Dionysios Diamantis v Elliniko Dimosio (Greek State) and Organismos Ikonomikis Anasygkrotisis Epicheiriseon AE (OAE).
Date: 2000-03-23
26 In its order for reference the national court cited, first, the Court's previous case-law on the direct effect of Article 25 of the Second Directive (Joined Cases C-19/90 and C-20/90 Karella and Karellas v Minister of Industry, Energy and Technology and Another [1991] ECR I-2691 and Case C-381/89 Sindesmos Melon tis Eleftheras Evangelikis Ekklisias and Others v Greek State and Others [1992] ECR I-2111) and concluded that it was clear from that case-law that Articles 8 and 10 of Law No 1386/1983 were contrary to the provisions of the Second Directive.
29 The national court therefore accepted that Article 281 of the Civil Code could be applied to defeat rights arising under Community law when there was an abuse of rights within the meaning of that provision. However, in view of the attitude taken by the Court of Justice in Case C-441/93 Pafitis and Others v TKE and Others [1996] ECR I-1347, paragraphs 68 to 70 in relation to the same plea raised pursuant to Article 281 of the Civil Code, the national court considered that it was faced with a problem of interpretation of Articles 25(1) and 29(1) of the Second Directive with regard to the plea of abuse of rights.
32 The preliminary point must be made that, as the Court has already held in Case C-367/96 Kefalas and Others v Greek State and Others [1998] ECR I-2843, paragraph 28, the objective of Article 25(1) of the Second Directive is to ensure, for the benefit of shareholders, that a decision increasing the capital of the company and, consequently, affecting the share of equity held by them, is not taken without their participation in the exercise of the decision-making powers of the company. According to the case-law, that objective would be seriously frustrated if the Member States were entitled to derogate from the provisions of the directive by maintaining in force rules - even rules categorised as special or exceptional - under which it was possible to decide by administrative measure, outside any decision by the general meeting of shareholders, to effect an increase in the company's capital (Karella and Karellas, cited above, paragraph 26).
33 However, Community law cannot be relied on for abusive or fraudulent ends (see Kefalas and Others, cited above, paragraph 20, and the case-law cited there). That would be the case if a shareholder, in reliance on Article 25(1) of the Second Directive, brought an action for the purpose of deriving, to the detriment of the company, an improper advantage, manifestly contrary to the objective of that provision (Kefalas and Others, cited above, paragraph 28).
34 Although national courts may, therefore, take account - on the basis of objective evidence - of abuse on the part of the person concerned in order, where appropriate, to deny him the benefit of the provisions of Community law on which he seeks to rely, they must nevertheless assess such conduct in the light of the objectives pursued by those provisions (Case C-206/94 Paletta [1996] ECR I-2357, paragraph 25). The application of a national rule such as Article 281 of the Civil Code must not, therefore, detract from the full effect and uniform application of Community law in the Member States (Pafitis and Others, cited above, paragraph 68).
36 In that connection, it is clear from the above judgments in Pafitis and Others, paragraph 70, and Kefalas and Others, paragraph 29, that a shareholder relying on Article 25(1) of the Second Directive cannot be deemed to be abusing his rights merely because he is a minority shareholder of a company subject to reorganisation measures, or has benefited from the reorganisation of the company, or has not exercised his right of pre-emption. Similarly, the fact that the plaintiff in the main proceedings asked that Plastika Kavalas be made subject to the scheme under Law No. 1386/1983 does not indicate an abuse of rights.