C-83/91

MEILICKE V ADV/ORGA

OPINION OF ADVOCATE GENERAL TESAURO delivered on 8 April 1992 *

Mr President, accordance with the formal provisions of Members of the Court, company law, is temporally and substan- tively connected with a compulsory transac- tion by virtue of which the liquid funds 1. In these proceedings the Court is asked received by the company as a result of the for an interpretation of certain provisions of contribution in cash are returned to the sub- Council Directive 77/91/EEC of 13 Decem- scriber. Such an operation constitutes, ber 1976 on coordination of safeguards according to the prevailing case-law and which, for the protection of the interests of views of legal writers, a circumvention of the members and others, are required by Mem- provisions concerning contributions in kind ber States of companies within the meaning — which require publication and verification of the second paragraph of Article 58 of the of the value of the contribution made. The Treaty, in respect of the formation of public penalty for infringement of such provisions limited liability companies and the mainte- may take the form of an obligation to return nance and alteration of their capital, with a the contribution made. view to making such safeguards equivalent * ('the Second Directive').

contain precise information, such as the increased its capital in April 1989: the issue description of the assets, the valuation crite- of new shares was guaranteed by Com- ria and the relationship of the value of the merzbank, which as a result became the contribution to the value of the shares owner of them. Moreover, as early as De- issued; the report must also be published. cember 1988, Commerzbank had already Article 27(2) lays down a similar require- acquired a majority shareholding in ment regarding contributions in kind made ADV/ORGA; it had also granted loans to following an increase of capital. that company.

Taking the view that the answers given by the management were not exhaustive, Mr Finally, Article 7 provides for general protec- Meilicke instituted proceedings before the tion against fraud and states that the sub- Landgericht Hannover, which has territorial scribed capital may be formed only of assets jurisdiction by virtue of Paragraph 132 of the capable of economic assessment. AktG, seeking a decision as to whether or not the management of the company was under an obligation to disclose the informa- tion requested. It should be pointed out at 3. The facts of the case before the national this stage that under Paragraph 131, first court display certain peculiarities such as to paragraph, first sentence, of the AktG the make this case to say the least unusual in a management is required to provide a share- number of respects. The company holder with information on the business of A D V / O R G A F. A. Meyer AG (hereinafter the company to the extent to which such 'ADV/ORGA'), which had been experienc- information is relevant to a proper assess- ing serious difficulties for several years, ment of any item on the agenda.

I - 4898

MEILICKE V ADV/ORGA

After legal proceedings were commenced, laid down in the German case-law — of the further clarifications were given to Mr invalidity of the discharge of the obligations Meilicke in writing with the result that — as deriving from ADV/ORGA's loan — con- stated by the national court itself in the tracted before the increase of capital — by order for reference — the main issue in the means of the contribution in cash made by dispute must be regarded as resolved. 4 the lender itself, Commerzbank.

4. That is the issue which remains unre- solved. The Landgericht, unlike the defen- dant company, considers that the informa- tion provided does not enable the The Landgericht therefore sought a prelimi- contribution in question to be unequivocally nary ruling from the Court of Justice, in classified. In particular, the Landgericht order to decide whether or not such a right appears to consider that the additional infor- to the information exists, requesting a deci- mation requested by Mr Meilicke is such as sion as to the conformity with the Second to have an impact on his rights as a share- Directive of the principles underlying the holder, in so far as it might even prompt a doctrine in question. The national court also declaration — in the light of the principles stated that it wished to take advantage of the Article 177 procedure in order to ensure legal certainty, after referring to the afore- 4 — In fact the Landericht merely states that it is not necessary to mentioned judgment of the Bundesgericht- give a decision since the information has already been sup- shof and pointing out that that judgment had plied, without specifying the kind or amount of information provided in response to Mr Meilicke's request. not escaped criticism in Germany itself.

