1 This request for a preliminary ruling concerns the interpretation of Article 2(1)(a) of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ 2003 L 345, p. 64), as amended by Directive 2008/11/EC of the European Parliament and of the Council of 11 March 2008 (OJ 2008 L 76, p. 37) (‘the Prospectus Directive’).
2 The request has been made in proceedings between the Commune de Schaerbeek (Municipality of Schaerbeek) and the Commune de Linkebeek (Municipality of Linkebeek) (Belgium), on the one hand, and Holding Communal SA, on the other, concerning the lawfulness of the subscription by those municipalities to a capital increase in Holding Communal, since that subscription was not preceded by the publication of a prospectus.
3 The Prospectus Directive was repealed, with effect from 21 July 2019, by Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (OJ 2017 L 168, p. 12). However, given the date of the facts of the dispute in the main proceedings, the provisions of the Prospectus Directive remain applicable to that dispute.
4 Recitals 10, 12 and 16 of that directive stated: ‘(10) The aim of this Directive and its implementing measures is to ensure investor protection and market efficiency, in accordance with high regulatory standards adopted in the relevant international fora. … (12) Full coverage of equity and non-equity securities offered to the public or admitted to trading on regulated markets as defined by Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field [(OJ 1993 L 141, p. 27)], and not only securities which have been admitted to the official lists of stock exchanges, is also needed to ensure investor protection. The wide definition of securities in this Directive, which includes warrants and covered warrants and certificates, is only valid for this Directive and consequently in no way affects the various definitions of financial instruments used in national legislation for other purposes, such as taxation. … … (16) One of the objectives of this Directive is to protect investors. It is therefore appropriate to take account of the different requirements for protection of the various categories of investors and their level of expertise. Disclosure provided by the prospectus is not required for offers limited to qualified investors. In contrast, any resale to the public or public trading through admission to trading on a regulated market requires the publication of a prospectus.’
5 Article 1(2)(b) and (d) of that directive provided: ‘This Directive shall not apply to: … (b) non-equity securities issued by a Member State or by one of a Member State’s regional or local authorities, by public international bodies of which one or more Member States are members, by the European Central Bank or by the central banks of the Member States; … (d) securities unconditionally and irrevocably guaranteed by a Member State or by one of a Member State’s regional or local authorities’.
6 Article 2(1)(a), (b), (d), (e) and (f) of the Prospectus Directive provided: ‘For the purposes of this Directive, the following definitions shall apply: (a) “securities” means transferable securities as defined by Article 1(4) of Directive 93/22/EEC with the exception of money market instruments as defined by Article 1(5) of [that directive], having a maturity of less than 12 months. For these instruments national legislation may be applicable; (b) “equity securities” means shares and other transferable securities equivalent to shares in companies, as well as any other type of transferable securities giving the right to acquire any of the aforementioned securities as a consequence of their being converted or the rights conferred by them being exercised, provided that securities of the latter type are issued by the issuer of the underlying shares or by an entity belonging to the group of the said issuer; … (d) “offer of securities to the public” means a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe to these securities. This definition shall also be applicable to the placing of securities through financial intermediaries; (e) “qualified investors” means: (i) legal entities which are authorised or regulated to operate in the financial markets …; (ii) national and regional governments, …; (iii) other legal entities which do not meet two of the three criteria set out in paragraph (f); (iv) certain natural persons: …; (v) certain [small and medium-sized enterprises (SMEs)]: subject to mutual recognition, a Member State may choose to authorise SMEs which have their registered office in that Member State and who expressly ask to be considered as qualified investors; (f) “small and medium-sized enterprises” means companies, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees during the financial year of less than 250, a total balance sheet not exceeding EUR 43000000 and an annual net turnover not exceeding EUR 50000000’.
