Opinion of the Advocate General — ECLI:EU:C:2025:533
Date: 2025-07-03
Language of the case: Slovenian

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Translation C-567/24 – 1 
Request for a preliminary ruling – Case C-567/24 
Reference for a preliminary ruling 
Date lodged:  
21 August 2024 
Referring court:  
Okrožno sodišče v Ljubljani (Slovenia) 
Date of the decision to refer:  
6 June 2024 
Applicant:  
YO 
Defendant:  
SVEMA TRADE d.o.o. 
Interveners:  
Minority shareholders of HRAM Holding d.d. 
  
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REQUEST FOR A PRELIMINARY RULING OF 6. 6. 2024 – CASE C-567/24 
 
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REQUEST 
FOR A PRELIMINARY RULING  
A commercial dispute is pending before the Okrožno sodišče v Ljubljani (District 
Court, Ljubljana) between the applicant, YO, … Ljubljana, … and the defendant, 
[SVEMA] TRADE, d.o.o., … Ljubljana, … with the minority shareholders of that 
company as interveners …, for the purpose of obtaining a judicial determination 
of the appropriate financial compensation for the exclusion (squeeze-out) of the 
minority shareholders from HRAM Holding, d.d. (value of the dispute: 
EUR 189 258.00). 
By order of 7 May 2024, the District Court, Ljubljana, stayed the commercial 
proceedings in matters of non-contentious jurisdiction because, in view of the 
questions raised in relation to EU law, it decided to refer a question to the Court of 
Justice of the European Union for a preliminary ruling under the second paragraph 
of Article 267 TFEU.  
Succinct presentation of the facts 
1 The applicant was a minority shareholder of the offeree company, whereas the 
defendant is currently a majority shareholder of the same company. On 
30 September 2021, the defendant acquired 67.56% of the total number of issued 
shares from the previous majority shareholder, thus increasing its shareholding in 
the offeree company – which until then amounted to 19.77% – and becoming the 
owner of 87.32% of the shares of that company. Having thus exceeded the 
prescribed takeover threshold, on 27 October 2021, based on the authorisation 
received from the Agencija za trg vrednostnih papirjev (Securities Market 
Agency), it launched a mandatory takeover bid, which was successful. Following 
the success of the takeover bid, the defendant became the owner of 90.51% of the 
total number of shares of the offeree company. Within three months of the 
successful takeover bid (the ‘post-purchase period’), the defendant passed a 
resolution at the general meeting of shareholders of the offeree company to 
transfer all the shares of the minority shareholders to it in exchange for payment 
of cash compensation in the amount established in the takeover bid. 
Arguments of the parties 
2 The applicant argues that in the present case, although a takeover procedure was 
followed before the squeeze-out of the minority shareholders, it was not a 
mandatory takeover bid, despite the fact that the defendant and the former holder 
of the majority of the shares sought to give that impression. The applicant claims 
that the defendant acted in concert with the former majority shareholder of the 
offeree company, within the meaning of Article 8(1) of the Zakon o prevzemih 
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(the Law on takeovers; ‘the ZPre-1’), which defines persons acting in concert as 
persons who, on the basis of an agreement, whether express or implied, whether 
verbal or written, cooperate for the purpose of acquiring or consolidating control 
of an offeree company or to enable the acquirer to succeed in a takeover bid. The 
applicant argues that the sale of the shares of the offeree company to the defendant 
was a sham transaction, the underlying purpose of which was not to sell or 
reallocate shares between persons acting in concert, but rather to trigger a 
mechanism to squeeze out minority shareholders at an acquisition price that did 
not reflect a fair or equitable price for the shares of the offeree company. In view 
of the concerted practice employed by the defendant and the previous holder of 
the majority of the shares, the applicant contends that there was no obligation to 
launch the takeover bid and that the condition required under Article 68 of the 
Zpre-1 – whereby the takeover price creates a presumption of adequate financial 
compensation for minority shareholders – was not fulfilled. 
