C-32/74

In view of the intensification of trade on coordination of safeguards which, for patterns following the creation of the the protection of the interests of Common Market and in the interest of members and others, are required legal transactions between nationals of by Member States of companies within different Member States, it is important the meaning of the second paragraph of that any person wishing to establish and Article 58 of the Treaty, with a view to develop trading relations with companies making such safeguards equivalent situated in other Member States should throughout the Community, must be be able easily to obtain essential interpreted as meaning that were the information relating to the constitution body authorized to represent a company of trading companies and to the powers may consist of one or of several of persons authorized to represent them: members, disclosure must be made not the relevant information should only of the provisions as to therefore be expressly stated in official representation applicable in the event of registers or records, even if certain the appointment of several directors, but information follows automatically from also, in the event of the appointment of national legislation or may appear a single director, of the fact that the self-evident. latter represents the company alone, Article 2 (1) (d), second sentence, of the even if his authority to do so clearly First Council Directive of 9 March 1968 flows from national law.

In Case 32/74

Reference to the Court under Article 177 of the EEC Treaty by the Bundes-

composed of: R. Lecourt, President, C. Ó Dálaigh, President of Chamber, A. M. Donner, R. Monaco, J. Mertens de Wilmars, P. Pescatore (Rapporteur) and H. Kutscher, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and procedure of the case and Directive on coordination of safeguards the written observations submitted which, for the protection of the interests pursuant to Article 20 of the Protocol on of members and others, are required by the Statute of the Court of Justice of the Member States of companies within the EEC may be summarized as follows: meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ L 65, I — Facts and written pro­ p. 8). cedure According to its recitals, this Directive is concerned with the coordination of On 9 March 1968 the Council of the provisions laid down by law, regulation European Communities adopted a First or administrative action in the Member

States concerning disclosure, the validity The entry made on the companies of obligations entered into by, and the register with regard to representation of nullity of, companies limited by shares the limited liability company Friedrich or otherwise having limited liability, for Haaga GmbH, having its head office the purpose of protecting the interests of in Stuttgart, states, in accordance with a third parties. Such disclosure must in clause of the instrument of constitution particular allow third parties to have of the company that knowledge of the basic documents of a 'if several directors are appointed, the company and certain other information company shall be represented by two concerning the company, especially directors or by a director and a particulars of the persons who are "prokurist" (duly authorized person)'. authorized to bind the company. By decision of 11 August 1971 the To this end Article 2 (1) (d) lays down Rechtspfleger (an official concerned in that the Member States shall take the the administration of justice, entrusted measures required to ensure compulsory with certain jurisdictional functions, disclosure by companies of the ap especially in relation to non-contentious pointment, termination of office and jurisdiction) attached to the Amtsgericht particulars of the persons who either of Stuttgart, whose duty it is to keep the as a body constituted pursuant to law or company register, required the Haaga as members of any such body are company to state, before 1 October, the authorized to represent the company in directors' abstract power of representa dealings with third parties and in legal tion in a number sufficient to represent

It is clear from the wording of 15 August 1969, implementing the of the entries in the register that if only First Council Directive on coordination one director is appointed, he alone re of company law (Bundesgesetzblatt I, p. presents the company. 1146), the law on limited liability On 1 October 1971 the Amtsgericht companies: a third paragraph was added dismissed this objection and submitted it to Article 8, according to which the on appeal, on 16 November, to the

representation itself. The latter is still in a decision of 6 May 1971, it was exercised jointly if there are several unable to bring a finding to this effect directors, individually if there is only and submitted the case on a further one. appeal to the Bundesgerichtshof,

