Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 11 December 2025 (1)
Case C‑791/24
TERVE Production spol. s r. o.
v
Intesa Sanpaolo Holding International SA
(Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic))
( Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – International jurisdiction of courts – Replacement of approval to a draft share purchase agreement with a court ruling – Special jurisdiction – Matters relating to a contract – Matters relating to tort, delict or quasi-delict – Exclusive jurisdiction – Preliminary issue concerning the validity of a decision of an organ of a company )
I.      Introduction
1.        The Court has been requested to give a preliminary ruling on questions relating to the international jurisdiction of courts in legal disputes concerning the protection of minority shareholders which did not vote for the delisting of a company in which they hold shares. The Slovak legislation provides that, when such a delisting is decided upon, a takeover bid must be made and that, after the expiry of that bid, the company, or its majority shareholder which made the bid on its behalf, has the right to require the delisting of the remaining shares. Conversely, after the expiry of that period, the minority shareholders may require the purchase of their shares.
2.        In order to answer those questions, the Court must interpret, on the one hand, Article 7(1) and (2) of Regulation (EU) No 1215/2012, (2) which lays down special rules of jurisdiction in order to determine whether the action seeking to substitute the majority shareholder’s approval of a draft share purchase agreement presented by the minority shareholders with a court ruling falls within matters relating to a contract or within matters relating to tort, delict or quasi-delict. In this Opinion, I shall propose that the answer to that question should be that that action falls within matters relating to a contract within the meaning of that provision.
3.        On the other hand, the Court will be required to rule on whether Article 24(2) of that regulation, which provides for the exclusive jurisdiction of the courts of the Member State in which a company has its seat when the validity of the decisions of its organs is contested, is applicable to a claim relating to the invalidity of a resolution of a general meeting which decided to transfer the shares of the minority shareholders following the exercise of the right of squeeze-out by the majority shareholder, where the response with respect to that claim determines the standing of those minority shareholders to bring proceedings. I shall propose that the Court should answer that question in the affirmative, if the national legislation allows the national court to rule on the invalidity of a resolution of a general meeting in the absence of the company concerned in the legal proceedings in question.
II.    Legal framework
A.      European Union law
4.        Recitals 13 and 16 of Regulation No 1215/2012 state:
‘(13)      There must be a connection between proceedings to which this Regulation applies and the territory of the Member States. Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a Member State.
…
(16)      In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. …’
5.        Chapter
II of that regulation contains Section
1, entitled ‘General provisions’, Article 4(1) of which is worded as follows:
‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’
6.        Article 7(1) and (2) of Section
2 of that chapter, entitled ‘Special jurisdiction’, provides:
‘A person domiciled in a Member State may be sued in another Member State:
(1)      (a)      in matters relating to a contract, in the courts for the place of performance of the obligation in question;
…
(2)      in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.
7.        Section
6 of that chapter, entitled ‘Exclusive jurisdiction’, consists of Article 24. Article 24(2) provides:
‘The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:
…
(2)      in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law’.
B.      Slovak law
8.        Paragraph 118i(1) of zákon č. 566/2001 Z. z. o cenných papieroch a investičných službách a o zmene a doplnení niektorých zákonov (zákon o cenných papieroch) (Law No 566/2001 on securities and investment services, amending and supplementing certain laws (Law on securities)) of 9 November 2001, in the version applicable to the dispute in the main proceedings (‘the Law on securities’), provides that a bidder who has made a takeover bid that is not a partial or conditional bid has the right to require that all the other shareholders (‘the other shareholders’) of the company in question transfer their shares to that person in exchange for fair consideration (‘the right of squeeze-out’), provided that the bidder owns shares whose total par value represents not less than 95% of the share capital carrying voting rights and to which not less than 95% of the voting rights in the company in question are attached. The bidder may exercise the right of squeeze-out no later than three months after the expiry of the takeover bid referred to in the first sentence, or else that right expires.
