Opinion of Mr Advocate General Van Gerven delivered on 12 July 1990

1 Original language: Dutch.

2 Council Directive 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 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p. 41).

3 Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23).

4 In the meantime the Spanish legislature has approved Law No 19/1989 of 25 July 1989 on the adjustment of commercial legislation to comply with the Community directives (BOE No 178 of 27.7.1989). The provisions concerning public limited companies were subsequently coordinated by Royal Decree No 1564/1989 of 22 December 1989 (BOE No 310 of 27.12 1989). Article 34 and 35 of that decree regulate the nullity of public limited companies in accordance with the rules as to nullity established by the First Directive. Whether those later provisions are relevant to the dispute in the main proceedings is a matter for the national court, and need not be investigated here.

5 See Article 1 of the First Directive, as amended by the Act of Accession, according to which the following types of company fall within the scope of the directive: la sociedad anónima, la sociedad comanditaria por acciones, la sociedad de responsabilidad limitada.

6 Judgment in Case 8/81 Becker v Finanzamt Münster-Innennstadt [19S2] ECR 53, paragraphs 23 to 25).

7 Judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.

8 Judgment in Case C-221/88 ECSC v Busseni [19901 ECR I-495.

9 See in that regard my Opinion of 8 May 1990 in Case C-188/89 Foster v British Gas [1990] ECR I-3313, at p. 3326, and, more generally, my Opinion of 30 January 1990 in Case C-262/88 Barbery Guardian Royal Exchange Insurance Group [1990] ECR I-1889, at p. 1912.

10 Judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26. See also the judgment in Case 79/83 Harz v Deutsche Tradax [1984] ECR 1921, paragraph 26.

11 Judgments in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 53, in Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 12, in Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 39 and in Case 125/88 Nijman [1989] ECR 3533, paragraph 6.

12 That is why, moreover, the relevant provision of the directive need not be unconditional and sufficiently precise in order to serve as an interpretative criterion; see also, for the same view, the Opinion of Mr Advocate General Darmon of 14 November 1989 (paragraph 15) in Cases 177/88 Dekker[1990] ECR I-3941, at p. I-3956 and 179/88 Hertz [1990] ECR I-3979.

13 With regard to that obligation see, amongst others, Y. Galmot and J. C. Bonicnot: La Cour de justice des Communautés européennes et la transposition des directives en droit national, Revue française de droit administratif 1988, p. 1 et seq, especially at p. 20 et seq.

14 For a recent example see the judgment of the House of Lords of 16 March 1989 in Litster [1989] 1 All ER 1134.

15 Judgment in Case 80/86 Kolpinghuis Nijmegen, cited above, paragraph 13.

16 See also, for the same view, my Opinion of 30 January 1990 in Case C-262/88 Barber, paragraph 50.

17 In the case of national provisions adopted previously, an interpretation in conformity with the directive is normally applicable only as from the expiry of the time-limit for implementation prescribed by the directive (or even as from the entry into force of the directive: sec the judgment in Kolpinghuis Nijmegen, paragraphs 15 and 16). Events 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 in question, La Comercial, was incorporated on 7 April 1987, that is to say at a time when the time-limit for the implementation of the First Directive by Spain had already expired (namely on 1 January 1986).

18 Judgment in Case C-322/88 Grimaldi v Fonds des maladiei professionnelles [1989] ECR 4407.

19 On that point, the Commission refers to J. Garrigues: Curso de Derecto Mercantil, I, Madrid, 1982, p. 435 et seq. 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.

20 In the meantime the Council has adopted the Twelfth Company Law Directive 89/667/EEC of 21 December 1989 on single-member private limited liability companies (OJ 1989 L 395, p. 40).

21 Frequently a distinction is drawn in that connection between persons who, without seeking to evade a mandatory rule, properly act in their own name but on account of another as trustees, nominees or under a 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.

22 Judgment in Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraphs 33 to 35.

23 Judgment in Case 121/85 Conegate v HM Customs and Excise [1986] ECR 1007. paragraphs 14 io 16.

24 In the Dutch version, reference is made to het werkclijk(e) doel van de vennootschap. In the German version, the words used arc (der) tatsächlich(cr) Gegenstand des Unternehmens. In the French version (l'objet de la société) and in the Italian version ((il) oggetto della società) the company's objects are not qualified in any way. That is also true of the other language versions drawn up by the Council following the adoption of the directive, including the Spanish version ((el) objeto de la sociedad), which are equally authentic.

25 These three concepts are used side by side in the 1968 Convention on the mutual recognition of companies and legal persons: sec footnote 32.