7 Under Article 3(1) and (2) of the Prospectus Directive: ‘1. Member States shall not allow any offer of securities to be made to the public within their territories without prior publication of a prospectus. 2. The obligation to publish a prospectus shall not apply to the following types of offer: (a) an offer of securities addressed solely to qualified investors; and/or (b) an offer of securities addressed to fewer than 100 natural or legal persons per Member State, other than qualified investors; and/or (c) an offer of securities addressed to investors who acquire securities for a total consideration of at least EUR 50000 per investor, for each separate offer; and/or (d) an offer of securities whose denomination per unit amounts to at least EUR 50000; and/or (e) an offer of securities with a total consideration of less than EUR 100000, which limit shall be calculated over a period of 12 months. …’
8 Article 4(1)(d) of that directive provided: ‘The obligation to publish a prospectus shall not apply to offers of securities to the public of the following types of securities: … (d) shares offered, allotted or to be allotted free of charge to existing shareholders, and dividends paid out in the form of shares of the same class as the shares in respect of which such dividends are paid, provided that a document is made available containing information on the number and nature of the shares and the reasons for and details of the offer’.
9 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1), as amended by Directive 2006/31/EC of the European Parliament and of the Council of 5 April 2006 (OJ 2006 L 114, p. 60) (‘the MiFID I Directive’), was repealed, with effect from 3 January 2018, by Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349), as amended by Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 (OJ 2016 L 175, p. 8). However, given the date of the facts of the dispute in the main proceedings, the provisions of the MiFID I Directive remain applicable to that dispute.
10 Recitals 2 and 44 of that directive stated: ‘(2) In recent years more investors have become active in the financial markets and are offered an even more complex wide-ranging set of services and instruments. In view of these developments the legal framework of the Community should encompass the full range of investor-oriented activities. To this end, it is necessary to provide for the degree of harmonisation needed to offer investors a high level of protection and to allow investment firms to provide services throughout the Community, being a Single Market, on the basis of home country supervision. In view of the preceding, Directive 93/22/EEC should be replaced by a new Directive. … (44) With the two-fold aim of protecting investors and ensuring the smooth operation of securities markets, it is necessary to ensure that transparency of transactions is achieved and that the rules laid down for that purpose apply to investment firms when they operate on the markets. …’
11 Article 4(1)(18) of the MiFID I Directive provided: ‘For the purposes of this Directive, the following definitions shall apply: … (18) “Transferable securities” means those classes of securities which are negotiable on the capital market, with the exception of instruments of payment, such as: (a) shares in companies and other securities equivalent to shares in companies, partnerships or other entities, and depositary receipts in respect of shares; …’
12 Article 40(1) of that directive provided: ‘Member States shall require that regulated markets have clear and transparent rules regarding the admission of financial instruments to trading. Those rules shall ensure that any financial instruments admitted to trading on a regulated market are capable of being traded in a fair, orderly and efficient manner and, in the case of transferable securities, are freely negotiable.’
13 Under Article 69 of that directive: ‘Directive 93/22/EEC shall be repealed with effect from 1 November 2007. References to Directive 93/22/EEC shall be construed as references to this Directive. References to terms defined in, or Articles of, Directive 93/22/EEC shall be construed as references to the equivalent term defined in, or Article of, this Directive.’
14 The loi du 16 juin 2006 relative aux offres publiques d’instruments de placement et aux admissions d’instruments de placement à la négociation sur des marchés réglementés (Law of 16 June 2006 on offers of investment instruments to the public and admissions of investment instruments to trading on regulated markets) (Moniteur belge of 21 June 2006, p. 31352) transposed, inter alia, the Prospectus Directive into Belgian law. Under Article 5(1)(1) of that law, for the purposes of its application, ‘securities’ means ‘all classes of investment instruments which are negotiable on the capital market (with the exception of payment instruments), such as … shares in companies and other investment instruments equivalent to shares in companies, partnerships or other entities, including investment instruments issued by collective investment undertakings constituted under the law of contract or trust law, as representing the rights of the participants in such an undertaking over its assets, and depositary receipts in respect of shares’.
15 Holding Communal was originally established on 24 November 1860, under the name ‘Crédit communal de Belgique’, for the financing of local authority investments in Belgium. Its shareholders are the Belgian municipalities and provinces, including, in particular, the municipalities of Schaerbeek and Linkebeek.
16 In 1996, Crédit communal de Belgique merged with Crédit local de France, forming the Dexia Group. In 1998, Crédit communal de Belgique was converted into a holding company under its current name, Holding Communal. The latter has, inter alia, a significant holding in Dexia SA.
17 In the context of the 2008 financial crisis, Holding Communal participated in the increase of capital in that company of EUR 500 million. In order to be able to meet that commitment and after being refused a loan during the summer of 2009, the board of directors of Holding Communal decided to appeal to shareholders, proposing, in particular, a capital increase by contributions in cash giving rise to the issue of ‘cumulative preference A’ shares.
