Case C‑243/16

Antonio Miravitlles Ciurana and Others

v

Contimark SA and Jordi Socias Gispert

(Request for a preliminary ruling

from the Juzgado de lo Social no 30 de Barcelona)

(Reference for a preliminary ruling — Company law — Directive 2009/101/EC — Articles 2 and 6 to 8 — Directive 2012/30/EU — Articles 19 and 36 — Charter of Fundamental Rights of the European Union — Articles 20, 21 and 51 — Recovery of claims arising under an employment contract — Right to bring, before the same court, an action against the company and its director, as a person having joint and several liability for the company’s debts)

Summary — Judgment of the Court (Fourth Chamber), 14 December 2017

Freedom of establishment — Companies — Directives 2009/101 and 2012/30 — 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 54 TFEU, with a view to making such safeguards equivalent — Recovery of claims arising under an employment contract — Right to bring, before the same court, an action against the company and its director, as a person having joint and several liability for the company’s debts — No such right

(European Parliament and Council Directives 2009/101, Arts 2, 6, 7 and 8, and 2012/30, Arts 19 and 36)

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, in particular Articles 2 and 6 to 8 thereof, and Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 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 54 [TFEU], 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, in particular Articles 19 and 36 thereof, must be interpreted as not conferring on employees, who are creditors of a public limited liability company as a result of the termination of their employment contract, a right to bring, before the same social court as that having jurisdiction over their action for recognition of their wage claims, an action to establish the liability of the director of that company, on the ground that he has failed to convene a general meeting of the company despite the heavy losses sustained by it, with a view to obtaining a declaration that he is jointly and severally liable for those wage claims.

National law therefore governs the question whether –– and if so, under what substantive and procedural conditions –– the creditors of a public limited liability company may bring an action against the director to establish his liability and obtain compensation for their loss, when the general meeting has not been convened in the case of a serious loss of the subscribed capital.

(see paras 33, 35, operative part)