I - 4899

O P I N I O N O F M R TESAURO — CASE C-83/91

5. The 'Meilicke case' may be summarized as Significantly, the position adopted by Mr follows: (a) the dispute before the national Meilicke in this case is not intended to bring him any 'useful result' through his claim being upheld, for the simple reason that he proposes that it be dismissed, on the ground 5 — See for example Die Verschleierte Sacheinlage; eine deutsche Fehlentwicklung, Stuttgart 1989; 'Die Kapitalaufbringungs- that his application has no basis in law. This vorschriften als Sanierungsbremse-Ist die deutsche Interpre- tation des § 27 Abs 2 AktG-richtlinienkonform' in DB, may be tantamount to a lack of any interest 1989, p. 1067 et seq.; and also Meilicke-Recq, 'L'apport de créances détenues sur une Société en difficulté financière', in Revue Trimestrelle de Droit Européen, 1991, p. 587. 6 — Such a position undermines, in my view, the plaintiff's actual interest in bringing an action. Joost, commenting o n the 7 — This is in fact a peripheral matter which is without conse- Landgericht's order for reference (EWiR § 183 AktG 1/91, p. uence, at least in so far as there is no reason to believe that 325), expressed doubts as to the admissibility of the applica- tion seeking information itself, specifically because Meilicke â ie proceedings before the national court are in the nature of a procedural device fabricated by the parties in the manner himself considers the doctrine of disguised contributions in described by the court in the well-known judgments in Case kind to be without foundation, thus invalidating the basis of 104/79 Foglia V Novello I [1980] ECR 745 and in Case the right to the information. 244/80 Foglia V Novello II [1981] ECR 3045).

That said, I cannot omit to mention that the existence of an interest in bringing an action In particular, the Court is asked whether the (and, accordingly, the existence of a dispute) provisions of the Second Directive are is a matter which should have been consid- directly applicable; whether Articles 10, 11 ered by the national court in the light of its and 27(2) merely provide minimum protec- national procedural rules. Moreover, as is tion or whether Article 11, which ensures apparent from the facts of the case, the infor- compliance with Articles 10 and 27(2), con- mation provided by the company has only stitutes a complete set of rules against cir- partly settled the dispute: accordingly, the cumvention or, finally, whether the purpose national court still considers itself under an of Articles 10 and 27(2), in conjunction with obligation to give a decision on the further Article 11, is to ensure uniform protection information requested by Meilicke and, for against circumvention; whether an increase that purpose, it is asking the Court whether in capital by repayment of a debt payable by the doctrine of disguised contributions in the company to the subscriber should be kind is compatible with the Second Direc- classified as an increase in capital in cash, an tive. increase in capital against a non-cash consid- eration, or whether it is possible to choose between the two classifications. And also: whether the first sentence of Article 7 allows a contribution in the form of a waiver of a 6. This brings us to the questions submitted claim against the company at its nominal by the national court. value, regardless of the company's solvency; what are the detailed rules for identifying unacceptable circumvention of the rules on contributions in kind, in the event of Articles In the first question, the Landgericht asks 'Is 7, 10, 11 and 27(2) being interpreted as lay- it compatible with European Community ing uniform rules against circumvention, law in principle to apply the rules concern- rules which prohibit 'disguised contributions ing safeguards in relation to non-cash sub- in kind'; whether it is compatible with Arti- scriptions of capital to the extinguishment of cle 25(1) for an increase of capital in cash, a public limited company's liabilities decided upon by the general meeting and incurred prior to an increase in its capital by duly paid, to be regarded as void merely the use of cash subscribed by the creditor?'. because the contribution in cash reverts Precisely in order to resolve that question of wholly or in part to the subscriber; finally, compatibility the Landgericht goes on to what are the consequences — deriving from submit seven more questions, each of which the fact that it may be impossible to enforce is divided into numerous alternative ques- a claim made against the company as a con- tions and sub-questions. Merely for reasons tribution in cash — regarding repayment of a of economy, therefore, I would refer those company's debt towards a subscriber.

