Opinion of Mr Advocate General Tesauro delivered on 8 April 1992. - Wienand Meilicke v ADV/ORGA F. A. Meyer AG. - Reference for a preliminary ruling: Landgericht Hannover - Germany. - Company law - Directive 77/91/EEC. - Case C-83/91.



European Court reports 1992 Page I-04871

Swedish special edition Page I-00105

Finnish special edition Page I-00107



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. In these proceedings the Court is asked for an interpretation of certain provisions of 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 (1) ("the Second Directive").

The large number of questions submitted by the Landgericht Hannover relate more particularly to the interpretation of Articles 7, 10, 11 and 27(2) concerning "consideration other than in cash" with a view to establishing whether those provisions preclude application of the doctrine of disguised contributions in kind as developed by German case-law.

2. It is appropriate first to give details of that doctrine, which has recently been confirmed and analytically developed by the Bundesgerichtshof in its judgment of 15 January 1990. (2) Essentially, German case-law classifies as a disguised contribution in kind any contribution in cash which, although in accordance with the formal provisions of company law, is temporally and substantively connected with a compulsory transaction by virtue of which the liquid funds received by the company as a result of the contribution in cash are returned to the subscriber. Such an operation constitutes, according to the prevailing case-law and views of legal writers, a circumvention of the provisions concerning contributions in kind ° which require publication and verification of the value of the contribution made. The penalty for infringement of such provisions may take the form of an obligation to return the contribution made.

It should be made clear at this point that the concept of a "disguised contribution in kind" does not appear either in the Second Directive or in the Aktiengesetz (Law on public limited companies ° "AktG"), as amended by the Law of 13 December 1978 (3) which implemented the Second Directive.

In fact, the Second Directive merely distinguishes between contributions in cash and contributions other than in cash (hereinafter "contributions in kind"). As regards the latter, Article 10 provides that they must be accompanied by a report drawn up by one or more independent experts unconnected with the company. That report, which must be drawn up before the company is incorporated or authorized to commence business, must contain precise information, such as the description of the assets, the valuation criteria and the relationship of the value of the contribution to the value of the shares issued; the report must also be published. Article 27(2) lays down a similar requirement regarding contributions in kind made following an increase of capital.

The same conditions relating to verification and publication and the authorization to be given by the general meeting apply pursuant to Article 11(1) to the acquisition of assets belonging to founding members where they are valued in an amount of not less than one tenth of the subscribed capital and are made within two years after incorporation of the company (or within such longer period as may be laid down by national legislation). Those rules ° which do not apply to acquisitions effected in the normal course of the company' s business or to acquisitions effected at the instance or under the supervision of an administrative or judicial authority or to stock exchange transactions (Article 11(2)) ° may be extended by the Member States to acquisitions of property belonging to other shareholders or third parties.

Finally, Article 7 provides for general protection against fraud and states that the subscribed capital may be formed only of assets capable of economic assessment.

3. The facts of the case before the national court display certain peculiarities such as to make this case to say the least unusual in a number of respects. The company ADV/ORGA F.A. Meyer AG (hereinafter "ADV/ORGA"), which had been experiencing serious difficulties for several years, increased its capital in April 1989: the issue of new shares was guaranteed by Commerzbank, which as a result became the owner of them. Moreover, as early as December 1988, Commerzbank had already acquired a majority shareholding in ADV/ORGA; it had also granted loans to that company.

At the general meeting of 16 February 1990, Mr Meilicke, as shareholder ° in fact he holds one voting share ° tabled certain questions to the management concerning the increase of capital and the use to which the newly contributed cash was put, in order to establish whether that money had been used to reduce the company' s debts towards Commerzbank. In other words, the answers that he sought would have made it possible to establish whether the cash contribution by Commerzbank ought to be classified, by virtue of the Bundesgerichtshof case-law referred to earlier, as a disguised contribution in kind.

Taking the view that the answers given by the management were not exhaustive, Mr Meilicke instituted proceedings before the Landgericht Hannover, which has territorial jurisdiction by virtue of Paragraph 132 of the AktG, seeking a decision as to whether or not the management of the company was under an obligation to disclose the information requested. It should be pointed out at this stage that under Paragraph 131, first paragraph, first sentence, of the AktG the management is required to provide a shareholder with information on the business of the company to the extent to which such information is relevant to a proper assessment of any item on the agenda.

After legal proceedings were commenced, further clarifications were given to Mr Meilicke in writing with the result that ° as stated by the national court itself in the order for reference ° the main issue in the dispute must be regarded as resolved. (4)

At the hearing ADV/ORGA submitted that the information provided by it was sufficient to establish whether or not the conditions were met for initiating the procedure under Article 131 of the AktG and essentially made it possible to decide as to the nature of the contribution made by Commerzbank and therefore as to the very existence of the right to information, having regard to the doctrine of disguised contributions in kind. ADV/ORGA added, however, that even if it were decided ° contrary to what was apparent from the information provided and in any event contrary to its contention ° that the contribution made by Commerzbank should be classified as a disguised contribution in kind, the fact remained that there was no need to furnish further information.

4. That is the issue which remains unresolved. The Landgericht, unlike the defendant company, considers that the information provided does not enable the contribution in question to be unequivocally classified. In particular, the Landgericht appears to consider that the additional information requested by Mr Meilicke is such as to have an impact on his rights as a shareholder, in so far as it might even prompt a declaration ° in the light of the principles laid down in the German case-law ° of the invalidity of the discharge of the obligations deriving from ADV/ORGA' s loan ° contracted before the increase of capital ° by means of the contribution in cash made by the lender itself, Commerzbank.

Since the request for further details is in fact intended to establish whether Commerzbank was reimbursed (at least partially) using the funds which it itself contributed in connection with the increase of capital, in the Landgericht' s view the conditions laid down in Paragraph 131 of the AktG must be regarded as satisfied precisely because of the abovementioned consequences which the doctrine of disguised contributions in kind developed by the German courts attaches to transactions of that type. The national court itself observes, however, that the plaintiff would have no right to obtain such information if the doctrine of disguised contributions in kind was incompatible with Community law.

