C-134/91
ECLI:EU:C:1992:353
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OPINION OF MR TESAURO —JOINED CASES C-134/91 AND C-135/91
OPINION OF ADVOCATE GENERAL TESAURO delivered on 22 September 1992 *
Mr President, authorities before national courts and that Members of the Court, Article 25 in conjunction with Article 41(1) of the Second Council Directive must be interpreted as meaning that they preclude 1. The questions on which the Efeteio, Athi- national rules which, in order to ensure the nos (Court of Appeal, Athens), has survival and continued operation of under- requested the Court of Justice to give a pre- takings which are of particular economic and liminary ruling in this case relate to the social importance for society as a whole and scope and the direct effect, if any, of certain are in exceptional circumstances by reason of provisions of the Second Council Directive their excessive debt burden, provide for the 77/91/EEC of 13 December 1976 on coordi- adoption by administrative act of a decision nation of safeguards which, for the protec- to increase the company capital, without tion of the interests of members and others, prejudice to the right of pre-emption of the are required by Member States of companies original shareholders when the new shares within the meaning of the second paragraph are issued. of Article 58 of the Treaty, in respect of the formation of public limited liability compa- nies and the maintenance and alteration of 3. The only new issue raised by the instant their capital, with a view to making such case relates to the effect which Commission safeguards equivalent ('the Second Council Decision 88/167/EEC of 7 October 1987, 4 Directive'). 1 adopted under the procedure provided for in Article 93 of the EEC Treaty, may have on the applicability of the Second Council Directive. 2. Replies to two of the three questions have already been given in the recent judgments in Eleftheri Evangiliki Ekklisia 2 and Karelia In its third question, the national court asks and Karellas. 3In particular, in the judgment whether Decision 88/167, in which the Com- in Karelia and Karellas — to which I would mission stated that it had no objections to refer, since the parties have not raised any the implementation of Law N o 1386/1983, new arguments in these proceedings with provided that the Greek Government, by respect to those put forward on that occa- 31 December 1987, amended the provisions sion — the Court ruled that Article 25(1) of of that law so as to bring it into conformity the Second Council Directive may be relied with Article 25 et seq. and 29 et seq. of the upon by individuals against the public Second Council Directive, was intended to exempt Greece from the obligation to imple- ment that directive before that date * Original language: Italian. (31 December 1987). 1 — OJ 1977 L 26, p. 1. 2 — Judgment of 24 March 1992 in Case C-381/89 Eleftheri Evangiliki Ekklisia [1992] ECR I-2111. 3 — Judgment of 30 May 1991 in Joined Cases C-19/90 and C-20/90 Karelia and Karellas [1991] ECR I-2691. 4 — OJ 1988 L 76, p. 18.
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KERAFINA v GREEK STATE A N D OTHERS
Although that issue was not expressly raised Neither do I consider that a careful reading by the national courts in the earlier proceed- of the decision in question discloses any fac- ings, it was in fact mentioned in the parties' tors suggesting that the Commission observations in Eleftheri Evangiliki Ekklisia intended in this case to diverge unlawfully and indeed in my Opinion in that case I did from its previous practice, thus possibly cre- take up this point when I stated that, by that ating a legitimate expectation in interested decision, the Commission, 'far from endors- parties. ing, even for a transitional period, an infringement of Community law, simply intended to set a final time-limit for the competent authorities to adopt the measures necessary to bring the infringement to an end and, secondly, the Commission itself had In fact, the sixth paragraph in section II of no power to suspend temporarily the appli- Decision 88/167/EEC reads as follows: cability of provisions which are contained in a Council directive and which are directly effective' (section 7 of the Opinion).
'Examination of Law 1386/1983 showed that the provisions regarding the method to be adopted for increasing the capital of compa- nies taken under control of the BRO infringed Articles 25 et seq. and 29 et seq. of 4. In this context, I can only confirm the Council Directive 77/91, Second Council view which I have already given, while Directive on Company Law. If a Member pointing out that, as is clear from the Court's State proposes a measure incorporating State case-law 5 and from the consistent practice of aids which infringes Community rules other the Commission, 6 the Commission cannot, than the State aids provisions of the Treaty, within the confines of the discretionary the procedures of Articles 92 and 93, powers conferred upon it by the Treaty in although they grant a wide discretion to the relation to the assessment of State aids, Commission, may not nevertheless produce authorize derogations from the application a result which is contrary to those rules. of Community rules other than those pro- Accordingly, the Commission is unable to vided for in the Treaty provisions concerning exercise its discretionary powers pursuant to State aid. Article 92(3) until such infringements have been eliminated'.
5 — Judgments in Case C-21/88 Du Pont de Nemours [1990] ECR I-889, in Case 18/84 Commission v France [1985] ECR 1339, in Case 73/79 Commission v Italy [1980] ECR 1533 and in Case 91/78 Hansen [1979] ECR 935. 6 — I am referring in particular to the decisions relating to State aid in the agricultural sector in which the Commission states that even ifit were possible to apply a derogation pursuant In the light of that statement, Article 1 of the to Article 92(3) of the EEC Treaty, the fact that the aid mea- decision was not capable of giving rise to any sure in question constitutes an infringement of the common organization of the market precludes the application of a uncertainty or expectation as to the Com- derogation: cf. decisions 90/197/EEC of 4 October 1989, OJ 1990 L 105, p. 15, 89/580/EEC of 21 March 1989, OJ 1989 L mission's intention to grant derogations, 324, p. 26, 89/229/EEC of 21 December 1988, OJ 1988 L 94, p. 43, 88/605/EEC of 8 June 1988, OJ 1988 L 334, p. 22, and which in any case, I repeat, were not within 88/39/EEC of 6 May 1987, OJ 1987 L 23, p. 18. its powers.
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OPINION OF MR TESAURO —JOINED CASES C-134/91 AND C-135/91
5. In conclusion, therefore, I propose that the Court should reply the questions referred for a preliminary ruling by the Efeteio Athinion:
(1) The combined provisions of Article 25 and Article 41(1) of the Second Coun- cil Directive must be interpreted as precluding national rules which, in order to ensure the survival and continued operation of companies of particular eco- nomic and social importance for society which, in view of their over- indebtedness, are in an exceptional situation, provide for the adoption by administrative act of a decision to increase the company capital, while preserv- ing the preemptive right of the original shareholders when the new shares are issued.
(2) Article 25(1) of the Second Council Council Directive 77/91/EEC of 13 December 1976 may be invoked against public authorities before the national courts by an individual.
(3) Commission Decision 88/167/EEC of 7 October 1987, by which the Commis- sion stated that it had no objection to the implementation of Law 1386/1983, provided, inter alia, that the Greek Government amended before 31 December 1987 the provisions of that law so as to bring them into conformity with Arti- cle 25 et seq. and Article 29 et seq. of the Second Council Directive, does not introduce for the Hellenic Republic a derogation from the application of that directive until 31 December 1987.
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