CELEX: 61993CC0441
Language: en
Date: 1995-11-09
Title: Opinion of Mr Advocate General Tesauro delivered on 9 November 1995. # Panagis Pafitis and others v Trapeza Kentrikis Ellados A.E. and others. # Reference for a preliminary ruling: Polymeles Protodikeio Athinon - Greece. # Company law - Directive 77/91/EEC - Alteration of capital of a bank constituted in the form of a public limited liability company - Direct effect of Articles 25(1) and 29(3) of the directive - Abuse of rights. # Case C-441/93.

OPINION OF ADVOCATE GENERALTESAURO delivered on 9 November 1995  (1)
         Case C-441/93 Pafitis and Othersv Trapeza Kentrikis Ellados AE and Others (Reference for a preliminary ruling from the Athens Court of First Instance)
            ((Public limited company – Alterations of capital – Shareholders' rights – Abusive exercise of rights))
            
      
         
      1.  By the questions submitted in these proceedings, the Athens Court of First Instance asks the Court to interpret 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  
      
         			(2)
         		 (hereinafter  
      the Second Directive).
      
      2.  The national court asks, in particular, whether the national legislation on the reorganization of credit institutions is compatible
      with Article 25(1) (exclusive rights of the general meeting regarding alterations of capital) and Article 29(3) (notification
      to shareholders of any offer of subscription on a pre-emptive basis) of the Second Directive.
       The facts and the national legislative background
      
      3.  In Greece, banks must be constituted in the form of public limited companies and therefore are subject to the general rules
      governing such companies, as well as to certain special provisions applicable to credit institutions.  
      
         			(3)
         		Under normal circumstances, the only body empowered to approve changes to the capital of the company is the general meeting
      of shareholders.
      
      4.  In certain cases provided for by law, banks may be placed under permanent supervision by an administrator.  This may occur
      in particular where a bank finds it impossible, or refuses, to increase its capital;  where obstacles are placed in the way
      of the supervision entrusted to the Monetary Commission; or where any direction issued by the latter is not complied with.In such cases, the Governor of the Bank of Greece may also, where he considers that such action is necessary and urgent in
      order to safeguard the interests of the State, the bank or third parties, or to forestall possible adverse repercussions on
      the financial market or the economy in general, appoint a temporary administrator.As soon as he is appointed, and his appointment is ratified by law, the temporary administrator is vested  
       ipso jure  with all the powers and prerogatives of the organs responsible for the management of the company by virtue of its statutes,
      including those of the general meeting.
      
      5.  Following the events of this case, the Greek legislation was amended by Law No 2114/1993, Article 3 of which repealed the
      provisions allowing the appointment of temporary administrators to oversee credit institutions.In that connection, according to a Commission press release of  6 April 1993, annexed to the observations of the plaintiffs
      in the main proceedings, the amendments to the legislation in question were made following the commencement of an infringement
      procedure (91/711-A) against the Hellenic Republic for infringement of Article 25 of the Second Directive.  In that release,
      the Commission states that it closed the file after taking note of the changes made to the Greek legislation and the specific
      undertaking given by the Greek authorities to comply with Article 25 of the Second Directive in relation to banks as well
      as other companies.
      
      6.  In 1984, under the legislation at issue here, the Governor of the Bank of Greece placed Trapeza Kentrikis Ellados (hereinafter
       
      TKE) under temporary administration.  At that time, TKE's capital was DR 670 000 000.On 29 July 1986, at the request of the Governor of the Bank of Greece, the temporary administrator then in office decided
      to increase the capital to DR 1 700 000 000, at the same time amending the relevant provision of the statutes of TKE (Article
      6).  The documents before the Court do not clearly show by what procedures that increase was effected.  What is certain is
      that the parties agree that the decision was taken regardless of, if not exactly counter to, specific wishes expressed by
      the shareholders.
      
      7.  The shareholders were invited, by means of a notice published in two Athens daily newspapers, to exercise, within 30 days,
       their pre-emptive rights to subscribe for the new shares to be issued.However, that deadline passed without most of the existing shareholders having exercised their rights,  
      
         			(4)
         		 so that almost all the new shares were placed on the market and offered to new shareholders.
      
