Súdny dvor Európskej únie·12.7.1990

C-106/89

ECLI:EU:C:1990:310

Súd: Súdny dvor Európskej únie
IČS: 61989CC0106
Zdroj: eur-lex.europa.eu ↗

OPINION O F MR VAN GERVEN —CASE C-106/89

O P I N I O N OF MR ADVOCATE GENERAL VAN GERVEN delivered on 12 July 1990 *

Mr President, Marleasing sought primarily a declaration as Members of the Court, to the nullity of the founders' contract on the ground that it was a sham transaction and of the instrument incorporating La Comercial on the ground that it was vitiated 1. The Juzgado de Primera Instancia e by the lack of (lawful) cause. In the alter- Instrucción, Oviedo, has asked the Court to native, Marleasing sought an order setting give a preliminary ruling on the interpre- aside the founders' contract and instrument tation of Article 11 of the First Council of incorporation on the ground that their Directive 68/151/EEC of 9 March 1968, 1 purpose was to defraud the creditors, and, hereinafter referred to as 'the First in the further alternative, a declaration Directive'. cancelling Barviesa's contribution to the company's assets for the same reason.

Background

2. This reference has been made in the In its defence, La Comercial relied, inter context of a dispute between Marleasing alia, on Article 11 of the First Directive, SA, the plaintiff, and a number of which lists exhaustively the cases in which defendants including La Comercial Interna- the nullity of a company may be declared. cional de Alimentación SA (hereinafter The lack of (lawful) cause, which is the referred to as 'La Comercial'). The latter primary ground relied upon by Marleasing, was incorporated in the form of a public is not included amongst those cases. limited company by three persons, including Accordingly, in La Comercial's view, there the company Barviesa SA, which can be no declaration of nullity of the contributed its own assets. Marleasing, company. which is an important creditor of Barviesa, contends that La Comercial was in fact set up by Barviesa alone and that the two other founders were men of straw. In its view, La Comercial was created for the sole purpose of putting Barviesa's assets beyond the reach 3. The court making the reference considers of its creditors. Relying on the provisions of that this case raises the problem of the the Spanish Civil Code on the validity of direct effect of a directive which has not yet contracts, Articles 1261 and 1275, according been transposed into national law by a to which contracts lacking cause or whose Member State. It points out in that cause is unlawful have no legal effect, connection that, pursuant to Article 395 of the Act of Accession, 2 the Kingdom of Spain was under an obligation to implement * Original language: Dutch. 1 — Council Directive on coordination of safeguards which, the First Directive as from the date of its for the protection of the interests of members and others, accession, but this had not yet been done at 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 2 — Act concerning the conditions of accession of the throughout the Community (OJ, English Special Edition Kingdom of Spain and the Portuguese Republic and the 1968 (I), p. 41). adjustments to the Treaties (OJ 1985 L 302, p. 23).

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the date of the order for reference. 3 The The question whether the First Directive has national court therefore submitted the direct effect may therefore be relevant for following question to the Court of Justice the solution of the dispute in the main for a ruling on interpretation: proceedings. I shall begin by briefly considering that question and answering it in the negative. Notwithstanding my negative answer, the directive must still serve as a frame of reference for the inter- 'Is Article 11 of Council Directive pretation of national law (see paragraph 7 et 68/151/EEC of 9 March 1968, which has seq. below), but only, of course, within its not been implemented in national law, own field of application (see paragraph 12 directly applicable so as to preclude a below). declaration of nullity of a public limited company on a ground other than those set out in the said article?'

A provision of a directive may not be relied 4. The national court correctly proceeds on upon as such against an individual the assumption that the legal form in which La Comercial was constituted, namely that of a public limited company, falls within the scope of the First Directive. 4The national court is also correct in assuming that this directive permits a declaration of nullity of 5. In its judgment in Becker 5 the Court such a company only on the grounds listed stated that where a provision of a directive in Article 11(2). It is quite apparent from is unconditional and sufficiently precise, it the final subparagraph of Article 11 that the may be relied upon by an individual against grounds of nullity listed in that provision a Member State which has failed to are exhaustive: transpose the directive into national law within the prescribed period. In its judgment in Marshall 6 the Court added that that possibility exists only in relation to the 'Apart from the foregoing grounds of Member State concerned and State bodies. nullity, a company shall not be subject to It follows from that finding: any cause of non-existence, nullity absolute, nullity relative or declaration of nullity.'