The Landgericht therefore sought a preliminary ruling from the Court of Justice, in order to decide whether or not such a right to the information exists, requesting a decision as to the conformity with the Second Directive of the principles underlying the doctrine in question. The national court also stated that it wished to take advantage of the Article 177 procedure in order to ensure legal certainty, after referring to the aforementioned judgment of the Bundesgerichtshof and pointing out that that judgment had not escaped criticism in Germany itself.

Finally, it is not inappropriate to point out that the view that the doctrine at issue is incompatible with the Second Directive, as apparent from the order for reference itself, is supported not only by the defendant but also by the plaintiff himself and could therefore result in ... the dismissal of his claim.

In fact, Mr Meilicke is the author of numerous publications in which he asserts that the doctrine of disguised contributions in kind is unfounded, (5) particularly with reference to the Second Directive, and so it might be concluded (without fear of being accused of calumny) that the claimed right to information is being used merely as an instrument to secure confirmation of his theoretical view. In that regard, I would observe that whilst his opinion as an academic lawyer certainly has no impact on the present proceedings, the same cannot be said regarding the position adopted by him in this case, which consists precisely in defending a viewpoint which ° if accepted ° would result in depriving him of his "claimed" entitlement to the information which he seeks. (6)

5. The "Meilicke case" may be summarized as follows: (a) the dispute before the national court has been visibly "orchestrated" by Mr Meilicke himself; (b) he had adopted a position in the proceedings which is conducive to his claim being dismissed rather than upheld, with the result that doubts arise as to whether one of the conditions for recourse to the procedure under Article 177 is fulfilled, namely the existence of a dispute which the Court must "help" the national court to determine; (c) the national court considers it appropriate to seek a preliminary ruling for the sake of legal certainty and not to settle the dispute as required by Article 177 (perhaps precisely because there is no dispute?).

Faced with unusual features of this kind, I must confess that I am unable to dispel the unpleasant impression that the procedure under Article 177 has been used in a manner not altogether consonant with its purpose. This is not because the "dispute" has been tenaciously desired and sought by Meilicke himself (7) nor because of the unfortunate reference by the national court to the usefulness of a preliminary ruling for the sake of legal certainty, but rather because of doubt as to the very existence of a dispute.

Significantly, the position adopted by Mr Meilicke in this case is not intended to bring him any "useful result" through his claim being upheld, for the simple reason that he proposes that it be dismissed, on the ground that his application has no basis in law. This may be tantamount to a lack of any interest in bringing an action and may thereby lead to a finding that no dispute exists, the existence of a dispute being an essential precondition for recourse to the procedure under Article 177.

That said, I cannot omit to mention that the existence of an interest in bringing an action (and, accordingly, the existence of a dispute) is a matter which should have been considered by the national court in the light of its national procedural rules. Moreover, as is apparent from the facts of the case, the information provided by the company has only partly settled the dispute: accordingly, the national court still considers itself under an obligation to give a decision on the further information requested by Meilicke and, for that purpose, it is asking the Court whether the doctrine of disguised contributions in kind is compatible with the Second Directive.

6. This brings us to the questions submitted by the national court.

In the first question, the Landgericht asks "Is it compatible with European Community law in principle to apply the rules concerning safeguards in relation to non-cash subscriptions of capital to the extinguishment of a public limited company' s liabilities incurred prior to an increase in its capital by the use of cash subscribed by the creditor?". Precisely in order to resolve that question of compatibility the Landgericht goes on to submit seven more questions, each of which is divided into numerous alternative questions and sub-questions. Merely for reasons of economy, therefore, I would refer those who consider it indispensable to read them in full to the Report for the Hearing, and I shall confine myself to summarizing them (not an easy task) extremely briefly.

In particular, the Court is asked whether the provisions of the Second Directive are directly applicable; whether Articles 10, 11 and 27(2) merely provide minimum protection or whether Article 11, which ensures compliance with Articles 10 and 27(2), constitutes a complete set of rules against circumvention or, finally, whether the purpose of Articles 10 and 27(2), in conjunction with Article 11, is to ensure uniform protection against circumvention; whether an increase in capital by repayment of a debt payable by the company to the subscriber should be classified as an increase in capital in cash, an increase in capital against a non-cash consideration, or whether it is possible to choose between the two classifications. And also: whether the first sentence of Article 7 allows a contribution in the form of a waiver of a claim against the company at its nominal value, regardless of the company' s solvency; what are the detailed rules for identifying unacceptable circumvention of the rules on contributions in kind, in the event of Articles 7, 10, 11 and 27(2) being interpreted as laying uniform rules against circumvention, rules which prohibit "disguised contributions in kind"; whether it is compatible with Article 25(1) for an increase of capital in cash, decided upon by the general meeting and duly paid, to be regarded as void merely because the contribution in cash reverts wholly or in part to the subscriber; finally, what are the consequences ° deriving from the fact that it may be impossible to enforce a claim made against the company as a contribution in cash ° regarding repayment of a company' s debt towards a subscriber.

7. By way of preliminary, I would observe that those questions, as already indicated, are intended to allow the national court correctly to apply a provision of national law (Paragraph 131 of the AktG) but are not intended to resolve ° at least formally and directly ° a problem of Community law.

It does not seem to me, however, that that fact is of conclusive importance for the jurisdiction of the Court of Justice in this matter. The Court itself has stated that it may refuse to give a ruling on a question submitted by a national court only "if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by [the national] court bears no relation to the actual nature of the case or to the subject-matter of the main action", (8) in particular where "it is obvious that the provision of law submitted for interpretation by the Court cannot be applied". (9)

In the present case, therefore, any declaration that the Court lacks jurisdiction could be justified only if it were obvious that the provision of Community law of which an interpretation had been sought from the Court is not intended to be applied either directly or indirectly. Let me say straight away that that is not the case here: the interpretation of the provisions of the Second Directive concerning contributions in kind constitutes a precondition for the application of Paragraph 131 of the AktG and therefore, in that way, the provisions in question are intended to be applied.

Moreover, any doubt regarding the jurisdiction of the Court to give a ruling in disputes which raised matters of Community law in relation to a national provision must now be regarded as disposed of following the judgment in Dzodzi, (10) in which, inter alia, the Court expressly stated that "the Community legal order manifestly has an interest, in order to avoid future divergences of interpretation, in ensuring uniform interpretation of all provisions of Community law, regardless of the circumstances in which they will be applied" (paragraph 37).