      8.  In November 1986, the Governor of the Bank of Greece brought the temporary administration to an end and placed TKE under permanent
      administration.  The general meeting of shareholders, constituted on the basis of the new shareholdings, passed three resolutions
      increasing the capital in 1987 (DR 1 500 000 000), 1988 (DR 125 000 000) and 1990 (DR 1 281 250 000).  In the meantime, Law
      No 1682 of 16 February 1987 had ratified the appointments of the various temporary administrators who had successively managed
      the company, and the first increase of capital.At present, according to the information provided by the plaintiffs, which has not been contested by the defendants, 53% of
      the voting shares in TKE belong to the Agricultural Bank, a defendant in the main proceedings, whose capital is held in its
      entirety by the Greek State.
      
      9.  The plaintiffs in the main proceedings are shareholders in TKE and were shareholders when the temporary administrator decided
      upon the first increase of capital.  Considering that that increase had taken place by arrogation of the powers of the general
      meeting, and therefore in breach of their rights guaranteed by the Second Directive, the shareholders brought proceedings
      before the national court for annulment of the administrator's decision.In particular, the plaintiffs alleged infringement of Article 25(1) of the Second Directive, according to which   
      any increase in capital must be decided upon by the general meeting, and infringement of Article 29(3) thereof, which provides that any offer of subscription on a pre-emptive basis and the
      period within which that right must be excised are to be published in the national gazette appointed in accordance with Directive
      68/151/EEC,  
      
         			(5)
         		 or, where the shares are registered, and if the national legislation so provides, by written notification to all the shareholders.
       The preliminary questions
      
      10.  It was against the background of that dispute that the national court submitted the three questions now to be considered.The first seeks to establish the scope of the Second Directive, in particular Articles 25 and 29, as regards the persons to
      whom it applies, in order to determine whether it covers public limited companies engaged in banking.In its second question, the national court seekS a ruling as to whether those provisions of the Second Directive  
      run counter to ... the provisions to the contrary of the special Greek legislation on the reorganization of banking companies  
      and thus preclude the application of the latter provisions.  In other words, the court, recognizing that, if the first question is answered affirmatively,
      the Greek legislation will be shown to be incompatible with the Second Directive, is asking whether the application of the
      national legislation may nevertheless be upheld by virtue of its special nature.Finally, in its third question the national court seeks a ruling as to whether the requirement that the shareholders be informed
       
      in writing, under the third sentence of Article 29(3) of the Second Directive, is satisfied by publication of the offer in daily newspapers.
      
      11.  It is also clear from the order for reference that the national court has reserved judgment as to the merits of the objections
      raised by the defendants in the main proceedings.  Of them, it mentions only the objection based on Article 281 of the Greek
      Civil Code, concerning the abusive exercise of rights.Under that provision, a right may not be exercised where it manifestly exceeds the bounds of good faith or good usage or the
      economic and social purposes associated with that right.  If that objection were upheld, it would follow that, even if the
      plaintiffs' right to invoke the illegality and seek the annulment of the decision to increase the capital taken in breach
      of Community law were recognized, the exercise of that right would be prohibited, being regarded by the national court as
      abusive.  It seems that the allegation of abuse is based essentially on the plaintiffs' lack of  
       locus standi  in that they are minority shareholders, and, what is more, shareholders of a company that is subject to a special regime
      intended to ensure its recovery; and on the fact that they have suffered no damage, material or otherwise, from the reorganization
      of the company but indeed have in fact benefited from it.In expressing its reservation, the national court made it clear that, in its opinion, the objection under Article 281 of the
      Civil Code may be properly raised even to prevent the exercise of rights conferred by Community law; it also states that it
      alone has jurisdiction to rule on that point, being the  
      court of the Member State of which the party raising the objection is a citizen.
       The first and second questions
      
      12.  The first two questions are closely connected.  It is therefore appropriate to consider them together.The Court has given its views on Article 25(1) of the Second Directive on several occasions.
      
      13.  In its three judgments in  
       Karella and Karellas, 
         			(6)
         		 Syndesmos Melon tis Eleftheras Evangelikis Ekklisias and Others ,  
      
         			(7)
         		 and  
       Kerafina ─ Keramische- und Finanz-Holding and Vioktimatiki 
         			(8)
         		 (hereinafter together referred to in some instances as  
      the  
       Karella  cases), the Court interpreted that provision specifically in relation to the Greek legislation on the reorganization of undertakings.
       