9.        Pursuant to Paragraph 118i(6) of the Law on securities, the adoption by the general meeting of a resolution to transfer the shares of all other shareholders to the bidder requires the approval of not less than 95% of the votes of all the company’s shareholders. The minutes of the general meeting are to be drawn up in the form of a notarial deed. The board of directors of the company in question, no later than 30 days after the adoption of the resolution of the general meeting in accordance with the first sentence, must apply for the resolution to be entered in the commercial register. That application for entry in the commercial register must also include a decision by the Národná banka Slovenska (National Bank of Slovakia) granting prior approval for the exercise of the right of squeeze-out and a confirmation that the funds intended for the payment of compensation to other shareholders have been deposited. It is assumed that as soon as the general meeting has adopted a resolution to transfer the shares of all other shareholders to the bidder, the right of squeeze-out has been exercised.
10.      In accordance with Paragraph 118i(8) of the Law on securities, 30 days after the resolution of the general meeting referred to in Paragraph 118i(6) thereof has been entered in the commercial register, the shares of the company in question are to be transferred from the other shareholders to the bidder. The transfer of ownership of shares in accordance with the first sentence is to be deemed a legal fact and to be recorded in the statutory register of securities as at the date of such transfer on the basis of a transfer registration order submitted by the company in question to the Centrálny depozitár cenných papierov Slovenskej republiky (Central Securities Depository of the Slovak Republic), which maintains the share issue in question in the issuer’s register. The basis for registering the transfer pursuant to the right of squeeze-out is to be the resolution of the general meeting referred to in Paragraph 118i(6) of that law, the prior approval of the National Bank of Slovakia for the exercise of the right of squeeze-out referred to in subparagraph
4 thereof, and an extract from the commercial register of the company in question after the resolution of the general meeting has been registered pursuant to subparagraph
6 of that paragraph.
11.      Paragraph 118j of the Law on securities provides:
‘(1)      If the circumstances referred to in Paragraph 118i(1) obtain, a shareholder holding remaining shares in the company in question is entitled to require that the bidder … purchase his or her shares for fair consideration.
(2)      The right referred to in subparagraph
1 may be exercised by the remaining shareholder no later than three months after the expiry of the takeover bid, or else that right expires. The remaining shareholder exercises that right by sending a draft share purchase agreement, which shall specify, in particular:
(a)      the required fair consideration in cash or appropriate compensation in securities;
(b)      the deadline for the approval of the draft agreement;
(c)      the deadline and procedure for the transfer of securities.
(3)      [The bidder] shall approve the draft agreement within the deadline stipulated therein, or else within 10 working days from the date of its receipt. If he or she does not approve the draft agreement within that deadline, the entitled person may petition a court to substitute approval of the draft with a court ruling. That right must be exercised within three months of the expiry of the deadline referred to in the first sentence, or else it expires.
(4)      [The bidder] may, immediately upon receipt of the draft agreement, petition a court to examine whether the requested consideration is fair. That right shall expire if it is not exercised within one month from the date of delivery of the draft agreement.
If the amount of consideration has not been determined by an expert opinion, then the burden of proving that the consideration offered is fair shall rest with the entitled person.
(5)      The provisions of Paragraph 118i shall apply mutatis mutandis.’
12.      Pursuant to Paragraph 119(1) of the Law on securities, if a general meeting of an issuer of listed shares decides that the shares issued by that issuer are to be delisted, that issuer is required to announce a mandatory takeover bid to purchase all the listed shares from those shareholders who did not vote in favour of the resolution to delist those shares at the general meeting or who did not attend the general meeting. The mandatory takeover bid is to indicate the reason for it, that is to say the resolution of the company’s general meeting to delist the shares.
13.      Pursuant to Paragraph 119(3) of the Law on securities, the obligation referred to in Paragraph 119(1) is deemed to be fulfilled if the mandatory takeover bid to purchase all the shares from shareholders who did not vote at the general meeting in favour of the resolution to delist those shares is announced by a person other than the issuer of those shares.
14.      According to Paragraph 119(6) of the Law on securities, a mandatory takeover bid made pursuant to Paragraph 119(1) and Paragraph 170(3) of that law may precede the exercise of the right of squeeze-out under Paragraph 118i of that law only if the person making that mandatory bid is the person referred to in Paragraph 119(3) of that law and if the bid was neither a partial takeover bid nor a conditional takeover bid.
III. The facts in the main proceedings and the questions referred for a preliminary ruling
15.      On 18 December 2020, the general meeting of VÚB a.s., whose seat is in Slovakia, passed a resolution on the delisting of that company’s shares.