7. By way of preliminary, I would observe in that way, the provisions in question are that those questions, as already indicated, are intended to be applied. intended to allow the national court cor- rectly to apply a provision of national law (Paragraph 131 of the AktG) but are not intended to resolve — at least formally and directly — a problem of Community law. Moreover, any doubt regarding the jurisdic- tion of the Court to give a ruling in disputes which raised matters of Community law in relation to a national provision must now be regarded as disposed of following the judg- It does not seem to me, however, that that ment in Dzodzi,10 in which, inter alia, the fact is of conclusive importance for the juris- Court expressly stated that 'the Community diction of the Court of Justice in this matter. legal order manifestly has an interest, in The Court itself has stated that it may refuse order to avoid future divergences of inter- to give a ruling on a question submitted by a pretation, in ensuring uniform interpretation national court only 'if it is quite obvious that of all provisions of Community law, regard- the interpretation of Community law or the less of the circumstances in which they will examination of the validity of a rule of Com- be applied' (paragraph 37). munity law sought by [the national] court bears no relation to the actual nature of the case or to the subject-matter of the main action', 8 in particular where 'it is obvious that the provision of law submitted for inter- pretation by the Court cannot be applied'. 9 In the present case, the right to information (and thus the 'reference' to Community law) is based on the interpretation provided by the German case-law of the national provi- sions concerning contributions in kind, pro- visions which were adopted in order to In the present case, therefore, any declara- implement the Second Directive. From that tion that the Court lacks jurisdiction could standpoint, the analogy with Dzodzi seems be justified only if it were obvious that the to me to be beyond doubt: the fact that the provision of Community law of which an reference to Community law is based on a interpretation had been sought from the formal provision of national law or on the Court is not intended to be applied either interpretation thereof as provided by the directly or indirectly. Let me say straight highest national courts does not seem to me away that that is not the case here: the inter- to constitute, for a national court called upon pretation of the provisions of the Second to determine a dispute in which a problem of Directive concerning contributions in kind that kind arises, an important difference. constitutes a precondition for the application Moreover, the national court considers that of Paragraph 131 of the AktG and therefore, the national provisions, which were primarily adopted to implement the Second Directive, conflict, as interpreted in German

case-law, with the Community provisions of 'reformulating' the questions submitted by which an interpretation is sought. the national court, particularly in so far as it reaches the conclusion that the problem of entitlement to information must be resolved in accordance with national law. It hardly 8. That having being explained, I think it is needs emphasizing that the national court appropriate to consider briefly the view put does indeed intend determining the dispute forward by the Commission as to the 'real' by applying a provision of national law: nev- subject-matter of the dispute in these pro- ertheless, it takes account of the fact that the ceedings. The Commission, recalling that it precondition for application of the relevant is not for the Court to comment on the rea- national provision is the interpretation of sons which prompted the national court to certain Community provisions to which, seek a preliminary ruling, quotes a passage essentially, national law, as interpreted by the from the Foglia v Novello II judgment in German courts, ultimately refers. which the Court stated that the duty assigned to it was 'not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administra- tion of justice in the Member States', n going Whilst it is true that the Court has often on to conclude that it is necessary clearly to reformulated the questions submitted by define the true subject-matter of the dispute national courts, albeit only in order to pro- before the national court, reformulating — if vide a relevant answer, it is also true that the necessary — the questions submitted to it. Court reformulates questions only where they are not properly expressed or else extend beyond the ambit of its powers under Article 177, confining itself, moreover, to In the Commission's opinion, in order to selecting from all the information supplied resolve the dispute before the national court, by the national court, and in particular from it would be sufficient to establish — this the grounds of the order for reference, the being in fact the only matter of contention matters of Community law which require — whether Community company law pre- interpretation — or, if appropriate, a deci- vents the Landgericht from acceding to the sion as to their validity — having regard to request for information under Paragraph the subject-matter of the dispute. 12 131 of the AktG. The Commission therefore suggests that the questions be 'reformulated' in that way and that the answer should be that, in the absence of Community coordina- tion of legislation on entitlement to informa- By means of a somewhat 'obscure' reformu- tion, it is necessary to refer to national law in lation, the Commission suggests, however, order to resolve the issue. answering a question which was not asked (not even incorrectly), which in any event, having regard to the grounds for the order for reference, does not cover the real issue I must confess that I am not entirely clear as to the method used by the Commission in 12 — Judgments in Case 35/85 Ussier [1986] ECR 1207, para- graph 9; Case 54/80 Wilner [1980] ECR 3673, paragraph 4; Case 4/79 Providence Agricole de la Champagne [1980] 11 — Case 244/80, cited above, paragraph 18. ECR 2823, paragraph 15.