      
         			(9)
         		In the three abovementioned preliminary rulings, in relation to proceedings brought by shareholders of companies following
      increases of capital by means of administrative measures, the Court upheld the absolute nature of the principle that the general
      meeting of shareholders has exclusive powers regarding alteration of the capital of the company.
      
      14.  It stated first that Article 25(1) has direct effect; secondly, that that article  precludes the application of national rules
      which, being designed to ensure the rationalization and continued trading of undertakings that are in an exceptional situation,
      allow an increase of capital to be decided upon by an administrative measure even where the shareholders  have a pre-emptive
      right to subscribe for the new shares.In other words, the Court made it clear that not even a special law designed to ensure the recovery of a company can deprive
      the shareholders of a most  
      intimate and unrelinquishable right: that of making changes to the capital structure of the company, that is to say to its assets,
      and thereby the composition of its shareholding.
      
      15.  In these proceedings, the problems giving rise to the judgments in the  
       Karella  cases are encountered again.  Logically, therefore, the principles upheld by the Court in those cases can but be applied
      here.The view that the provisions of the Second Directive, in particular Articles 25(1) and 29(3), do not apply to banks cannot
      be regarded as correct.  The objection has been raised, in particular, that the reorganization of such companies in crisis
      is an objective pursued in the public interest with a view to protecting, first, savers who have deposited funds with the
      credit institution in difficulties and, secondly, the balance and cohesion of the general system of public savings management;
      and that, therefore, any assessment of national rules designed to avoid as far as possible the winding up of banks should
      disregard the Second Directive.  Moreover, it is claimed, the legislation in question, in so far as it relates specifically
      to banks, is  
      special as compared with national and Community legislation on companies and, as such, takes precedence over the latter in the event
      of conflict.That view, it is said, is confirmed by the proposal for a directive put forward by the Council concerning the reorganization
      and winding up of credit institutions  
      
         			(10)
         		 which expressly authorized application of the national legislation at issue.
      
      16.  In response to those arguments, it need merely be stated, once again, that the Second Directive, adopted in order to ensure
      minimum equivalence of the protection of shareholders and creditors of companies,  
      
         			(11)
         		 defines unequivocally the persons to whom it applies.As is clear from its title and from Article 1, it applies to companies within the meaning of the second paragraph of Article
      58 of the Treaty constituted as public limited companies.  
      
         			(12)
         		  The criterion adopted by the legislature to define the field of application of the directive is thus that of the legal form
      of the company, the business which it carries on or proposes to carry on being entirely irrelevant, except with reference
      to certain specific provisions.The only permissible exception appears in the directive itself, in Article 1(2), on the basis of which Member States may decide
      not to apply the directive to investment companies with variable capital or cooperatives.  That exception, however, relates
      to two clearly defined cases and therefore no national legislature can be allowed to create others.
      
      17.  Furthermore, the directive itself specifically takes account of the special features of banking, by providing that certain
      provisions need not be applied to banks and other financial institutions, even if they are in the form of public limited companies.
       
      
         			(13)
         		The directive thus contains specific and clearly circumscribed exceptions relating to banks.  Those exceptions show, and indeed
      presuppose, that, for the rest, the directive applies to banks in the same way as to all other public limited companies.
      
      18.  Nor do I consider that there is any reason to define the scope of the Second Directive in a manner which departs from and
      runs counter to its literal wording and the case-law of the Court of Justice.The special nature of the Greek legislation was argued unsuccessfully in the earlier cases.  Suffice it to recall that, as
      I indicated in my Opinions in  
       Karella  and  
       Syndesmos Melon ,  
      
         			(14)
         		 and as was clearly confirmed by the Court, to recognize the existence of a general reservation in the case of exceptional
      circumstances, beyond the express provisions of the Treaty and of the Second Directive, would be to undermine the mandatory
      nature and uniform application of Community law.  
      
         			(15)
         		Also, let me say again, the Community legislature duly took account in the directive of the particular needs of banks by including,
      where necessary, provisions specifically applicable to them.  Since there are specific exceptions, it is certainly not for
      the Community judicature to invent others, just as, clearly, national legislators are not entitled to do so.
      
