Opinion of the Advocate General — ECLI:EU:C:2020:822
Date: 2020-10-14
Language of the case: German

Summary C-469/19 — 1 
Case C-469/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
19 June 2019 
Referring court: 
Bundesgerichtshof (Federal Court of Justice, Germany) 
Date of the decision to refer: 
14 May 2019 
Applicant and appellant: 
All in One Star Ltd 
  
Subject matter of the main proceedings 
Appeal against the refusal to enter a branch of a company registered in the United 
Kingdom in the German commercial register, which was based on the fact that, 
when the application was made for the branch’s entry in the commercial register, 
the amount of the company’s share capital was not indicated and no assurance was 
provided that instruction had been received regarding the unrestricted duty that 
exists under national German law to provide information to the court 
Subject matter and legal basis of the reference 
Subject matter: Interpretation of Article 30 of Directive (EU) 2017/1132 of the 
European Parliament and of the Council of 14 June 2017 relating to certain 
aspects of company law and of Articles 49 and 54 TFEU 
Legal basis: Article 267 TFEU 
Questions referred 
1. Does Article 30 of Directive (EU) 2017/1132 preclude a national provision 
under which the indication of the amount of share capital or a comparable capital 
EN 
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value is required for a branch of a limited liability company with registered office 
in another Member State to be entered in the commercial register? 
2. a) Does Article 30 of Directive (EU) 2017/1132 preclude a national 
provision under which, when applying for a branch of a limited liability company 
with registered office in another Member State to be entered in the commercial 
register, the managing director of the company has to provide an assurance that 
there is no barrier to his personal appointment under national law in the form of a 
prohibition, ordered by a court or public authority, on practising his profession or 
trade, corresponding in whole or in part with the object of the company, or in the 
form of a final conviction for certain criminal offences and that, in this respect, he 
has been instructed of his unrestricted duty to provide information to the court by 
a notary, a representative of a comparable legal advisory profession or a consular 
officer? 
b) If Question 2a is answered in the negative: 
Do Articles 49 and 54 TFEU preclude a national provision under which the 
managing director of the company has to provide such an assurance when 
applying for a branch of a limited liability company with registered office in 
another Member State to be entered in the commercial register? 
Provisions of EU law and EU case-law cited 
TFEU, Articles 49 and 54; 
Directive (EU) 2017/1132 of the European Parliament and of the Council of 
14 June 2017 relating to certain aspects of company law (OJ 2017 L 169, p. 46; 
‘Directive 2017/1132’), Article 30; 
Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning 
disclosure requirements in respect of branches opened in a Member State by 
certain types of company governed by the law of another State (OJ 1989 L 395, 
p. 36; ‘Directive 89/666’), Article 2; 
Judgment of the Court of Justice of 9 March 1999, Centros, C-212/97, 
EU:C:1999:126 (‘Centros judgment’), paragraph 38; 
Judgment of the Court of Justice of 30 September 2003, Inspire Art, C-167/01, 
EU:C:2003:512 (‘Inspire Art judgment’), paragraphs 69, 70, 106, 133, 135 and 
140; 
Judgment of the Court of Justice of 1 June 2006, innoventif, C-453/04, 
EU:C:2006:361 (‘innoventif judgment’), paragraph 33 et seq. 
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Provisions of national law cited 
Handelsgesetzbuch (German Commercial Code; HGB) as amended on 
1 November 2008 (law of 23 October 2008, BGBl. I p. 2026), Paragraphs 13e and 
13g; 
