CELEX: C2000/149/13
Language: en
Date: 2000-05-27 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 23 March 2000 in Case C-208/98 (reference for a preliminary ruling from the Landgericht Potsdam): Berliner Kindl Brauerei AG v Andreas Siepert (Approximation of laws — Consumer credit — Directive 87/102 — Scope — Contracts of guarantee — Not covered)

C 149/8                  EN                      Official Journal of the European Communities                                          27.5.2000
Protodikio Athinon, Greece, for a preliminary ruling in the                                  JUDGMENT OF THE COURT
proceedings pending before that court between, on the one
hand, Dionisios Diamantis and, on the other hand, Elliniko
Dimosio and Organismos Ikonomikis Anasinkrotisis Epikhiri-                                            (Fifth Chamber)
seon AE (OAE) — on the interpretation of Articles 25 and
29 of the Second Council Directive 77/91/EEC of 13 Decem-
ber 1976 on coordination of safeguards which, for the                                                of 23 March 2000
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                 in Case C-208/98 (reference for a preliminary ruling from
                                                                            the Landgericht Potsdam): Berliner Kindl Brauerei AG v
maintenance and alteration of their capital, with a view to
making such safeguards equivalent (OJ 1977 L 26, p. 1) and                                          Andreas Siepert (1)
on the abuse of a right arising from those provisions — the
Court, composed of: R. Schintgen, President of the Second
Chamber, acting for the President of the Sixth Chamber,                     (Approximation of laws — Consumer credit — Directive
P.J.G. Kapteyn (Rapporteur), G. Hirsch, H. Ragnemalm and                    87/102 — Scope — Contracts of guarantee — Not covered)
V. Skouris, Judges; A. Saggio, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on
23 March 2000, in which it has ruled:                                                                 (2000/C 149/13)
                                                                                               (Language of the case: German)
Community law does not preclude national courts from applying a
provision of national law which enables them to determine whether a
right deriving from a Community law provision is being abused.
However, in making that determination, it is not permissible to deem        (Provisional translation; the definitive translation will be published
a shareholder relying on Article 25(1) of the Second Directive                                 in the European Court Reports)
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            In Case C-208/98: Reference to the Court under Article 177 of
second paragraph of Article 58 of the Treaty, in respect of the             the EC Treaty (now Article 234 EC) by the Landgericht
formation of public limited liability companies and the maintenance         Potsdam (Germany) for a preliminary ruling in the proceedings
and alteration of their capital, with a view to making such safeguards      pending before that court between Berliner Kindl Brauerei AG
equivalent, to be abusing his rights under that provision merely            and Andreas Siepert, on the interpretation of Council Directive
because he is a minority shareholder of a company subject to                87/102/EEC of 22 December 1986 for the approximation of
reorganisation measures, or has benefited from reorganisation of the        the laws, regulations and administrative provisions of the
company, or has not exercised his right of pre-emption, or was              Member States concerning consumer credit (OJ 1987 L 42,
among the shareholders who asked for the company to be placed               p. 48) — the Court (Fifth Chamber), composed of: J.C.
under the scheme applicable to companies in serious difficulties, or        Moitinho de Almeida, President of the Sixth Chamber, acting
has allowed a certain period of time to elapse before bringing his          for the President of the Fifth Chamber, L. Sevón (Rapporteur),
action. In contrast, Community law does not preclude national courts        C. Gulmann, J.-P. Puissochet and M. Wathelet, Judges; P. Léger,
from applying the provision of national law concerned if, of the            Advocate General; D. Louterman-Hubeau, Principal Adminis-
remedies available for a situation that has arisen in breach of that        trator, for the Registrar, has given a judgment on 23 March
provision, a shareholder has chosen a remedy that will cause such           2000, in which it has ruled:
serious damage to the legitimate interests of others that it appears
manifestly disproportionate.
                                                                            On a proper construction of Council Directive 87/102/EEC of
                                                                            22 December 1986 for the approximation of the laws, regulations
                                                                            and administrative provisions of the Member States concerning
                                                                            consumer credit, it does not cover a contract of guarantee for
                                                                            repayment of credit where neither the guarantor nor the borrower was
(1) OJ C 7 of 10.1.1998.                                                    acting in the course of his trade or profession.
                                                                            (1) OJ C 234 of 25.7.1998.