3 — In the meantime the Spanish legislature has approved Law N o 19/1989 of 25 July 1989 on the adjustment of commercial legislation to comply with the Community directives (BOE N o 178 of 277.1989). The provisions 'that a directive may not of itself impose concerning public limited companies were subsequently coordinated by Royal Decree No 1564/1989 of 22 obligations on an individual and that a December 1989 (BOE No 310 of 27.12 1989). Anieles 34 and 35 of that decree regulate the nullity of public limited provision of a directive may not be relied companies in accordance with the rules as to nullity estab- upon as such against such a person' lished by the First Directive. Whether those later provisions are relevant to the dispute in the main (Marshall, paragraph 48, emphasis added). proceedings is a matter for the national court, and need not be investigated here. 5 — Judgment in Case 8/81 Becker v Finanzamt Münster- 4 — See Article 1 of the First Directive, as amended by the Act Innennstadt[19S2] ECR 53, paragraphs 23 to 25). of Accession, according to which the following types of company fall within the scope of the directive: la sociedad 6 — Judgment in Case 152/84 Marshall v Southampton and anónima, la sociedad comanditaria por acciones, la South-West Hampshire Area Health Authority [1986] sociedad de responsabilidad limitada. ECR 723.

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That position has since been repeatedly 'in applying the national law and in reaffirmed, most recently in the judgment in particular the provisions of a national law Busseni. 7 specifically introduced in order to implement [the] directive... to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the 6. In this case La Comercial relies, in its third paragraph of Article 189'. defence against Marleasing's main contention, on a provision of a directive, namely Article 11 of the First Directive, which had not yet been transposed into Spanish law at the date of the order for reference. The prohibition laid down in that article on a declaration of nullity of a That obligation on the part of the national company on grounds other than those listed courts to interpret their national law in therein is without the slightest doubt uncon- conformity with a directive, which has been ditional and sufficiently precise to be reaffirmed on several occasions, 10 does not regarded on principle as directly applicable. mean that a provision in a directive has In the light of the established case-law of direct effect in any way as between indi- the Court, however, that provision cannot viduals. 11On the contrary, it is the national be relied upon by La Comercial against provisions themselves which, interpreted in a Marleasing in the main proceedings. There manner consistent with the directive, have is no evidence whatsoever that Marleasing is direct effect. acting as a State body or public authority, not even in the broad sense in which the Court has interpreted those terms again today. 8

8. The obligation to interpret a provision of national law in conformity with a directive The obligation to interpret national law in arises whenever the provision in question is conformity with the directive to any extent open to interpretation. 12 In those circumstances the national court must, having regard to the usual methods of inter- pretation in its legal system, give precedence 7. Although a provision of a directive may to the method which enables it to construe not be relied upon against an individual, national courts are still required, as the 10 — Judgments in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 53, Court of Justice stated in its judgment in in Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 12, in Case 31/87 Beentjes v Netherlands State Von Colson and Kamann: 9 [1988] ECR 4635, paragraph 39 and in Case 125/88 Nijman [1989] ECR 3533, paragraph 6. 7 — Judgment ¡n Case C-221/88 ECSC v Busseni [19901 11 — That is why, moreover, the relevant provision of the ECR 1-495. directive need not be 'unconditional and sufficiently precise' in order to serve as an interpretative criterion; see 8 — See in that regard my Opinion of 8 May 1990 in Case also, for the same view, the Opinion of Mr Advocate C-188/89 Foster v British Gas [1990] ECR 1-3313, at General Darmon of 14 November 1989 (paragraph 15) in p. 3326, and, more generally, my Opinion of 30 January Cases 177/88 Dekker[1990] ECR 1-3941, at p. I-3956 and 1990 in Case C-262/88 Barbery Guardian Royal Exchange 179/88 Hertz [1990] ECR I-3979. Insurance Group [1990] ECR I-1889, at p. 1912. 12 — With regard to that obligation see, amongst others, Y. 9 — Judgment in Case 14/83 Von Colson and Kamann v Land Galmot and J. C. Bonicnot: 'La Cour de justice des Nordrhein-Westfalen [1984] ECR 1891, paragraph 26. See Communautés européennes et la transposition des also the judgment in Case 79/83 Harz v Deutsche Tradax directives en droit national', Revue française de droit [1984] ECR 1921, paragraph 26. administratif 1988, p. 1 et seq, especially at p. 20 et seq.