      19.  Nor in my opinion are the considerations concerning the need to safeguard the interests of savers and, more generally, the
      equilibrium of the public savings system relevant.Those needs can be given equal and adequate protection by other means, such as for example the creation of a generalized system
      to guarantee deposits, which seek to achieve the same result but without impeding attainment of the objectives of the Second
      Directive.  The fact that such means did not exist in Greece at the material time does not justify contravention of the principle
      laid down in Article 25 of the Second Directive.
      
      20.  As regards the Community legislation applicable to banking, it pursues objectives other than those of the Second Directive.
       For the most part it comprises directives which seek to uphold and supplement the right of establishment and the freedom
      to provide services in the banking sector, by means of specific provisions applicable to banks.In any case, none of those directives presents any obstacle to the application of Article 25 of the Second Directive.  Even
      though the numerous provisions concerning supervision confer on the competent authorities, in certain circumstances, the power
      to require a credit establishment to remedy within a specified period an insufficiency of assets, failing which its licence
      to transact business may be withdrawn, they do not affect the powers of the organs of the establishment in question to make
      their own arrangements to rectify matters.  
      
         			(16)
         		  Thus, no problem of conflicting Community provisions arises as far as this case is concerned.
      
      21.  As regards, finally, the proposal for a Council directive on the reorganization of banks, also referred to by the defendants,
      it need merely be stated that, at present, it does not form part of the applicable positive law.
      
      22.  The defendants in the main proceedings also argue that, even if the Court should find that the Second Directive is applicable
      to banks, the  
       Karella  decisions cannot be applicable to this case owing to a fundamental characteristic of the legislation at issue.  By contrast
      with the provisions at issue in  
       Karella , the rules on the rationalization of banks provide that, when the temporary administrator  is appointed, all the powers of
      the organs of the company cease to exist, which means, in the defendant's opinion, that the objective pursued is more akin
      to winding up than to reorganization of the company placed under special administration.  In any event, therefore, in their
      view one of the conditions laid down by the Court itself for the application of the Second Directive is lacking, namely the
      requirement that the company must continue to exist within its own structures.  
      
         			(17)
         		I am not convinced by that argument either. I do not see how it can reasonably be contended that a company placed under administration
      pursuant to the legislation at issue has ceased to exist.On the contrary, it seems to me that the aim pursued by the rules at issue is to ensure the survival, after reorganization,
      of the company under administration; and in any event the organs of the company certainly continue to exist while it is under
      administration, even if they are deprived of any power to run the company.  The general meeting of shareholders retains the
      right referred to in Article 25 of the Second Directive; the opposite view is precisely the  
       quid demonstrandum , and the point has not been proved.
      
      23.  The foregoing considerations prompt me to suggest that the Court answer the first two questions in accordance with the principles
      laid down in the  
       Karella  cases, confirming that Article 25 of the Second Directive precludes the application of special national legislation which,
      being designed to ensure the rationalization and continued trading of banks that are in the form of public limited companies
      and are experiencing exceptional difficulties, allows an increase of capital to be effected by means of an administrative
      measure, regardless of the wishes of the shareholders.
       The third question
      
      24.  The conclusions reached on the first and second questions render the third question irrelevant, at least as far as the present
      case is concerned.  However, merely for the sake of completeness, and in case the Court should decide to depart from the principles
      laid down in its case-law, I shall consider, albeit briefly, Article 29(3) of the Second Directive in relation to the question
      submitted by the national court.As indicated earlier, that provision concerns the terms of the offer to subscribe for new shares made to the existing shareholders,
      the national legislature being entitled, in the case of registered shares, to require notification in writing to all the shareholders.
      
      25.  The provision concerned seeks to ensure that, if there is no publication in the officially appointed gazette,  
      
         			(18)
         		 all the shareholders are nevertheless duly informed of the terms and procedures for the exercise of their pre-emptive right.The term  
      informed in writing used in Article 29(3) must therefore, in my view be taken to refer to a communication which the management of the company
      must send in writing, individually and by name, to every owner of a registered share.  I do not consider therefore that publication
      of the offer of subscription in two daily newspapers can constitute a lawful alternative since it does not guarantee the same
      result.
      