18 In September 2009, an information meeting was organised, during which information was provided to shareholders. The timetable for the capital increase was also adapted to take account of the decision-making process specific to the municipalities and provinces.
19 On 30 September 2009, at Holding Communal’s general meeting, that company’s shareholders approved that capital increase. With regard to that capital increase, those shareholders decided that the subscription would take place in two rounds. The municipality of Schaerbeek subscribed to an increase of EUR 8 161 689.60 in the first round and EUR 1 359 011.84 in the second. The municipality of Linkebeek subscribed to an increase of EUR 53 575.68 in each of the two rounds.
20 On 7 December 2011, the extraordinary general meeting of Holding Communal decided that the company should be dissolved and put into liquidation. Since no liquidating dividends could be distributed, the shareholders lost the whole of their subscriptions, that is to say, both those made before the capital increase and those subscribed on 30 September 2009 and which had been paid up.
21 The municipalities of Schaerbeek and Linkebeek brought an action against Holding Communal before the tribunal de commerce francophone de Bruxelles (Brussels Commercial Court (French-speaking), Belgium) seeking annulment of their subscriptions to the capital increase at issue on the ground of infringement of the Law of 16 June 2006. Those municipalities argued that, prior to inviting shareholders to subscribe to that capital increase, a prospectus should have been published in accordance with that law.
22 That court considered that, like the Prospectus Directive, that law governed the offer of securities only in so far as they are negotiable on the capital market, which was not the case with the shares in Holding Communal.
23 That decision was upheld by the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) by a judgment on 12 April 2022. In particular, that court held that the shares issued as consideration for the contributions in cash were securities that were not negotiable on the capital market since they could be held only by municipal and provincial authorities and their transfer was subject to the approval by the board of directors.
24 The municipalities of Schaerbeek and Linkebeek brought an appeal on a point of law against that judgment before the Cour de cassation (Court of Cassation, Belgium), which is the referring court, claiming that securities, the offer of which to persons must give rise to the prior publication of a prospectus, cover, with no restrictions, ‘shares in companies’, even if the transfer of those shares is or is not subject to restrictions, such as the need for approval by the board of directors, or if the persons concerned do or do not belong to a specific category, such as municipal or provincial authorities.
25 That court notes, in that regard, that the outcome of that appeal depends on the interpretation of the concept of ‘securities’, referred to in Article 2(1)(a) of the Prospectus Directive.
26 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 2(1)(a) of [the Prospectus Directive], itself referring to point 18 of Article 4(1) of [the MiFID I Directive], be interpreted as meaning that the concept of transferable security negotiable on the capital market covers the shares of a holding company which can be held only by provinces and municipalities and whose transfer is subject to the approval of the board of directors?’
27 By its question, the referring court asks, in essence, whether Article 2(1)(a) of the Prospectus Directive must be interpreted as meaning that shares in a company that can be held only by provinces and municipalities of a Member State and the transfer of which is subject to the approval of the board of directors of that company fall within the concept of ‘securities’, within the meaning of that directive.
28 It must be recalled that, in accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 29 February 2024, Eesti Vabariik (Põllumajanduse Registrite ja Informatsiooni Amet), C‑437/22, EU:C:2024:176, paragraph 48 and the case-law cited).
29 In that regard, it should be noted, first, that, according to the wording of Article 2(1)(a) of the Prospectus Directive, the concept of ‘securities’, within the meaning of that directive, covers ‘transferable securities as defined by Article 1(4) of Directive 93/22/EEC with the exception of money market instruments … having a maturity of less than 12 months’.
30 While it is true that Directive 93/22 was repealed by the MiFID I Directive, the latter provides, in Article 69 thereof, that ‘references to terms defined in, or Articles of, Directive 93/22/EEC shall be construed as references to the equivalent term defined in, or Article of, [the MiFID I Directive]’.
31 Under Article 4(1)(18) of the MiFID I Directive, the concept of ‘transferable securities’ covers ‘those classes of securities which are negotiable on the capital market, with the exception of instruments of payment’, such as ‘shares in companies and other securities equivalent to shares in companies, partnerships or other entities, and depositary receipts in respect of shares’, referred to in subpoint (a) of that provision.
