C-136/87

OPINION OF MR CRUZ VILAÇA — CASE 136/87

OPINION OF MR ADVOCATE GENERAL CRUZ VILAÇA delivered on 8 March 1988 *

Mr President, was able to operate lawfully as a part- Members of the Court, nership.

4. However, it was under the name of 1. The Hoge Raad der Nederlanden 'Ubbink Isolatie BV' (without the addition (Supreme Court of the Netherlands) has of 'i. o.', meaning 'in formation') that submitted to the Court of Justice for a Ubbink made an agreement with Dak- en preliminary ruling four questions concerning Wandtechniek and it was thus under that the rules governing the nullity of companies name that an action was brought against it laid down in the First Council Directive by the latter company before the Arron- (68/151/EEC) of 9 March 1968 1 on coor- dissementsrechtbank (District Court) of dination of the safeguards required of Arnhem for termination of the agreement companies by national law in order to and for a determination of contractual protect the interests of members and others liability thereunder. Ubbink Isolatie objected (which I shall refer to as the First Directive). that the private limited liability company Ubbink Isolatie BV did not lawfully exist since it was neither constituted nor registered in the commercial register under I — Summary of the facts leading to the that name; actions undertaken in that name request for a preliminary ruling had therefore been carried out unlawfully.

8. A — The first question referred by the national court is the most important one. It asks whether, when actions have been 13. Since the moment of acquisition of legal carried out in the name of a private limited personality is a matter governed by national liability company which has not been validly law, and the directive contains no provision constituted, inasmuch as it does not satisfy in that respect, the first question put by the either of the requirements for valid national court can only be answered in the constitution laid down by national law, the negative. rules laid down in Section HI of the First Directive require that 'company' to be regarded as being in existence so long as its nullity has not been declared in proceedings 14. That is also my view as regards the initiated for that purpose. answer to be given to that question.

liability companies (of the type known in 22. The latter does not require the national Portugal as 'sociedades por quotas') and legislature — subject to the provision in public limited liability companies to satisfy Article 12 — to choose between the various two conditions in order to be validly kinds of nullity which may attach to any of constituted: an authentic instrument of the defects listed in Article 11 (2) (nullity, constitution must have been executed and declaration of nullity, non-existence). the company must have passed a prior Similarly, as regards procedure, no pref- administrative scrutiny, evidenced by a erence is expressed in the directive for a ministerial authorization. system whereby such kinds of nullity may be pleaded by way of a preliminary objection or for a system whereby they may be declared only in the context of separate 18. It may be said that a system of that proceedings. type, in which the acquisition of legal personality for companies is not dependent on completing registration formalities, fits awkwardly into the scheme of the directive, which is conceived largely on the basis that 23. It is thus clear that the first question put the commercial register is an important by the national court cannot be answered in means of safeguarding the interests of third the affirmative: from the directive there is parties and protecting business transactions, nothing to be inferred as to whether a especially in international trade. It may be company which does not fulfil the noted, for example, that the absence of such conditions for valid constitution laid down registration is not listed among the grounds by national law may be regarded as a of nullity in Article 11, a reflection of the company in existence so long as it has not fact that in most of the Member States there been the subject of a declaration of nullity is legislation linking the acquisition of and whether, in order to obtain such a collective personality to registration on such declaration, separate proceedings must have a register. been instituted for the purpose.

26. In order to examine that question it is in the second place, the two acts necessary necessary to consider the question of nullity for the valid constitution of a company and in the case of anomalous companies. which, it is agreed, were lacking — the authentic instrument of constitution and the certificate of approval — are expressly referred to in the grounds of nullity given in 27. The general scheme of the directive and Article 11 (paragraph 2 (a)), and no other a number of its provisions indicate, in fact, was mentioned in the course of the that the Community legislature intended to proceedings. define and coordinate national rules on nullity for companies having legal personality or entered on the commercial register as if they had it (since, as we have 31. B — Do any of the circumstances seen, national legislation most often makes referred to in the other three questions put the acquisition of legal personality subject to by the national court affect the conclusion I such registration). The wording of Article have reached as to the first question? 11 itself, as we have seen, supports that interpretation; and Article 7, the only one which expressly envisages acts carried out in the name of a company before it has 32. It will be recalled that in those questions acquired legal personality, appears to the Hoge Raad asked whether the reply to confirm it. the first question would be otherwise if:

28. However, I do not consider it necessary (i) there was no authentic instrument of to resolve that question in these constitution or the rules of preventive proceedings. control were not complied with, or both;

33. As regards the first question (Question the obligations arising from such action, the 2 of the reference for a preliminary ruling), persons who acted shall, without limit, be it has no influence on the reply to be given jointly and severally liable therefor, unless to Question 1 since both the requirements otherwise agreed'. That, and only that, is referred to therein must be satisfied, as what the First Directive requires as far as appears to be the case in Dutch law, in safeguarding the interests of third parties in order to validly constitute a company. It the case of companies still in formation is would only be otherwise if only one of concerned. those requirements sufficed for the valid constitution of a company under national law: the reply to Question 1 must therefore 38. In other words, it is for each Member stand in any case as regards the conse- State to determine by its legislation whether quences of failure to fulfil the requirements and to what extent, regardless of the fact necessary for the valid constitution of a that a company is 'in formation' and apart company. from the personal liability of those who have so acted (Article 7 of the directive), the fact that such actions have been carried out 34. As far as the other two questions are in the name of the company which has not concerned, the national court was referring been properly constituted constitutes in law directly to the situation with which the main sufficient legal grounds for a declaration of proceedings are concerned. nullity in respect of the anomalous or de facto company and, in particular, whether for that purpose there must exist an organ- ization of persons or assets. 35. In the first place, legal actions were carried out in the name of a private limited liability company which had not yet been 39. It appears from the documents on the properly constituted since it failed to fulfil file that Ubbink Isolatie was registered in the two requirements for that purpose the commercial register as a private limited imposed by Dutch legislation. liability company 'in formation', subject to the rules governing partnerships.

conditions to be satisfied for their by the First Directive, Article 7 of the constitution or their nullity falls, as a rule, directive must apply. Were it otherwise, its outside the scope of the directive and is aim of safeguarding the interests of third therefore a matter for national legislation to parties could be frustrated by the legal regulate. expedient of regarding such an organization as a partnership. The national legislature is 42. I consider, however, contrary to the therefore not at liberty to organize at will argument put forward by Ubbink, that when the rules governing liability for such entities the existence of a partnership is equivalent, (for example, by making solely the under an express disposition of national law management or the shareholders liable); it or in accordance with the interpretation has already been stipulated, by Article 7, given of it by legal doctrine or the courts, to that the persons who acted in the name of a company in formation, which is covered the company must be made liable.

III— Conclusion

43. In the light of the foregoing I suggest that the replies to be given to the questions put by the Hoge Raad should be as follows:

'(1) Each Member State has power to lay down its own rules governing the nullity of companies in formation of the types listed in Article 1 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, provided that in so doing they comply with Article 7 of the directive. Consequently, there is nothing in the provisions contained in Section III of the First Directive which makes it necessary to regard a private limited liability in formation which does not satisfy the conditions for valid constitution of such a company laid down by national law, but in whose name actions have been carried out, as a company which exists until a declaration of nullity has been made in proceedings instituted for that purpose.