26 For instance in Belgium and France (but also in Germany and Italy — see the references in footnote 30): see, in particular, L. Simont: Les régles relatives à la publicité, aux nullités et aux actes accomplies au nom d'une société en formation, in Les sociétés commerciales. Jeune barreau, Bruxelles, 1985, p. 102 et seq; R. Houin: Chroniques de législations et de jurisprudence françaises — Sociétés commerciales, Revue trimestrielle de droit commercial, 1970, 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 ordinary law (amongst others la cause illicite) which are not expressly excluded by Article 360. Some authors (sec, amongst others, Y. Serra: Chronique, Dalloz, 1973, p. 17 et seq.) have raised the question whether those French rules are contrary to the First Directive. In Belgium's Dutch-language legal literature and case-law, in particular, the broad meaning is advocated, having regard to the Dutch version of Article ll(2)(b) of the directive (see footnote 23): see, in particular, J. Ronse et at: Overzicht van rechtspraak (1978-85) Vennootschappen, Tijdschrift voor Privaatrecht, 1986, p. 885 et seq. and the very recent judgment of the Rechtbank van Koophandel, Hasselt, of 28 May 1990, not yet reported.

27 Discussed in E. Stein: Harmonization of European Company Laws, 1971, p. 299 et seq.

28 As regards the effects of nullity vis-à-vis third parties, they are regulated in a mandatory manner by the directive (see, in particular, Article 12(2) and (3), quoted in paragraph 11 above). The effects as between the members themselves may be determined by the laws of each Member State (Article 12(4), also quoted above).

29 The phrase objects of the company is also used in Article 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 be understood as referring to the company's objects as described in the instrument of incorporation or the statutes, having regard to the special status of legal persons under the law.

30 The protection offered to third parties by the First Directive is restricted to specified third parties, namely the company's creditors, and does not extend to third-party creditors of the members. The reason for the special protection afforded to the company's creditors lies in the fact that, in the case of joint-stock companies, they have no safeguard other than the company's assets: see the third recital in the preamble to the directive.

31 See, for that view, amongst others J. Van Ryn en P. Van Ommeslaghe: Examen ae jurisprudence (1972 to 1978), les sociétés commerciales, Revue critique de jurisprudence belge, 1981, who on p. 241 suggest thai a heated controversy in that regard — to which the French legislation also gives rise (see R. Houin, op. cit., at p. 736 et scq.) — should be resolved as follows: regard should be had not only to the company's objects as set out in the statutes but also to the activities actually carried on under that veil. Sec also I.. Simont op. cit.. No 28, who adds that the possibility of nullity as a result of unlawful activities in practice is all the more appropriate since in accordance with Article 9(1) of the First Directive the company is also bound by acts which are ultra vires. The same view would appear to be taken in German legal literature: see Gessler, Hefermchl, Eckardt and Kropff: Alstiengesetz, 1986, pp. 275 and 276 In Italian legal literature, on the other hand, views are divided: see A. Gorgioh: La nullità delta íocietã per azioni, 1977, p. 414 et seq., and the references for and against in footnote 126 on p. 414.

32 See, for that view, in particular, F. Galgano: La società per azioni, Trattato di diritto commerciale e di diritto pubblico dell'economia, VII, 1984, p. 101; J. Ronsc: De vcnnooticbapiwelgeving, 1973, p. 76, and L. Simont, op. cit.. No 28.

33 It is noteworthy that Article 9 of the Convention of 29 February 1968 on the mutual recognition of companies and legal persons (Supplement 2/1969— Bull. EC), which was signed shortly before the adoption of the First Directive, refers to a broader concept of the (company's) objeets. It encompasses not only the company's objects and the activity actually carried on but also the purpose (rendered in the French version as objet, activité effectivement exercée and but respectively). When one of those three is contrary to the principles or rules which the State concerned regards as matters of public policy as defined in private international law, that State mav refuse to recognize a foreign company. That difference between Article 9 of the Convention and Article 11(2)(b) of the First Directive is no doubt connected with the specific purpose of the directive, which is to restrict the nullity of companies in order to protect the interests of third panics. For the reasons given above, however, that restriction may not go so far as to exclude from the company's objects the activity actually carried on (from the outset) as well, although it may exclude the purpose of the founders of the company, which is unknown to third panics.

34 This point would appear to be undisputed. Only one reference: P. Van Ommeslaghe: La première directive du Conseil du 9 mars 1968 en matière de sociétés, Cahiers de droit européen, 1969, at p. 657.