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the national provision concerned in a the reasoning used by the Court to underpin manner consistent with the directive. 13 that requirement. It is based on the consideration that judicial authorities, like the other public authorities of the Member States, are required, in the light of Article 5 of the EEC Treaty, to seek to achieve the The obligation to give an interpretation in result pursued by the directive by all appro- conformity with a directive is, it is true, priate measures within their power. restricted by Community law itself, of which Furthermore, as part of Community law, the the directive forms part, and in particular by directive concerned in principle takes the principles of legal certainty and precedence over all provisions of national non-retroactivity which also form part of law. That is true in particular in the case of Community law. In cases involving criminal national provisions which, as in this case, proceedings, for example, such an interpre- relate to the branch of the law covered by tation cannot result in criminal liability the directive, even though they predate the unless such liability has been introduced by directive and were thus not enacted for its the national legislation implementing the implementation. 16 That ought to be clear directive. 14 Nor, similarly, can a directive now that the Court has held in Grimaldi 17 of itself—that is to say in the absence that national courts are required to take a of national implementing legislation non-binding recommendation into consider- — introduce a civil penalty, such as nullity, ation in connection with the interpretation in national law. However, that is not the of provisions of national law, even though issue here: this case is concerned with a those provisions do not give effect to the provision of a directive which excludes recommendation. certain grounds of nullity.

9. The question whether an interpretation is in conformity with a directive usually arises in relation to provisions of national law which are specifically intended to implement 10. Let us apply the foregoing principles to the directive concerned. That was the case the question under consideration. Since the in Von Colson and Kamann and in the cases First Directive had not been transposed into referred to in footnote 10. Spanish law at the material time, and the Spanish Law of 17 July 1951 concerning public limited companies lacked a specific rule as to nullity applicable to those

16 — In the case of national provisions adopted previously, an However, there is no reason to restrict the interpretation in conformity with the directive is normally applicable only as from the expiry of the time-limit for requirement that an interpretation must be implementation prescribed by the directive (or even as in conformity with a directive to that from the entry into force of the directive: sec the judgment in Kolpinghuis Nijmegen, paragraphs 15 and 16). Events situation. 15 That follows, in my view, from occurring prior to that Jate continue of course to be governed by the national provisions construed without regard to the directive. In this case, however, the company 13 — For a recent example see the judgment of the House of in question, La Comercial, was incorporated on 7 April Lords of 16 March 1989 in Litster [1989] 1 All ER 1134. 1987, that is to say at a time when the time-limit for the 14 — Judgment in Case 80/86 Kolpinghuis Nijmegen, cited implementation of the First Directive by Spain had already expired (namely on 1 January 1986). above, paragraph 13. 15 — See also, for the same view, my Opinion of 30 January 17 — Judgment in Case C-322/88 Grimaldi v Fonds des maladiei 1990 in Case C-262/88 Barber, paragraph 50. professionnelles [1989] ECR 4407.

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companies, the prevailing view in legal First Directive. That article must in conse- literature 18 is that the provisions relating to quence also be the focus of attention with the nullity of contracts are to be applied by regard to the interpretation of national analogy. In accordance with that view, legislation in conformity with the directive. Marleasing based its primary claim for a From that article, which is set out in full in declaration of nullity of the instrument of the Report for the Hearing (in incorporation of La Comercial on the paragraph 2), I shall quote only the two provisions of the Spanish Civil Code to the grounds of nullity to be discussed here. The effect that contracts lacking cause or whose laws of the Member States may provide for cause is unlawful have no legal effect. nullity to be ordered by decision of a court of law on the following grounds:

The national court is thus faced — as I '(a) . . . understand it — with a problem concerning the interpretation of company law. The question which arises is to what extent the grounds of nullity under ordinary law can (b) that the objects of the company are be applied by analogy to public limited unlawful or contrary to public policy; companies. It follows, in my view, from the reasoning set out in the preceding para- graphs that the requirement that an inter- pretation must be consistent with a directive (c) . . . precludes the application to public limited companies of the provisions on nullity under ordinary law in such a way as to permit a declaration of nullity of such a company on (d) . . . grounds other than those exhaustively listed in Article 11 of the First Directive.