3 The defendant states that, while the previous majority shareholder decided to exit 
the Slovenian market, it decided to increase its shareholding in the offeree 
company and become the majority shareholder through a takeover. The defendant 
also disputes the applicant’s allegations that it and the previous majority 
shareholder acted in concert and that the sale of the shares of the offeree company 
was a sham transaction. In fact, it claims to have concluded a sale and purchase 
agreement with the previous holder of the majority of the shares of the offeree 
company for 67.56% of the shares of that company, thus becoming the holder of 
87.32% of the shares of the offeree company. Having exceeded the takeover 
threshold, it had to launch a mandatory takeover bid, namely a public offer to 
purchase all remaining shares of the offeree company that it did not own. The 
takeover bid was successful and the defendant thus became the owner of 90.51% 
of the issued shares of the offeree company. On the basis of the above, the 
defendant, as the main shareholder, requested that a general meeting of the 
company be convened so that a resolution could be adopted to transfer the shares 
of the other shareholders to the main shareholder against payment of appropriate 
cash compensation. Because the decision of the general meeting was voted on 
within three months of the announcement of the outcome of the takeover bid, the 
defendant was required under Article 68(2) of the ZPre-1 to offer the same price 
as had been offered in the previous takeover bid. According to the defendant, the 
financial compensation cannot be reviewed or determined by the courts. 
4 A joint representative of the minority shareholders was also appointed in the 
proceedings by a decision of 27 January 2023. That representative agrees with the 
applicant’s statement. The representative further argues that if the court were to 
determine that the defendant acquired at least 90% of the total number of voting 
shares by launching the mandatory takeover, the defendant’s argument that the 
cash compensation is not subject to judicial review or determination would be 
incorrect. On this point, the representative takes into consideration the opinion of 
the Vrhovno sodišče Republike Slovenije (Supreme Court, Republic of Slovenia) 
No III Ips 4/2022 of 13 June 2023, and points out that the defendant’s only 
relevant transaction involving shares of the offeree company in the last twelve 
REQUEST FOR A PRELIMINARY RULING OF 6. 6. 2024 – CASE C-567/24 
 
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months prior to the announcement of the takeover bid was the purchase of a block 
of 67.56% of the total number of issued shares held by the previous majority 
shareholder. The representative contends that, in view of the link highlighted by 
the applicant, this cannot constitute an adequate market test to justify a fair price 
and, consequently, adequate cash compensation to minority shareholders in the 
event of a squeeze-out. 
Procedure 
5 The District Court, Ljubljana, is hearing the case at first instance and has not yet 
given a final decision. The question arising is the interpretation, in accordance 
with EU law, of Article 68(2) of the ZPre-1, which transposes the third 
subparagraph of Article 15(5) of Directive 2004/25/EC into the legal framework 
of the Republic of Slovenia. The referring court is asking whether the presumption 
of fair price laid down in the third subparagraph of Article 15(5) of Directive 
2004/25/EC is relative or absolute. The response to this question has practical 
consequences for the resolution of this case. If the third subparagraph of 
Article 15(5) of Directive 2004/25/EC were to be interpreted as meaning that the 
presumption of a fair price in a mandatory takeover bid is in any event relative, 
the referring court, in the further course of the proceedings and assuming that it 
considers that there was a mandatory takeover bid in this specific case, in the light 
of the interpretation of Article 68(2) of the ZPre-1 in accordance with EU law, 
would undertake a judicial review of the appropriateness of the amount of the fair 
consideration established in the takeover. If the presumption of a fair price is 
instead interpreted as absolute, the minority shareholder’s claim for judicial 
protection would be rejected. However, if the abovementioned provision were to 
be interpreted as meaning that the presumption is relative only in specific 
circumstances, the court would first need to assess whether these circumstances 
are alleged and proven in this specific case. 
European Union law 
6 The legal institution of the squeeze-out of minority shareholders is regulated by 
Directive 2004/25/EC. The fundamental objective of Directive 2004/25/EC is the 
protection of the interests of holders of the securities of companies (recital 2 of 
Directive 2004/25/EC) governed by the laws of Member States when those 
companies are the subject of takeover bids and, in particular, it is aimed at 
protecting the position of minority shareholders, as Member States are required to 
ensure that appropriate measures are put in place to make such protection effective 
(recital 9 of Directive 2004/25/EC). 