      26.  The defendants also contend that Article 29(3) does not have direct effect, for the purposes of the present case.  Whilst
      conceding that that provision is clear, precise and unconditional, they deny that it can be relied on against TKE, which at
      the material time was a private bank.  To admit the contrary, they say, would be tantamount to giving the Second Directive
      the horizontal direct effect which the Court has so far never accepted.In that connection suffice it to say that the measure contested by the plaintiffs before the national court is an administrative
      measure adopted by a temporary administrator nominated by the Governor of the Bank of Greece, whose appointment and performance
      of duties are subject to legislative ratification (and were in fact ratified).  It is therefore clear that the administrator
      was  
      made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose exceptional powers as defined in the case-law of the Court of Justice.  
      
         			(19)
         		  It follows that the plaintiffs were fully entitled to invoke Article 29(3) of the Second Directive in contesting a measure
      adopted in contravention of the terms of that provision.
       Abusive exercise of rights
      
      27.  As indicated earlier, it appears from the order for reference that an objection was raised in the course of the main proceedings
      alleging the abusive exercise of rights by the plaintiffs.  Although that point is not the subject of a specific question,
      it is clearly raised in the order for reference and is liable significantly to influence the outcome of the case.The national court expressly declares that it will reserve judgment on the merits of that objection, which is based on Article
      281 of the Greek Civil Code.  
      
         			(20)
         		  It states that that provision, on the basis of which the exercise of a right may be prohibited if it is held to be abusive,
      may also be invoked to prevent  the exercise of a right conferred by Community law; and it claims exclusive jurisdiction to
      adjudicate on that point.In order to render the right under Article 25 of the Second Directive inoperative it would be sufficient for the national
      court to find that the plaintiffs had no standing to seek the annulment of the measure, being minority shareholders and not
      having suffered any damage from the reorganization ─ indeed, having benefited from it.  
      
         			(21)
         		
      28.  The question seems to me to be an important one.  Accordingly, it seems inevitable that the Court should rule on the point
      since what is at stake is the primacy of Community law over domestic law and the effectiveness of the preliminary rulings
      given by the Court.There is a risk that an interpretative ruling, in which the Court had defined the scope of the rights conferred on individuals
      by a Community provision having direct effect, would be negated by the very court that sought the ruling by virtue of a principle
      of substantive national law conflicting with it.That, moreover, is precisely what happened in the  
       Kerafina  judgment cited earlier.  After the ruling was given by the Court of Justice, the judge who sought it upheld the objection
      raised by the defendants on the basis of Article 281 of the Greek Civil Code and directed that inquiries be undertaken to
      establish whether it was factually well founded.   
      
         			(22)
         		
      29.  The problem therefore arises of establishing whether, and if so within what limits, the national court may, whilst nevertheless
      observing the Community principles expounded above, apply a national provision in order to declare that a right conferred
      by Community law has been exercised abusively.In that connection, it must first be observed that a person's abusive exercise of a right can be censured, albeit by procedures
      and in circumstances which differ in some cases, in nearly all the Member States.  In the absence of Community rules on the
      matter the national court must decide on the basis of its own national law whether or not the right in question has been exercised
      abusively.  
      
         			(23)
         		
      30.  However, it is settled law that, where rights claimed by individuals under Community law are in issue, the Court should consider
      to what extent the judicial protection available under national law is adequate.  
      
         			(24)
         		
      31.  In the present case it seems at first sight  from the documents before the Court that the plaintiffs, far from seeking to
      abuse the provision, merely wish to secure observance of the right which is at the heart of that provision, namely the exercise
      of exclusive powers regarding alteration of the capital of the company.The view that the plaintiffs are abusing their rights, as minority shareholders who have obtained a benefit from the reorganization
      of the company, appears clearly to be without foundation.  The provision is in fact intended to protect all shareholders and
      is applicable regardless of the outcome of any reorganization.  To deny the protection guaranteed by the provision concerned
      on such grounds would be tantamount to censuring not the  
       abusive exercise  of the right but rather  
       any exercise of it , which, to say the least, would be somewhat paradoxical.
      
