Case C‑343/13

Modelo Continente Hipermercados SA

v

Autoridade para as Condições de Trabalho — Centro Local do Lis (ACT)

(Request for a preliminary ruling from the Tribunal do Trabalho de Leiria)

‛Reference for a preliminary ruling — Rules on mergers of public limited liability companies — Directive 78/855/EEC — Merger by acquisition — Article 19 — Effects — Transfer of all the assets and liabilities of the company being acquired to the acquiring company — Infringement by the company being acquired prior to its acquisition — Administrative decision finding infringement post-acquisition — National law — Transfer of the acquired company’s liability for administrative offences — Lawfulness’

Summary — Judgment of the Court (Fifth Chamber), 5 March 2015

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Assessment of national law

   (Art. 267 TFEU)

2. Approximation of laws — Rules on mergers of public limited liability companies — Directive 78/855 — Merger by acquisition — Transfer of all assets and liabilities — Scope — Transfer of liability for administrative offences committed prior to merger — Included

   (Council Directive 78/855, as amended by Directive 2009/109, Articles 3(1) and 19(1))

1.  See the text of the decision.

   (see para. 19)

2.  Article 19(1) of Third Directive 78/855 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies, as amended by Directive 2009/109, must be interpreted as meaning that a ‘merger by acquisition’ in Article 3(1) of the directive results in the transfer to the acquiring company of the obligation to pay a fine imposed by final decision adopted after the merger by acquisition for infringements of employment law committed by the acquired company prior to that merger.

   The liability for an administrative offence would be extinguished if it were not transferred to the acquiring company as part of the liabilities of the company being acquired. Extinguishing such a liability would run contrary to the very notion of merger by acquisition, as defined in Article 3(1) of Directive 78/855, to the extent that, in accordance with that provision, such an acquisition consists in the transfer to the acquiring company of all the acquired company’s assets and liabilities as a result of the latter being wound up without going into liquidation

   Furthermore, the category of third parties, whose interests the directive is intended to protect, includes those entities which though not yet creditors or debenture holders at the date of the acquisition may become such post-acquisition as a result of situations predating the acquisition. This is the case, for instance, for infringements of employment law provisions which are found to have been committed in a decision adopted after the merger by acquisition had taken place. If liability for the payment of a fine for administrative offences committed by the company being acquired were not transferred to the acquiring company, the interest of the Member State the competent authorities of which have imposed the fine would not be protected. In that context, if such liability were not transferred, a company could use a merger by acquisition as a means of escaping the legal consequences of offences it has committed to the detriment of the Member State concerned or other potential interested parties.

   (see paras 28, 29, 32, 33, 35, operative part)

Case C‑343/13

Modelo Continente Hipermercados SA

v

Autoridade para as Condições de Trabalho — Centro Local do Lis (ACT)

(Request for a preliminary ruling from the Tribunal do Trabalho de Leiria)

‛Reference for a preliminary ruling — Rules on mergers of public limited liability companies — Directive 78/855/EEC — Merger by acquisition — Article 19 — Effects — Transfer of all the assets and liabilities of the company being acquired to the acquiring company — Infringement by the company being acquired prior to its acquisition — Administrative decision finding infringement post-acquisition — National law — Transfer of the acquired company’s liability for administrative offences — Lawfulness’

Summary — Judgment of the Court (Fifth Chamber), 5 March 2015

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Assessment of national law

   (Art. 267 TFEU)

2. Approximation of laws — Rules on mergers of public limited liability companies — Directive 78/855 — Merger by acquisition — Transfer of all assets and liabilities — Scope — Transfer of liability for administrative offences committed prior to merger — Included

   (Council Directive 78/855, as amended by Directive 2009/109, Articles 3(1) and 19(1))

1.  See the text of the decision.

   (see para. 19)

2.  Article 19(1) of Third Directive 78/855 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies, as amended by Directive 2009/109, must be interpreted as meaning that a ‘merger by acquisition’ in Article 3(1) of the directive results in the transfer to the acquiring company of the obligation to pay a fine imposed by final decision adopted after the merger by acquisition for infringements of employment law committed by the acquired company prior to that merger.

   The liability for an administrative offence would be extinguished if it were not transferred to the acquiring company as part of the liabilities of the company being acquired. Extinguishing such a liability would run contrary to the very notion of merger by acquisition, as defined in Article 3(1) of Directive 78/855, to the extent that, in accordance with that provision, such an acquisition consists in the transfer to the acquiring company of all the acquired company’s assets and liabilities as a result of the latter being wound up without going into liquidation

   Furthermore, the category of third parties, whose interests the directive is intended to protect, includes those entities which though not yet creditors or debenture holders at the date of the acquisition may become such post-acquisition as a result of situations predating the acquisition. This is the case, for instance, for infringements of employment law provisions which are found to have been committed in a decision adopted after the merger by acquisition had taken place. If liability for the payment of a fine for administrative offences committed by the company being acquired were not transferred to the acquiring company, the interest of the Member State the competent authorities of which have imposed the fine would not be protected. In that context, if such liability were not transferred, a company could use a merger by acquisition as a means of escaping the legal consequences of offences it has committed to the detriment of the Member State concerned or other potential interested parties.

   (see paras 28, 29, 32, 33, 35, operative part)