As regards the cash consideration to be received by the squeezed-out shareholders 
following a mandatory bid, the third subparagraph of Article 15(5) of Directive 
2004/25/EC reads as follows: 
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‘Following a mandatory bid, the consideration offered in the bid shall be 
presumed to be fair.’ 
Relevant national provisions and case-law  
7 In the context of the transposition and implementation of the abovementioned 
provision of Directive 2004/25/EC, the Republic of Slovenia regulated the 
squeeze-out of minority shareholders in Article 68 of the Takeover Law (ZPre-1). 
8 Article 68 of the ZPre-1 reads as follows: 
‘(1) For the squeeze-out of minority shareholders of an offeree company in which 
the acquirer has acquired at least 90% of the total number of voting shares of that 
company and has acquired that holding by taking part in a mandatory or voluntary 
takeover bid, accepted by the holders of at least 90% of the voting shares of the 
offeree company to which the bid related, the provisions of the Law on 
Commercial Companies governing the squeeze-out of minority shareholders from 
the company shall apply, unless otherwise provided for in paragraph 2 of this 
article. 
(2) If, on the basis of a proposal from the acquirer as the principal shareholder, 
within three months of the announcement of the result of the takeover bid referred 
to in the preceding paragraph, the general meeting of shareholders of the offeree 
company resolves to transfer the shares of the minority shareholders to the 
principal shareholder, the acquirer shall, as consideration in lieu of the cash 
amount determined in accordance with the Law on Commercial Companies, 
propose consideration of the type and amount specified in the takeover bid.’ 
9 The Supreme Court of the Republic of Slovenia – which applies the system of 
authorised review to guarantee the uniformity of the case-law of the Slovenian 
courts – has held 1 that in the case of a mandatory takeover bid, the purchase price 
is considered to be a presumption of adequate consideration for the squeeze-out of 
minority shareholders in the period following the takeover bid, in accordance with 
Article 68(2) of the ZPre-1, because it was subject to a double test based on 
transactions in the shares of the offeree company over a longer period of time (the 
‘market test’). However, the Supreme Court emphasised that it cannot be ruled out 
entirely that compensation determined in this way is in some cases distorted and 
does not reflect the ‘true’ price, namely the price that would have emerged from 
the free supply and demand of the shares of the offeree company. For example, 
such a situation could occur due to the relationship between the acquirer and the 
shareholders in the takeover bid, market manipulation of the shares of the offeree 
company and other share trading practices in breach of market abuse rules, or the 
influence of exceptional external factors on the share price. According to 
established case-law in the Republic of Slovenia, it is therefore possible to correct 
 
1 Judgment of the Supreme Court of the Republic of Slovenia, No III Ips 4/2022 of 13 June 2023. 
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judicially the price determined on the basis of share transactions during a certain 
period prior to the takeover, if the excluded shareholder alleges and proves 
irregularities in the functioning of the market for the supply of and demand for the 
shares of the offeree company. 
The reasoning in the request for a preliminary ruling 
10 The content of Article 68(2) of the ZPre-1 transposes the third subparagraph of 
Article 15(5) of Directive 2004/25/EC into Slovenian law. The referring court 
cannot therefore adopt a decision without taking into account the provisions of EU 
law referred to in that directive. This means that it must interpret the ZPre-1 on the 
basis of the principle of interpretation in conformity with EU law, and therefore it 
must, when interpreting national law, take into account EU law and its purpose, so 
that its effectiveness and uniform application can be fully deployed. In its 
reasoning, set out in the following paragraphs, the referring court submits that the 
interpretation of the third subparagraph of Article 15(5) of Directive 2004/25/EC 
is unclear. 2 
11 The provisions of EU law must be interpreted and applied uniformly in the light of 
the versions established in all the language versions of the European Union. In 
Slovenian legal terminology, the expression ‘se šteje’ [is considered], used in the 
third subparagraph of Article 15(5) of Directive 2004/25/EC, generally indicates 
an absolute presumption. The other language versions of Directive 2004/25/EC, 
however, use different expressions, which could lead to a notion of both relative 
presumption (for example, the English ‘presumed’, the French ‘présumé’ and the 
Portuguese ‘presume-se’) recalling the expression ‘domneva se’ [it is presumed], 
or absolute presumption (for example, the German ‘gilt’, the Italian ‘[it is to be] 
considered’, the Spanish ‘considerará’, the Croatian ‘smatrat će se’ and the Dutch 
‘wordt aangenomen’) recalling the expression ‘se šteje’ [is considered] or ‘velja’ 
[applies]. Therefore, a literal interpretation of the third subparagraph of 
Article 15(5) of Directive 2004/25/EC does not make it possible to determine with 
certainty the legal nature of the presumption laid down in that provision. Neither 
the purpose for which Directive 2004/25/EC was adopted nor the literal 
interpretation make it possible to determine with certainty whether it is an 
absolute presumption. Indeed, each provision of EU law must be placed in its 
context and interpreted in the light of the provisions of EU law as a whole, regard 
being had to the objectives thereof and to its state of evolution at the point at 
which the provision in question is to be applied. It is clear from recital 9 of 
Directive 2004/25/EC that its purpose is primarily to protect minority shareholders 
in the event of a takeover of their company. 