In the present case, the right to information (and thus the "reference" to Community law) is based on the interpretation provided by the German case-law of the national provisions concerning contributions in kind, provisions which were adopted in order to implement the Second Directive. From that standpoint, the analogy with Dzodzi seems to me to be beyond doubt: the fact that the reference to Community law is based on a formal provision of national law or on the interpretation thereof as provided by the highest national courts does not seem to me to constitute, for a national court called upon to determine a dispute in which a problem of that kind arises, an important difference. Moreover, the national court considers that the national provisions, which were primarily adopted to implement the Second Directive, conflict, as interpreted in German case-law, with the Community provisions of which an interpretation is sought.

8. That having being explained, I think it is appropriate to consider briefly the view put forward by the Commission as to the "real" subject-matter of the dispute in these proceedings. The Commission, recalling that it is not for the Court to comment on the reasons which prompted the national court to seek a preliminary ruling, quotes a passage from the Foglia v Novello II judgment in which the Court stated that the duty assigned to it was "not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States", (11) going on to conclude that it is necessary clearly to define the true subject-matter of the dispute before the national court, reformulating ° if necessary ° the questions submitted to it.

In the Commission' s opinion, in order to resolve the dispute before the national court, it would be sufficient to establish ° this being in fact the only matter of contention ° whether Community company law prevents the Landgericht from acceding to the request for information under Paragraph 131 of the AktG. The Commission therefore suggests that the questions be "reformulated" in that way and that the answer should be that, in the absence of Community coordination of legislation on entitlement to information, it is necessary to refer to national law in order to resolve the issue.

I must confess that I am not entirely clear as to the method used by the Commission in "reformulating" the questions submitted by the national court, particularly in so far as it reaches the conclusion that the problem of entitlement to information must be resolved in accordance with national law. It hardly needs emphasizing that the national court does indeed intend determining the dispute by applying a provision of national law: nevertheless, it takes account of the fact that the precondition for application of the relevant national provision is the interpretation of certain Community provisions to which, essentially, national law, as interpreted by the German courts, ultimately refers.

Whilst it is true that the Court has often reformulated the questions submitted by national courts, albeit only in order to provide a relevant answer, it is also true that the Court reformulates questions only where they are not properly expressed or else extend beyond the ambit of its powers under Article 177, confining itself, moreover, to selecting from all the information supplied by the national court, and in particular from the grounds of the order for reference, the matters of Community law which require interpretation ° or, if appropriate, a decision as to their validity ° having regard to the subject-matter of the dispute. (12)

By means of a somewhat "obscure" reformulation, the Commission suggests, however, answering a question which was not asked (not even incorrectly), which in any event, having regard to the grounds for the order for reference, does not cover the real issue raised in the proceedings before the national court and which, therefore, does not help the national court in any way to determine the case before it.

Essentially therefore, the Commission' s view implies that none of the questions submitted by the national court is relevant to settlement of the dispute. Even if that were the case, it is difficult to see why the questions should be reformulated in such a way that a "non-answer" is given: as regards the actual substance, why not clearly state that the questions are not relevant.

9. The very reasons on which the Commission relies in support of its view, moreover, give rise to considerable uncertainty. The Commission submits that the Landgericht' s reference to the Court is to be regarded as premature, in so far as the answer given by the Court, although certainly allowing the national court correctly to apply its own national law (in this case Paragraph 131 of the AktG), would not resolve any dispute from the standpoint of Community law. Indeed, the very reference to the "premature" nature of the reference, as argued at the hearing, would appear to indicate that doubts were actually raised as to the appropriateness of a reference at that stage of the proceedings, a fact which in itself is not such as to render irrelevant the questions submitted with a view to a decision being given in the proceedings.

Furthermore, in so far as the request for information, as described in the order for reference, would be unfounded if the doctrine of disguised contributions in kind were incompatible with the Second Directive (or, of course, to the extent to which the Second Directive was actually irrelevant to that doctrine), I wonder whether it is possible to maintain that the interpretation of the relevant provisions of the directive is of no importance for the purpose of deciding whether or not such entitlement to information exists.

Whilst it is beyond doubt that in the present case the applicable provision is a provision of national law, it is not clear, contrary to what the Commission appears to think, that no provision of the Second Directive provides grounds for concluding that it is inimical to the possible legal consequences of the request for the information in question. On the other hand, it is clear, in my opinion, that if the additional information requested by Mr Meilicke prompted the conclusion that the operation in question was a disguised contribution in kind, that would provide a basis for declaring that the operation involving ADV/ORGA and Commerzbank was in breach of the rules requiring supervision and publication, with the result that Commerzbank might be compelled, in certain circumstances, to claim back the contribution made ° and, possibly, do so in breach of the relevant provisions of the Second Directive.

Admittedly, it might also be contended that a specific problem of interpretation of the relevant provisions of Community law could arise directly only after the type of contribution with which the main proceedings are concerned had been specifically classified, classification being possible by granting Mr Meilicke' s request for further information. However, I feel unable to share that view precisely because to do so would amount to passing judgment, in a manner contrary to consistent decisions of the Court, on the appropriateness of the timing of the reference.

In any event, suffice it to point out that the approach taken by the national court is different: besides the fact that the present case involves the existence or otherwise of a disguised contribution in kind, as envisaged by the German case-law, a pronouncement by the Court as to whether the doctrine at issue is in conformity with the Second Directive would amount to deciding "upstream" the dispute as to the entitlement to information. It need hardly be added that in that sense the interpretation provided by the Court is in any event destined to be applied.

If, however, the conclusion was reached that the questions submitted are wholly irrelevant to settlement of the dispute, either because the questions are general and hypothetical or because their only purpose is to establish whether a provision of internal law is applicable, (13) it seems to me that the natural and logical consequence, having regard to the division of powers between the national court and the Community court, cannot be other than a declaration that the Court has no jurisdiction to give a ruling. That would without doubt be a solution much more consistent with the text and the purpose of Article 177, as defined in the case-law of this Court.

10. It is thus plain that I cannot share the Commission' s views, whether its ostensible view (a reformulation which is tantamount to a non-answer) or its substantive position (the questions submitted are altogether irrelevant). I shall, therefore, proceed to consider the questions submitted by the Landgericht Hannover.

