Keywords
Summary

Keywords

1. Community law - Abusive exercise of a right arising from a provision of Community law - National rule prohibiting the abuse of rights - Application by national courts

2. Freedom of movement for persons - Freedom of establishment - Companies - Directive 77/91 - Alteration of the capital of a public limited liability company - National rules providing for an increase by administrative decision of the capital of a public limited liability company in financial difficulties - Frustration of the exercise of rights arising from the directive by recourse to a national rule prohibiting the abuse of rights

(Council Directive 77/91, Art. 25(1))

Summary

1. Community law cannot be relied on for abusive or fraudulent ends. Consequently, Community law does not preclude the application by national courts of a provision of national law in order to assess whether a right arising from a provision of Community law is being exercised abusively. However, the application of such a national rule must not prejudice the full effect and uniform application of Community law in the Member States.

( see paras 33-34, 44 and operative part )

2. A shareholder relying on Article 25(1) of the Second Directive 77/91 on company law cannot be deemed to be abusing his rights under that provision on the ground that he is a minority shareholder, or has benefited from the reorganisation of the company subject to a reorganisation scheme, or has not exercised his right of preemption, or that he was one of the shareholders who asked that the company be placed under the scheme applicable to companies in serious difficulties, or has allowed a certain period of time to elapse before bringing his action. However, Community law does not preclude national courts from applying a provision of national law which enables them to determine whether a right deriving from a Community law provision is being abused if, of the remedies available for a situation that has arisen in breach of that provision, a shareholder has chosen a remedy that will cause such serious damage to the legitimate interests of others that it appears manifestly disproportionate.

( see paras 36-37, 43-44 and operative part )