Articles 12, 15, 16, 18, 19 and 42 of Second Directive 77/91 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 Directive 92/101, must be interpreted as not precluding national legislation which, in the context of the transposition of:

— Directive 2003/71 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34,

— Directive 2004/109 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,

— and Directive 2003/6 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.

The liability of the company concerned to investors, who are also its shareholders, by reason of irregular conduct on the part of that company prior to or at the time of the purchase of its shares, does not derive from the memorandum and articles of association and is not directed solely at the internal relations of that company. The source of that liability in such a case is the share purchase contract. As regards the principle, stated in Article 42 of the Second Directive, that shareholders must be treated equally, it must be observed that the shareholders who have suffered loss as a result of a company’s wrongful conduct occurring prior to or at the time of purchase of that company’s shares are not in a situation which is identical to that of shareholders in the same company whose legal situation has not been affected by that wrongful conduct.

In those circumstances, a payment made by a company to a shareholder because of irregular conduct on the part of that company prior to or at the time of the purchase of its shares does not constitute a distribution of capital within the meaning of Article 15 of the Second Directive. Likewise, the fact that a company redeems the shares of an investor who had bought them on the basis of incorrect information, the dissemination of which that company is responsible for, cannot fall within the scope of Article 18 of the Second Directive.

Further, where an issuer of shares incurs liability, it is for the Member States to choose a civil measure to provide compensation. A civil liability regime provided for in national legislation constitutes an appropriate remedy for the harm suffered by the investor and for the failure of the issuing company to comply with the information requirements. Further, it is capable of deterring issuers from misleading investors.

(see paras 29, 30, 32, 34, 41, 42, 43, 45, operative part 1)