EN Official Journal of the European Union C 52/9

Judgment of the Court (Second Chamber) of 19 December 2013 (request for a preliminary ruling from the Handelsgericht Wien (Austria)) — Alfred Hirmann v Immofinanz AG

(Case C-174/12) (1)

(Reference for a preliminary ruling - Company law - Second Directive 77/91/EEC - Liability of a public limited liability company for breach of its obligations in respect of advertising - Inaccurate information in share prospectus - Extent of liability - Legislation of a Member State providing for repayment of the price paid by the purchaser for purchased shares)

2014/C 52/13

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Alfred Hirmann

Defendant: Immofinanz AG

Intervening party: Aviso Zeta AG

Re:

Reference for a preliminary ruling — Handelsgericht Wien — Interpretation of Articles 12, 15, 18, 19 and 42 of 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), as amended, Articles 6 and 25 of Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, and amending Directive 2001/34/EC (OJ 2001, L 345, p. 64), as amended by Directive 2008/11/EC of the European Parliament and of the Council of 11 March 2008 (OJ 2008 L 76, p. 37), Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (OJ 2009 L 258, p. 11), Articles 7, 17 and 28 of 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) and Article 14 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (OJ 2003 L 96, p. 16) — Liability of a public limited company for infringement of its information obligations — Inaccuracy of the information contained in a prospectus — Member State legislation laying down that in such a case the price paid by the subscriber for the shares should be refunded — Situation in which the shares have been acquired on the secondary market on the basis of the prospectus

Operative part of the judgment

1. Articles 12, 15, 16, 18, 19 and 42 of 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 48 EC], 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, as amended by Council Directive 92/101/EEC of 23 November 1992, must be interpreted as not precluding national legislation which, in the context of the transposition of: — Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC, — 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, — and Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), first, provides that a public limited liability company, as an issuer of shares, may have a liability to a purchaser of shares in that company based on a breach of the information requirements laid down in those directives, and, secondly, imposes, under that liability, an obligation on the company concerned to repay to the purchaser a sum equivalent to the purchase price of the shares and to redeem those shares.

2. Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of [the second paragraph of Article 48 EC], with a view to making such safeguards equivalent, must be interpreted as not precluding national legislation which, in circumstances such as those of the main proceedings, provides for the retroactive cancellation of a share purchase contract.

3. Articles 12, 15, 16, 18, 19 and 42 of the Second Directive 77/91, as amended by Directive 92/101, and Articles 12 and 13 of Directive 2009/101 must be interpreted as meaning that the liability established by the national legislation at issue in the main proceedings is not necessarily restricted to the value of shares, calculated according to the price of those shares if the company is publicly listed, at the time when the claim is brought.

(1) OJ C 151, 26.5.2012.