12 Not even the genesis of the rule clarifies how the presumption in the third 
subparagraph of Article 15(5) of Directive 2004/25/EC should be interpreted. The 
 
2 See the decision of the Ustavnega sodišča Republike Slovenije (Constitutional Court, Republic 
of Slovenia) No Up-558/20-25 of 1 February 2024. 
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Winter Report, 3 which was the basis for the legislative proposal for Directive 
2004/25/EC, shows that the experts suggested that the presumption of fair 
compensation is relative in specific circumstances, without however explaining 
what these specific circumstances would be. The European Commission’s 
preparatory documents 4 also show that, in preparing its proposal for a directive, 
the Commission referred to the OECD Principles of Corporate Governance, 
which, in Principle II.G, emphasise the protection of minority shareholders from 
abusive or similar actions by, or in the interest of, controlling shareholders acting 
either directly or indirectly, and that minority shareholders should have effective 
judicial protection. 
13 There are different opinions in the legal literature as to the relative or non-relative 
nature of the presumption in the third subparagraph of Article 15(5) of Directive 
2004/25/EC. The first group considers that the presumption is not relative. 5 The 
representatives of the second group limit the relative character of the presumption 
to specific circumstances, relying on the Winter Report 6 or the assumption that, in 
order to meet the standard of fairness, the price must be accepted by shareholders 
representing at least a simple majority of the shares of the offeree company 
subject to the mandatory takeover bid, otherwise the price must be determined by 
the court. 7 The third group considers the presumption to be relative and argues 
that minority shareholders should have the possibility of judicial review of the 
amount of the cash consideration. 8 However, there is common agreement that the 
wording of the directive is unclear in this respect. This is also confirmed by the 
 
3 W.J. Winter et al., Report of the High Level Group of Company Law Experts on Issues Related 
to Takeover Bids in the European Union (10 January 2002), pp. 65-66. 
4 Communication from the Commission to the Council and the European Parliament – 
Modernising Company Law and Enhancing Corporate Governance in the European Union – A 
Plan to Move Forward (COM/2003/0284 final), p. 14. 
5 H. Krause, Die EU-Übernahmerichtlinie Anpassungsbedarf im Wertpapiererwerbs- und 
Übernahmegesetz, Der Betriebs-Berater (2004), p. 118; A. Austmann and P. Mennicke, 
Übernahmerechtlicher Freeze-out und Sell-out, Neue Zeitschrift für Gesellschaftrecht (2004), 
p. 851. 
6 C. van der Elst and L. van den Steen, Opportunities in the M&A aftermarket: squeezing out and 
selling out, Financial Law Institute, Universiteit Gent, September 2006, p. 32. 
7 T. Kaisanlahti, When Is a Tender Price Fair in a Squeeze-Out?, European Business Organization 
Law Review, No 4 (2008), p. 518. 