As already stated in point 6, the first question sets out in general terms the problem which the Court is called on to resolve, without specifying the provisions of Community law concerned; in the subsequent questions on the other hand, specific reference is made to the provisions of the Second Directive (and at the same time the interpretation sought) which might be important for the purpose of answering the first question.

It is difficult to refrain from observing that the successive pages of questions, as set out, appear designed to "provoke" a veritable commentary by the Court upon the aforementioned judgment of the Bundesgerichtshof of 15 January 1990 and that, in any event, by putting forward a series of possible alternatives and sub-questions, they seek a ruling which examines every aspect of the doctrine of disguised contributions in kind, in a manner which goes beyond the scope of the specific case which the national court is required to decide. It need hardly be stated that it is not for this Court either to comment on the judgment of the Bundesgerichtshof or to resolve in the abstract all the interpretative doubts which the doctrine of disguised contributions in kind may raise in relation to Community law.

It thus proves necessary, in conformity with the previous decisions of the Court in this sphere referred to earlier, (14) to undertake a ("traditional") reformulation of the questions submitted by the national court.

Considering that in the present case the purported entitlement to information is sought to be exercised in order to establish whether a double payment has been made, comprising the repayment of a loan (contracted by ADV/ORGA) by means of the contributions made by the lender itself (Commerzbank), the essential issue ° as made clear by the national court in the first question ° is to establish whether the repayment of a debt linked temporally and materially with a contribution in cash must be subject to the provisions on verification and publication laid down in the Second Directive for contributions in kind as a result of the fact that the reimbursement was made using financial resources contributed by the creditor itself in order to subscribe for the shares.

In other words, in simple terms, the problem is this: Company A increases its capital and Mr X ° who is in fact a creditor of that company ° subscribes for shares; after the capital is increased, or even immediately beforehand, the company pays off its debt to Mr X. Must such an operation be regarded as being in conformity with the provisions of the Second Directive governing contributions in kind, or as prohibited by those provisions, or as merely permitted, which would imply that the Member States are entitled to lay down stricter rules?

In order to resolve that problem, the numerous questions submitted by the Landgericht Hannover may be reformulated as follows:

"1. Must claims made against (and contributed to) a company be regarded, within the meaning and for the purposes of the Second Directive, as contributions in kind, or must they, and if so to what extent, be treated in the same way as contributions in cash?

2. If (and to the extent to which) they are to be classified as contributions in kind: does Article 11 of the Second Directive contain complete rules against circumvention of the provisions of Articles 10 and 27(2) thereof, or is the possibility left open to the Member States to take action otherwise than in the specific cases envisaged in that article?

3. Finally, may the provisions of the Second Directive which meet the requirements for direct applicability be relied on by an individual as against a company?"

I ° Classification of the claims made against the company and contributed to it

11. The importance of such a classification to resolution of the problem at issue is self-evident. If and to the extent to which the conclusion is reached that a claim against the company may be extinguished by means of a capital increase in cash, it is clear that a fortiori the repayment of a debt using financial resources provided by the selfsame creditor of the company in order to subscribe for shares must be regarded as being in conformity with the Second Directive, without there being any question ° even in the abstract ° of circumvention of the provisions governing contributions in kind.

On the other hand, if the conclusion is reached that a claim against a company must be subject to the rules governing contributions in kind, the problem may well arise of the lawfulness of such an operation in the context described: in such circumstances it would therefore be necessary to establish whether the Second Directive contains complete rules on preventing circumvention of the provisions on contributions in kind or whether it allows the Member States to issue stricter rules for protection.

In order to establish whether contributions of claims must be regarded as contributions in cash or as contributions in kind, it is therefore necessary first to decide whether the Second Directive itself intended to define the borderline between those categories of contributions or whether, on the other hand, by not defining those concepts positively, it left the Member States free to give them the scope attributed to them in their own legal orders and, more generally, whether the Second Directive contains only minimum requirements (or in any event brings about minimal harmonization) or whether, on the other hand, it contains exhaustive rules on the matter. I shall begin by briefly considering the latter point.

(a) Minimum protection

12. First of all, the second recital in the preamble to the Second Directive states that its purpose is "to ensure minimum equivalent protection for those shareholders and creditors of ... companies". At first sight, that statement is conducive to the conclusion that the adoption of more rigorous protective measures than those laid down at Community level or, if they already exist as part of the law of a Member State, their maintenance in force is to be regarded as proper.

It is true that the aim of "minimum equivalent protection" does not necessarily imply that the Member States are entitled to derogate, even by means of stricter rules, from the requirements of the directive. It is clear that the same aim can be attained by means of mandatory rules which ensure a minimum standard of harmonization but at the same time leave the Member States free to adopt stricter rules, solely within certain limits laid down by the directive.

Even a superficial analysis of the Second Directive shows that whilst certain provisions do expressly lay down minimum requirements (for example Articles 2, 3 and 26), thus leaving the Member States free to adopt stricter measures, it is also true that there are other provisions which leave the national legislature without any margin of discretion (for example, Articles 7, 8(1) and 11(2)). That fact in itself appears to show that the national legislature is allowed to supplement the provisions in question by means of stricter rules only where such a possibility is expressly envisaged or in any event allowed.

The problem cannot therefore be resolved in the abstract, but account must be taken of the tenor of every single provision of the directive and of the entire set of rules laid down for each sector.

Furthermore, the fact should not be overlooked that the aim of ensuring "minimum equivalent protection for both shareholders and creditors of ... companies" might be undermined by the fact that those categories of persons (creditors and shareholders) have interests which do not always coincide: greater protection of one category might therefore operate to the detriment of the other.

Accordingly, if the Member States were empowered to adopt stricter rules and such rules afforded, for example, greater protection as regards creditors, an entirely normal consequence might in fact be a reduction of protection for members. Let me give an example: if a Member State were to subject certain specified contributions in cash to the rules laid down for contributions in kind, the result would be that those contributions would fall outside the scope of Article 29(1), a provision which, moreover, the Court has held to be directly applicable in its very recent judgment of 24 March 1992. (15) This would lead to a clear disadvantage for the shareholders, since that rule grants them a preemptive right of subscription proportionate to the capital represented by their shares.