16.      Under Slovak law, the majority shareholder of VÚB, Intesa Sanpaolo Holding International SA (‘Intesa’), whose seat is in Luxembourg, freely assumed the obligation of the issuer, namely VÚB, to initiate a takeover bid for the shares of the shareholders who did not vote in favour of the resolution to delist the shares or who did not attend that general meeting. TERVE Production spol. s
r.
o. (‘TERVE’), whose seat is in Slovakia, is one of those other shareholders. In its bid, Intesa stated that the share purchase agreements to be concluded on the basis of its bid would be governed by Slovak law and that the courts with jurisdiction to hear any disputes arising therefrom would be the ordinary courts of Slovakia. On 19 April 2021, the general meeting of VÚB (‘the second general meeting’) approved the transfer to Intesa of all the shares held by the other shareholders of VÚB.
17.      By an application dated 18 August 2021, TERVE brought proceedings before the Okresný súd Bratislava V (District Court
V, Bratislava, Slovakia) seeking to substitute Intesa’s approval of its sell-out proposal with a court ruling following the takeover bid. It relied on Article 7(1) and Article 25 of Regulation No 1215/2012 in support of the jurisdiction of the Slovak courts. Intesa raised an objection of lack of jurisdiction. By order of 28 February 2022, that court ruled in favour of Intesa and declined jurisdiction to rule on the dispute since there was no contract or agreement between the parties for the prorogation of jurisdiction to it.
18.      By order of 26 October 2023, the Krajský súd v Bratislave (Regional Court, Bratislava, Slovakia) set aside the contested order on the basis of the close connection between, on the one hand, the dispute and, on the other hand, Slovak law and the Slovak courts, since Intesa is a shareholder in a Slovak company, governed by Slovak law, whose seat is in Slovakia and whose share register is maintained by the Slovak central depository. It also ruled that, in the absence of a contractual relationship between the parties, it was not Article 7(1)(a) of Regulation No 1215/2012 which applied, but Article 7(2) of that regulation.
19.      Intesa lodged an appeal before the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), which is the referring court, contesting the jurisdiction of the Slovak courts. It takes the view that, pursuant to the principle laid down in Article 4(1) of Regulation No 1215/2012, the Luxembourg courts have jurisdiction since its own seat is located in Luxembourg. It adds that Article 7(1) of that regulation cannot apply since there is no contractual relationship between TERVE and Intesa. It also states that Article 24(2) and (4) of that regulation cannot provide a basis for the jurisdiction of the Slovak courts since the proceedings are not concerned with any of the matters exhaustively set out in those provisions. It argues that the mandatory takeover bid is not relevant for determining the courts with jurisdiction since it was not approved and its period of validity has expired. It contests the basis relied on by the Krajský súd v Bratislave (Regional Court, Bratislava), namely Article 7(2) of that regulation, since the action brought against it does not concern liability for damage.
20.      The referring court notes that the Court’s case-law on the interpretation of Articles 7 and 24 of Regulation No 1215/2012 does not allow it to resolve the two issues raised by the specific circumstances of the case. On the one hand, the purpose of the proceedings is to substitute Intesa’s declaration of intent with a court ruling, in the context of the right of sell-out exercised by TERVE, after Intesa freely initiated a takeover bid. On the other hand, TERVE raises the question whether the resolution of the second general meeting of VÚB approving the transfer of all the remaining shares is non-existent or invalid.
21.      In those circumstances, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must the provisions of Article 7(1) of Regulation [No 1215/2012] be interpreted as meaning that an action to substitute the approval of the appellant’s draft agreement concerning the purchase of shares with a court ruling should be considered an action “in matters relating to a contract”?
(2)      If the first question is answered in the negative, must the provisions of Article 7(2) of Regulation No 1215/2012 be interpreted as meaning that an action to substitute the approval of the appellant’s draft agreement concerning the purchase of shares with a court ruling should be considered an action “in matters relating to tort, delict or quasi-delict”?
(3)      Must the provisions of Article 24(2) of Regulation No 1215/2012 be interpreted as also applying to the main proceedings in view of the fact that the appellant requests that the court in the main proceedings consider, as a preliminary issue, its plea that the resolution of the general meeting approving the transfer of the shares of the other shareholders (including the appellant’s shares) to the respondent is non-existent or invalid?’