      32.  The position would be different if the national court were to find that the plaintiffs had not merely exercised their right
      but had exercised it abusively  
       in a different way.   Such might be the case if, for example, the plaintiffs had themselves, paradoxically, requested an increase of capital on
      an administrative basis and then challenged the decision by means of legal proceedings.
      
      33.  By contrast, in the present case, in which it is undisputed that the plaintiffs witnessed an increase of capital that they
      did not seek, it is unreasonable to describe as abusive the mere exercise of a right vested in them by Article 25 of the directive
      as shareholders of the company and for the lifetime of the company.Furthermore, even if the opposing point of view were adopted, I still cannot see how the plaintiffs could have protected their
      rights otherwise than by relying on that provision of the Second Directive when they did.
      
      34.  It is therefore clear that recourse to the objection in question cannot have the effect of utterly negating the provision
      concerned since such a result would run counter to the essential imperatives of the Community legal order.  I therefore suggest
      that the Court make it absolutely clear that legislation which allows a national court to prohibit the exercise of a right
      conferred by a provision of Community law by describing it as abusive cannot be applied merely because the holder of that
      right sought judicial protection for it, nor, in any case, can it be applied in such a way as to nullify the provision in
      question entirely.
       
      35.  In the light of the foregoing considerations, I therefore propose the Court give the following answers to the Athens Court
      of First Instance:Articles 25(1) and 29(3) of the Second 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, must be interpreted as meaning
      that:
      
      
      ─
         the application is precluded of national legislation which, in order to ensure the recovery and continuing trading of banks
         constituted in the form of public limited companies which, as a result of their indebtedness, find themselves in exceptional
         circumstances, allows their capital to be increased by administrative measure and without a resolution of the general meeting;
         and the mere exercise by shareholders of the right granted to them by the Community directive cannot, without those provisions
         being rendered nugatory, be declared by the national court to be abusive; 
      
      
      
      ─
         publication in daily newspapers of an offer of subscription on a preemptive basis and of the time-limit for exercising the
         right to subscribe does not amount to informing the shareholders in writing. 
      
      
      
       1 –
         
            Original language: Italian.
      
      2 –
         
         OJ 1977 L 26, p. 1.
      
      3 –
         
         The legislative background briefly described here essentially comprises the following provisions, read in conjunction: Articles
            29 and 31 of Law No 2190/1920, Article 8(1) and (3) of Law No 1665/1951, and Article 1(1) and (3) of Presidential Decree No
            861/1975, converted into Law No 236/1975.
         
      
      4 –
         
         With the exception of a very small number, accounting, according to the plaintiffs, for only 0.4% of the capital.
      
      5 –
         
         OJ, English Special Edition 1968 (I), p. 41; that directive had not been transposed into Greek law at the material time. 
            Today, the appointed gazette is the Official Gazette of the Greek Republic.
         
      
      6 –
         
         Joined Cases C-19/90 and C-20/90 [1991] ECR I-2691.
      
      7 –
         
         Case C-381/89 [1992] ECR I-2111.
      
      8 –
         
         Joined Cases C-134/91 and C-135/91 [1992] ECR I-5699.
      
      9 –
         
         Law No 1386/1983 of 5 August 1983.  Under that law, a public limited company wholly owned by the State (the  
            Business Reconstruction Organization) was entitled to take over the running and day-to-day management of companies undergoing rationalization or nationalization
            and, in doing so, could decide to increase the capital of such companies, by derogation from the provisions vesting exclusive
            powers in the general meeting of shareholders.
         
      
      10 –
         
         COM(85) 788 final, OJ 1985 C 356, p. 55.
      
      11 –
         
         Second recital in the preamble to the directive, and the judgments in  
             Karella  and  
             Syndesmos Melon , paragraphs 25 and 32 respectively.
         
      
      12 –
         
         According to the second paragraph of Article 58 of the Treaty,  
            Companies or firms means companies or firms constituted under civil or commercial law, including cooperative societies, and
            other legal persons governed by public or private law, save for those which are non-profit-making.
         
      
      13 –
         
         See, for example, Articles 20(1)(c), 23(2) and 24(2).
      
      14 –
         
         Paragraphs 6 and 4 respectively.
      
      15 –
         
         See in particular the judgments in  
             Karella  and  
             Syndesmos Melon  cited above, at paragraphs 25 to 28 and 30 to 33 respectively.
         
