Opinion of the Advocate General — ECLI:EU:C:2009:410
Date: 2009-06-30
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

summary, the non-existence of a general principle of this kind is suggested, first of all, by the fact that equal treatment of shareholders has constitutional status neither in the Community legal order nor in the legal orders of the Member States. (96) Furthermore, in the analysis it was established that there is no firm shared conviction in legal literature regarding the existence of such a general principle. (97) In view of the fact that it is restricted to the specific area of company law, that principle likewise does not have the general validity within a legal order which is typical of general principles. (98) 126. However, and even if, contrary to the position taken here, the Court assumes the existence of a general principle of this kind, there would be serious doubts as to whether it could have such a specific legal consequence that it could give rise to a right of sell-out for minority shareholders. (99) On the basis of the separation of functions between the Community institutions under Community institutional law, it is solely a matter for the Community legislature, which would have to define the precise legal requirements, if necessary by adopting a relevant rule of law, to provide for that legal effect. (100) Judicial recognition of a right of sell-out for minority shareholders in the form of a general principle would not be consistent with the will of the Community legislature. It would amount to a retroactive application of Directive 2004/24, also adversely affecting the interest of legal certainty. (101) 127. On the basis of the above analysis, I conclude that there is no general principle of equal treatment of shareholders as a specific manifestation of the general principle of equality which protects a company’s minority shareholders in the event of acquisition of control by another company, in such a way that they are entitled to dispose of their securities on conditions identical to those of all other shareholders. 128. Irrespective of the legal classification of equal treatment of shareholders, it must be stated that that principle can create rights and obligations only in the relations between a company and its shareholders, but not in the relations between shareholders. (102) VII – Conclusion 129. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Cour de Cassation as follows: (1) In Community law there is no general principle of law which prescribes equal treatment of shareholders and which protects a company’s minority shareholders in such a way that, in the event of an acquisition of control of the company, the minority shareholders are entitled to dispose of their shares on conditions identical to those of all other shareholders. (2) A general principle of equal treatment of shareholders could apply at most only in the relations between a company and its shareholders. 1 – Original language: German. 2 – Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1). 3 – Commission Recommendation 77/534/EEC of 25 July 1977 concerning a European Code of Conduct relating to transactions in transferable securities (OJ 1977 L 212, p. 37). 4 – Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing (OJ 1979 L 66, p. 21). 5 – Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities (OJ 2001 L 184, p. 1). 6 – Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ 2004 L 390, p. 38). 7 – Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12). 8 – Case C‑144/04 Mangold [2005] ECR I‑9981. 9 – Case C‑189/01 Jippes and Others [2001] ECR I‑5689. 10 – Case C‑149/96 Portugal v Council [1999] ECR I‑8395. 11 – See, inter alia, Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzoand Others [1993] ECR I‑393, paragraphs 6 and 7; Case C‑284/95 Safety Hi-Tech [1998] ECR I‑4301, paragraphs 69 and 70; Case C‑341/95 Bettati [1998] ECR I‑4355, paragraphs 67 and 68; Joined Cases C‑115/97 to C‑117/97 Brentjens’ Handelsonderneming [1999] ECR I‑6025, paragraph 37; Case C‑207/01 Altair Chimica [2003] ECR I‑8875, paragraph 24; Case C‑72/03 Carbonati Apuani [2004] ECR I‑8027, paragraph 10; and Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 17. 12 – See, inter alia, the orders in Joined Cases C‑128/97 and C‑137/97 Testa and Modesti [1998] ECR I‑2181, paragraph 6, and Case C‑325/98 Anssens [1999] ECR I‑2969, paragraph 8, and the judgments in Case C‑207/01 Altair Chimica (cited above in footnote 11, paragraph 25) and Case C‑237/04 Enirisorse (cited above in footnote 11, paragraph 18). 