Gesetz betreffend die Gesellschaften mit beschränkter Haftung (Law on limited 
liability companies; GmbHG) as amended on 1 November 2008 (law of 
23 October 2008, BGBl. I p. 2026), Paragraphs 6, 8, 10 and 82; 
Gesetz über das Zentralregister und das Erziehungsregister (Law on the central 
register and correctional register; BZRG) as amended on 29 July 2017 (law of 
18 July 2017, BGBl. I p. 2732), Paragraphs 41 and 53. 
Brief summary of the facts and procedure 
1 All in One Star Ltd. (‘All in One Star’) is a private company limited by shares 
with registered office in Great Bookham (United Kingdom) which was entered in 
the Commercial Register of Companies House for England and Wales in Cardiff 
on 30 October 2013. It applied for a branch to be entered in the commercial 
register at the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main, 
Germany) (the court of registration) in March 2014. The court of registration 
informed All in One Star that the application could not be allowed for the 
following reasons inter alia: The amount of the share capital of All in One Star 
was not indicated, contrary to the provisions of Paragraph 13g(3) of the HGB in 
conjunction with Paragraph 10(1), sentence 1, of the GmbHG. Furthermore, 
although the director and sole shareholder of All in One Star had provided 
assurance in the application that there was nothing to prevent him personally from 
being appointed as an organ of the company under Paragraph 6(2), sentence 2, 
point 2 and point 3, and sentence 3, of the GmbHG, he had not provided assurance 
that he had also been instructed in this respect of his unrestricted duty to provide 
information to the court, contrary to Paragraph 13g(1) and (2), sentence 2, of the 
HGB in conjunction with Paragraph 8(3) of the GmbHG. 
2 The Oberlandesgericht (Higher Regional Court) dismissed All in One Star’s 
appeal against the court of registration’s objections. This is opposed by All in One 
Star with an appeal to the referring court. 
Brief summary of the basis for the reference 
First question referred 
3 The question is raised as to whether All in One Star’s obligation, provided for 
under the relevant German legislation, to indicate the amount of its share capital 
or a comparable capital value when registering its branch is compatible with 
Article 30 of Directive 2017/1132. 
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4 The fact that Directive 2017/1132 did not come into effect until 20 July 2017 and 
therefore in the course of the appeal proceedings does not preclude its application 
to the registration of the branch of All in One Star, because the referring court has 
to apply the law in force when it issues its ruling in the appeal proceedings. 
5 Article 30 of Directive 2017/1132 contains a catalogue of documents and 
particulars which may have to be disclosed under the law of one Member State for 
branches of companies from other Member States. In Article 30 thereof, the 
indication of the amount of the share capital or a comparable capital amount is not 
expressly mentioned in either the compulsory items of disclosure in paragraph 1 
or the optional items of disclosure in paragraph 2. Therefore, a Member State 
could be prevented under the Directive from demanding the indication of the 
company’s share capital for the registration of the branch. 
6 Such a precluding interpretation could be supported by the fact that, in the Inspire 
Art judgment (paragraphs 69 and 70), the Court of Justice ruled in relation to 
Article 2 of Directive 89/666 — the predecessor, corresponding in terms of 
content, to Article 30 of Directive 2017/1132 — that the catalogue of disclosure 
measures therein is exhaustive and the Member States are unable to provide for 
disclosure measures for branches other than those laid down in the text of 
Directive 89/666. This case-law should also apply accordingly to the rule, 
unchanged in terms of content, in Article 30 of Directive 2017/1132. 
7 Furthermore, Directive 2017/1132 expressly stipulates the disclosure of a capital 
value in the case of the company itself (Article 14(e)) and in the case of the 
registration of branches of companies from third States (Article 37(e)). It might 
have to be concluded therefrom that the duty to indicate a capital value was 
deliberately dispensed with in the case of branches of companies from a Member 
State. 
8 Recital 18 of Directive 2017/1132 could also suggest that the directive 
deliberately refrains from providing for an — even optional — obligation to 
indicate the company’s capital for branches from Member States, because that 
information can be obtained within the European Union through application to the 
register of the company in the Member State. 
9 However, with regard to the innoventif judgment (paragraph 33 et seq,), the 
referring court is inclined to regard the demand for disclosure of the share capital 
or a capital value comparable thereto as being in accordance with the directive if 
that indication is also part of the company’s instrument of constitution, the full 
disclosure of which may be demanded under Article 30(2)(b) of Directive 
2017/1132. 
10 It can be gathered from the innoventif judgment that it is compatible with 
Directive 89/666 or the successor provisions in Directive 2017/1132 to demand 
the disclosure of a particular or document which, although not expressly 
mentioned in the catalogue of disclosure measures of the directive, is part of one 
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of those particulars or documents, namely of the company’s instrument of 
constitution mentioned in the catalogue of optional disclosure measures, and 
therefore would inevitably likewise have to be disclosed upon full disclosure 
thereof. 
