Opinion of the Advocate General — ECLI:EU:C:2013:555
Date: 2013-09-12
Language of the case: German
Subject matter: Right of establishment;Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Second Chamber), 19 December 2013 1. Freedom of movement for persons — Freedom of establishment — Companies — Directive 77/91– Alteration of the capital of a public limited liability company — Liability of a company as an issuer of shares for breach of its obligations in relation to advertising — National legislation providing that the company concerned is obliged to repay to the purchaser the purchase price of the shares — Lawfulness (European Parliament and Council Directives 2003/6, 2003/71 and 2004/109; Council Directive 77/91, Arts 12, 15, 16, 18, 19 and 42) 2. Freedom of movement for persons — Freedom of establishment — Companies — Directive 2009/101 — Rules on nullity — Scope — Retroactive cancellation of a share purchase contract because of breach by the company as an issuer of shares of its obligations in relation to advertising — Whether excluded (European Parliament and Council Directive 2009/101, Arts 12 and 13) 3. Freedom of movement for persons — Freedom of establishment — Companies — Directive 77/91– Alteration of the capital of a public limited liability company –Directive 2009/101 — Rules on nullity — Liability of a company as an issuer of shares for breach of its obligations in relation to advertising — National legislation not limiting that civil liability to the actual value of the shares — Lawfulness (European Parliament and Council Directive 2009/101, Arts 12 and 13; Council Directive 77/91, Arts 12, 15, 16, 18, 19 and 42) 1. Articles 12, 15, 16, 18, 19 and 42 of Second Directive 77/91 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 48 EC, 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, as amended by Directive 92/101, must be interpreted as not precluding national legislation which, in the context of the transposition of: - Directive 2003/71 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34, - Directive 2004/109 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, - and Directive 2003/6 on insider dealing and market manipulation (market abuse), first, provides that a public limited liability company, as an issuer of shares, may have a liability to a purchaser of shares in that company based on a breach of the information requirements laid down in those directives, and, secondly, imposes, under that liability, an obligation on the company concerned to repay to the purchaser a sum equivalent to the purchase price of the shares and to redeem those shares. The liability of the company concerned to investors, who are also its shareholders, by reason of irregular conduct on the part of that company prior to or at the time of the purchase of its shares, does not derive from the memorandum and articles of association and is not directed solely at the internal relations of that company. The source of that liability in such a case is the share purchase contract. As regards the principle, stated in Article 42 of the Second Directive, that shareholders must be treated equally, it must be observed that the shareholders who have suffered loss as a result of a company’s wrongful conduct occurring prior to or at the time of purchase of that company’s shares are not in a situation which is identical to that of shareholders in the same company whose legal situation has not been affected by that wrongful conduct. In those circumstances, a payment made by a company to a shareholder because of irregular conduct on the part of that company prior to or at the time of the purchase of its shares does not constitute a distribution of capital within the meaning of Article 15 of the Second Directive. Likewise, the fact that a company redeems the shares of an investor who had bought them on the basis of incorrect information, the dissemination of which that company is responsible for, cannot fall within the scope of Article 18 of the Second Directive. Further, where an issuer of shares incurs liability, it is for the Member States to choose a civil measure to provide compensation. A civil liability regime provided for in national legislation constitutes an appropriate remedy for the harm suffered by the investor and for the failure of the issuing company to comply with the information requirements. Further, it is capable of deterring issuers from misleading investors. (see paras 29, 30, 32, 34, 41, 42, 43, 45, operative part 1) 2. Articles 12 and 13 of Directive 2009/101 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 EC, with a view to making such safeguards equivalent, must be interpreted as not precluding national legislation which provides for the retroactive cancellation of a share purchase contract. The legislation at issue establishing the principle that an issuing company incurs liability where it disseminates inaccurate information in breach of the law governing capital markets provides that that company is obliged to repay to the purchaser a sum equivalent to the purchase of the shares and to redeem the shares. The aim of such legislation is, inter alia, to ensure that the injured party is put back in the position he was in before the occurrence of the act which has caused him harm, by requiring, first, repayment to the purchaser of a sum equivalent to the price which he paid for the purchase of the shares, together with interest, and, secondly, the maintenance of those shares in the share capital of the company concerned in the same way as other shares. Consequently, the retroactive cancellation of the contract for the purchase of shares at issue is not liable to entail the nullity of the company, for the purposes of Articles 12 and 13 of Directive 2009/101. (see paras 52, 53, 55, 63, operative part 2) 3. Articles 12, 15, 16, 18, 19 and 42 of the Second Directive 77/91 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 48 EC, 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, as amended by Directive 92/101, and Articles 12 and 13 of Directive 2009/101 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 48 EC with a view to making such safeguards equivalent must be interpreted as meaning that the civil liability of a company as an issuer of shares for breach of its obligations in relation to information laid down by national legislation is not necessarily restricted to the value of shares, calculated according to the price of those shares if the company is publicly listed, at the time when the claim is brought. The choice between a civil liability regime which provides for restitution to the purchaser of a sum equivalent to the share purchase price, together with interest, and a regime which restricts that liability to payment of the share price at the time when the application for compensation is brought is a matter which falls within the competence of the Member States. (see paras 69, 70, operative part 3)