Case C‑528/12

Mömax Logistik GmbH

v

Bundesamt für Justiz

(Request for a preliminary ruling from the Landgericht Bonn)

‛Reference for a preliminary ruling — Company law –Directive 78/660/EEC — Publication of consolidated annual accounts of certain types of company — Application of the rules on the publication of accounts to companies governed by the law of one Member State and forming part of a group whose parent company is governed by the law of another Member State’

Summary — Judgment of the Court (Tenth Chamber), 6 February 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Need for a preliminary ruling and relevance of the questions referred — Assessment by the national court — Clearly irrelevant questions and hypothetical questions put in a context which precludes any useful answer — Questions bearing no relation to the subject matter of the main proceedings

   (Art. 267 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Companies — Directive 78/660 — Annual accounts of certain types of companies — National legislation exempting from the rules on the publication of annual accounts only subsidiary companies that are governed by the law of that Member State and belong to a group with a parent company subject to the law of that State — Not permissible

   (Council Directive 78/660, Art. 57)

1.  See the text of the decision.

   (see paras 17, 18)

2.  Article 57 of Fourth Directive 78/660, based on Article 54(3)(g) of the Treaty, on the annual accounts of certain types of companies must be interpreted as precluding the national legislation of a Member State which exempts a subsidiary undertaking governed by the law of that State from the provisions of that directive concerning the content, auditing and publication of annual accounts only if the parent company is also governed by the law of that State.

   By using the words ‘the laws of a Member State’, Article 57(a) of Directive 78/660 unequivocally indicates that, for the purpose of the application of the exemption provided for in Article 57, the parent undertaking may be governed by the law of any Member State of the European Union and does not have to be governed by the law of the Member State of the subsidiary undertaking seeking to rely on that exemption. That interpretation of those words is borne out by the fact that, unlike that reference to the parent undertaking, the introductory part of that article states that Member States may exempt subsidiary undertakings ‘governed by their national law’.

   Moreover, where a Member State opts for that exemption, it cannot introduce, in the conditions for the application of the exemption, a difference of treatment between parent undertakings established in that State and parent undertakings established in another Member State.

   (see paras 25-27, 30, operative part)

Case C‑528/12

Mömax Logistik GmbH

v

Bundesamt für Justiz

(Request for a preliminary ruling from the Landgericht Bonn)

‛Reference for a preliminary ruling — Company law –Directive 78/660/EEC — Publication of consolidated annual accounts of certain types of company — Application of the rules on the publication of accounts to companies governed by the law of one Member State and forming part of a group whose parent company is governed by the law of another Member State’

Summary — Judgment of the Court (Tenth Chamber), 6 February 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Need for a preliminary ruling and relevance of the questions referred — Assessment by the national court — Clearly irrelevant questions and hypothetical questions put in a context which precludes any useful answer — Questions bearing no relation to the subject matter of the main proceedings

   (Art. 267 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Companies — Directive 78/660 — Annual accounts of certain types of companies — National legislation exempting from the rules on the publication of annual accounts only subsidiary companies that are governed by the law of that Member State and belong to a group with a parent company subject to the law of that State — Not permissible

   (Council Directive 78/660, Art. 57)

1.  See the text of the decision.

   (see paras 17, 18)

2.  Article 57 of Fourth Directive 78/660, based on Article 54(3)(g) of the Treaty, on the annual accounts of certain types of companies must be interpreted as precluding the national legislation of a Member State which exempts a subsidiary undertaking governed by the law of that State from the provisions of that directive concerning the content, auditing and publication of annual accounts only if the parent company is also governed by the law of that State.

   By using the words ‘the laws of a Member State’, Article 57(a) of Directive 78/660 unequivocally indicates that, for the purpose of the application of the exemption provided for in Article 57, the parent undertaking may be governed by the law of any Member State of the European Union and does not have to be governed by the law of the Member State of the subsidiary undertaking seeking to rely on that exemption. That interpretation of those words is borne out by the fact that, unlike that reference to the parent undertaking, the introductory part of that article states that Member States may exempt subsidiary undertakings ‘governed by their national law’.

   Moreover, where a Member State opts for that exemption, it cannot introduce, in the conditions for the application of the exemption, a difference of treatment between parent undertakings established in that State and parent undertakings established in another Member State.

   (see paras 25-27, 30, operative part)