Case C-338/06: Action brought on 4 August 2006 — Commission of the European Communities v Kingdom of Spain
Date: 2006-10-28
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, company law, protection of shareholders, public limited company, share capital

C 261/12

EN

Official Journal of the European Union

28.10.2006

Parties to the main proceedings

Forms of order sought

Applicant: Manfred Seuke

Defendant: Landkreis Mittweida

Questions referred

1. Is a Member State permitted, in conformity with Article 1(2)
and Article 8(2) and (4) of Directive 91/439/EEC (1),
to
require a holder of a driving licence issued in another
Member State to apply to the national authority of the first
Member State for recognition of the right to drive in its
territory where the holder of the foreign EU driving licence
has previously, in the territory of the first Member State,
had his driving withdrawn or cancelled for some reason?

If not:

2. Are the combined provisions of Article 1(2) and Article 8(2)
and (4) of Directive 91/439/EEC to be interpreted as
meaning that a Member State within its territory may refuse
to recognise a right to drive under a driving licence issued
by another Member State where the holder of the foreign
EU driving licence has previously, in the territory of the first
Member State, had his driving licence withdrawn or
cancelled for some reason, if the ban on the issue of a new
driving licence in that Member State, with which that
measure was coupled, had expired before the driving licence
was issued in the other Member State and if it is to be
concluded on the basis of objective evidence (non-residence
in the Member State issuing the driving licence or the
failure of an application for the national driving licence to
be restored) that the only reason for acquiring the foreign
EU driving licence was to circumvent the strict substantive
requirements of national procedure for the restoration of a
driving licence, particularly the need for a medical/psycholo-
gical report?

(1) OJ L 237, p. 1.

Action brought on 4 August 2006 — Commission of the
European Communities v Kingdom of Spain

(Case C-338/06)

(2006/C 261/22)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Braun and R. Vidal Puig, Agents)

Defendant: Kingdom of Spain

— Declare that, by failing to transpose correctly Council Direc-
tive 77/91/EEC (1) 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
in respect of the formation of
Article 58 of the Treaty,
public limited liability companies and the maintenance and
alteration of their capital, with a view to making such safe-
guards equivalent, the Kingdom of Spain has failed to fulfil
its obligations under that directive, and in particular:

(1) Article 42, read in conjunction with Article 29(1) and
(4), by allowing the general meeting of shareholders to
approve the issue of new shares without pre-emptive
subscription rights, at a price below their fair value;

(2) Article 29(1), by granting the right

to pre-emptive
subscription of shares in the event of a capital increase
by consideration in cash, not only to shareholders, but
also to holders of bonds convertible into shares;

(3) Article 29(6), read in conjunction with Article 29(1), by
granting the right to pre-emptive subscription rights for
bonds convertible into shares not only to shareholders,
but also to the holders of bonds convertible into shares
pertaining to earlier issues;

(4) Article 29(6), read in conjunction with Article 29(4), by
failing to provide that the shareholders' meeting may
decide to exclude pre-emptive subscription rights for
bonds convertible into shares.

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission takes the view that Articles 158, 159 and
293 of Royal Legislative Decree 1564/1989 of 22 December
1989 approving the amended text of the Law on companies
incorrectly transpose Directive 77/91/EEC on the
(‘LSA’)
following grounds:

(1) The second subparagraph of Article 159(1)(c) of the LSA is
contrary to Article 42, read in conjunction with Article
29(1) and (4), of Directive 77/91/EEC, in that it permits the
shareholders' meeting to decide to issue new shares without
pre-emptive subscription rights at a price below their
market value;

(2) Article 158(1) of the LSA is contrary to Article 29(1) of
Directive 77/91/EEC,
in that it grants the right to pre-
emptive subscription for shares in the event of capital
increase by consideration in cash not only to shareholders,
but also to holders of bonds convertible into shares;

(3) Article 158(1) of the LSA is contrary to Article 29(6) of
Directive 77/91/EEC,
read in conjunction with Article
29(1), in that it grants the right to pre-emptive subscription
for bonds convertible into shares not only to shareholders,
but also to the holders of bonds convertible into shares
pertaining to earlier issues;

28.10.2006

EN

Official Journal of the European Union

C 261/13

(4) Article 293(2) of the LSA is contrary to Article 29(6) of
read in conjunction with Article
Directive 77/91/EEC,
29(4),
the shareholders'
fails to provide that
in that
meeting may decide to exclude the right to pre-emptive
subscription for bonds convertible into shares.

it

(1) OJ L 26 of 31. 1. 1977, p. 1

The judgment under appeal should be set aside because the
Court of First Instance made a serious misappraisal of the legiti-
mate expectations which the Institutions created in the case of
the 83-ers. As no further examination of the facts is called for,
the Court of Justice can itself dispose of the case in the appeal.
Alternatively, the case should be referred back to the Court of
First Instance.

Third plea: The Court of First Instance applied an incorrect test
for assessing the causal link between the loss suffered by Mr
Blom and the Community's unlawful conduct.

Appeal brought on 8 August 2006 by J. C. Blom against
the judgment of
Instance (Fifth
Chamber) delivered on 30 May 2006 in Case T-87/94 J.C.
Blom v Council of the European Union and Commission
of the European Communities

the Court of First

(Case C-344/06 P)

(2006/C 261/23)

Language of the case: Dutch

Parties

Appellant): J. C. Blom (represented by E. Pijnacker Hordijk and
S. C. H. Molin, advocaten)

Other parties to the proceedings: Council of the European Union
and Commission of the European Communities

Form of order sought

— Set aside the judgment of the Court of First Instance of 30
May in Case T-87/94, as rectified by the Order of the Court
of First Instance of 30 May 2006 (T-87/94 REC) and, ruling
anew, uphold the appellant's claim or,
in the alternative,
refer the case back to the Court of First Instance for judg-
ment;

— order the Council and the Commission to pay the costs at

both instances.

Pleas in law and main arguments

First plea: the Court of First Instance infringed its obligation to
state reasons by disregarding material parts of Mr Blom's plead-
ings at first instance.

Second plea: The Court wrongly failed to appreciate that the
Institutions have expressly and unconditionally recognised the
Community's liability towards producers in the position of Mr
Blom. The Court also wrongly held that he cannot derive any
right from the position adopted by the Institutions, extra-judi-
cially and before the courts, for the simple reason that he did
not accept the quantity under Regulation No 2187/93. (1)

The Court disregarded the principle of protection of legitimate
expectations by failing to infer from Mr Blom's receipt of a
specific reference quantity that,
to the
contrary, he intended to resume production after the expiry of
the non-marketing undertaking. The Court's finding that he did
not have that intention is also incomprehensible, at any rate,
insufficiently reasoned, and incorrectly applies the principle of
the protection of legitimate expectations.

to proof

subject

(1) Council Regulation (EEC) No 2187/93 of 22 July 1993 providing
for an offer of compensation to certain producers of milk and milk
products temporarily prevented from carrying on their trade (OJ
1993 L 196, p. 6).

Appeal brought on 4 September 2006 by Markku Sahl-
stedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa
Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena
Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo
K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK
ry and MTK:n säätiö against the judgment delivered on 22
June 2006 in Case T-150/05 Markku Sahlstedt and Others
v Commission of the European Communities

(Case C-362/06P)

(2006/C 261/24)

Language of the case: Finnish

Parties

Appellants: Markku Sahlstedt, Juha Kankkunen, Mikko Tanner,
Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli
Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom
Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskus-
liitto MTK ry, MTK:n säätiö (represented by K. Marttinen, asia-
najaja)

Other parties to the proceedings: Commission of the European
Communities, Republic of Finland