28.10.2006   

EN

Official Journal of the European Union

C 261/12

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Declare that, by failing to transpose correctly Council Directive 77/91/EEC (1) 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 58 of the Treaty, 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, the Kingdom of Spain has failed to fulfil its obligations under that directive, and in particular:

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order Kingdom of Spain to pay the costs.

(1)

The second subparagraph of Article 159(1)(c) of the LSA is contrary to Article 42, read in conjunction with Article 29(1) and (4), of Directive 77/91/EEC, in that it permits the shareholders' meeting to decide to issue new shares without pre-emptive subscription rights at a price below their market value;

(2)

Article 158(1) of the LSA is contrary to Article 29(1) of Directive 77/91/EEC, in that it grants the right to pre-emptive subscription for shares in the event of capital increase by consideration in cash not only to shareholders, but also to holders of bonds convertible into shares;

(3)

Article 158(1) of the LSA is contrary to Article 29(6) of Directive 77/91/EEC, read in conjunction with Article 29(1), in that it grants the right to pre-emptive subscription for bonds convertible into shares not only to shareholders, but also to the holders of bonds convertible into shares pertaining to earlier issues;

(4)

Article 293(2) of the LSA is contrary to Article 29(6) of Directive 77/91/EEC, read in conjunction with Article 29(4), in that it fails to provide that the shareholders' meeting may decide to exclude the right to pre-emptive subscription for bonds convertible into shares.