IV.    Analysis
A.      Preliminary observations
1.      Preliminary observations relating to Regulation No 1215/2012
22.      It should be recalled that the Court has already held that, since Regulation No 1215/2012 replaced Regulation (EC) No 44/2001, (3) the interpretation given by the Court in relation to Regulation No 44/2001 also applies to Regulation No 1215/2012, where the provisions of those instruments of EU law may be regarded as equivalent. That is the case in particular not only with Article 5(1) of Regulation No 44/2001 and Article 7(1) of Regulation No 1215/2012, (4) but also with Article 22(2) of Regulation No 44/2001 and Article 24(2) of Regulation No 1215/2012.
23.      Moreover, Regulation No 1215/2012 seeks to unify the rules on conflict of jurisdiction in civil and commercial matters by way of rules of jurisdiction which are highly predictable and thus pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling both the applicant to identify easily the court before which he or she may bring proceedings, and the defendant reasonably to foresee the court before which he or she may be sued. (5)
24.      Accordingly, Article 4 of that regulation establishes as a principle that the courts of the Member State of the defendant’s domicile have jurisdiction. The Court has clarified that the rules of special or exclusive jurisdiction, which are exceptions to that principle, must be interpreted strictly and not be given an interpretation broader than that which is required by their objective. (6)
2.      Preliminary observations relating to the rights of squeeze-out and sell-out under Slovak law
25.      According to the Law on securities, where a person other than the issuer initiates a takeover bid that is neither partial nor conditional for all the listed shares, in the place of the issuer, following a resolution by the general meeting to delist the shares, that person has the right, if he or she holds not less than 95% of the shares with voting rights and 95% of the voting rights, to require that all the remaining shares held by other shareholders be transferred to him or her for fair consideration.
26.      To exercise that right of squeeze-out, that shareholder must, within three months of the expiry of the period of validity of the takeover bid, obtain at least 95% of the votes at the general meeting in favour of the transfer to him or her of the shares of the other shareholders. Within 30 days of that vote, the board of directors must submit an application for entry in the commercial register, accompanied by the prior approval of the National Bank of Slovakia and by proof that the funds intended for the payment of fair compensation to the other shareholders have been deposited. At the end of a further 30-day period from the date of entry in the commercial register, the company must instruct the central securities depository to register the transfer of the remaining shares in the name of the bidder. That instruction must be accompanied by the decision of the general meeting on the transfer, the prior approval of the National Bank of Slovakia and an extract from the commercial register.
27.      In order to remedy any failure to act on the part of the bidder in the takeover bid, the Law on securities provides that the other shareholders may require that the bidder, within the same period of three months from the expiry of the deadline, purchase their shares for fair consideration. Those shareholders must send a draft share purchase agreement setting out the fair consideration, the deadline for approval and the deadline and procedure for transferring the shares. If the draft has not been approved within the specified period or within ten working days, the shareholders may apply to the court to substitute the approval with a court ruling.
28.      It is in that legislative context that Intesa freely initiated a takeover bid, in the place of VÚB, and that, at the end of the three-month period, it exercised its right of squeeze-out, which resulted in the transfer of the remaining shares into its name. At the same time, TERVE, in order to exercise its right of sell-out, sent Intesa a draft share purchase agreement, which Intesa did not approve. Intesa justified its refusal on the ground that, since TERVE had not approved its own squeeze-out proposal within the mandatory three-month period, TERVE’s remaining shares had been transferred to Intensa and TERVE therefore no longer had the standing to bring proceedings as a shareholder and had forfeited the opportunity to accept the squeeze-out offer.
B.      Questions relating to the special jurisdiction provided for in Article 7 of Regulation No 1215/2012
29.      By its first and second questions, which may be dealt with together, the referring court asks the Court whether a legal action to substitute approval of a draft share purchase agreement, brought against the shareholder who made the takeover bid, in the place of the issuer, following the decision to delist the issuer’s shares, falls within matters relating to a contract within the meaning of Article 7(1) of Regulation No 1215/2012 or matters relating to tort, delict or quasi-delict within the meaning of Article 7(2) of that regulation.
