Opinion of the Advocate General — ECLI:EU:C:2024:692
Date: 2024-09-05
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-627/23 – 1 
Case C-627/23 
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:  
13 October 2023 
Referring court: 
Cour de cassation (Belgium) 
Date of the decision to refer: 
29 September 2023 
Appellants on a point of law: 
Commune de Schaerbeek 
Commune de Linkebeek 
Defendant on a point of law:  
Holding Communal SA 
  
1. Subject matter and circumstances of the dispute: 
1 The shareholders of the public limited company Holding communal (formerly 
Crédit communal de Belgique; ‘Holding communal’) are the provinces and 
municipalities financed by it. That company has a substantial holding in the public 
limited companies Dexia and Dexia Bank (now Belfius Bank). 
2 In order to deal with the 2008 banking crisis, it participated in an increase of 
capital in Dexia of EUR 500 million. In order to be able to meet that commitment, 
the board of directors of Holding communal decided to appeal to the shareholders, 
proposing capital increases, in particular by contributions in cash, which were 
approved at the general meeting of shareholders on 30 September 2009. 
3 All the shareholders agreed to subscribe to the increases in capital. 
4 On 7 December 2011, the extraordinary general meeting of Holding communal 
decided that the company should be dissolved and liquidated. Since no liquidating 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-627/23 
 
2  
dividends could be distributed, the shareholders lost the whole of their 
subscriptions. 
5 The municipalities of Schaerbeek and Linkebeek applied for the annulment of 
their subscriptions to the capital increases on the ground that a prospectus was not 
published before the shareholders were invited to subscribe to those increases. 
6 By judgment of 12 April 2022, the cour d’appel de Bruxelles (Court of Appeal, 
Brussels) upheld the judgment dismissing their action. Like the court of first 
instance, the Court of Appeal held that, since they were not negotiable, the 
securities issued when the capital was increased were not transferable securities 
and that, therefore, the law requiring the publication of a ‘prospectus’ was not 
applicable. 
7 Upon appeal, the Cour de cassation (Court of Cassation) is examining the concept 
of transferable security contained in the directive transposed by the Belgian law. 
2. Provisions in question: 
A. EU law 
Directive 2003/71/EC of the European Parliament and of the Council of 
4 November 2003 on the prospectus to be published when securities are offered to 
the public or admitted to trading and amending Directive 2001/34/EC 
8 Article 1, entitled ‘Purpose and scope’, provides: 
‘1. The purpose of this Directive is to harmonise requirements for the drawing up, 
approval and distribution of the prospectus to be published when securities are 
offered to the public or admitted to trading on a regulated market situated or 
operating within a Member State’. 
9 Article 2, entitled ‘Definitions, provides: 
‘1. For the purposes of this Directive, the following definitions shall apply: 
(a) “securities” means transferable securities as defined by Article 1(4) of 
Directive 93/22/EEC with the exception of money market instruments as defined 
by Article 1(5) of Directive 93/22/EEC, having a maturity of less than 12 months. 
For these instruments national legislation may be applicable …’ 
MUNICIPALITEIS OF SCHAERBEEK AND LINKEBEEK 
 
3 
Directive 2004/39/EC of the European Parliament and of the Council of 21 April 
2004 on markets in financial instruments amending Council Directives 
85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European 
Parliament and of the Council and repealing Council Directive 93/22/EEC 
10 Article 4, entitled ‘Definitions’, provides: 
‘1. For the purposes of this Directive, the following definitions shall apply: 
… 
18) “Transferable securities” means those classes of securities which are 
negotiable on the capital market, with the exception of instruments of payment, 
such as: 
(a) shares in companies and other securities equivalent to shares in companies, 
partnerships or other entities, and depositary receipts in respect of shares; 
…’ 
11 Article 69 provides: 
‘Repeal of Directive 93/22/EEC 
Directive 93/22/EEC shall be repealed with effect from 1 November 2007. 
References to Directive 93/22/EEC shall be construed as references to this 
Directive. References to terms defined in, or Articles of, Directive 93/22/EEC 
shall be construed as references to the equivalent term defined in, or Article of, 
this Directive’. 
B. Belgian law  
12 The loi du 16 juin 2006, relative aux offres publiques d’instruments de placement 
et aux admissions d’instruments de placement à la négociation sur des marchés 
réglementés (Law of 16 June 2006 on offers of investment instruments to the 
public and admissions of investment instruments to trading on regulated markets, 
‘the Law of 16 June 2006’) transposed into Belgian law Directive 2003/71. 
3. Positions of the parties: 
A. The municipalities of Schaerbeek and Lindebeek 
13 The loi du 16 juin 2006, also known as the ‘Prospectus Law’, provides that all 
offers of investment instruments to the public made on Belgian territory and all 
admissions of investment instruments to trading on a Belgian regulated market 
require the prior publication of a prospectus by the issuer, the offeror or the person 
asking for admission to trading on a regulated market, as the case may be. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-627/23 
 
