Opinion of the Advocate General — ECLI:EU:C:2005:437
Date: 2005-07-07
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, it appears to me that in the present case the conditions to which I referred above as essential to justify a national measure incompatible with the Treaty are not satisfied. 70. I therefore conclude that the national legislation at issue is not justified either under Article 46 EC or by the imperative reasons invoked by the governments making submissions. It must therefore be regarded as contrary to Articles 43 EC and 48 EC. D – Freedom of movement of capital 71. Finally, I note that at the hearing the Commission observed that the measure in question could be regarded as a restriction on the free movement of capital which is, in principle, prohibited by Article 56 EC. That is because the refusal to register cross-border mergers poses an obstacle to the movements of capital inherent in such operations. 72. Firstly, I should point out that the national court did not request the Court to give a preliminary ruling on the interpretation of Article 56 EC. None the less, an answer in relation to this matter may still be necessary. As Community case-law makes clear, ‘in order to provide a satisfactory answer to a national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in the text of its question’. (27) 73. However, in the present case it does not appear to me, in principle, that an interpretation of Article 56 EC is actually necessary to resolve the principal case. Since I have already concluded that the measure in question constitutes an unjustified restriction under Article 43 EC, an examination of its compatibility with Article 56 EC would, strictly speaking, be superfluous. We know that where the Court previously found a restriction on the freedom of establishment it considered that it was unnecessary, in principle, to examine whether a particular measure also ran counter to the Treaty provisions on the free movement of capital. (28) 74. Nevertheless, this may be necessary here if the Court accepts the arguments put forward by the governments making submissions and rules that the provisions on the freedom of establishment have not been infringed in this case. 75. If that were the case, however, and the matter were assessed from the point of view of the freedom of movement of capital, my conclusion would be that the contested national measure constitutes an unlawful restriction on that freedom, as the Commission contends. 76. I observe firstly that since they are ‘inextricably linked to a capital movement’, (29) the mergers clearly fall within the scope of Article 56 EC. Under point I, headed ‘Directive Investments’, of the nomenclature (30) contained in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, (31) such investments include the ‘acquisition in full of existing undertakings’ (paragraph 1) and the ‘[p]articipation in new or existing undertaking with a view to establishing or maintaining lasting economic links’ (paragraph 2). Therefore, it is clear that mergers constitute ‘movements of capital’. 77. Secondly, as regards the restrictive nature of the measure at issue, it appears to me that the considerations set out in relation to freedom of establishment (paragraphs 37 to 43 above) can readily be applied here mutatis mutandis. The rules in question have at the very least a dissuasive effect on capital movements as they prohibit the use of a privileged instrument for carrying out operations to acquire or set up companies abroad. 78. Finally, and for the same reasons as those stated above (paragraphs 48 to 59), I consider that in the present case the conditions laid down by case-law for a derogation from the exercise of a fundamental freedom guaranteed by the Treaty, such as that in question here, to be justified, are not satisfied. V – Conclusion 79. In the light of the considerations set out above, I propose that the Court reply as follows to the Landgericht Koblenz: ‘Articles 43 EC and 48 EC preclude legislation of a Member State such as the Umwandlungsgesetz which does not permit registration in the national register of companies of mergers between companies established in that Member State and companies of other Member States.’ 1 – Original language: Italian. 2 – COM (2003) 703 final. The principle underlying this proposal is that the Member States should afford the possibility of concluding cross-border mergers in their own legislation. 3 – On 10 May 2005 the European Parliament did in fact approve the proposal for the directive at the first reading. 4 – 1994, 3210 (1995, 428), most recently amended on 12 June 2003. 5 – However, in its order for reference the national court states that, recently and although it constitutes minority case-law, some German courts have accepted registration of mergers of companies established in Germany with foreign companies. 6 – Case 81/87 Daily Mail and General Trust [1988] ECR 5483. 7 – Moreover, this is expressly provided for in Paragraph 20 of the UmwG. 8 – Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 25. 9 – Case 63/86 Commission v Italy [1988] ECR 29, paragraph 14, and Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 21. 10 – See, inter alia, Commission v Italy, paragraphs 14 and 16; Commission v Greece, paragraph 19; Case C-302/97 Konle [1999] ECR I-3099, paragraph 22; Case C-251/98 Baars [2000] ECR I‑2787, paragraph 22; and Case C-208/00 Überseering [2002] ECR I-9919, paragraph 93. 11 – OJ No 2 of 15 January 1962. 12 – Case 107/83 Klopp [1984] ECR 2971, paragraph 19. 13 – Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 21. 14 – Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 43. 15 – See, inter alia, Baars, paragraphs 21 and 22, and Überseering, paragraph 77. However, it should be noted that the acquisition of a shareholding which does not give such influence is not, for that reason, excluded from the scope of the Treaty because it is still subject to the rules on freedom of movement of capital. 16 – See, most recently, Case C-442/02 Caixa Bank France [2004] ECR I-0000, paragraph [26] and the case-law cited therein. 17 – See, for example, Daily Mail, paragraph 16; Case C‑200/98 X and Y [1999] ECR I-8261, paragraph 26, and Case C‑9/02 Hughes de Lasteyrie du Saillant [2004] ECR I-2409, paragraph 45. 18 – See, inter alia, Baars, paragraph 28, and Hughes de Lasteyrie du Saillant, paragraph 42. 19 – Überseering, paragraph 81. 20 – See, inter alia, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Gebhard, paragraph 37; Case C-212/97 Centros [1999] ECR I-1459, paragraph 34, and Caixa Bank, paragraph 17. 21 – See, among many, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35, and Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 39. 22 – In the present case it is clear from the file that the Luxembourg Government raised no objection at all and proceeded to remove SVC from the national register of companies. 23 – As far as can be seen, the conclusion of such mergers is permitted, for example, by Spanish, Portuguese, Italian, French and Belgian law, albeit in accordance with different procedures. 24 – As regards the disproportionate nature of absolute and general prohibitions, see, for example, Case 96/85 Commission v France [1986] ECR 1475, paragraph 14; Case C-351/90 Commission v Luxembourg [1992] ECR I-3945, paragraph 19; Case C-478/98 Commission v Belgium [2000] ECR I‑7587, paragraph 45; and Case C-334/02 Commission v France [2004] ECR I-2229, paragraphs 28 and 34. 25 – See, inter alia, Case 71/76 Thieffry [1977] ECR 765, paragraphs 17 and 27; Kraus, paragraph 30; and Überseering, paragraph 55. 26 – Emphasis added. 27 – Case 35/85 Tissier [1986] ECR 1207, paragraph 9; Case C‑315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10; Case C‑107/98 Teckal [1999] ECR I-8121, paragraph 39. 28 – See, for example, Case C-118/96 Safir [1998] ECR I-1897, paragraph 35; Case C-200/98 X and Y [1999] ECR I-8261, paragraph 30; Case C-251/98 Baars [2000] ECR I-2787, paragraph 42; Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 75; and Case C-436/00 X and Y [2002] ECR I-10829, paragraph 66. 29 – Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 24. 30 – The nomenclature to which Community case-law has consistently referred to define the notion of movement of capital. See, most recently, Trummer and Mayer, paragraph 21, and Case C‑35/98 Verkooijen [2000] ECR I-4071, paragraph 27. 31 – OJ 1988 L 178, p. 5.