13 – See, with regard to the procedural power of the Court to clarify or reformulate questions in preliminary ruling proceedings under Article 234 EC, Case 83/78 Redmond [1978] ECR 2347, paragraph 26. 14 – According to Middecke, A., in: Handbuch des Rechtsschutzes der Europäischen Union, 2nd edition, Munich 2003, § 10, paragraph 38, p. 225, the question referred should not be answered in such an abstract way that it is of no benefit to the national court in deciding on the main proceedings. However, on grounds of respect for the jurisdiction of the national court, the question must also not be answered so specifically that it anticipates the application of Community law. 15 – See Schwarze, J., European Administrative Law, Luxembourg 2006, p. 65, and Sariyiannidou, E., Institutional balance and democratic legitimacy in the decision-making process of the EU, Bristol 2006, p. 145. 16 – Case 8/55 Fédération Charbonnière de Belgique v High Authority [1954-1956] ECR 245, at 299. 17 – Case 13/57 Wirtschaftsvereinigung Eisen- und Stahlindustrie v High Authority [1958] ECR 265, at 281. 18 – Joined Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53, at 84. 19 – Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9. 20 – Joined Cases 43/59, 45/59 and 48/59 Lachmüller and Others v Commission [1960] ECR 463, at 475. 21 – Case 14/61 Hoogovens v High Authority [1962] ECR 253, at 272. 22 – Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, paragraph 7. 23 – Tridimas, T., The General Principles of EU Law, 2nd edition, London 2006, p. 17 et seq. and 29 et seq., points out, first of all, that the general principles fill in gaps in Community law, which result from the fact that the Community legal order is a new and young legal order and needs to be developed further. In addition, the EC Treaty represents a framework treaty with many generally formulated provisions and imprecise legal concepts which confer on the Court extensive powers to develop the law. Secondly, the author points out their function as an aid to the interpretation of secondary law. Lenaerts, K./Van Nuffel, P., Constitutional Law of the European Union, 2nd edition, London 2005, paragraph 17-066, p. 711, point out that, in the context of the interpretation of Community law, the administration as a rule has recourse to general principles, above all in the case of uncertainties in the law to be interpreted or gaps in the rules. 24 – See Schwarze, J., loc. cit. (footnote 15), p. 65. 25 – See Schweitzer, M./Hummer, W./Obwexer, W., Europarecht, p. 65, paragraph 240 et seq. 26 – See Lengauer, A.-M., Kommentar zu EU- und EG-Vertrag (ed. Heinz Mayer), Vienna 2004, Article 220, paragraph 27, p. 65. 27 – See Schweitzer, M./Hummer, W./Obwexer, W., loc. cit. (footnote 25), paragraph 244, p. 66, Oppermann, T., Europarecht, 3rd edition, Munich 2005, paragraph 21, p. 144. 28 – In the generally held view, the general principles have the status of primary law (see Schroeder, W., EUV/EGV – Kommentar (ed. Rudolf Streinz), Article 249, p. 2159, paragraph 15). The Court has repeatedly held that the legal measures of the Community institutions are to be assessed with reference to the general principles. See Case 29/69 Stauder [1969] ECR 419, paragraph 7, and Case 44/79 Hauer [1979] ECR 3727, paragraph 14 et seq. 29 – See also Wegener, B., in Calliess/Ruffert (ed.), Kommentar zu EUV/EGV, 3rd edition, 2007, Munich 2007, Article 220, paragraph 37, p. 1956, and Tridimas, T., loc. cit. (footnote 23), p. 2 et seq. 30 – See Case C‑359/92 Germany v Council [1994] ECR I‑3681. Even before this idea was laid down in the third paragraph of Article 5 EC, it was not disputed in case-law or in legal literature that Community competences are exercised subject to the principle of proportionality (see Lienbacher, G, EU-Kommentar (ed. Jürgen Schwarze), 1st edition, Baden-Baden 2000, Article 5 EC, paragraph 36, p. 270). 31 – Case 32/79 Commission v United Kingdom [1980] ECR 2403. 32 – Case T‑192/99 Dunnettand Others v EIB [2001] ECR II‑813. 33 – Case C‑402/98 Agricola Tabacchi Bonavicina [2000] ECR I‑5501. 34 – Case 14/68 Walt Wilhelm [1969] ECR 1. 35 – Case 32/62 Alvis [1963] ECR 49. 