# C_2019413EN.01003101.xml

| 9.12.2019 | EN | Official Journal of the European Union | C 413/31 |
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9.12.2019

EN

Official Journal of the European Union

C 413/31

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Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 7 October 2019 — Euromin Holdings (Cyprus) Limited v Finanšu un kapitāla tirgus komisija

(Case C-735/19)

(2019/C 413/37)

Language of the case: Latvian

Referring court

Augstākā tiesa (Senāts)

Parties to the main proceedings

Applicant at first instance and appellant in cassation: Euromin Holdings (Cyprus) Limited

Defendant at first instance and appellant in cassation: Finanšu un kapitāla tirgus komisija

Questions referred

| 1. | Is national legislation which provides that the share price for a mandatory buyback offer is to be calculated by dividing the net assets of the offeree company (including non-controlling (minor) interests) between the number of shares issued contrary to the correct application of Article 5 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids? (1) |
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1.

Is national legislation which provides that the share price for a mandatory buyback offer is to be calculated by dividing the net assets of the offeree company (including non-controlling (minor) interests) between the number of shares issued contrary to the correct application of Article 5 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids? (1)

| 2. | If the first question is answered in the negative, that is to say, to the effect that the net assets of the offeree company do not have to include non-controlling or minority interests, may a method of determining the share price be regarded as clearly determined, within the meaning of the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, if it is necessary to apply a method of legal interpretation — teleological reduction — in order to understand it? |
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2.

If the first question is answered in the negative, that is to say, to the effect that the net assets of the offeree company do not have to include non-controlling or minority interests, may a method of determining the share price be regarded as clearly determined, within the meaning of the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, if it is necessary to apply a method of legal interpretation — teleological reduction — in order to understand it?

| 3. | Is legislation providing that the highest price out of the following three variants must be used compatible with Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, that is to say, compatible with the determination of an equitable price?






  3.1. | the price at which the offeror or persons acting in concert with the latter acquired the shares of the offeree company in the preceding 12 months. In the event of the acquisition of shares at different prices, the buyback price is to be the highest price at which shares were purchased during the 12 months preceding the legal obligation to submit a buyback offer; |
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3.

Is legislation providing that the highest price out of the following three variants must be used compatible with Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, that is to say, compatible with the determination of an equitable price?

3.1.

the price at which the offeror or persons acting in concert with the latter acquired the shares of the offeree company in the preceding 12 months. In the event of the acquisition of shares at different prices, the buyback price is to be the highest price at which shares were purchased during the 12 months preceding the legal obligation to submit a buyback offer;

| 3.2. | the weighted average share price on the regulated market or on the multilateral trading facility via which the largest volume of the shares were traded during the last 12 months. The weighted average share price is to be calculated on the basis of the 12 months preceding the legal obligation to submit a buyback offer; |
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3.2.

the weighted average share price on the regulated market or on the multilateral trading facility via which the largest volume of the shares were traded during the last 12 months. The weighted average share price is to be calculated on the basis of the 12 months preceding the legal obligation to submit a buyback offer;

| 3.3. | the share value calculated by dividing the net assets of the offeree company by the number of shares issued. Net assets are to be calculated by deducting the offeree company’s own shares and liabilities from its total assets. If the offeree company has shares with different nominal values, in order to calculate the share value, the net assets are to be divided by the percentage of each nominal share value in the share capital. |
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3.3.

the share value calculated by dividing the net assets of the offeree company by the number of shares issued. Net assets are to be calculated by deducting the offeree company’s own shares and liabilities from its total assets. If the offeree company has shares with different nominal values, in order to calculate the share value, the net assets are to be divided by the percentage of each nominal share value in the share capital.

| 4. | If the method of calculation laid down by national law, using the discretion granted [to Member States] by the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, results in a higher price than that resulting from the application of the first subparagraph of Article 5(4), is it consistent with the objective of the Directive to always choose the higher price? |
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4.

If the method of calculation laid down by national law, using the discretion granted [to Member States] by the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, results in a higher price than that resulting from the application of the first subparagraph of Article 5(4), is it consistent with the objective of the Directive to always choose the higher price?

| 5. | If damage is caused to an individual as a result of the incorrect application of EU law, may national law provide for the limitation of compensation for such damage if that limitation applies equally to damage suffered as a result of the incorrect application of national law and to damage suffered as a result of the incorrect application of EU law? |
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5.

If damage is caused to an individual as a result of the incorrect application of EU law, may national law provide for the limitation of compensation for such damage if that limitation applies equally to damage suffered as a result of the incorrect application of national law and to damage suffered as a result of the incorrect application of EU law?

| 6. | Do the provisions of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids that are applicable to the present case confer rights on individuals, that is to say, is the corresponding requirement for State liability met? |
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6.

Do the provisions of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids that are applicable to the present case confer rights on individuals, that is to say, is the corresponding requirement for State liability met?

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(1)  OJ 2004 L 142, p. 12.

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