30.      The Court has held that the concepts of ‘matters relating to a contract’ or ‘matters relating to tort, delict or quasi-delict’ must be interpreted autonomously, by reference principally to the regulation’s scheme and objectives, in order to ensure that the regulation is applied uniformly in all the Member States. Those concepts cannot therefore be taken to refer to how the legal relationship in question before the national court is classified by the applicable national law. (7)
31.      The Court added that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 7(2) of Regulation No 1215/2012 covers all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 7(1)(a) thereof, in that they are actions not based on a legal obligation freely consented to by one person towards another. (8)
32.      Since the Court makes the concept of ‘matters relating to tort, delict or quasi-delict’ a default concept with respect to that of ‘matters relating to a contract’, I shall begin my examination with the latter concept.
33.      It is settled case-law that Article 7(1)(a) of Regulation No 1215/2012 does not require the conclusion of a contract, but presupposes, on the other hand, the establishment of a legal obligation freely consented to by one person towards another. (9)
34.      The Court has added four clarifications which seem to me important in answering the questions raised in this case.
35.      In the first place, the Court has recognised that, for the purposes of determining the court having jurisdiction, the company’s statutes must be regarded as a contract covering both the relations between the shareholders and also the relations between them and the company they set up. (10) It extended that reasoning, on the one hand, to the circumstances of members of an association on the ground that membership of an association creates between the members close links of the same kind as those which are created between the parties to a contract (11) and, on the other hand, to the circumstances of co-owners on the ground that, by becoming and remaining the owner of a property in a building, each owner agrees to be subject to all the provisions in the act governing the association of property owners concerned and the decisions adopted by the general meeting of the owners of property in that building. (12)
36.      In the second place, the Court has recognised that the rule of special jurisdiction in matters relating to a contract provided for in Article 7(1)(a) of Regulation No 1215/2012 is based on the cause of action, not the identity of the parties. (13) It concluded that the actio pauliana, once it is brought on the basis of the creditor’s rights created upon the conclusion of a contract, falls within ‘matters relating to a contract’ and that it is thus necessary that in addition to the forum of the defendant’s domicile, there should be a supplementary ground of jurisdiction, namely that prescribed by Article 7(1)(a) of Regulation No 1215/2012, such jurisdiction meeting, with regard to the contractual origin of the relationship between the creditor and debtor, both the requirement for legal certainty and foreseeability and the aim to facilitate the sound administration of justice. (14) In its judgment of 4 October 2018, Feniks, (15) the Court held that the creditor could choose, for the purpose of determining the court having jurisdiction, the place of performance of the obligation in question. (16) Moreover, in matters relating to air passenger transport, the Court ruled that, under the second sentence of Article 3(5) of Regulation (EC) No 261/2004, (17) which provides that where an operating air carrier, which has no contract with the passenger, performs obligations under that regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger, that carrier must be regarded as fulfilling the freely consented obligations vis-à-vis the contracting partner of the passengers concerned. Those obligations arise under the contract for carriage by air. (18) It concluded from this that the concept of ‘matters relating to a contract’ covers a claim brought by air passengers for compensation for the long delay of a connecting flight, made under that regulation, against an operating air carrier with which the passenger concerned does not have contractual relations. (19)
37.      In the third place, the Court has acknowledged that the obligation in ‘matters relating to a contract’ could have a twofold statutory and contractual origin. Accordingly, it held that, even if membership of an association of property owners is prescribed by law, the fact remains that the detailed arrangements for management of the communal areas of the building concerned are, as the case may be, governed by contract and the association is joined through voluntary acquisition of an apartment together with ownership shares of the communal areas of the property, so that an obligation of the co-owners towards the association of owners must be regarded as a legal obligation freely consented to by one person towards another. (20)
38.      In the fourth place, the Court has ruled that the concept of ‘matters relating to a contract’ encompasses legal proceedings which are intended to claim, as against a professional vendor, the award of a prize ostensibly won and whose payment has been refused by the latter, since those proceedings are founded specifically on the prize notification and the ostensible beneficiary invokes the failure to award the prize as the reason for bringing the proceedings. (21)
39.      That reminder of the case-law should, in my view, enable the Court to classify the subject matter of TERVE’s legal action against Intesa as ‘matters relating to a contract’.