      
      16 –
         
         I refer in particular to Article 10(1) and (5) of the Second Council Directive (89/646/EEC) of 15 December 1989 on the coordination
            of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions
            and amending directive 77/780/EEC (OJ 1989 L 386, p. 1); Article 10(1) and (3) of the Council Directive of 18 December 1989
            on a solvency ratio for credit institutions (89/647/EEC) (OJ 1989 L 386, p. 14); Article 4(1) and (5) of the Council Directive
            of 21 December 1992 on the monitoring and control of large exposures of credit institutions (92/121/EEC) (OJ 1993 L 29, p.
            1); and Article 4(1), (2), (3), (4) and (8) of the Council Directive of 15 March 1993 on the capital adequacy of credit institutions
            (93/6/EEC) (OJ 1993 L 141, p. 1).
         
      
      17 –
         
         . Karella  and  
             Syndesmos Melon,  paragraphs 30 and 28 respectively.
         
      
      18 –
         
         It will be remembered that no such gazette had been officially appointed in Greece at the material time since Directive 68/151/EEC
            had not yet been transposed into national law (see footnote 4 above).
         
      
      19 –
         
         See in particular Case 188/89  
             Foster and Others  [1990] ECR I-3313, paragraph 20.
         
      
      20 –
         
         The underlying basic provision being Article 25 of the Greek Constitution.
      
      21 –
         
         It also seems that the plaintiffs could be regarded as improperly exercising the right conferred on them by the Community
            provision because of their failure to exercise the pre-emptive right to subscribe for new shares issued in connection with
            the increase of capital.  In view of my suggested answers to the preliminary questions, and in the event of the Court adopting
            my suggestions, I take it for granted that an argument to that effect would fail entirely, in the main proceedings as well.
         
      
      22 –
         
         See judgment No 9337/1992 of the Athens Court of Appeal; but see also, to the same effect and based on almost identical grounds,
            judgments of the same court Nos 9162/1992 of 19 November 1992 and 464/1993 of 4 March 1993.  It is noteworthy that the three
            judgments of the Athens Court of Appeal all expressly refer to  
             Karella. For the sake of completeness, it should also be pointed out that the  
             Karella  and  
             Syndesmos Melon  judgments have not yet been given effect by the courts which sought the rulings; in the former case, it appears that the
            parties abandoned their action after the Court of Justice gave judgment; but in the latter case it seems that, so far, no
            decision has been given.
         
      
      23 –
         
         See to that effect the Opinion of Advocate General Darmon in Case 81/87  
             Daily Mail  [1988] ECR 5483, in which he suggested that the Court declare that the transfer to another Member State of the central management
            of a company may constitute a form of exercise of the right of establishment, subject to an assessment by the national court
            as to  
            whether, in a specific case and having regard to the circumstances, there is a suggestion of abuse of a right or circumvention
            of the law and whether it should decide not to apply Community law (paragraph 9).  The Court, adopting a different interpretation of the right of establishment, did not rule on the point.
            See also, to the same effect, Case C-8/92  
             General Milk Products  [1993] ECR 779, in which the Court held that, in order to withhold monetary compensatory amounts in respect of certain goods
            imported into Germany, it would be necessary to prove that the importers intended to abuse the Community system for their
            benefit, and ruled that the national court had jurisdiction to verify that point.
         
      
      24 –
         
         Most important among the examples of the application of that principle is the  
             San Giorgio  case, in which the Court made it clear that  
            any requirement of proof which has the effect of making it virtually impossible or excessively difficult to secure the repayment
            of charges levied contrary to Community law would be incompatible with Community law (Case 199/82 [1983] ECR 3595, paragraph 14); the Court has since then given several judgments to the same effect: in relation
            to penalties under national law for breach of a principle laid down by a directive (Case C-177/88  
             Dekker  [1990] ECR 3941; in relation to limitation periods for actions under national law (Case C-208/90  
             Emmott  [1991] ECR I-4269); and in relation to difficulties affecting the recovery of Community aid unduly paid as a result of the
            principle of the protection of legitimate expectations (Case C-5/89  
             Commission  v  
             Germany  [1990] ECR I-3437).