(b) The concept of contributions in kind: a Community concept or reference to national law?

13. It is therefore clear, as is well illustrated by the example just given, that the demarcation line between contributions in cash and contributions in kind has a significant impact on the very scope of the directive, in view of the different rules laid down for the two categories of contributions; consequently, the concepts in question must be interpreted without regard to the fact that the rules against circumvention are only minimum requirements or constitute complete rules from which the Member States may not derogate, not even by adopting stricter rules.

Otherwise, that is if the Member States were entitled independently to define what is to be understood by contribution in kind (and, conversely, what is to be understood by contribution in cash) and therefore were empowered freely to trace the borderline between the two categories of contributions in question, they would essentially be allowed to define the scope of the directive, by shifting it in one direction or the other.

It should also not be forgotten that the system established by the Second Directive is characterized by the dichotomy between contributions in cash and contributions in kind, thus ruling out the possibility of identifying cases not covered by one or the other. The Second Directive, whilst not expressly defining the concepts in question, significantly adopted for contributions in kind the residual definition of "consideration other than in cash". That seems to me to indicate that the concepts must be applied uniformly in all the Member States.

The interpretation of the concepts in question may not be left to the discretion of the Member States but must be a Community definition: otherwise the Second Directive would be incapable of ensuring even a minimal degree of harmonization (in so far as it would vary from one State to another) and in any event even the "minimum equivalent protection" referred to in the second recital to the directive would not be guaranteed.

(c) "Contributions" of claims

14. That said, and taking particular account of the fact that the Second Directive adopts the negative term "consideration other than in cash", it must be noted that, at least at first sight, contributions of claims appear to have to fall within the category of contributions other than in cash, thereby being subject to Articles 10 and 27(2) of the Second Directive.

Most legal writers and also the relevant court decisions draw a distinction, however, depending on whether the claims are made by the contributor against the company or by the contributor against third parties, maintaining that the provisions on contributions in kind apply only in the latter case. In particular, in the case of claims made against the company, in nearly all the Member States (16) the "conversion of debt into capital" is permitted and normally put into effect by means of an increase in capital in cash with a simultaneous set-off, whether by operation of law or intention of the parties, of the debt due in respect of the contribution and the claim of the subscriber against the company.

Since the purpose of the rules of contributions in kind is to avoid the danger of overvaluation (either of property or of claims) to the detriment to the company and to protect the interests of shareholders and creditors, it is necessary to establish whether there is any risk that a claim made against and contributed to the company was overvalued to the detriment of that company, the members and/or the creditors.

Let me say straight away that I do not consider it necessary, in the case of contribution of a claim made against the company, to the extent, of course, to which the claim is liquidated and payable, to draw up a valuation report, precisely because the aforementioned requirements underlying the rules on contributions in kind have already been satisfied.

In such circumstances, the money contributed by the claim has already been paid into the corporate funds so that none of the reasons which prompted the legislature to impose the obligation of a valuation report exists any longer. Moreover, the capital contribution in the form of such claims is reflected only by changes entered in the accounts which eliminate the debt of the company and allow a corresponding asset item to be discharged, thus increasing the capital.

It follows that such an operation strengthens the company' s asset position and causes no damage either to creditors or to shareholders. From the point of view of the creditors of the company, in fact, the contribution to the company of a claim made against it can never be overvalued: if one or more creditors of the company become shareholders, their rights are rendered subordinate to those of the other creditors who thus benefit from such an operation; the same applies to the other shareholders, in so far as the creditors who contribute their claim against the company to the company would take precedence over the shareholders in a winding up if they remained creditors.

In other words, where the claim is made against the company, the company does not receive any asset from the outside world and the increase in its capital comes about through an internal accounting operation, as a result of which a debit position is eliminated and the capital figure is increased. In this internal operation, the company' s debit item corresponding to the subscriber' s claim can only be used at its nominal value.

(d) ... against a company experiencing a crisis

15. Serious objections may however be made to that approach where the company' s losses exceed its capital: in such circumstances, it might be said that the money which is contributed, and which is the basis of the claim which it is intended theoretically to add to the capital, has already been consumed. In other words, where the company is experiencing a crisis, it could well be observed that the real value of the shareholder' s claim is in fact, precisely because of the debtor company' s financial difficulties, lower than the actual nominal value and therefore, possibly, than that of the shares corresponding to the debt which it is thus sought to extinguish. And that is precisely the position adopted in German legal literature and case-law.

Let me say first of all in that connection that, for the company, the value of the liquid and payable claim made by shareholders or third parties against it is necessarily equal to the nominal value, even in the event of insolvency: insolvency has an impact on the value as far as the contributor is concerned, but not on the value of the debt from the company' s point of view. In addition, in the balance sheet, which is without doubt the most important instrument for the protection of the corporate assets, both the company' s claims for payments still due from members and the debts of the company are in fact shown at their nominal value.

Nor does it seem to me to be correct to raise such a problem with reference to the impression that operations of the type in question may give to third parties, in the sense that the latter might be deceived as to the company' s state of "health". In that connection, I shall merely observe that an increase of capital, whether effected by contributions in kind or by contributions in cash in the true sense of the term, is not in any event a suitable basis for informing third parties as to the financial status of the company. Seen in that light, the problem is, if anything, the question of the lawfulness of an increase of capital before losses are eliminated (when the net worth of the company is less than its capital, or minimum capital or is even less than zero) and not whether it is lawful to extinguish a debt of the company by means of a contribution made by the subscriber of new shares. As regards the protection of shareholders and creditors, therefore, in circumstances of this kind the considerations set out in the foregoing part of this opinion remain valid.

The foregoing observations are confirmed by the interpretation of the first sentence of Article 7 of the Second Directive, which provides that the subscribed capital may comprise only "assets capable of economic assessment".

The requirement that assets must be capable of economic assessment, or of genuinely ranking as assets, is an objective requirement, regardless of the classification which the parties seek to apply. The Community provision thus imposes a general limitation on the freedom of action of the parties to the contract (the shareholder and the company), by requiring contributions to be made up of assets which can be objectively valued in cash terms. And a claim certainly can be valued in ... cash terms.