Second question referred 
11 With regard to the court of registration’s second objection concerning the lack of 
assurance provided by the director of All in One Star regarding his instruction 
pursuant to Paragraph 13g(1) and (2), sentence 2, of the HGB in conjunction with 
Paragraph 8(3) of the GmbHG, the question firstly arises as to whether the 
provisions of Directive 2017/1132 regarding disclosure duties in the case of 
branch registrations are applicable to this indication (Question 2a). Should that not 
be the case, the question arises as to whether the demand for such assurance is in 
breach of the freedom of establishment under Articles 49 and 54 TFEU (Question 
2b). 
Question 2a 
12 As the director of All in One Star only provided an assurance in the branch 
application that none of the personal appointment obstacles set out in 
Paragraph 8(3), sentence 1, in conjunction with Paragraph 6(2), sentence 2, 
points 2 and 3, and sentence 3, of the GmbHG applied to him, but not that he had 
also been instructed of his unrestricted duty to provide information pursuant to 
Paragraph 8(3) of the GmbHG, the application does not meet the requirements of 
Paragraph 13g(2), sentence 2, of the HGB in conjunction with Paragraph 8(3) of 
the GmbHG. 
13 It is in question whether Article 30 of Directive 2017/1132 precludes the 
obligation, prescribed under national German law, to provide assurance regarding 
the instruction received. That depends on whether the assurance concerning 
indications regarding the personal suitability of the company’s managing director 
is even covered by the scope of Directive 2017/1132. 
14 When it introduced the obligation to provide assurance of the instruction received 
into national German law, the German legislature assumed that the provision was 
not covered by the scope of Directive 89/666 in force at that time, because that 
directive did not contain any rules on the suitability of a company’s representative 
and was confined to providing for a duty of disclosure in respect of the 
appointment, termination of office and particulars of the representatives. 
15 In the opinion of the referring court, an exemption of indications regarding the 
personal suitability of the managing director from the scope of Directive 89/666 or 
Directive 2017/1132 that is now in force, in view of the exhaustive character, is 
however not without doubt. 
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16 Neither Directive 86/666 nor Directive 2017/1132 contains an express exception 
for indications concerning the personal suitability of the company’s 
representatives. Under Article 1 of Directive 2017/1132, its subject matter instead 
extends generally to the area of the ‘disclosure requirements in respect of branches 
opened in a Member State by certain types of company governed by the law of 
another State’. In addition, recital 22 of Directive 2017/1132 (like the recitals of 
Directive 89/666 before it) makes it clear that the directive in no way affects 
disclosure requirements for branches under other provisions of, for example, 
employment law on workers’ rights to information and tax law, or for statistical 
purposes. A corresponding clarification in respect of indications regarding the 
personal suitability of the company’s representatives is, in contrast, not to be 
gathered from the recitals. An argument against this exemption from the scope of 
the directive is also the fact that the directive certainly also contains rules 
regarding the disclosure of personal information as, under Article 30(1)(e) of 
Directive 2017/1132 (and Article 2(1)(e) of Directive 89/666), the appointment, 
termination of office and particulars of the company’s representatives are to be 
disclosed in the case of branches of companies from other Member States. Having 
regard thereto, it appears questionable to assume that all other personal 
information, in particular regarding the personal suitability of a managing director, 
should from the outset not be covered by the scope of the directive. 
17 Should the obligation to provide the assurance pursuant to Paragraph 13g(2), 
sentence 2, in conjunction with Paragraph 8(3) of the GmbHG fall within the 
scope of Directive 2017/1132, it would be contrary to the directive. This is 
because the obligation to provide such assurance is neither one of the admissible 
disclosure measures under Article 30 of that directive, nor can it be subsumed — 
unlike the company’s share capital — under one of the admissible disclosure 
measures set out in the directive. As, according to the Inspire Art judgment, the 
directive’s catalogue of disclosure measures is exhaustive, the directive would 
therefore preclude the demand for such an assurance. According to the Inspire Art 
judgment (paragraph 106), there can be no justification for this breach of the 
disclosure provisions of the directive. Therefore, the court of registration should 
not refuse All in One Star’s application for registration for this reason. 