raised in the proceedings before the national (or, of course, to the extent to which the court and which, therefore, does not help the Second Directive was actually irrelevant to national court in any way to determine the that doctrine), I wonder whether it is possi- case before it. ble to maintain that the interpretation of the relevant provisions of the directive is of no importance for the purpose of deciding whether or not such entidement to informa- tion exists. Essentially therefore, the Commission's view implies that none of the questions submitted by the national court is relevant to settle- ment of the dispute. Even if that were the case, it is difficult to see why the questions should be reformulated in such a way that a 'non-answer' is given: as regards the actual Whilst it is beyond doubt that in the present substance, why not clearly state that the case the applicable provision is a provision of questions are not relevant. national law, it is not clear, contrary to what the Commission appears to think, that no provision of the Second Directive provides grounds for concluding that it is inimical to the possible legal consequences of the 9. The very reasons on which the Commis- request for the information in question. O n sion relies in support of its view, moreover, the other hand, it is clear, in my opinion, that give rise to considerable uncertainty. The if the additional information requested by Commission submits that the Landgericht's Mr Meilicke prompted the conclusion that reference to the Court is to be regarded as the operation in question was a disguised premature, in so far as the answer given by contribution in kind, that would provide a the Court, although certainly allowing the basis for declaring that the operation involv- national court correctly to apply its own ing A D V / O R G A and Commerzbank was in national law (in this case Paragraph 131 of breach of the rules requiring supervision and the AktG), would not resolve any dispute publication, with the result that Com- from the standpoint of Community law. merzbank might be compelled, in certain cir- Indeed, the very reference to the 'premature' cumstances, to claim back the contribution nature of the reference, as argued at the hear- made — and, possibly, do so in breach of the ing, would appear to indicate that doubts relevant provisions of the Second Directive. were actually raised as to the appropriateness of a reference at that stage of the proceed- ings, a fact which in itself is not such as to render irrelevant the questions submitted with a view to a decision being given in the proceedings. Admittedly, it might also be contended that a specific problem of interpretation of the rel- evant provisions of Community law could arise directly only after the type of contribu- Furthermore, in so far as the request for tion with which the main proceedings are information, as described in the order for concerned had been specifically classified, reference, would be unfounded if the classification being possible by granting doctrine of disguised contributions in kind Mr Meilicke's request for further informa- were incompatible with the Second Directive tion. However, I feel unable to share that

In any event, suffice it to point out that the approach taken by the national court is dif- ferent: besides the fact that the present case involves the existence or otherwise of a dis- As already stated in point 6, the first ques- guised contribution in kind, as envisaged by tion sets out in general terms the problem the German case-law, a pronouncement by which the Court is called on to resolve, the Court as to whether the doctrine at issue without specifying the provisions of Com- is in conformity with the Second Directive munity law concerned; in the subsequent would amount to deciding 'upstream' the questions on the other hand, specific refer- dispute as to the entitlement to information. ence is made to the provisions of the Second It need hardly be added that in that sense the Directive (and at the same time the interpre- interpretation provided by the Court is in tation sought) which might be important for any event destined to be applied. the purpose of answering the first question.