36 – Case 55/69 Cassella Farbwerke Mainkur v Commission [1972] ECR 887; Joined Cases 33 and 75/79 Kuhner v Commission [1980] ECR 1677; Case C‑135/92 Fiskano v Commission [1994] ECR I‑2885; Case C‑32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, paragraph 21; Case C‑462/98 P Mediocurso v Commission [2000] ECR I‑7183, paragraph 36; Case C‑395/00 Cipriani [2002] ECR I‑11877, paragraph 51; Joined Cases C‑439/05 P and C‑454/05 P LandOberösterreich and Austria v Commission [2007] ECR I‑7141; Case C‑349/07 Sopropré [2008] ECR I‑0000, paragraphs 36 and 37. 37 – Case 125/77 Koninklijke Scholten-Honig [1978] ECR 1991. 38 – Case C‑269/90 Technische Universität München [1991] ECR I‑5469. 39 – Case 68/77 IFG v Commission [1978] ECR 353. 40 – Case T‑154/01 Distilleria Palma v Commission [2004] ECR II‑1493, paragraph 45. 41 – Case T‑306/01 Ali Yusuf and Al Barakaat International Foundation v Council [2005] ECR II‑3533, paragraph 277. 42 – Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78 and 264/78 and 39/79, 31/79, 83/79 and 85/79 Ferriera Valsabbia v Commission [1980] ECR 907. 43 – Joined Cases 33/79 and 75/79 Kuhner, cited above in footnote 36. 44 – Case 804/79 Commission v United Kingdom [1981] ECR 1045. 45 – Case C‑65/93 Parliament v Council [1995] ECR I‑643, paragraph 21. 46 – Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19. 47 – Case C‑415/93 Bosman [1995] ECR I‑4930. 48 – Case 237/83 Prodest [1984] ECR 3153. 49 – Case 149/77 Defrenne [1978] ECR 1365. 50 – Case C‑17/05 Cadman [2006] ECR I‑9583, paragraph 28; Case C‑381/99 Brunnhofer [2001] ECR I‑4961, paragraph 28; and Case C‑320/00 Lawrence and Others [2002] ECR I‑7325, paragraph 12. This principle, with slight variations, runs through the case-law of the Court of Justice and seems to appear for the first time in Ruckdeschel and Others (cited above in footnote 22, paragraph 7). 51 – To that effect, see Basedow, J., ‘Der Grundsatz der Nichtdiskriminierung im europäischen Privatrecht’, Zeitschrift für Europäisches Privatrecht, 2008, p. 230, 244. In his view, the general prohibition of discrimination (or the general principle of equality) cannot have any autonomous operational importance in European private law. Its role is that of a hermeneutical principle which makes it easier to understand positive law because it enables us to see individual legal measures in context and to examine their systematic coherence. In the opinion of the author, it does not have autonomous regulatory content. Mazière, P., Le principe d’égalité en droit privé, Aix-en-Provence 2003, p. 429 et seq., disputes the existence of a general principle of equality in private law. The author is highly critical of attempts to introduce the principle of equality into private law. 52 – OECD – Principles of Corporate Governance – 2004 Revision, Paris 2004, p. 23. 53 – Ibid. 54 – Ibid., p. 407. 55 – No such inferences can be drawn from Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (OJ 2001 L 294, p. 1), which entered into force on 8 October 2004. The regulation does not expressly provide for the equal treatment of shareholders, but does give the Member States the option to adopt provisions on the protection of minority shareholders. 56 – Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ 2007 L 184, p. 17). 57 – The non-binding nature of recommendations and opinions does not mean, however, that they would be completely insignificant from a legal point of view (see Ruffert, M., in Calliess/Ruffert (ed.), loc. cit. (footnote 29), paragraph 126, p. 2165). The Court has consistently held that irrespective of the non-binding nature of recommendations and the fact that they cannot confer upon individuals rights which they may have enforced before national courts, the latter are nevertheless obliged to take them into consideration in order to resolve disputes submitted to them, especially in the interpretation of national measures adopted in order to implement Community law or where they are designed to supplement binding Community provisions (Case 113/75 Frecassetti [1976] ECR 983; Case 90/76 Van Ameyde [1977] ECR 1091; Case C‑322/88 Grimaldi [1989] ECR 4407, paragraph 9; and Case C‑188/91 Deutsche Shell [1993] ECR I‑363, paragraph 18). 58 – Tridimas, T., loc. cit. (footnote 23), p. 1, raises the question of how a general principle can be distinguished from a specific rule. In his view, the first crucial factor is the general validity of that principle, where ‘general’ means that the principle must have a certain degree of abstractness. The second important factor is the relevance of that principle within a legal order. 