4  
14 In the absence of the prior publication of a prospectus, the subscriptions to the 
capital increases at issue are vitiated by absolute nullity. 
15 The court of first instance wrongly held that the ‘Prospectus Law’ was not 
applicable in this case on the ground that the increases in capital did not give rise 
to the issue of ‘transferable securities’ within the meaning of the ‘Prospectus 
Law’, since the shares issued were not negotiable on the capital market because 
they could be held only by municipal and provincial entities and their transfer was 
subject to approval by the board of directors. 
16 It follows from the wording of the law that the securities offered to persons which 
must give rise to the prior publication of a prospectus cover without restriction, 
‘shares in companies’. The persons notified of the offer are not defined in the law. 
It is not stated in the law that those persons cannot be municipal in nature, or that 
they cannot already be shareholders. The application of those legal provisions 
does not require the transfer of those shares to be free of any condition. 
17 Accordingly, whether their transfer is subject to restrictions, such as the need for 
approval by the board of directors, or whether the ‘persons’ concerned belong to a 
specific category, such as municipal and provincial entities, is of no consequence 
for the application of the Law of 16 June 2006. 
18 The existence of such characteristics does not remove the possibility of the 
company shares being traded on capital markets or, therefore, permit their 
exclusion, on that basis alone, from the scope of the Law of 16 June 2006. 
19 Moreover, the court of first instance was wrong to state that ‘if the legislature had 
intended to include all shares, including non-negotiable shares, in the investment 
instruments, it would not have provided in Article 5 of the Law of 16 June 2006 
[derived from point 18 of Article 4(1) of Directive 2004/39] that only negotiable 
shares are transferable securities and therefore investment instruments within the 
meaning of the Law [of 16 June 2006]’. 
20 Company shares, irrespective of the conditions and any procedures that must be 
complied with when they are transferred, are still negotiable on the capital market, 
even if such negotiation must entail a transaction concluded with municipal and 
provincial entities and even if it is subject to approval by the board of directors. 
B. Holding communal 
21 Holding communal challenges the application of the Law of 16 June 2006 and 
supports the assessments of the court of first instance. 
MUNICIPALITEIS OF SCHAERBEEK AND LINKEBEEK 
 
5 
4. Assessment of the Court of Cassation: 
22 Pursuant to the Law of 16 June 2006, transferable securities are to be understood 
as meaning all classes of investment instruments which are negotiable on the 
capital market, such as, inter alia, company shares. 
23 The contested judgment of the court of appeal states that ‘the court of first 
instance decided that the Law [of 16 June 2006] was not applicable to the present 
dispute on the ground that the capital increases at issue did not give rise to the 
issue of ‘transferable securities’ within the meaning of the law, since the shares 
issued ‘were not negotiable on the capital market’, and confirms that those shares 
‘were not transferable shares within the meaning of the Law [of 16 June 2006]’, 
since such shares ‘could be held only by municipal and provincial entities and 
their transfer was subject to approval by the board of directors’. 
24 The Law of 16 June 2006 transposes Directive 2003/71/EC into Belgian law. 
25 Since examination of the plea requires interpretation of Article 2(1)(a) of 
Directive 2003/71/EC, itself referring to point 18 of Article 4(1) of Directive 
2004/39/EC, it is necessary to refer to the Court of Justice of the European Union 
the question for a preliminary ruling set out below. 
5. Question for a preliminary ruling: 
26 The Court of Cassation stays the proceedings pending the reply by the Court of 
Justice of the European Union to the following question: 
‘Must Article 2(1)(a) of Directive 2003/71/EC of the European Parliament and of 
the Council of 4 November 2003 on the prospectus to be published when 
securities are offered to the public or admitted to trading and amending Directive 
2001/34/EC 2001/34/EC, itself referring to point 18 of Article 4(1) of Directive 
2004/39/EC of the European Parliament and of the Council of 21 April 2004 on 
markets in financial instruments amending Council Directives 85/611/EEC and 
93/6/EEC and Directive 2000/12/EC of the European Parliament and of the 
Council and repealing Council Directive 93/22/EEC, be interpreted as meaning 
that the concept of transferable security negotiable on the capital market covers 
the shares of a holding company which can be held only by provinces and 
municipalities and whose transfer is subject to the approval of the board of 
directors?’