It thus proves necessary, in conformity with In order to resolve that problem, the numer- the previous decisions of the Court in this ous questions submitted by the Landgericht sphere referred to earlier, '4 to undertake a Hannover may be reformulated as follows: ('traditional') reformulation of the questions submitted by the national court.

'1. Must claims made against (and contrib- uted to) a company be regarded, within the Considering that in the present case the pur- meaning and for the purposes of the Second ported entitlement to information is sought Directive, as contributions in kind, or must to be exercised in order to establish whether they, and if so to what extent, be treated in a double payment has been made, compris- the same way as contributions in cash? ing the repayment of a loan (contracted by A D V / O R G A ) by means of the contribu- tions made by the lender itself (Com- merzbank), the essential issue — as made clear by the national court in the first ques- 2. If (and to the extent to which) they are to tion — is to establish whether the repayment be classified as contributions in kind: does of a debt linked temporally and materially Article 11 of the Second Directive contain with a contribution in cash must be subject complete rules against circumvention of the to the provisions on verification and publica- provisions of Articles 10 and 27(2) thereof, tion laid down in the Second Directive for or is the possibility left open to the Member contributions in kind as a result of the fact States to take action otherwise than in the that the reimbursement was made using specific cases envisaged in that article? financial resources contributed by the credi- tor itself in order to subscribe for the shares.

fortiori the repayment of a debt using finan- (a) Minimum protection cial resources provided by the selfsame creditor of the company in order to sub- scribe for shares must be regarded as being in conformity with the Second Directive, without there being any question — even in the abstract — of circumvention of the provisions governing contributions in kind. 12. First of all, the second recital in the pre- amble to the Second Directive states that its purpose is 'to ensure minimum equivalent protection for those shareholders and credi- tors of ... companies'. At first sight, that statement is conducive to the conclusion that the adoption of more rigorous protective O n the other hand, if the conclusion is measures than those laid down at Commu- reached that a claim against a company must nity level or, if they already exist as part of be subject to the rules governing contribu- the law of a Member State, their maintenance tions in kind, the problem may well arise of in force is to be regarded as proper. the lawfulness of such an operation in the context described: in such circumstances it would therefore be necessary to establish whether the Second Directive contains com- plete rules on preventing circumvention of the provisions on contributions in kind or whether it allows the Member States to issue It is true that the aim of 'minimum equiva- stricter rules for protection. lent protection' does not necessarily imply that the Member States are entitled to dero- gate, even by means of stricter rules, from the requirements of the directive. It is clear that the same aim can be attained by means of mandatory rules which ensure a minimum standard of harmonization but at the same In order to establish whether contributions time leave the Member States free to adopt of claims must be regarded as contributions stricter rules, solely within certain limits laid in cash or as contributions in kind, it is down by the directive. therefore necessary first to decide whether the Second Directive itself intended to define the borderline between those categories of contributions or whether, on the other hand, by not defining those concepts positively, it left the Member States free to give them the scope attributed to them in their own legal Even a superficial analysis of the Second orders and, more generally, whether the Sec- Directive shows that whilst certain provi- ond Directive contains only minimum sions do expressly lay down minimum requirements (or in any event brings about requirements (for example Articles 2, 3 and minimal harmonization) or whether, on the 26), thus leaving the Member States free to other hand, it contains exhaustive rules on adopt stricter measures, it is also true that the matter. I shall begin by briefly consider- there are other provisions which leave the ing the latter point. national legislature without any margin of

13. It is therefore clear, as is well illustrated by the example just given, that the demarca- tion line between contributions in cash and contributions in kind has a significant impact Furthermore, the fact should not be over- on the very scope of the directive, in view of looked that the aim of ensuring 'minimum the different rules laid down for the two cat- equivalent protection for both shareholders egories of contributions; consequendy, the and creditors of ... companies' might be concepts in question must be interpreted undermined by the fact that those categories without regard to the fact that the rules of persons (creditors and shareholders) have against circumvention are only minimum interests which do not always coincide: requirements or constitute complete rules greater protection of one category might from which the Member States may not der- therefore operate to the detriment of the ogate, not even by adopting stricter rules. other.