Question 2b 
18 Should the obligation to provide assurance pursuant to Paragraph 13g(2), sentence 
2, in conjunction with Paragraph 8(3) of the GmbHG not fall within the scope of 
Directive 2017/1132, the question arises as to its compatibility with European 
primary law, specifically the freedom of establishment pursuant to Articles 49 and 
54 TFEU. 
19 The obligation to provide the assurance constitutes a restriction of the freedom of 
establishment guaranteed in Articles 49 and 54 TFEU because, without that 
assurance, no entry in the commercial register takes place and the entry is 
therefore made dependent on additional conditions and thereby at least potentially 
made more difficult. 
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20 According to the case-law of the Court of Justice (see, for example, Inspire Art 
judgment, paragraph 133), national measures liable to hinder or make less 
attractive the exercise of fundamental freedoms guaranteed by the TFEU must, if 
they are to be justified, fulfil four strict conditions: they must be applied in a non-
discriminatory manner, be justified by imperative requirements in the public 
interest, and be suitable for securing the attainment of the objective which they 
pursue and must not go beyond what is necessary in order to attain it. 
21 The referring court has doubts as to whether these conditions are met in the case 
of the assurance at issue in the main proceedings, which is demanded of managing 
directors of companies with registered office in a Member State pursuant to 
Paragraph 13g(1) and (2) of the HGB in conjunction with Paragraph 8(3) of the 
GmbHG. 
22 It is true that Paragraph 13g(1) and (2) of the HGB in conjunction with 
Paragraph 8(3) of the GmbHG is applied in a non-discriminatory manner, as the 
managing directors of domestic companies are equally obliged to provide such 
assurance (Paragraph 8(3) of the GmbHG). The provision also serves imperative 
requirements in the public interest, namely creditor protection and protection of 
fair trading from unsuitable representatives of a company, as the application and 
examination procedure for the court of registration is made easier through the 
provision of the assurances, in that the court’s own searches that would otherwise 
be required regarding any existing obstacles to appointment are rendered 
unnecessary. 
23 However, the provision could go beyond what is necessary for attaining those 
objectives, because the managing directors of the foreign company are thereby 
subjected to a duty of declaration that is even subject to punishment 
(Paragraph 82(1), point 5, of the GmbHG). In this respect, it must be taken into 
consideration that all foreign companies established abroad with foreign 
management staff and also maintaining an actual main establishment there are 
also covered by the provisions of Paragraph 13g(2), sentence 2, and 
Paragraph 13e(3), sentence 2, of the HGB. Ongoing knowledge of the domestic 
legal situation in relation to obstacles to appointment of managing directors of 
domestic companies cannot be assumed of that group of people, which means that 
truthful assurance would, simply as a matter of fact, probably only be possible 
with difficulty for foreign managing directors familiar with the law of the State of 
establishment. It would also have to be checked in the individual case by the 
foreign managing director whether circumstances which did not preclude his 
appointment as managing director under the local legislation could nevertheless 
lead to a prohibition of appointment under German law. When implementing 
Directive 89/666 in 1992/1993, the German legislature therefore also still assumed 
that the provision of Paragraph 8(3) of the GmbHG was not appropriate for 
managing directors of foreign companies, and therefore deliberately refrained 
from extending that duty of assurance to foreign companies at that time. 
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24 The Centros judgment (paragraph 38) in particular also speaks against 
justification of the national provision at issue. This is because, in the present case, 
the obligation to provide the assurance pursuant to Paragraph 8(3) of the GmbHG 
is solely intended preventively to ensure that, by way of the branch establishment, 
domestic obstacles to appointment are not circumvented and people who are not 
suitable for properly taking care of business matters do not act as representatives 
of the company domestically. It therefore (only) serves preventively to combat 
possible abuses of the freedom of establishment and deceit by company 
representatives who are unsuitable under domestic law. However, according to the 
Centros judgment, that cannot justify a refusal to register the branch application.