(e) . . .

The scope of the rules on nullity in the First Directive (f) that, contrary to the national law governing the company, the number of founder members is less than two'.

11. The question submitted by the national In addition to Article 11 of the First court for a preliminary ruling concerns the Directive, Article 12 must also be borne in grounds of nullity listed in Article 11 of the mind. That article governs the effects of nullity. Once again, I shall quote only the 18 — On that point, the Commission refers to J. Garrigues: Curso de Derecto Mercantil, I, Madrid, 1982, p. 435 et seq. provisions which are relevant to this case: See, for that matter, Article 50 of the Spanish Commercial Code, which provides that commercial agreements — according to Article 116 of that code, a (trading) company constitutes a commercial agreement — are governed by the rules of ordinary law, except where otherwise provided by special rules. '1. . . .

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2. Nullity shall entail the winding-up of the instrument of incorporation — of itself fall company, as may dissolution. within the ambit of the rules on nullity established by the directive, at least in so far as the cancellation of the contract does not automatically lead to the nullity of the company. 3. Nullity shall not of itself affect the validity of any commitments entered into by or with the company, without prejudice to the consequences of the company's being wound up. Finally, the First Directive does not contain any rules governing the dissolution of companies, since I assume that the dissolution of a company normally has no retroactive effect and the commitments 4. The laws of each Member State may entered into by the company prior to its make provision for the consequences of dissolution therefore remain valid. nullity as between members of the company.

13. On the other hand, in so far as Marleasing's claim seeks a declaration of 5. . . . ' nullity of La Comercial as such, it does fall within the scope of Articles 11 and 12 of the First Directive. In so far as the national court is under an obligation to take those provisions into consideration when inter- 12. Article 11 of the First Directive can of preting its own national law (see above, course be of assistance to the national court paragraph 7 et seq.), it must deal with the in interpreting its own national legislation question whether the ground of nullity only in so far as the dispute before it relates referred to in Article 11(2)(b) of the to the nullity of a (limited) company. None directive covers the case of a company of the other matters raised in Marleasing's purportedly set up with the aim of placing primary or alternative claims before the the founders' creditors at a disadvantage. national court is affected by the directive. This, therefore, is a question involving the interpretation of the directive itself (an interpretation which, in turn, must be taken into consideration in the interpretation of That is true particularly as regards national law). Marleasing's action to set aside Barviesa's contribution to La Comercial's capital in so far as that contribution was allegedly made in order to defraud Barviesa's creditors. Before considering that question of interpre- Such a claim is not affected by the rules on tation, which is a controversial one in some nullity laid down by the First Directive. Member States, I should point out that in interpreting national company law the national court could perhaps also have had recourse to some of the other grounds of Nor, it seems to me, does a (preliminary) nullity set out in Article 11. The most contract between shareholders — in so far obvious ground is the one referred to in as it is to be distinguished from the actual Article 11(2)(f), according to which a

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Member State may provide for the nullity of application. However, it may not extend a company where, contrary to its national either the number or the scope of those law, the number of founder members is less grounds. than two (which means that the State rules out the possibility of a one-man company, either altogether or in the case of certain types of companies 19). Marleasing contended in the main proceedings that La Comercial was set up exclusively by Barviesa and that the other signatories of the instrument of incorporation were men of straw.

14. Hence the question raised by way of a reference for a preliminary ruling is, essen- tially, how Article 11(2)(b) is to be inter- preted. In the light of the facts central to the dispute in the main proceedings, this case turns on the meaning of the phrase 'the objects of the company'. The phrase Notwithstanding that contention, the 'unlawful or contrary to public policy', also ground of nullity in Article 11(2)(f) has not in Article ll(2)(b), is not at issue.