40.      Those two companies are shareholders in the same company, VÚB, and the takeover bid procedure followed by the right of squeeze-out or the right of sell-out is intended to protect the rights of minority shareholders in the event of a decision to delist the shares. That is why, as a rule, the obligation to initiate a takeover bid is imposed on the issuer of the shares, which has a contractual relationship with its shareholders.
41.      Moreover, Intesa freely decided to initiate a takeover bid in the place of the issuer, namely VÚB, whose relationship with its shareholders is contractual in nature. It would be illogical for a dispute relating to the right of a minority shareholder to sell its shares in the event of delisting to fall, in this case, within the jurisdiction of the Slovak or Luxembourg courts, depending on whether or not Intesa chose to initiate a takeover bid. It would also be illogical if, where the right of squeeze-out and right of sell-out were exercised within the same period and contested, the disputes were to come within the jurisdiction of courts established in different Member States, in the event that the shareholder initiating the takeover bid had its seat in a Member State other than that of the issuer.
42.      Furthermore, the fact that the obligation to initiate a takeover bid in the event that the shares are delisted, followed by the right of squeeze-out and right of sell-out, is of statutory origin is not such as to call into question its classification as an obligation falling within matters relating to a contract. As I have already stated, (22) such an obligation may have a contractual and statutory origin. However, it is only because there is a contractual obligation that the statutory obligation applies. In this case, VÚB’s shareholders voted to delist the shares, which entailed the statutory obligation to initiate a takeover bid. Subsequently, Intesa, as a shareholder holding not less than 95% of the voting shares and 95% of the votes, freely initiated that bid in the place of VÚB, which gave rise to a statutory obligation for it to exercise the right of squeeze-out or to be subject to the right of sell-out.
43.      Finally, the refusal to comply with a statutory obligation does not mean that the situation is not one which concerns matters relating to a contract. Accordingly, the fact that Intesa, which freely consented to initiate a takeover bid, refused to accept TERVE’s sell-out proposal does not mean that the cause of TERVE’s action does not fall within matters relating to a contract.
44.      It follows from the foregoing that TERVE’s action against Intesa falls within matters relating to a contract and not within matters relating to tort within the meaning of Regulation No 1215/2012.
45.      The answer to be given to the referring court should therefore be that Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that an action to substitute the approval of a draft share purchase agreement presented by a minority shareholder with a court ruling falls within matters relating to a contract, where that action has been brought by the shareholder which initiated a takeover bid in the place of the issuer following a resolution of the general meeting of shareholders to delist the shares.
C.      Question relating to the exclusive jurisdiction provided for in Article 24 of Regulation No 1215/2012
46.      By its third question, the referring court asks the Court, in essence, whether Article 24(2) of Regulation No 1215/2012 must be interpreted as meaning that it is applicable to a claim which seeks to challenge the validity of a resolution of a general meeting approving the transfer of the remaining shares to a majority shareholder following a takeover bid freely initiated by that shareholder in the place of the issuer, where that claim is preliminary to a claim seeking to substitute a majority shareholder’s approval of a sell-out proposal with a court ruling.
47.      Like the Commission, I consider that this question is relevant only if, under Slovak law, the court hearing an application to substitute a majority shareholder’s approval of a sell-out proposal with a court ruling can rule on the validity of a decision of a general meeting without the company whose decision is being challenged being a party to the proceedings.
48.      If that is the case, I propose the following analysis.
49.      It should be recalled that Article 24(2) of Regulation No 1215/2012 provides for the exclusive jurisdiction of the courts of the Member State in which companies or legal persons have their seat ‘in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs’.
50.      In this case, what is at issue here is the concept of ‘the validity of a decision of a company organ’, the scope of which concept the Court has already been called upon to determine when interpreting Article 22(2) of Regulation No 44/2001, the provisions of which were reproduced in Article 24(2) of Regulation No 1215/2012. (23)
51.      To that end, the Court recalled that the essential objective of Article 22(2) of Regulation No 44/2001 is that of centralising jurisdiction in order to avoid conflicting judgments being given as regards the validity of the decisions of organs of companies. (24) That centralisation is provided for before the courts of the Member State in which the company has its seat, since it is those courts which are best placed to deal with such disputes, inter alia because it is in that State that information about the company and its decisions will have been notified and made public. That exclusive jurisdiction is established in the interests of the sound administration of justice. (25)
52.      There is therefore no doubt that, if TERVE were to bring an action against VÚB seeking a declaration that the resolution of the second general meeting is invalid, the Slovak courts would have jurisdiction.
