Audiolux SA e.a v Groupe Bruxelles Lambert SA (GBL) and Others and Bertelsmann AG and Others.
Date: 2009-10-15
31. While it is true that a question referred for a preliminary ruling by a national court is inadmissible where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I-11987, paragraph 28, and the case-law cited), in the present case the order for reference allows the scope of the questions referred to be determined, and did in fact enable the parties concerned to submit observations in accordance with Article 23 of the Statute of the Court of Justice, as evidenced by the content of the observations submitted in these proceedings. Therefore, the Court has sufficient information concerning the legal background and the facts of the dispute in the main proceedings to interpret the relevant Community rules and give a useful answer to the questions referred.
The first and second questions
34. It must be observed, first of all, that the mere fact that secondary Community legislation lays down certain provisions relating to the protection of minority shareholders is not sufficient in itself to establish the existence of a general principle of Community law, in particular if the scope of those provisions is limited to rights which are well defined and certain. Therefore, in examining the provisions mentioned by the national court, the sole purpose is to ascertain whether they give any conclusive indications of the existence of such a principle. In that connection, it must be stated that only if those provisions are drafted so as to have binding effect (see, to that effect Case C‑149/96 Portugal  v Council  [1999] ECR I‑8395, paragraph 86, and Case C‑189/01 Jippes and Others  [2001] ECR I-5689, paragraph 74), will those provisions have indicative value showing the well-defined content of the principle concerned (see, to that effect, Jippes and Others , paragraph 73).
39. That directive seeks only to ensure a minimum level of protection for shareholders in all the Member States (see, Case C-441/93 Pafitis and Others  [1996] ECR I‑1347, paragraph 38; Case C-42/95 Siemens [1996] ECR I‑6017, paragraph 13; and Case C-338/06 Commission  v Spain [2008] ECR I‑0000, paragraph 23).
40. Furthermore, it must be pointed out that, even in the context of Directive 77/91, Article 42 thereof cannot be considered to reflect a general principle of Community law. The Court has rejected a broad interpretation of Article 42 on the ground that it would render Article 29(4) of that directive, which relates to the conditions governing the restriction of the right of pre-emption, redundant (see, Commission  v Spain , paragraphs 32 and 33).
50. Thus, the provisions of Directive 2004/25 apply to specific situations, so that no general principle with a specific content can be inferred from them. In addition, they do not, as was already stated with respect to the provisions of Directives 77/91 and 79/279, in paragraph 42 of this judgment, possess the general, comprehensive character which is naturally inherent in general principles of law.
51. As regards, in particular, the provisions of Directive 2004/25 to which the national court refers, it must be observed that, although Recital 8 in the preamble to that directive alludes to general principles of Community law, the fact remains that that recital refers only to procedural safeguards and does not involve any principle of equal treatment of shareholders. Similarly, it cannot be inferred from the use of the term ‘general principles’ in Article 3 of that directive that the Community legislature thereby intends the principles mentioned in that article to be treated in the same way as general principles of Community law. As is clear from the words ‘for the purposes of implementing this Directive’, they are only guiding principles for the implementation of that directive by the Member States.
54. According to settled case-law, the general principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see Case C-127/07 Arcelor Atlantique and Lorraine and Others  [2008] ECR I‑0000, paragraph 23, and the case-law cited).
58. The establishing of an obligation on dominant shareholders and the fixing of the conditions triggering such an obligation would require a decision as to whether, in the specific situation in which a shareholder acquires or strengthens his control of a company, the minority shareholders need special protection which must be ensured by the imposition of an obligation on the dominant shareholder. Such a decision would presuppose both the weighing of the interests of the minority shareholders and those of the dominant shareholder and of the not inconsiderable consequences for corporate takeovers, and would require specific expression, in accordance with the principle of legal certainty, so that those concerned could ascertain unequivocally what their rights and obligations were and take steps accordingly (see, as regards the requirements for the principle of legal certainty, Case C‑345/06 Heinrich [2009] ECR I-0000, paragraph 44).
62. A principle such as that proposed by Audiolux presupposes legislative choices, based on a weighing of the interests at issue and the fixing in advance of precise and detailed rules (see, by analogy, Case 41/69 ACF Chemiefarma v Commission  [1970] ECR 661, paragraphs 18 to 20; Case 265/78 Ferwerda [1980] ECR 617, paragraph 9; and the order of 5 March 1999 in Case C‑153/98 P Guérin automobiles  v Commission [1999] ECR I‑1441, paragraph 14 and 15) and cannot be inferred from the general principle of equal treatment.
63. The general principles of Community law have constitutional status while the principle proposed by Audiolux is characterised by a degree of detail requiring legislation to be drafted and enacted at Community level by a measure of secondary Community law. Therefore, the principle proposed by Audiolux cannot be regarded as an independent general principle of Community law.