Never- been raised before the Court either in the theless, let me point out that the concept of written observations or at the hearing. Nor 'public policy' has frequently been raised in is it clear from the order for reference the Court's judgments in another whether at the material time Spanish civil or connection, namely in connection with commercial law contained any rules in that Article 48(3) of the EEC Treaty. In that regard and if so what rules, and whether context the Court has stated that although nullity was the penalty for contravening the scope of that concept cannot be

them. I do not therefore propose to consider determined unilaterally without being this ground further and shall confine myself subject to control by the Community to the observation that it depends on institutions, nevertheless it may vary from national law, to which Article 11(2)(f) one country to another and from one period expressly refers — if it provides that there to another and it is therefore necessary to must be (at least) two shareholders to set up leave the national authorities an area of a company — whether and to what extent discretion 'within the limits imposed by the the presence of founder members not acting Treaty and the provisions adopted for its on their own account may entail the nullity implementation'. In any event, says the of the company. 20 The national legislature Court, that concept presupposes 'the may refrain from adopting, or adopt only in existence, in addition to the perturbation of part, the grounds of nullity set out in Article the social order which any infringement of 11, and consequently restrict its field of the law involves, of a genuine and suffi- ciently serious threat … affecting one of the fundamental interests of society'. 21 As for 19 — In the meantime the Council has adopted the Twelfth Company Law Directive 89/667/EEC of 21 December the term 'unlawful', it refers, in my view, to 1989 on single-member private limited liability companies a conflict with a mandatory or uncondi-

(OJ 1989 L 395, p. 40). 20 — Frequently a distinction is drawn in that connection tional statutory prohibition or with public between persons who, without seeking to evade a morality (to the extent that it does not fall mandatory rule, properly act in their own name but on account of another as trustees, nominees or under a within 'public policy'). The concept of borrowed name, and persons who act as men of straw with a view to evading a mandatory rule such as the rule that a natural or legal person may have only one set of assets. 21 — Judgment in Case 30/77 Regina v Bouchereau[1977] ECR 1999, paragraphs 33 to 35.

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'public morality' has also been discussed in that a declaration of nullity of a company the Court's case-law, particularly in can be made if it was incorporated for the connection with Article 36 of the EEC (sole) purpose of placing the founders' Treaty, where reference has also been made creditors at a disadvantage, as Marleasing to the existence of a discretion on the part contends in the main proceedings. of the national authorities within the limits of Community law. 2 2 The limits set by Community law with regard to all of those concepts are essentially those contained in the First Directive. In some Member States the ground of nullity set out in Article ll(2)(b) has given rise to divergent interpretations on this very point. 2 5 That is not surprising in the light of the discussions and compromises between the Commission and the experts of the Member States in connection with the

15. This case is therefore concerned with adoption of Article l l . 2 6 In other Member the interpretation of the phrase 'the objects States, however, scarcely any attention has of the company'. That task is all the more been paid to that ground of nullity or, for delicate in view of the divergences on that that matter, to the entire system of nullity point between the different language established by the directive. versions of Article 11(2)(b). 2 3 According to the Dutch version of that provision, a declaration of nullity of a company may be made where its 'werkelijke doel' (actual objects) are unlawful or contrary to public The reason for that very uneven level of

policy. Must the phrase 'doel van de interest is not easy to determine. The vennootschap' (in the French version: 'objet existence in some countries of a preliminary de la société') be understood as meaning (judicial or administrative) review in exclusively the company's objects as connection with the incorporation of described in its instrument of incorporation joint-stock companies (see Article 10 of the or its statutes, or must it be understood as directive) may undoubtedly preclude the referring also to the activity actually carried on by the company or even the aim actually 25 — For instance in Belgium and France (but also in Germany and Italy — see the references in footnote 30): see, in pursued by means of the company (in the particular, L. Simont: 'Les régles relatives à la publicité, aux nullités et aux actes accomplies au nom d'une société sense of 'le but de la société')? 2 4 Only in the en formation', in Les sociétés commerciales. Jeune barreau,