32 Thus, in accordance with Article 2(1)(a) of the Prospectus Directive, read in conjunction with Article 4(1)(18) of the MiFID I Directive, the concept of ‘securities’, within the meaning of the Prospectus Directive, means ‘securities which are negotiable on the capital market’. In that regard, that provision gives no explanation as to the meaning of the terms ‘securities’ and ‘capital market’, other than to say that payment instruments are not covered by that provision. It is true that Article 4(1)(18) of the MiFID I Directive contains examples of securities that fall within that concept, including shares in companies, without, however, any specific restrictions being mentioned as to the characteristics of the persons who hold those securities or any limitations on their transfer.
33 Consequently, the terms ‘securities which are negotiable on the capital market’, within the meaning of Article 4(1)(18) of the MiFID I Directive and, therefore, the concept of ‘securities’, within the meaning of the Prospectus Directive, must, as the Advocate General observed in point 59 of his Opinion, be interpreted broadly, in the sense that securities such as shares in companies fall within that concept, provided that the transfer of those securities is not subject to restrictions that would make their negotiability on the capital market, that is to say between offerors of such securities and potential investors, impossible or extremely difficult.
34 Secondly, that interpretation is supported by the context in which that concept of ‘securities’, within the meaning of the Prospectus Directive, occurs.
35 In that regard, it should be recalled that Article 40(1) of the MiFID I Directive requires regulated markets to establish clear and transparent rules for the admission of financial instruments to trading, which ensure that any financial instruments admitted to trading on a regulated market are capable of being traded in a fair, orderly and efficient manner and, in the case of transferable securities, are freely negotiable. Furthermore, Article 2(1)(d) of the Prospectus Directive defines the concept of ‘offer of securities to the public’ as ‘a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe to these securities’.
36 Thus, it follows from those provisions that securities may not only be freely traded on the regulated markets, but may also simply be offered on terms that enable an investor to decide to purchase or subscribe to them. It follows that it is not the possibility of trading without restrictions on the capital market that constitutes the essential characteristic of securities, but the possibility of trading such securities between the offerors of securities and potential investors, such negotiability not having to be so restricted as to be impossible or extremely difficult.
37 A broad interpretation of the concept of ‘securities’ also follows from the preambles to MiFID I Directive and the Prospectus Directive. First, it is apparent from recital 2 of the MiFID I Directive that that directive should encompass the full range of investor-oriented activities. Secondly, according to recital 12 of the Prospectus Directive, that directive adopts, to ensure investor protection, a wide definition of the concept of ‘securities’ and covers equity and non-equity securities offered to the public or admitted to trading on regulated markets.
38 Thirdly, the interpretation adopted in paragraph 33 above is consistent with the objectives pursued by the MiFID I Directive and by the Prospectus Directive, which, according to recital 44 of the former and recital 10 of the latter, consist of protecting investors and ensuring the smooth operation of the markets (as regards the Prospectus Directive, see, to that effect, judgment of 3 June 2021, Bankia, C‑910/19, EU:C:2021:433, paragraph 30 and the case-law cited). The interpretation to the effect that the concept of ‘securities’, within the meaning of those directives, includes, inter alia, shares in companies, provided that they are not subject to restrictions that make trading between offerors of securities and potential investors impossible or extremely difficult, allows the application of the mechanisms provided for by those directives, which contribute to the attainment of the two abovementioned objectives on a large scale in the capital markets in which investors are likely to be active.
39 In the present case, it is apparent from the order for reference that the shares in the companies at issue in the main proceedings may be held only by the municipal and provincial entities of the Member State concerned and that their transfer is subject to the approval of the board of directors of that company. Subject to verification by the referring court, such shares do not appear to be subject to restrictions that make their trading between offerors of securities and investors impossible or extremely difficult, since those restrictions do not prevent those shares from being traded with a significant number of potential investors, despite the possibility that the offer may not lead to a transfer of the shares concerned, which may also arise in the case of offers relating to the securities of a company the transfer of which is not subject to approval by its board of directors.