53.      However, since that exclusive jurisdiction is an exception to the general rule of jurisdiction laid down in Article 4 of Regulation No 1215/2012, it must be interpreted strictly. (26)
54.      That strict interpretation leads to the conclusion that Article 24(2) of Regulation No 1215/2012 must be interpreted as covering only proceedings whose principal subject matter concerns the validity of the decisions of the organs of companies. (27)
55.      Consequently, it is necessary to examine whether, in the context of a legal action seeking to substitute the approval of the sell-out proposal with a court ruling, the preliminary issue of the validity of the decision of the general meeting to transfer the remaining shares to the person exercising the right of squeeze-out can constitute the principal subject matter of the dispute.
56.      TERVE’s standing to bring proceedings depends directly on whether or not the resolution of the second general meeting is valid since, if that resolution is invalid, the transfer of the shares to Intesa is called into question and TERVE is still a shareholder of VÚB. However, if that resolution is valid, TERVE has lost its status of shareholder and can no longer exercise its right of sell-out.
57.      I therefore consider that the validity of the resolution of the second general meeting is an essential premiss for TERVE’s action to substitute Intesa’s approval of its draft agreement to purchase the remaining shares with a court ruling. (28) It is actually that resolution which establishes the right of sell-out for the other shareholders. The situation in the present case is not one in which the alleged invalidity of the decisions of the company’s organs is ancillary to the principal subject matter of the action. (29) Accordingly, the Slovak courts have jurisdiction on the basis of the exclusive jurisdiction provided for in Article 24(2) of Regulation No 1215/2012.
58.      The Court has also stated that the centralisation of jurisdiction in favour of the courts of the seat of the company in respect of which the validity of its organs’ decisions is contested, in order to avoid conflicting judgments being given, (30) makes it possible to achieve the objective of a high degree of predictability as regards jurisdiction and legal certainty. (31)
59.      Accordingly, the nationality of the company whose organs’ decision is contested, the law applicable to the acts and formalities relating to the disputed general meeting, the language used (32) and the substantive law applicable (33) may be taken into consideration. In the main proceedings, VÚB is a Slovak company and the general meeting is subject to Slovak law as regards both formalities and substantive law. This is such as to establish a close link between the dispute and the Slovak courts, which satisfies the principle of the sound administration of justice. (34)
60.      As regards compliance with the objectives of predictability and legal certainty, in a similar dispute concerning the consideration offered in exchange for the compulsory transfer of the shares of minority shareholders in a company to its majority shareholder, the Court also took into account the fact that the majority shareholder had to expect that the court of the seat of the company would have jurisdiction. (35) I consider that the fact that Intesa stated, in its own delisting proposal, which was followed by the resolution of the second general meeting to transfer the remaining shares, the validity of which is contested, that the resulting share purchase agreements would be governed by Slovak law and the jurisdiction of the Slovak courts, confirms that that company should have expected proceedings against it to be brought before the Slovak courts.
61.      Therefore, unlike the facts which led to the judgment of 12 May 2011, BVG, (36) in which the exclusive jurisdiction set out in Article 24(2) of Regulation No 1215/2012 was relied on in support of a plea of lack of jurisdiction raised by a company which claimed that its own decisions were invalid, in the present case the invalidity of the decisions of the company’s organs is relied on in the action.
62.      In light of the foregoing, I propose that the answer to be given to the referring court should be that Article 24(2) of Regulation No 1215/2012 must be interpreted as meaning that it is applicable to a claim, even if preliminary, which seeks to challenge the validity of a resolution of a general meeting approving the transfer of the remaining shares to a majority shareholder following a takeover bid freely initiated by that shareholder in the place of the issuer, if that claim is an essential premiss for the principal claim seeking to substitute the majority shareholder’s approval of the sell-out proposed by the minority shareholder with a court ruling.