59 – See also Verse, D., Der Gleichbehandlungsgrundsatz im Recht der Kapitalgesellschaften, Tübingen 2006, p. 2, who refers to a central principle of company law. 60 – Verse, D., loc. cit. (footnote 59), p. 557. Mehringer, C., Das allgemeine kapitalmarktrechtliche Gleichbehandlungsgrundsatz, Baden-Baden 2007, p. 239, also assumes a general principle of equal treatment in the law governing capital markets for the benefit of investors. 61 – Grundmann, S., Europäisches Gesellschaftsrecht, Heidelberg 2004, p. 145. 62 – De Cordt, Y., L’égalité entre actionnaires, Brussels 2004, p. 937. 63 – See Hütte, A., Der Gleichbehandlungsgrundsatz im deutschen und französischen Recht der Personengesellschaften, Aachen 2003, p. 180. According to Mehringer, C., loc. cit. (footnote 60), p. 241, the principle of equal treatment in the law governing capital markets has its foundation in legal theory in the notion of justice. 64 – De Cordt, Y., loc. cit. (footnote 62), p. 937. 65 – See De Cordt, Y., loc. cit. (footnote 62), p. 937; for example, Mehringer, C., loc. cit. (footnote 60), p. 18, points out that principles are not rules and are not therefore directly applicable in principle. A statutory rule which is capable of interpretation or a concept must always be used as a link; Verse, D., loc. cit. (footnote 59), p. 96, expects that in future the Court will lay down general guidelines to flesh out the requirement of equal treatment, going beyond the individual case. 66 – Available on the website of the European Commission’s Internal Market Directorate General (http://ec.europa.eu/internal_market/company/modern/index_en.htm). 67 – See the Winter I report, Chapter I (‘Takeover bids: the need for a level playing field’), p. 20, 21. 68 – See the Winter I report, Chapter II (‘The equitable price to be offered in mandatory bids’), p. 55. 69 – See p. 33 et seq. of the pleading lodged by Audiolux. 70 – See point 87 of this Opinion. 71 – Article 22 of Directive 2004/25 states that the directive enters into force on the 20th day after that of its publication in the Official Journal of the European Union, i.e. on 22 May 2004. In addition, Article 21(1) provides that the Member States must bring into force the laws, regulations and administrative provisions necessary to comply with the directive no later than 20 May 2006. 72 – The separation of powers is an organisational principle of most modern democratic constitutions and a prerequisite for a state based on the rule of law, which can be traced back to the writings of Thomas Locke (1632-1704), Charles de Montesquieu (1689-1755) and Immanuel Kant (1724-1804). Political power in the state is divided into functional areas by the separation of powers. The reciprocal control of powers is intended to moderate state power. Traditionally, these are the legislature, the executive and the judiciary. Thus, in his book ‘De l’esprit des lois’ (‘The Spirit of Laws’), which was published in 1748, Montesquieu wrote: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.’ 73 – See Schweitzer, M./Hummer, W./Obwexer, W., loc. cit. (footnote 25), p. 178, paragraph 653; Sariyiannidou, E., loc. cit. (footnote 15), p. 122 also talks of ‘separation of functions’. According to Oppermann, T., loc. cit. (footnote 27), § 5, paragraph 5, p. 80, in the European Community the separation of public powers between the legislature, the executive and the judiciary has been modified into a specific institutional balance between the Community institutions. Between the Parliament, the Council and the Commission in particular, the functions are divided differently from at state level. There are also checks and balances in the European Community. The institutional balance reflects a fundamental principle of the rule of law. It requires each institution to exercise its powers with due regard for the powers of the other institutions, and breaches to be subject to penalties through the power of review of the Court of Justice. 74 – Joined Cases 9/56, 11/56 and 10/56 Meroni [1958] ECR 53. 75 – Case 25/70 Einfuhr- und Vorratsstelle Getreide v Köster [1970] ECR 1161, paragraph 9, and Case C‑65/93 Parliament v Council, cited above in footnote 45, paragraph 21. 76 – Case 70/88 Parliament v Council [1990] ECR I‑2041, paragraphs 21 and 22. 77 – Case 70/88 Parliament v Council, cited above in footnote 76, paragraph 23. 78 – Sariyiannidou, E., loc. cit. (footnote 15), p. 137, takes the view that Article 220 EC ultimately gives the Court the power to determine what is ‘law’, even though clear limits to that power do not exist. In developing general principles the Court has made extensive use of its power to develop the law. The author expresses the fear that this could blur the boundaries between judicial and political activity. 