A contribution comprising the waiver of a claim against the company at its nominal value, regardless of the solvency or otherwise of the company, and thus even when the company is in critical financial circumstances, must therefore be regarded as permitted by the provision in question. Moreover, the letter and purpose of that provision do not undermine, and on the contrary support, the view that the economic assessment of a claim made against the company must be made from the company' s point of view, without taking account of its solvency, and certainly not from the creditor' s point of view.

16. For the aforesaid reasons, Article 7 must therefore be interpreted as meaning that the claim may be valued only from the company' s point of view: it is clear that, from that point of view, the valuation of a claim (or rather, from the company' s point of view, a debt) may not be based on anything other than its nominal value.

In short, where a subscriber' s claim against the company is a claim in cash, which is liquid and payable, there is no reason, in view of the ratio legis of the provisions on contributions in kind, not to treat it in the same way as a contribution in cash: more specifically, it is to be seen as a means of release from an obligation to make a contribution in cash. This means, in the present context, that no problem arises, not even in the abstract, of any circumvention of the provisions on contributions in kind in cases of double payment, provided that ° I repeat ° the claim is a cash claim which is liquid and payable.

Where, on the other hand, those conditions are not satisfied, for example because the claim has not yet come to its ordinary maturity, it can merely be a contribution in kind, thus rendering inevitable a valuation of it, which cannot be left to the discretion of the directors. And that is not so much because that assessment is required of the term of the claim, the interest and/or other conditions, but rather because the directors would be left to assess the equivalence of the advantage deriving from discharge of the obligation undertaken towards the subscriber by means of the sacrifice of assets represented by nonreceipt of the contribution.

Since, in the present case, we are not informed whether the claim made by Commerzbank against ADV/ORGA was a liquidated and payable claim or one which had not yet come to maturity, it is necessary to consider the problem of protection against circumvention of the provisions applicable to contributions in kind, precisely to determine whether an operation consisting of a double payment is governed by those rules or whether the Member States may still adopt rules ° at least more stringent rules ° on the matter.

II ° Protection against circumvention of the rules governing contributions in kind

17. The limits within which a claim against the company may be extinguished by means of an increase in capital in cash having been established, I shall go on to consider Articles 10, 11 and 27(2) in order to establish whether they contain mere minimum requirements, and if so subject to what limits, or provisions which lay down exhaustive rules, thus leaving no margin of discretion to the Member States.

More specifically, it is necessary at this stage to establish whether Article 11 lays down a complete set of rules against circumvention or, in view of the letter and the ratio legis of Articles 10 and 27(2), the Member States are in any event permitted to lay down stricter rules in order to prevent any circumvention.

Let me say straight away that Articles 10 and 27(2) confine themselves to rules on verification and publication of contributions in kind made when the company is incorporated and following increases in capital. They are thus rules which raise no particular problems, in the area with which we are concerned, since they are specifically designed to regulate contributions which are expressly declared to be contributions in kind.

More particularly, it should be noted that Article 27(2) states plainly that contributions in kind made following an increase in capital are to be subject to rules similar to those laid down in Article 10(1), and also to Article 10(2) and (3).

Article 10, for its part, provides specifically that contributions in kind are to be the subject of a valuation report (paragraph 1). A degree of discretion is allowed only with regard to the details which may be incorporated in the report over and above those which are obligatory (paragraph 2), and regarding the possibility of not applying paragraph 1, but only where the conditions exhaustively set out in paragraph 4 are fulfilled. In short, it does not seem to me that there can be any question of a minimum requirement, since the limits within which the Member States may render the rules in question stricter (paragraph 2) or less strict (paragraph 4) are expressly indicated.

18. Article 11, on the other hand, certainly raises greater problems of interpretation, both from the literal point of view and as regards the very ratio legis thereof, in particular in relation to the part it plays in providing protection against circumvention of the rules concerning contributions in kind.

Article 11 concerns the acquisition by the company of assets belonging to the founders and promoters. Such acquisitions are, where the consideration given is not less than one-tenth of the capital and they take place within the two years following incorporation, subject to the rules on valuation and publication laid down in Article 10 for contributions in kind, and must also be approved by the general meeting (paragraph 1). (17) That provision allows the national legislature to apply stricter rules than those for which it provides: in fact, it expressly states that the two-year period applicable to acquisitions subject to the provisions on verification and publicity may be extended, and the circle of persons affected by the rules in question may be widened, so as to include shareholders and others.

The very fact that Article 11 expressly envisages two cases in which the national legislature is allowed to adopt stricter measures seems to support the view that the minimum equivalent protection provided for by the Second Directive is to be understood as meaning that Member States may apply stricter rules only where the directive makes provision in that regard and only within the limits laid down by the directive.

Moreover, Article 11(2) expressly provides that paragraph 1 is not to apply to acquisitions made in the normal course of the company's business, to acquisitions made at the instance or under the supervision of an administrative or judicial authority, or to stock exchange acquisitions. The wording "paragraph 1 shall not apply ..." suggests that the Community legislature wished clearly to exclude the application of that provision to the cases to which it refers, and in fact it did not confine itself to granting the Member States a mere right to derogate or otherwise from the provision in question, as it did in other cases where it used words like "the Member States may decide not to apply ...". The fact that acquisitions made in the normal course of the company' s business are expressly removed from the scope of the rules on contributions in kind provides a further ground for excluding the application by analogy of Article 11(1) to cases not expressly provided for, even though they involve transactions which, essentially, "circumvent" the application of the provisions on contributions in kind.

It is also clear from the very wording of the provision that the rules in question are not applicable to acquisitions of property for a sum representing less than one-tenth of the capital, or to acquisitions of goods belonging to members who have subscribed for shares following an increase in capital, (18) or, consequently, to payment by the company of its debts. (19)

In view of the foregoing, it is legitimate to ask whether, as has been held in the German case-law, Article 11(1) relates only to one of the possible cases of circumvention of the rules on contributions in kind, with the result that the Member States retain the power to adopt their own rules for other cases of "circumvention" which might arise, or whether on the other hand it must be concluded that, by treating only the case under review as equivalent to a contribution in kind, the Community legislature intended to exclude similar cases from the possibility of being treated in a manner analogous to that laid down in Article 11(1). In order to answer this question it is of course appropriate to consider the ratio legis of the provision in question.