It should also not be forgotten that the sys- by the contributor against third parties, tem established by the Second Directive is maintaining that the provisions on contribu- characterized by the dichotomy between tions in kind apply only in the latter case. In contributions in cash and contributions in particular, in the case of claims made against kind, thus ruling out the possibility of iden- the company, in nearly all the Member tifying cases not covered by one or the other. States 16 the 'conversion of debt into capital' The Second Directive, whilst not expressly is permitted and normally put into effect by defining the concepts in question, signifi- means of an increase in capital in cash with a cantly adopted for contributions in kind the simultaneous set-off, whether by operation residual definition of 'consideration other of law or intention of the parties, of the debt than in cash'. That seems to me to indicate due in respect of the contribution and the that the concepts must be applied uniformly claim of the subscriber against the company. in all the Member States.

The interpretation of the concepts in ques- tion may not be left to the discretion of the Since the purpose of the rules of contribu- Member States but must be a Community tions in kind is to avoid the danger of over- definition: otherwise the Second Directive valuation (either of property or of claims) to would be incapable of ensuring even a mini- the detriment to the company and to protect mal degree of harmonization (in so far as it the interests of shareholders and creditors, it would vary from one State to another) and is necessary to establish whether there is any in any event even the 'minimum equivalent risk that a claim made against and contrib- protection' referred to in the second recital uted to the company was overvalued to the to the directive would not be guaranteed. detriment of that company, the members and/or the creditors.

I - 4909

OPINION OF MR TESAURO — CASE C-83/91

report, precisely because the aforementioned nated and the capital figure is increased. In requirements underlying the rules on contri­ this internal operation, the company's debit butions in kind have already been satisfied. item corresponding to the subscriber's claim can only be used at its nominal value.

I - 4910

MEILICKE v ADV/ORGA

N o r does it seem to me to be correct to raise requiring contributions to be made up of such a problem with reference to the impres- assets which can be objectively valued in sion that operations of the type in question cash terms. And a claim certainly can be val- may give to third parties, in the sense that ued in ... cash terms. the latter might be deceived as to the compa- ny's state of 'health'. In that connection, I shall merely observe that an increase of cap- ital, whether effected by contributions in kind or by contributions in cash in the true A contribution comprising the waiver of a sense of the term, is not in any event a suit- claim against the company at its nominal able basis for informing third parties as to value, regardless of the solvency or otherwise the financial status of the company. Seen in of the company, and thus even when the that light, the problem is, if anything, the company is in critical financial circum- question of the lawfulness of an increase of stances, must therefore be regarded as per- capital before losses are eliminated (when the mitted by the provision in question. More- net worth of the company is less than its over, the letter and purpose of that provision capital, or minimum capital or is even less do not undermine, and on the contrary sup- than zero) and not whether it is lawful to port, the view that the economic assessment extinguish a debt of the company by means of a claim made against the company must of a contribution made by the subscriber of be made from the company's point of view, new shares. As regards the protection of without taking account of its solvency, and shareholders and creditors, therefore, in cir- certainly not from the creditor's point of cumstances of this kind the considerations view. set out in the foregoing part of this opinion remain valid.

