Syndesmos Melon tis Eleftheras Evangelikis Ekklissias and others v Greek State and others.
Date: 1992-03-24
19 It must be emphasised in that regard that, by virtue of the division of jurisdiction provided for in Article 177 in preliminary-ruling proceedings, it is for the national court alone to assess the relevance of such arguments and to make a fresh request to the Court if it considers that it is necessary to obtain a further ruling on the interpretation of Community law for the purpose of giving its judgment (see in particular the judgment in Case 311/84 CBEM v CLT and IPB [1985] ECR 3261.
27 The Court held in paragraph 30 of that judgment that the Second Directive is intended to ensure that members' and third parties' rights are safeguarded, in particular in operations for setting up companies and increasing and reducing company capital. In order to be effective, that safeguard must be secured for members as long as the company continues to exist within its own structures. Whilst the directive does not preclude the taking of execution measures and, in particular, liquidation measure placing the company under compulsory liquidation in the interests of safeguarding creditors' rights, it nevertheless continues to apply as long as the company' s shareholders and normal bodies have not been divested of their powers. Certainly, this is true where there is a straightforward rationalization measure involving public bodies or companies governed by private law where the members' right to the capital and decision-making power in the company is in question.
31 In that regard, it must first be borne in mind that the Court also rejected that argument in its judgment in Joined Cases C-19/90 and C-20/90 cited above, in particular at paragraphs 25 to 28.
32 According to that judgment, that directive seeks, in accordance with Article 54(3)(g) of the Treaty, to coordinate the safeguards required in the Member States in relation to companies, within the meaning of the last paragraph of Article 58 of that Treaty, in order to make such guarantees equivalent and to protect the interests of members and third parties. Consequently, the aim of the Second Directive is to provide a minimum level of protection for shareholders in all the Member States.
33 That objective would be seriously compromised if the Member States were allowed to derogate from the provisions of the directive by maintaining in force rules - even rules categorized as special or exceptional - which make it possible to decide, by administrative measure, outside any decision of the general meeting of shareholders, to effect an increase in the company' s capital without guaranteeing them pre-emptive rights in respect of the shares to be issued.
35 There is no provision, either in the EEC Treaty or in the Second Directive itself, which allows the Member States to derogate from Articles 25(1) and 29(1) of the Second Directive when there is a crisis. On the contrary, Article 17(1) of the directive expressly provides that in the case of a serious loss of the subscribed capital, a general meeting of shareholders must be called, within the period laid down by the laws of the Member States, to consider whether the company should be wound up or any other measures taken. That provision thus confirms the decision-making power of the general meeting provided for in Article 25(1), even where the company in question is experiencing serious financial difficulties, and does not allow any derogation whatsoever from the pre-emptive right provided for in Article 29(1).
37 It must therefore be stated in reply to the national court that Articles 25(1) and 29(1) of the Second Directive must be interpreted as precluding the application of rules which, being designed to ensure the rationalization and continued trading of undertakings that are of particular importance to the economy of a Member State and are in an exceptional situation because of their debts, allow an increase of capital to be decided upon by administrative measure, without any resolution being passed by the general meeting, and enable a decision to be taken, by administrative measure, that new shares are to be allotted without being offered on a pre-emptive basis to the shareholders in proportion to the capital represented by their shares.
The direct effect of Articles 25(1) and 29(1) of the Second Directive
39 As regards Article 29(1) of the directive, it must be stated that that provision is framed in clear and precise terms and establishes unconditionally that, upon any increase of subscribed capital by consideration in cash, the shares must be offered on a pre-emptive basis to the shareholders in proportion to the capital represented by their shares.
40 The unconditional nature of that provision is not affected by Article 29(4) of the Second Directive. That paragraph enables the general meeting to decide, under certain clearly defined conditions, to restrict or withdraw the shareholders' pre-emptive rights. That specific derogation does not leave the Member States any possibility of making that right subject to any exceptions other than the one expressly provided for.