latter case can the national court take the Bruxelles, 1985, p. 102 et seq; R. Houin: 'Chroniques de législations et de jurisprudence françaises — Sociétés view, without interpreting its national law in commerciales', Revue trimestrielle de droit commercial, 1970, a manner inconsistent with the directive, p. 736 et seq. In France the prevailing view seems to be that the French Law on companies, which was brought into line with the directive by Ordonnance No 1176 of 20 December 1969, leaves intact the grounds of nullity under 22 — Judgment in Case 121/85 Conegate v HM Customs and ordinary law (amongst others 'la cause illicite') which are Excise [19861 ECR 1007. paragraphs 14 io 16. not expressly excluded by Anicie 360. Some authors (sec, 23 — In the Dutch version, reference is made to 'het amongst others, Y. Serra: Chronique, Dalloz, 1973, p. 17 werkclijk(e) doel van de vennootschap'. In the German et seq.) have raised the question whether those French rules version, the words used arc '(der) tatsächlich(cr) are contrary to the First Directive. In Belgium's Dutch-

Gegenstand des Unternehmens'. In the French version language legal literature and case-law, in particular, the ('ľohjet de la société') and in the Italian version ('(il) broad meaning is advocated, having regard to the Dutch oggetto della società') the company's objects are not version of Article ll(2)(b) of the directive (see footnote qualified in any way. That is also true of the other 23): see, in particular, J. Ronse et at: Overzicht van recht- language versions drawn up by the Council following the spraak (1978-85) Vennootschappen, Tijdschrift voor Privaa- adoption of the directive, including the Spanish version trecht, 1986, p. 885 et seq. and the very recent judgment of ('(el) objeto de la sociedad'), which are equally authentic. the Rechtbank van Koophandel, Hasselt, of 28 May 1990, not yet reported. 24 — These three concepts are used side by side in the 1968 Convention on the mutual recognition of companies and 26 — Discussed in E. Stein: Harmonization of European

legal persons: sec footnote 32. Company Laws, 1971, p. 299 et seq.

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application of the rules on nullity. The more as far as possible. That does not rule out formal nature of the instrument of incor- either the possibility or desirability of pena- poration, which has the effect of 'detaching’ lizing such infringements in a different it from the underlying contractual manner which does not jeopardize the relationship to a greater extent in some existence of the company and is less Member States than in others is another detrimental to its creditors. possible reason which is especially relevant in this case.

16. In any event, it is clear from the rules Accordingly, I consider that the phrase 'the on nullity in the First Directive and also objects of the company' in Article 11(2)(b) from the other rules set out therein of the directive must be understood as concerning the disclosure and validity of meaning the company's objects as described commitments entered into by a company and disclosed in the instrument of incor- that the objective of 'protecting the interests poration or the statutes (see Article 2(1) (a) of third parties’ (second recital in the and also Article 3 of the directive). 28 Only preamble to the directive) must be rein- where the objects, in that sense, 'are forced in an expanded market as regards unlawful or contrary to public policy' can a companies which have no safeguards they declaration of nullity of the company be can offer to third parties other than their made. An aim for which the company was assets (first and third recitals in the incorporated but which is not stated in the preamble). The rules on nullity themselves, instrument of incorporation or the statutes, reflecting the need 'to limit the cases in for example to defraud the members' which nullity can arise and the retroactive creditors, 29 cannot have that consequence: effect of a declaration of nullity', are such illegality or conflict with public policy designed 'in order to ensure certainty in the (for instance, with the rule concerning the law as regards relations between the unity of the founders' assets) must be dealt company and third parties, and also with otherwise than by a declaration of between members' (sixth recital in the nullity (see paragraph 19 below). preamble). 27