19. The first thought prompted by a reading of the provisions is that the Community legislature intended to prevent circumvention of the rules on contributions in kind by means of transactions, separate from the contract in respect of the contribution, which essentially transfer ownership (or some other right) in respect of specific assets, without the safeguards and controls prescribed for that purpose. It is clear that any person wishing to contribute property in kind, but unwilling to comply with the obligation of submitting a sworn valuation report, could initially make the contributions in cash and subsequently, by agreement with the directors, sell that property to the company. A transaction of that kind would have the twofold effect of releasing the valuation of the property from the particularly strict rules under Article 10 and, possibly, of making it possible to return the contribution to the shareholder. (20)

The ratio legis of the provision must therefore be seen in the suspicion which the Community legislature entertains as to the genuineness of any acquisitions which the company, in the two years following its entry on the register of companies, makes from promoters and founders where the amount involved is not less than one-tenth of the capital of the company: the intention is therefore to protect the company from operations which might be tainted by conflicts of interest in the early part of its existence, when its survival is exposed to greater uncertainties.

Whilst the requirement of avoiding circumvention of the provisions concerning verification and publication also clearly applies after every increase of capital, I do not think it appropriate to advocate extending the limitation in question to acquisitions made by the company after increases of capital. It is, in my opinion, an exceptional provision which, in so far as it places a limitation on the capacity of the company, cannot be applied by analogy.

The reason for which such a provision cannot be applied by analogy thus stems in particular from the fact that in practice it constitutes an "absolute presumption of circumvention", in so far as certain transactions are subject "by definition" to the provisions on verification and publication (regardless, therefore, of any intention of the parties as to circumvention), whenever the conditions it lays down are fulfilled.

20. Accordingly, it is necessary to ask whether the Community legislature considered that, in order to avoid abuses, it was sufficient to impose an obligation of diligence on the directors and therefore to render them liable in the event of operations prejudicial to the company or to the interests of shareholders and/or third parties, or whether, on the other hand, the absence of specific rules in that regard must be understood as implying that each Member State is free to adopt such measures as it considers most appropriate.

Having regard to the ratio legis of Article 11(1) and the fact that Article 11(2) excludes from its scope transactions in the ordinary course of the company's business, I consider it necessary to exclude any possibility of intervention by the national legislature (or even of an interpretation by the courts designed to supply any such lacuna) which, by adopting a "standardized" description of all possible cases of circumvention which might arise, serves to impose penalties without taking any account of whether there really was any fraudulent intent and any detriment to the interests involved.

A different result would be arrived at only if it were considered, for example, that Article 11(2) of the Second Directive must be read as meaning that the company's ordinary transactions are not subject to Article 11(1) in so far as they may be regarded as involving circumvention even where the amounts involved are less than one-tenth of the capital of the company and even where they take place after the period of two years (or such longer period as may be prescribed by the national legislature).

Personally, I consider that there is no basis for such an interpretation, which conflicts both with the letter and with the spirit of the provisions I have considered. It need hardly be pointed out that the consequence would be that, while some operations are by definition regarded as undertaken with a view to circumvention by reason of the amount and the time at which they take place, other transactions (involving a lower amount), in respect of which it is provided that such rules are not to apply, with the obvious aim of ensuring the expeditious dispatch of business, would ultimately be treated in a much stricter manner.

21. That said, I believe that each legal system is entitled to use its own general legal provisions (I refer to concepts such as "circumvention of the law", "abuse of law", "concealment") to penalize operations in which avoidance, rather than being irrebuttably presumed ° that, essentially, being the effect of Article 11 ° is proved by other means, in particular where it is proved that the parties intended to circumvent the provisions on contributions in kind. That approach might be subject to review by the Court of Justice as regards interpretation, to ensure that the requirements which Community law seeks to safeguard through the process of harmonization of company law are not disregarded.

The foregoing considerations thus persuade me that national rules (whether based on formal provisions or on interpretation by the courts) cannot ipso facto render unlawful, merely because they are linked with an increase of capital, operations which are permitted by the Second Directive.

Accordingly, the repayment of a company's debt using financial resources contributed by the creditor on subscribing for shares is ° in principle ° lawful under the relevant provisions of the Second Directive, unless fraudulent intent is proved on the part of the parties and, as already stated, it may be penalized by the measures laid down for that purpose under the general laws in force in each country.

III ° The direct applicability of the provisions of the Second Directive

22. The Court has already upheld the direct applicability of certain provisions of the Second Directive, more particularly Article 25(1) (21) and Article 29(1), (22) referring on those occasions to its consistent case-law whereby a provision which is unconditional and sufficiently precise may be relied upon by individuals before national courts as against the administration.

In the present case, the problem arises in a different context, in that the issue appears to be whether the Second Directive, which has already been implemented in internal law (and, as far as is apparent from the present case, correctly) may be relied upon as against private persons (for example by a shareholder or creditor against a company).

Considering that, as stated at the outset, the doctrine of disguised contributions in kind is not based on formal provisions but is dependent on the interpretation attributed by the Supreme German Courts (inter alia) of the provisions actually adopted to implement the Second Directive, (23) it does not seem to me to be correct to describe the problem, as did the German Government in its observations, in terms of "horizontal effects" of the directive.

In the present case the national court is called on to decide whether or not a shareholder is entitled to information, having regard to the doctrine of disguised contributions in kind. In such a situation, as the Court long ago made clear, "regardless of the effects of the directive ... an interpretation ... may be helpful to the national court so as to ensure that the law adopted for the implementation of the directive is interpreted and applied in a manner which conforms to the requirements of Community law". (24)

Moreover, as the Court of Justice made clear in Marleasing, (25) in applying national law "the national court must interpret its own national law in the light of the text and purpose of the directive in order to achieve the result pursued by the latter and thus to comply with the third paragraph of Article 189 of the Treaty".

In short, therefore, a case like this does not in fact raise the issue of the "horizontal" effects of the directive in question, since the national judge is required, in applying the relevant national provisions, to interpret them in the light of the Community provisions which they implement.

