Opinion of the Advocate General — ECLI:EU:C:1999:528
Date: 1999-10-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the Judgment 
1. Community law — Abusive exercise of a right arising from a provision of Community 
law — National rule prohibiting the abuse of rights — Application by national courts 
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SUMMARY — CASE C-373/97 
2. Freedom of movement for persons — Freedom of establishment — Companies — 
Directive 77/91 — Alteration of the capital of a public limited liability company — 
National rules providing for an increase by administrative decision of the capital of a 
public limited liability company in financial difficulties — Frustration of the exercise of 
rights arising from the directive by recourse to a national rule prohibiting the abuse of 
rights 
(Council Directive 77/91, Art. 25(1)) 
1. Community law cannot be relied on for 
abusive or fraudulent ends. Conse­
quently, Community law does not 
preclude the application by national 
courts of a provision of national law in 
order to assess whether a right arising 
from a provision of Community law is 
being exercised abusively. However, the 
application of such a national rule must 
not prejudice the full effect and uni­
form application of Community law in 
the Member States. 
(see paras 33-34, 44 and operative part) 
2. A shareholder relying on Article 25(1) 
of the Second Directive 77/91 on 
company law cannot be deemed to be 
abusing his rights under that provision 
on the ground that he is a minority 
shareholder, or has benefited from the 
reorganisation of the company subject 
to a reorganisation scheme, or has not 
exercised his right of preemption, or 
that he was one of the shareholders 
who asked that the company be placed 
under the scheme applicable to compa­
nies in serious difficulties, or has 
allowed a certain period of time to 
elapse before bringing his action. How­
ever, Community law does not pre­
clude national courts from applying a 
provision of national law which 
enables them to determine whether a 
right deriving from a Community law 
provision is being abused if, of the 
remedies available for a situation that 
has arisen in breach of that provision, a 
shareholder has chosen a remedy that 
will cause such serious damage to the 
legitimate interests of others that it 
appears manifestly disproportionate. 
(see paras 36-37, 43-44 and operative 
part) 
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