40 That consideration also makes it possible to distinguish the situation at issue in the main proceedings from that at issue in the case that gave rise to the judgment of 17 September 2014, Almer Beheer and Daedalus Holding (C‑441/12, EU:C:2014:2226, paragraphs 35 and 36). That case concerned sales of securities that, because they took place in the context of enforcement proceedings, were far removed from normal trading situations in respect of such securities, since they were not intended to participate in an economic activity on the securities market, but rather were intended only to satisfy the rights of the attaching creditor.
41 In the light of the information set out in the request for a preliminary ruling, according to which the dispute in the main proceedings essentially concerns the question whether an invitation to subscribe to shares in a company that may be held only by the provinces and municipalities of a Member State and the transfer of which is subject to approval by the board of directors of that company is subject to the obligation of prior publication of a prospectus laid down in Article 3(1) of the Prospectus Directive, it is still necessary, in order to provide the referring court with an answer that is fully useful for the resolution of that dispute, to determine whether an invitation to subscribe to such shares constitutes an offer ‘to the public’ within the meaning of Article 3(1) of that directive.
42 Under Article 3(1) of the Prospectus Directive, ‘Member States shall not allow any offer of securities to be made to the public within their territories without prior publication of a prospectus’. However, according to paragraph 2 of that article, that obligation does not apply to certain types of offers of securities, including the one mentioned in point (a) of that paragraph, which covers any offer of securities ‘addressed solely to qualified investors’.
43 In that regard, it should be noted, first, as the Advocate General observed in point 37 of his Opinion, that the definition of the concept of an ‘offer of securities to the public’, the terms of which are set out in paragraph 35 above, is worded broadly, without restriction as to the persons concerned by such an offer or the manner in which that offer is to be communicated.
44 Secondly, whereas, under Article 4(1)(d) of the Prospectus Directive, the obligation to publish a prospectus is not to apply to shares offered, allotted or to be allotted free of charge to existing shareholders, such an exception is not provided for where an offer to subscribe to shares in a company is addressed, for consideration, solely to the shareholders of that company.
45 Thirdly, it should be noted that recital 16 of the Prospectus Directive expressly states that that directive takes account of the different requirements for protection of the various categories of investors and their level of expertise and, thus, does not provide for the obligation to publish a prospectus in the event of an offer limited to qualified investors, within the meaning of that directive.
46 Article 3(2)(a) of the Prospectus Directive, read in the light of recital 16, provides for such an exception in respect of such investors, including in particular, according to Article 2(1)(e)(ii) of that directive, national and regional governments, but not local authorities.
47 Therefore, municipalities, which are local authorities, are not covered by Article 2(1)(e)(ii) of the Prospectus Directive.
48 Since the municipalities likewise do not, subject to verification by the referring court, fall within another category of ‘qualified investors’ referred to in Article 2(1)(e) of the Prospectus Directive, an offer of securities such as that at issue in the main proceedings, which is addressed both to the municipalities and to the provinces of a Member State, cannot be regarded as being addressed ‘solely to qualified investors’, within the meaning of Article 3(2)(a) of that directive. In those circumstances, it is irrelevant whether or not the Belgian provinces may constitute ‘regional governments’ within the meaning of Article 2(1)(e)(ii) of the Prospectus Directive.
49 It follows, admittedly subject to the exceptions referred to in Article 3(2)(b) to (e) of the Prospectus Directive and in Article 4 thereof, which are not mentioned in the order for reference as being intended to apply in the present case, that, in a case such as that at issue in the main proceedings, there is an ‘offer of securities to the public’, within the meaning of Article 3(1) of that directive, subject to the obligation of prior publication of a prospectus, provided that the terms of the offer do not make the negotiability of the securities at issue on the capital market between offerors and potential investors impossible or extremely difficult.
50 In the light of all the foregoing considerations, the answer to the question referred is that Article 2(1)(a) of the Prospectus Directive must be interpreted as meaning that shares in a company that may be held only by the provinces and municipalities of a Member State and the transfer of which is subject to approval by the board of directors of that company fall within the concept of ‘securities’ within the meaning of that directive, such that an invitation to subscribe to such shares is subject to the obligation of prior publication of a prospectus, laid down in Article 3(1) of that directive, provided that the terms of the offer do not make the negotiability of those shares on the capital market between offerors and potential investors impossible or extremely difficult and that none of the exceptions set out in Article 3(2) and Article 4 of that directive applies.
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.