Alfred Hirmann v Immofinanz AG.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2013:856
• Docket Number: C‑174/12
• Celex Number: 62012CJ0174
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 19 December 2013

JUDGMENT OF THE COURT (Second Chamber)

19 December 2013 ( *1 )

‛Reference for a preliminary ruling — Company law — Second Directive 77/91/EEC — Liability of a public limited liability company for breach of its obligations in respect of advertising — Inaccurate information in share prospectus — Extent of liability — Legislation of a Member State providing for repayment of the price paid by the purchaser for purchased shares’

In Case C‑174/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Handelsgericht Wien (Austria), made by decision of 26 March 2012, received at the Court on 12 April 2012, in the proceedings

Alfred Hirmann

v

Immofinanz AG,

intervening party:

Aviso Zeta AG,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, J.L. da Cruz Vilaça (Rapporteur), G. Arestis, J.-C. Bonichot and A. Arabadjiev, Judges,

Advocate General: E. Sharpston,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 17 April 2013,

after considering the observations submitted on behalf of:

— Mr Hirmann, by S. Ganahl and J. Moyal, Rechtsanwälte,

— Immofinanz AG, by A. Zahradnik and B. Rieder, Rechtsanwälte,

— Aviso Zeta AG, by A. Jank, Rechtsanwalt,

— the Austrian Government, by A. Posch, acting as Agent,

— the Portuguese Government, by L. Inez Fernandes and D. Tavares, acting as Agents,

— the European Commission, by G. Braun and R. Vasileva, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 12 September 2013,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of: — Articles 12, 15, 16, 18, 19 and 42 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the [second paragraph of Article 48 EC], in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), as amended by Council Directive 92/101/EEC of 23 November 1992 (OJ 1992 L 347, p. 64) (‘the Second Directive’), — Article 14 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16; ‘the market abuse directive’), — Articles 6 and 25 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ 2003 L 345, p. 64; ‘the prospectus directive’), — Articles 7, 17 and 28 of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ 2004 L 390, p. 38, ‘the transparency directive’), — Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of [the second paragraph of Article 48 EC], with a view to making such safeguards equivalent (OJ 2009 L 258, p. 11).

2 The request has been made in proceedings between Mr Hirmann and Immofinanz AG (‘Immofinanz’) concerning an application for the cancellation of an acquisition of shares in the latter.

Legal context

European Union law

3 The fourth recital in the preamble to the Second Directive is worded as follows: ‘… Community provisions should be adopted for maintaining the capital, which constitutes the creditors’ security, in particular by prohibiting any reduction thereof by distribution to shareholders where the latter are not entitled to it and by imposing limits on the company’s right to acquire its own shares’.

4 Articles 12, 15, 16, 18 to 20 and 42 of the Second Directive provide, inter alia: ‘Article 12 Subject to the provisions relating to the reduction of subscribed capital, the shareholders may not be released from the obligation to pay up their contributions. ... Article 15 (a) Except for cases of reductions of subscribed capital, no distribution to shareholders may be made when on the closing date of the last financial year the net assets as set out in the company’s annual accounts are, or following such a distribution would become, lower than the amount of the subscribed capital plus those reserves which may not be distributed under the law or the statutes. … (d) The expression “distribution” used in subparagraphs (a) and (c) includes in particular the payment of dividends and of interest relating to shares. … Article 16 Any distribution made contrary to Article 15 must be returned by shareholders who have received it if the company proves that these shareholders knew of the irregularity of the distributions made to them, or could not in view of the circumstances have been unaware of it. ... Article 18 1. The shares of a company may not be subscribed for by the company itself. … Article 19 1. Where the laws of a Member State permit a company to acquire its own shares, either itself or through a person acting in his own name but on the company’s behalf, they shall make such acquisitions subject to at least the following conditions: (a) authorisation shall be given by the general meeting, which shall determine the terms and conditions of such acquisitions, and in particular the maximum number of shares to be acquired, the duration of the period for which the authorisation is given and which may not exceed 18 months, and, in the case of acquisition for value, the maximum and minimum consideration. …; … Article 20 1. Member States may decide not to apply Article 19 to: … (d) shares acquired by virtue of a legal obligation or resulting from a court ruling … ... Article 42 For the purposes of the implementation of this Directive, the laws of the Member States shall ensure equal treatment to all shareholders who are in the same position.’

5 Article 14(1) of the market abuse directive provides: ‘Without prejudice to the right of Member States to impose criminal sanctions, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied [with]. Member States shall ensure that these measures are effective, proportionate and dissuasive.’

6 Recital 10 in the preamble to the prospectus directive states that the aim of that directive is to ensure investor protection and market efficiency.

7 Articles 6 and 25(1) of the prospectus directive are worded as follows: ‘Article 6 Responsibility attaching to the prospectus 1. Member States shall ensure that responsibility for the information given in a prospectus attaches at least to the issuer or its administrative, management or supervisory bodies, the offeror, the person asking for the admission to trading on a regulated market or the guarantor, as the case may be. The persons responsible shall be clearly identified in the prospectus by their names and functions or, in the case of legal persons, their names and registered offices, as well as declarations by them that, to the best of their knowledge, the information contained in the prospectus is in accordance with the facts and that the prospectus makes no omission likely to affect its import. … Article 25 Sanctions 1. Without prejudice to the right of Member States to impose criminal sanctions and without prejudice to their civil liability regime, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible, where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that those measures are effective, proportionate and dissuasive. …’

8 Articles 7, 17(1) and 28(1) of the transparency directive are worded as follows: ‘Article 7 Responsibility and liability Member States shall ensure that responsibility for the information to be drawn up and made public in accordance with Articles 4, 5, 6 and 16 lies at least with the issuer or its administrative, management or supervisory bodies and shall ensure that their laws, regulations and administrative provisions on liability apply to the issuers, the bodies referred to in this Article or the persons responsible within the issuers. ... Article 17 Information requirements for issuers whose shares are admitted to trading on a regulated market 1. . The issuer of shares admitted to trading on a regulated market shall ensure equal treatment for all holders of shares who are in the same position. ... Article 28 Penalties 1. Without prejudice to the right of Member States to impose criminal penalties, Member States shall ensure, in conformity with their national law, that at least the appropriate administrative measures may be taken or civil and/or...