23. In the light of the foregoing, therefore, I propose that the Court replies as follows to the questions (as reformulated by me) submitted by the Landgericht Hannover:

"1. A claim made against a company and contributed to that company on the occasion of an increase in capital in cash is to be classed, within the meaning and for the purposes of the Second Directive, as a contribution in cash in so far as the claim in question is for cash and is liquidated and payable; a transaction comprising a double payment is therefore in conformity with the Second Directive, provided that the claim is liquidated and payable.

2. Article 11(1) of the Second Directive, in conjunction with Articles 10 and 27(2) thereof, must be interpreted as meaning that it may not be applied by analogy to cases other than those envisaged therein; such cases remain subject, if appropriate, following an interpretation by the Court of Justice, to the general rules against circumvention of the law and the like.

3. The national court, when called upon to apply the Second Directive, is required to interpret its own national law in the light of the text and the purpose of that directive."

(*) Original language: Italian.

(1) ° OJ 1977 L 26, p. 1.

(2) ° Alike, II ZR 164/88, BB p. 311.

(3) ° Bundesgesetzblatt I, 1978, p. 1959.

(4) ° In fact the Landericht merely states that it is not necessary to give a decision since the information has already been supplied, without specifying the kind or amount of information provided in response to Mr Meilicke' s request.

(5) ° See for example Die Verschleierte Sacheinlage; eine deutsche Fehlentwicklung, Stuttgart 1989; Die Kapitalaufbringungsvorschriften als Sanierungsbremse - Ist die deutsche Interpretation des § 27 Abs 2 AktG-richtlinienkonform in DB, 1989, p. 1067 et seq.; and also Meilicke-Recq, L'apport de créances détenues sur une Société en difficulté financière , in Revue Trimestrelle de Droit Européen, 1991, p. 587.

(6) ° Such a position undermines, in my view, the plaintiff's actual interest in bringing an action. Joost, commenting on the Landgericht' s order for reference (EWiR § 183 AktG 1/91, p. 325), expressed doubts as to the admissibility of the application seeking information itself, specifically because Meilicke himself considers the doctrine of disguised contributions in kind to be without foundation, thus invalidating the basis of the right to the information.

(7) ° This is in fact a peripheral matter which is without consequence, at least in so far as there is no reason to believe that the proceedings before the national court are in the nature of a procedural device fabricated by the parties in the manner described by the court in the well-known judgments in Case 104/79 Foglia v Novello I [1980] ECR 745 and in Case 244/80 Foglia v Novello II [1981] ECR 3045).

(8) ° See Order in Case C-286/88 Falciola [1990] ECR I-191, paragraph 8; and judgment in Case 126/80 Salonia [1981] ECR 1563, paragraph 6.

(9) ° See most recently the judgment in Case C-231/89 Gmurzynska [1990] ECR I-4016, paragraph 23.

(10) ° Joined Cases C-297/88 and C-197/89, [1990] ECR I-3763, paragraphs 31 to 43.

(11) ° Case 244/80, cited above, paragraph 18.

(12) ° Judgments in Case 35/85 Tissier [1986] ECR 1207, paragraph 9; Case 54/80 Wilner [1980] ECR 3673, paragraph 4; Case 4/79 Providence Agricole de la Champagne [1980] ECR 2823, paragraph 15.

(13) ° In this connection, see point 7 above.

(14) ° See the judgments cited in footnote 12.

(15) ° Case C-381/89 Evangeliki Ekklissia [1992] ECR I-2111.

(16) ° In that regard, I would point out that in France, Belgium and the United Kingdom, voluntary set-off is permitted in the case of a liquidated and payable claim; that is the case even where the company is making a loss; in Italy, set-off by operation of law is permitted, the same conditions applying. In Germany, on the other hand, a shareholder is precluded from availing himself of the possibility of setting the debt arising from a contribution off against a claim vested in the subscriber (Paragraph 66 AktG); however, it is considered that the company may follow such a procedure to discharge its obligation to extinguish a debt whenever the claim is liquidated, payable and vollwertig (in other words, not subject to depreciation in view of the company' s financial status).

(17) ° The rules in question have been borrowed from German company law, the only legal system which envisages such a case (I refer to the Nachgruendung to which Paragraph 52 of the AktG relates).

(18) ° In any event, it does not apply to acquisitions effected after the expiry of two years as laid down in the provision in question (or such longer terms as may have been laid down by the national legislature).

(19) ° It is quite clear that the case referred to may arise only in connection with an increase in capital, since there are extremely few cases in which a claim could be made against (and contributed to) a company which had not yet been incorporated; in essence that can only be done in respect of the costs of setting up the company itself.

(20) ° A case such as that described here might, in the absence of specific rules, arise where a transaction is carried out to circumvent the law and therefore is penalized by being declared void. Naturally, in such a case it would be necessary to prove the existence of circumstances characterizing a transaction designed to circumvent the law, namely the fact that the transaction is capable of achieving the same result as that which is prohibited, together with the intention, on the part of both parties, to circumvent a mandatory provision.

(21) ° Joined Cases C-19/90 and C-20/90 Karella and Karellas [1991] ECR I-2691.

(22) ° Case C-381/89 Evangeliki Ekklissia, cited in footnote 15, at paragraph 39.

(23) ° In that regard, I would add, with reference to the doctrine of disguised contributions in kind, that it is difficult to understand the standpoint of the Bundesgerichtshof in its abovementioned judgment of 15 January 1990, or that of the Bundesverfassungsgericht in its judgment of 27 August 1991 (Der Betrieb, 1991, p. 2230), according to which the Second Directive is so ... clear that no interpretation is needed: the basis for that view being the judgment in Case C-283/81 CILFIT [1982] ECR 3415). I would merely point out that that judgment expressly states that the national court must, before coming to the conclusion that there is no need to make a reference to the Court, be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice (paragraph 16). As regards any doubts of interpretation which the theory of disguised contributions in kind may raise with respect to the relevant provisions of the Second Directive, suffice it to refer here to the differences in the way it is applied in the various Member States, and the debate among legal academic writers on that subject, particularly in Germany, to show that the interpretation of the directive in question is not so clear . In those circumstances, the reference to the CILFIT judgment is inappropriate to say the least.

(24) ° Case 111/75 Mazzalai [1976] ECR 657, paragraph 10.

(25) ° Case C-106/89 [1990] ECR I-4135, paragraph 8.