79 – See Louis, J.-V., L’ordre juridique communautaire, 6th edition, Brussels/Luxembourg 1993, p. 119, 120. In the author’s view, the Court may make use of gaps which exist in Community law to assume the role of the Community legislature. It must observe the necessary judicial self-restraint. 80 – See Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraph 82 et seq. In that case the Court of First Instance recognised the power of the Community legislature to lay down rules on limitation. In the Court’s view, the extent to which provision is made for it is the result of a choice between the requirements of legal certainty and those of legality, on the basis of the historical and social circumstances prevailing in a society at a given time. It is therefore a matter for the legislature alone to decide. See also Cases C‑122/99 and C‑125/99 P D and Sweden [2001] ECR I‑4319, paragraph 37 et seq. In that judgment, the Court of Justice found that the Community judicature cannot interpret the Staff Regulations of Officials of the European Communities in such a way that legal situations distinct from marriage, such as a registered partnership, are treated in the same way as marriage. Only the legislature can, where appropriate, adopt measures to alter that situation, for example by amending the provisions of the Staff Regulations. See also Case C‑117/01 K.B. [2004] ECR I‑541, paragraph 28; Joined Cases C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P International Power (formerly National Power) and Others v Commission [2003] ECR I‑11421, paragraph 106; and Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2001] ECR I‑7869, paragraph 139. 81 – See paragraphs 39 to 45 of the pleading lodged by Ireland. 82 – See point 68 of this Opinion. 83 – Case C‑376/02 Stichting ‘Goed Wonen’ [2005] ECR I‑3445, paragraph 32. 84 – Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 20; Case T‑206/00 Hult v Commission [2002] ECR-SC I‑A‑19 and II‑81, paragraph 38. 85 – See Case C‑368/89 Crispoltoni [1991] ECR I‑3695, paragraph 17; Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep [2004] ECR I‑5337, paragraph 59; and Case C‑376/02 Stichting ‘Goed Wonen’, cited above in footnote 83, paragraph 33; see also ECHR, National & Provincial Building Society v United Kingdom, Reports of Judgments and Decisions 1997-VII, § 80. 86 – Case C‑144/04 Mangold, cited above in footnote 8, paragraphs 74 and 75. 87 – In my Opinion in Case C-338/06 Commission v Spain [2008] ECR I‑0000, point 60, I have already referred to the very vague normative statement made in Article 42 of Directive 77/91. 88 – Hütte, A., loc. cit. (footnote 63), p. 71, 82; De Cordt, Y., loc. cit. (footnote 62), p. 255, 259; Verse, D., loc. cit. (footnote 59), p. 562. Hüffer, U., Kommentar zum Aktiengesetz, 5th edition, Munich 2002, §53a, paragraph 4, p. 250. 89 – Hütte, A., loc. cit. (footnote 63), p. 72. 90 – See Tridimas, T., loc. cit. (footnote 23), p. 36, 44. 91 – Ibid., p. 47. 92 – See, for example, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22), Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31). 93 – The Court has consistently held that the principle of legal certainty prevents directives from creating obligations for individuals. Directives cannot therefore be relied upon as such against an individual (Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 20; and Case C‑201/02 Wells [2004] ECR I‑6325, paragraph 56). 94 – For example Article 141 EC regarding the principle of equal pay for male and female workers for equal work or work of equal value. The Court has ruled that the prohibition of discrimination on grounds of nationality laid down in Articles 12 EC, 39 EC and 49 EC must be regarded as applying to private persons as well (Case 36/74 Walrave [1974] ECR 1405; Case C‑415/93 Bosman, cited above in footnote 47; and Case C‑281/98 Angonese [2000] ECR I‑4139, paragraph 36). 95 – See Preis, U., ‘Verbot der Altersdiskriminierung als Gemeinschaftsgrundrecht’, Neue Zeitschrift für Arbeitsrecht, No 8, 2006, p. 402. 96 – See points 87 and 88 of this Opinion. 97 – See points 89 to 93 of this Opinion. 98 – See point 94 of this Opinion. 99 – See point 98 of this Opinion. 100 – See points 103 to 109 of this Opinion. 101 – See points 111 to 112 of this Opinion. 102 – See points 117 to 123 of this Opinion.