cash. This means, in the present context, that II — Protection against circumvention of no problem arises, not even in the abstract, the rules governing contributions in kind of any circumvention of the provisions on contributions in kind in cases of double pay- ment, provided that — I repeat — the claim is a cash claim which is liquid and payable. 17. The limits within which a claim against the company may be extinguished by means of an increase in capital in cash having been established, I shall go on to consider Articles 10, 11 and 27(2) in order to establish whether they contain mere minimum requirements, and if so subject to what limits, or provisions Where, on the other hand, those conditions which lay down exhaustive rules, thus leav- are not satisfied, for example because the ing no margin of discretion to the Member claim has not yet come to its ordinary matu- States. rity, it can merely be a contribution in kind, thus rendering inevitable a valuation of it, which cannot be left to the discretion of the directors. And that is not so much because that assessment is required of the term of the More specifically, it is necessary at this stage claim, the interest and/or other conditions, to establish whether Article 11 lays down a but rather because the directors would be complete set of rules against circumvention left to assess the equivalence of the advantage or, in view of the letter and the ratio legis of deriving from discharge of the obligation Articles 10 and 27(2), the Member States are undertaken towards the subscriber by means in any event permitted to lay down stricter of the sacrifice of assets represented by non- rules in order to prevent any circumvention. receipt of the contribution.

are to be subject to rules similar to those laid 1). 17 That provision allows the national leg- down in Article 10(1), and also to Article islature to apply stricter rules than those for 10(2) and (3). which it provides: in fact, it expressly states that the two-year period applicable to acqui- sitions subject to the provisions on verifica- tion and publicity may be extended, and the circle of persons affected by the rules in Article 10, for its part, provides specifically question may be widened, so as to include that contributions in kind are to be the sub- shareholders and others. ject of a valuation report (paragraph 1). A degree of discretion is allowed only with regard to the details which may be incorpo- rated in the report over and above those which are obligatory (paragraph 2), and regarding the possibility of not applying paragraph 1, but only where the conditions The very fact that Article 11 expressly envis- exhaustively set out in paragraph 4 are ful- ages two cases in which the national legisla- filled. In short, it does not seem to me that ture is allowed to adopt stricter measures there can be any question of a minimum seems to support the view that the minimum requirement, since the limits within which equivalent protection provided for by the the Member States may render the rules in Second Directive is to be understood as question stricter (paragraph 2) or less strict meaning that Member States may apply (paragraph 4) are expressly indicated. stricter rules only where the directive makes provision in that regard and only within the limits laid down by the directive.

States a mere right to derogate or otherwise cases of 'circumvention' which might arise, from the provision in question, as it did in or whether on the other hand it must be other cases where it used words like 'the concluded that, by treating only the case Member States may decide not to apply ...'. under review as equivalent to a contribution The fact that acquisitions made in the normal in kind, the Community legislature intended course of the company's business are to exclude similar cases from the possibility expressly removed from the scope of the of being treated in a manner analogous to rules on contributions in kind provides a fur- that laid down in Article 11(1). In order to ther ground for excluding the application by answer this question it is of course appropri- analogy of Article 11(1) to cases not ate to consider the ratio legis of the provision expressly provided for, even though they in question. involve transactions which, essentially, 'cir- cumvent' the application of the provisions on contributions in kind.

18 — In any event, it does not apply to acquisitions effected after 20 — A case such as that described here might, in the absence of the expiry of two years as laid down in the provision in specific rules, arise where a transaction is carried out to cir- question (or such longer terms as may have been laid down cumvent the taw and therefore is penalized by being by the national legislature). declared void. Naturally, in such a case it would be neces- 19 — It is quite clear that the case referred to may arise only in sary to prove the existence of circumstances characterizing connection with an increase in capital, since there are a transaction designed to circumvent the law, namely the extremely few cases in which a claim could be made against fact that the transaction is capable of achieving the same (and contributed to) a company which had not yet been result as that which is prohibited, together with the inten- incorporated; in essence that can only be done in respect of tion, on the part of both parries, to circumvent a mandatory the costs of setting up the company itself. provision.