In those circumstances, it seems clear to me 17. The foregoing observations must be that each ground of nullity, even taken on qualified by an important consideration. its own, must be given a narrow interpre- Both the German and Dutch versions of tation with a view to protecting the interests Article 11(2)(b) specify that a company's of third parties — that is to say the objects are to be understood as the actual company's creditors — and that a declaration of nullity as a result of 28 — The phrase ‘objects of the company’ is also used in Article infringements arising from the contractual 9(1) of the First Directive: see, on that point, E. Stein, op. cit, p. 282 et seq. In that provision as well, the phrase must relationship between the members of the be understood as referring to the company's objects as company or between the members and the described in the instrument of incorporation or the statutes, having regard to the special status of legal persons under company is a penalty which must be avoided the law. 29 — The protection offered to third parties by the First Directive is restricted to specified third parties, namely the 27 — As regards the effects of nullity vis-à-vis third parties, they company's creditors, and does not extend to third-party are regulated in a mandatory manner by the directive (see, creditors of the members. The reason for the special in particular, Article 12(2) and (3), quoted in paragraph 11 protection afforded to the company's creditors lies in the above). The effects as between the members themselves fact that, in the case of joint-stock companies, they have may be determined by the laws of each Member State no safeguard other than the company's assets: see the (Article 12(4), also quoted above). third recital in the preamble to the directive.

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(in Dutch 'werkelijke' and in German objects, that cannot give rise to the nullity 'tatsächlich') objects of the company. In my of the company but may lead to its view that is a useful clarification which is dissolution if national law so provides. not contradicted by the other language versions. It demonstrates that if the company's real activity, as carried on from the outset, is unlawful or contrary to public policy, the ground of nullity provided for in Article 11(2)(b) can be relied upon, even though that activity is not in accordance 18. The qualification set out in the previous with the company's presumably lawful paragraph, which I think is a useful one and objects as described in the instrument of finds support in the German and Dutch incorporation or the statutes. 30 Here are versions of Article 11(2)(b), does not strike some examples: (a) the company's objects me as being incompatible with the as specified in the instrument of incor- protection of the interests of third parties.

It poration or the statutes are the operation of helps to prevent third parties from being a hotel, whilst it is apparent in practice that misled by an activity which is falsely stated this means operating an (illegal) gaming as an object in the instrument of incor- room or allowing (the criminal offence of) poration or in the statutes but which from prostitution; (b) the company's objects, as the outset does not correspond to reality. set out in the instrument of incorporation, Furthermore, the activity actually carried are the production and exportation of steel on, unlike the intentions by which the tubes, whilst under that veil the company members were guided in setting up the (unlawfully) produces and supplies weapons. company, can normally be ascertained by third parties who enter into transactions with the company. Finally, if such a qualifi- cation is not made the ground of nullity in Article 11(2)(b) is emptied of a considerable part of its substantive content since the The activity must be one which was carried prohibition, so restricted, of objects which on from the outset. 31 If a company whose are unlawful or contrary to public policy is objects are lawful only subsequently carries then easily circumvented by stating objects on unlawful activities, contrary to its in the instrument of incorporation or the statutes of the company which are lawful 30 — See, for that view, amongst others J. Van Ryn en P. Van but spurious. 32 Ommeslaghe: 'Examen ae jurisprudence (1972 to 1978), les sociétés commerciales', Revue critique de jurisprudence belge, 1981, who on p. 241 suggest thai a heated 32 — It is noteworthy that Anicie 9 of the Convention of 29 controversy in that regard — to which the French legis- February 1968 on the mutual recognition of companies lation also gives rise (see R. Houin, op. cit., at p. 736 et and legal persons (Supplement 2/1969— Bull.

EC), which scq.) — should be resolved as follows: 'regard should be was signed shortly before the adoption of the First had not only to the company's objects as set out in the Directive, refers to a broader concept of the (company's) statutes but also to the activities actually carried on under objeets. It encompasses not only the 'company's objects' that veil'. Sec also I.. Simont op. cit. . No 28, who adds that and the 'activity actually carried on' but also 'the purpose' the possibility of nullity as a result of unlawful activities in (rendered in the French version as 'objet', 'activité effec- practice is all the more appropriate since in accordance tivement exercée' and 'but' respectively).

