must be interpreted as precluding national legislation which provides that, where a Member State is rendered liable for damage caused as a result of an infringement of a rule of EU law by a decision taken by an administrative authority of that State, compensation for the resulting material damage may be limited to 50 % of the amount of the damage.

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(1)  OJ C 413, 9.12.2019.

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