I - 4914

MEILICKE v ADV/ORGA

Having regard to the ratio legis of Article 11(1) and the fact that Article 11(2) excludes from its scope transactions in the ordinary Whilst the requirement of avoiding circum- course of the company's business, I consider vention of the provisions concerning verifi- it necessary to exclude any possibility of cation and publication also clearly applies intervention by the national legislature (or after every increase of capital, I do not think even of an interpretation by the courts it appropriate to advocate extending the lim- designed to supply any such lacuna) which, itation in question to acquisitions made by by adopting a 'standardized' description of the company after increases of capital. It is, all possible cases of circumvention which in my opinion, an exceptional provision might arise, serves to impose penalties with- which, in so far as it places a limitation on out taking any account of whether there the capacity of the company, cannot be really was any fraudulent intent and any det- applied by analogy. riment to the interests involved.

Personally, I consider that there is no basis formal provisions or on interpretation by the for such an interpretation, which conflicts courts) cannot ipso facto render unlawful, both with the letter and with the spirit of the merely because they are linked with an provisions I have considered. It need hardly increase of capital, operations which are per- be pointed out that the consequence would mitted by the Second Directive. be that, while some operations are by defini- tion regarded as undertaken with a view to circumvention by reason of the amount and the time at which they take place, other transactions (involving a lower amount), in respect of which it is provided that such rules are not to apply, with the obvious aim of ensuring the expeditious dispatch of busi- Accordingly, the repayment of a company's ness, would ultimately be treated in a much debt using financial resources contributed by stricter manner. the creditor on subscribing for shares is — in principle — lawful under the relevant provi- sions of the Second Directive, unless fraudu- lent intent is proved on the part of the par- ties and, as already stated, it may be penalized by the measures laid down for that purpose under the general laws in force in each country.

by individuals before national courts as In the present case the national court is against the administration. called on to decide whether or not a share- holder is entitled to information, having regard to the doctrine of disguised contribu- tions in kind. In such a situation, as the Court long ago made clear, 'regardless of the effects of the directive ... an interpretation ... In the present case, the problem arises in a may be helpful to the national court so as to different context, in that the issue appears to ensure that the law adopted for the imple- be whether the Second Directive, which has mentation of the directive is interpreted and already been implemented in internal law applied in a manner which conforms to the (and, as far as is apparent from the present requirements of Community law'. 24 case, correctly) may be relied upon as against private persons (for example by a share- holder or creditor against a company).

Considering that, as stated at the outset, the Moreover, as the Court of Justice made clear doctrine of disguised contributions in kind is in Marleasing,25 in applying national law not based on formal provisions but is depen- 'the national court must interpret its own dent on the interpretation attributed by the national law in the light of the text and pur- Supreme German Courts (inter alia) of the pose of the directive in order to achieve the provisions actually adopted to implement the result pursued by the latter and thus to com- Second Directive, 23 it does not seem to me ply with the third paragraph of Article to be correct to describe the problem, as did 189 of the Treaty'. the German Government in its observations, in terms of 'horizontal effects' of the direc- tive.

I-4917

OPINION OF MR TESAURO — CASE C-83/91

23. In the light of the foregoing, therefore, I propose that the Court replies as fol- lows to the questions (as reformulated by me) submitted by the Landgericht Han- nover:

' 1 . A claim made against a company and contributed to that company on the occa- sion of an increase in capital in cash is to be classed, within the meaning and for the purposes of the Second Directive, as a contribution in cash in so far as the claim in question is for cash and is liquidated and payable; a transaction compris- ing a double payment is therefore in conformity with the Second Directive, pro- vided that the claim is liquidated and payable.

2. Article 11(1) of the Second Directive, in conjunction with Articles 10 and 27(2) thereof, must be interpreted as meaning that it may not be applied by analogy to cases other than those envisaged therein; such cases remain subject, if appropriate, following an interpretation by the Court of Justice, to the general rules against cir- cumvention of the law and the like.

3. The national court, when called upon to apply the Second Directive, is required to interpret its own national law in the light of the text and the purpose of that directive.'