By order of 14 February 1974, the Bundesgerichtshof therefore decided, II — Written observations pursuant to Article 177 of the EEC submitted to the Treaty, to stay the proceedings until Court such time as the Court of Justice has given a preliminary ruling on the The Commission observes that the following question: question referred by the Bundesge­ 'Ought Article 2 (1) (d), second sentence, richtshof is essentially concerned to of the First Directive of the Council of discover whether, in the case where the the European Communities of 9 March body authorized to represent a company 1968 on the coordination of company consists of a single member, the fact law (OJ L 65, 14. 3. 1968, p. 8) to be that he alone represents the company interpreted as meaning that in cases must be disclosed, given that the where the body authorized to represent a representative body of a company may consist of one or of several members and company may consist of one or of several members and where in the event that, in the event of a single member of only one member being appointed being appointed, national law strictly national law compulsorily lays down his lays down that the latter has sole exclusive authority to represent the authority to represent the company. It must therefore be ascertained whether company, then there must be disclosure not only of the provisions as to the Article 2 (1) (d), second sentence, of the Directive of 9 March 1968 necessitates a representation of the company appli­ cable in the event of the appointment of disclosure in the following form: 'If several members, but also of the fact in there is a single director, he alone the event of the appointment of a single represents the company.' member he alone represents the (a) The text itself of the provision in company? Or may the last-mentioned question and purely grammatical particulars be omitted on the ground analysis do not provide a clear answer to that the possibility of only one person this question. The obligation to disclose being appointed to the body authorized 'whether the persons authorized to to represent the company, as well as his represent the company may do so alone sole authority to represent the company, or must act jointly' may refer only to the follow automatically from the entry case where several persons are relating to the power of several persons authorized to represent the company; on

In effect, the laws in force in the The Commission, represented by its Member States do not diverge where the Legal Adviser, R. Wägenbaur, as agent, submitted oral observations at the representative body consists only of one hearing on 2 October 1974. person; a third party may be sure that, throughout the whole Community, the The Advocate-General presented his sole member of the body authorized to opinion at the hearing on 23 October represent a company is authorized to 1974.

Law

1 By Order of 14 February 1974, registered at the Court on 14 May, the Bundesgerichtshof, pursuant to Article 177 of the EEC Treaty, referred a question on the interpretation of Article 2 (1) (d), second sentence, of the First Council Directive of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies, with a view to making such safeguards equivalent throughout the Community (OJ L 65, p. 8) concerning compulsory disclosure of certain information relating to bodies authorized to represent the company in dealings with third parties.

JUDGMENT OF 12. 11. 1974 — CASE 32/74

2 It appears from the order for reference that this question was referred as the result of an objection raised in non-contentious proceedings against an order issued by the Registrar of Companies, requiring the private limited liability company concerned to indicate the directors' power of representation and, in particular, to specify that, in the event of only one director being appointed, he is authorized to represent the company alone. The Company opposed this requirement on the ground that the entry demanded was superfluous, since from the wording of the entries on the register it was already clear that if only one director was appointed, he alone represented the company, according to the legislation in force in the Federal Republic of Germany.

'Member States shall take the measures required to ensure compulsory disclosure by companies of at least the following documents and particulars:

(d) the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body:

HAAGA

— are authorized to represent the company in dealings with third parties and in legal proceedings;

— take part in the administration, supervision or control of the company.'

The second sentence of Article 2 (1) (d), the interpretation of which is sought, adds that 'is must appear from the disclosure whether the persons authorized to represent the company may do so alone or must act jointly.'

6 This interpretation is in conformity with the objective of the Directive, which is to guarantee legal certainty in dealings between companies and third parties in view of the intensification of trade between Member States following the creation of the Common Market. In view of this fact, it is important that any person wishing to established and develop trading relations with companies situated in other Member States should be able easily to obtain essential information relating to the constitution of trading companies and to the powers of persons authorized to represent them. In the interest of legal transactions between nationals of different Member States, it is therefore important that all the relevant information should by expressly stated in official registers or records, even if certain information follows automatically from national legislation or may appear self-evident. In fact, third parties cannot be expected to have a full knowledge of the legislations or current commercial practices of other Member States. It therefore appears necessary to require, insofar, as the power of representation of directors of a limited liability company is concerned, that an entry should appear on the Companies Register conveying this information to third parties, even if it seems possible to deduce this information, in the absence of any entry on the Register, by logical reasoning or reference to national law.

7 The answer to the question referred should therefore be that Article 2 (1) (d), second sentence, of the First Council Directive of 9 March 1968 on

in answer to the question referred to it by the Second Civil Senate of the Bundesgerichtshof by order of 14 February 1974 hereby rules:

Article 2 (1) (d), second sentence, of the First Council Directive of 9 March 1968 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, with a view to making such safeguards equivalent through­ out the Community, must be interpreted as meaning that where the body authorized to represent a company may consist of one or of several members, disclosure must be made not only of the provisions as to representation applicable in the event of the appointment of several directors, but also, in the event of the appointment of a single director, of

HAAGA

the fact that the latter represents the company alone, even if his authority to do so clearly flows from national law.

Lecourt Ó Dálaigh Donner

Monaco Mertens de Wilmars Pescatore Kutscher

1 — Translated from the French.