V.      Conclusion
63.      In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) as follows:
1)      Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
must be interpreted as meaning that
an action to substitute the approval of a draft share purchase agreement presented by a minority shareholder with a court ruling falls within matters relating to a contract, where that action has been brought by the shareholder which initiated a takeover bid in the place of the issuer following a resolution of the general meeting of shareholders to delist the shares.
2)      Article 24(2) of Regulation No 1215/2012
must be interpreted as meaning that
it is applicable to a claim, even if preliminary, which seeks to challenge the validity of a resolution of a general meeting approving the transfer of the remaining shares to a majority shareholder following a takeover bid freely initiated by that shareholder in the place of the issuer, if that claim is an essential premiss for the principal claim seeking to substitute the majority shareholder’s approval of the sell-out proposed by the minority shareholder with a court ruling.
1      Original language: French.
2      Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).
3      Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
4      See judgment of 14 September 2023, EXTÉRIA (C‑393/22, EU:C:2023:675, paragraph 23 and the case-law cited).
5      See judgment of 28 November 2024, VariusSystems (C‑526/23, EU:C:2024:985, paragraph 15).
6      Regarding Article 7 of Regulation No 1215/2012, see judgment of 28 November 2024, VariusSystems (C‑526/23, EU:C:2024:985). Regarding Article 24 of that regulation, see judgment of 7 March 2018, E.ON Czech Holding (C‑560/16, ‘the judgment in E.ON Czech Holding’, EU:C:2018:167, paragraph 27).
7      See judgment of 25 March 2021, Obala i lučice
(C‑307/19, EU:C:2021:236, paragraph 82 and the case-law cited).
8      See judgment of 25 March 2021, Obala i lučice (C‑307/19, EU:C:2021:236, paragraph 83 and the case-law cited).
9      See judgments of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 39), and of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraphs 23 to 25).
10      See, with regard to the Convention of 27 September 1968
on jurisdiction of judgments and enforcement in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the successive Conventions on the accession of new Member States to that convention (OJ 1998 C 27, p. 1) (‘the Brussels Convention’), which was replaced by Regulation No 44/2001 (see point 22 of this Opinion), judgment of 10 March 1992, Powell Duffryn (C‑214/89, EU:C:1992:115, paragraph 16).
11      See judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 26 and the case-law cited).
12      See judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 29 and the case-law cited).
13      See judgment of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraph 48 and the case-law cited).
14      See judgment of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraph 44).
15      C‑337/17, EU:C:2018:805.
16      See judgment of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraph 46).
17      Regulation of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
18      See judgment of 7 March 2018, flightright and Others (C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraphs 62 and 63).
19      See judgment of 7 March 2018, flightright and Others (C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraph 65 and point 2 of the operative part).
20      See judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 27).
21      See judgment of 20 January 2005, Engler (C‑27/02, EU:C:2005:33, paragraphs 57 and 58).
22      See point 37 of this Opinion.
23      See point 22 of this Opinion.
24      See judgment in E.ON Czech Holding (paragraph 31 and the case-law cited).
25      See judgment in E.ON Czech Holding (paragraph 32 and the case-law cited).
26      See point 24 of this Opinion and the case-law cited in footnote 6.
27      See, by analogy with Article 22(2) of Regulation No 44/2001, judgment of 12 May 2011, BVG (C‑144/10, EU:C:2011:300, paragraph 44 and paragraph 43, which cites the report by Mr P. Jenard on the Brussels Convention (OJ 1979 C 59, p. 1) (see footnote 10 to this Opinion), the conclusions of which are relevant, by analogy, in analysing Regulation No 1215/2012).
28      See, by analogy with the validity of a patent being an essential premiss in any infringement action, judgment of 12 May 2011, BVG (C‑144/10, EU:C:2011:300, paragraph 46).
29      See judgment of 2 October 2008, Hassett and Doherty (C‑372/07, EU:C:2008:534).
30      See judgment in E.ON Czech Holding (paragraph 31).
31      See judgment in E.ON Czech Holding (paragraph 28).
32      See judgment in E.ON Czech Holding (paragraph 40).
33      See judgment in E.ON Czech Holding (paragraph 41).
34      See judgment in E.ON Czech Holding (paragraph 42).
35      See judgment in E.ON Czech Holding (paragraph 43).
36      C‑144/10, EU:C:2011:300.