When one of with Article 9(1) of the First Directive the company is also those three is contrary 'to the principles or rules which the bound by acts which are ultra vires. The same view would State concerned regards as matters of public policy as appear to be taken in German legal literature: see Gessler, defined in private international law', that State mav refuse Hefermchl, Eckardt and Kropff: Alstiengesetz, 1986, pp. to recognize a foreign company. That difference between

275 and 276 In Italian legal literature, on the other hand, Article 9 of the Convention and Anicie 11(2)(b) of the views are divided: see A. Gorgioh: La nullità delta íocietã First Directive is no doubt connected with the specific per azioni, 1977, p. 414 et seq., and the references for and purpose of the directive, which is to restrict the nullity of against in footnote 126 on p. 414. companies in order to protect the interests of third panics. For the reasons given above, however, that restriction may 31 — See, for that view, in particular, F. Galgano: 'La società not go so far as to exclude from the company's objects the per azioni', Trattato di diritto commerciale e di diritto 'activity actually carried on (from the outset)' as well, pubblico dell'economia, VII, 1984, p. 101; J. Ronsc: De although it may exclude the 'purpose' of the founders of vcnnooticbapiwelgeving, 1973, p. 76, and L. Simont, op. the company, which is unknown to third panics.

cit. . No 28.

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OPINION OF MR VAN GERVEN —CASE C-106/89

19. The practical significance of the Summary suggested definition of the ground of nullity referred to in Article ll(2)(b), which, though restrictive, is not excessively so, should not be overestimated. For the creditors of a debtor who has contributed his assets to a company with a view to removing those assets from their grasp — a 20. To recapitulate, I have come to the possibility that does not come within that following conclusions. Article 11 of the First definition — a declaration of nullity of the Directive does not have direct effect as company would offer only limited between individuals, with the result that La protection. The legal effects of a declaration Comercial cannot rely directly on the of nullity must, after all, be consistent with exhaustive list of grounds of nullity set out the provisions of Article 12 of the First in the directive against Marleasing's claim. Directive, cited above (paragraph 11). This However, the national court is under an means that nullity entails the winding-up of obligation to interpret its national company the company, in the same manner as legislation in conformity with the directive dissolution. It also means that nullity does whenever such legislation is open to not of itself affect the validity of the divergent interpretations. This would appear company's commitments. The rules in the to be the case where, with regard to the directive thus leave intact the separate assets nullity of (public limited) companies, of a company which has been declared void, general concepts of the law of contract are with the result that in principle the applied by analogy, first because such members' creditors cannot recoup them- concepts are open to interpretation, and selves out of the goods contributed to the secondly because application by analogy is company by the members. only one possible method of interpretation. In such a case, it seems to me, the national court can easily, when applying national law, apply the exhaustive list of grounds in Article 11 and possibly — should a declaration of nullity of the company never- theless be made — the restriction on the retroactive effect of nullity pursuant to Article 12 of the First Directive.

As stated earlier (paragraph 12), the First Directive does not affect other penalties provided for by national law in those circumstances, and the creditors retain, for instance, the possibility of bringing an The ground of nullity in Article 11(2)(b) action to set aside in their interests any must be understood as encompassing only capital contribution made in disregard of unlawful objects or objects contrary to their rights. 33 Such an action will usually be public policy which are set out in the more effective in protecting their interests instrument of incorporation or the statutes than a declaration of nullity of the company or are shown by the activity actually carried itself. on by the company from its inception. The aim pursued by the founder members in 33 — Th is point would appear to be undisputed. Only one setting up the company, where it is not reference: P. Van Ommeslaghe: *La première directive du Conseil du 9 mars 1968 en matière de sociétés', Cahiers de expressed in the manner indicated above, droit européen, 1969, at p. 657. does not come within the company's objects

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MARLEASING

in that sense. However, that does not action to set aside transfers made in order prevent national law from enabling creditors to defraud creditors) which — in the light of founder members whose interests have of the limited effect of a declaration of been detrimentally affected from availing nullity — are usually just as effective and themselves of other remedies (such as the which the directive leaves intact.

Conclusion

21. In the light of the foregoing considerations, I propose that the question submitted for a preliminary ruling should be answered as follows:

'(1) Article 11 of Council Directive 68/151/EEC of 9 March 1968 cannot be relied upon as such against an individual. However, the national court must interpret its national legislation in the light of the wording and the purpose of that provision of the directive and, where a declaration of nullity is made, in the light of Article 12 of that directive.

(2) The phrase "the objects of the company" in Article 11(2)(b) of Directive 68/151/EEC must be interpreted as meaning the objects as described in the published instrument of incorporation or statutes of the company, or as shown by the activity actually carried on by the company from its inception.'

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