8 S. Maul and L. Furtwengler v: P. Kindler and J. Lieder (ed.), European Corporate Law, Article-
by-Article Commentary, Beck-Hart-Nomos, Baden-Baden, Munich, New York, Oxford 2021, 
p. 1022; T. Heidel and D. Lochner, Der übernahmerechtliche Squeeze- und Sell-out gemäß §§ 
39a segg. WpÜG, v: Der Konzern, No 10 (2006), p. 656; Peter O. Mülbert, Umsetzungsfragen 
der Übernahmerichtlinie – erheblicher Änderungsbedarf bei den heutigen Vorschriften des 
WpÜG, Neue Zeitschrift für Gesellschaftrecht (2004), p. 634. Ventoruzzo, while accepting that 
it is relative, expresses his doubts about the scope of judicial review of the decision taken by the 
European legislature on price. M. Ventoruzzo, Freeze-Outs: Transcontinental Analysis and 
Reform Proposals, Virginia Journal of International Law, No 4 (2010), in ECGI – Law Working 
Paper No 137 (2009), pp. 44-45. 
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fact that different Member States have transposed Directive 2004/25/EC 
differently in this respect. Thus, in some Member States, fair consideration in cash 
is contestable (Portugal, the Netherlands, France), in others it is contestable only 
in the case of abuse (Austria), and in still others (Germany) the question remains 
open and, consequently, the case-law is fragmented. 9 
14 The question for the referring court is therefore whether the presumption 
contained in the third subparagraph of Article 15(5) of Directive 2004/25/EC can 
be interpreted as meaning that the presumption of fairness of the monetary 
consideration is absolute and therefore cannot be subject to judicial review or, if it 
is relative, whether that relative character is unlimited or whether it is possibly 
limited to specific cases. In answering this question, however, it may also be 
necessary to consider primary EU law, Article 47 of the Charter of Fundamental 
Rights of the European Union (‘the Charter’) in particular. The right to an 
effective remedy and to a fair trial derives from this provision. According to the 
settled case-law of the Court of Justice of the European Union, national courts are 
required, by virtue of the principle of sincere cooperation enshrined in Article 4(3) 
TEU, to ensure the judicial protection of the rights to which individuals are 
entitled under EU law. 10 The relative or non-relative nature of the presumption of 
a fair price, limited to specific cases, could be contrary to the right to an effective 
remedy laid down in Article 47 of the Charter, as it excludes or makes 
considerably more difficult the possibility for an individual to obtain judicial 
protection of his or her right to a fair price in the event of a squeeze-out, 
guaranteed to him or her by EU law, Directive 2004/25/EC in particular, which, in 
the first subparagraph of Article 15(5), requires Member States to ensure a fair 
price. 
Questions referred for a preliminary ruling 
15 The District Court, Ljubljana, is asking the Court of Justice of the European 
Union, in accordance with Article 267(2) TFEU, the following questions: 
Must the third subparagraph of Article 15(5) of Directive 2004/25/EC 
be interpreted as meaning that the presumption laid down in that 
provision of the directive must be regarded as absolute or relative? 
 
9 For a comparative law perspective, see, for example, L. Bernard, Izpodbojnost domneve 
pravičnega nadomestila pri poprevzemni izključitvi manjšinskih delničarjev, Pravna praksa, 
No 13 (2020), p. 21, and C. van der Elst and L. van den Steen, Balancing the Interests of 
Minority and Majority Shareholders: A Comparative Analysis of the Squeeze-out and Sell-out 
Rights, European Company and Financial Law Review, No 4 (2009), pp. 424-433. 
10 See, on this point, ex multis, judgments of the Court of Justice of 16 December 1976, Rewe, 
33/76, paragraph 5; of 16 December 1976, Comet, 45/76, paragraph 12; of 9 March 1978, 
Simmenthal, 106/77, paragraphs 21 and 22; of 19 June 1990, Factortame and Others, C-213/89, 
paragraph 19; and of 14 December 1995, Peterbroeck, C-312/93, paragraph 12. 
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If the above presumption of fair consideration is to be regarded as 
relative, is that relative character unlimited or possibly limited to 
specific circumstances? 
Ljubljana, 6 June 2024 
… 
Annexes: 
– proposal for the determination of an appropriate squeeze-out 
compensation of 30 April 2022, 
– response to the proposal, from 25 August 2022, 
– presentation by the representative of the minority shareholders of 
6 May 2024, 
– decision of 7 May 2024 on the stay of proceedings.