Case C-104/96

Coöperatieve Rabobank ‘Vecht en Plassengebied’ BA

v

Erik Aarnoud Minderhoud(receiver in bankruptcy of Mediasafe BV)

Reference for a preliminary ruling from the Hoge Raad der Nederlanden

‛Company law — First Directive 68/151 /EEC — Scope — Representation of a company — Conflict of interests — Lack of authority of a director to enter into a binding transaction on behalf of the company’

Opinion of Advocate General La Pergola delivered on 12 March 1997   I-7213

Judgment of the Court (Sixth Chamber), 16 December 1997   I-7219

Summary of the Judgment

Freedom of movement for persons — Freedom of establishment — Companies — Directive 68/151 — Scope — Enforceability as against third parties of acts done by members of company organs in circumstances where there is a conflict of interests with the company — Outside the framework of the Directive

(Council Directive 68/151, Art. 9(1), first subpara.)

The rules governing the enforceability as against third parties of acts done by members of company organs in circumstances where there is a conflict of interests with the company fall outside the normative framework of the First Directive 68/151 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, and are matters for the national legislature.

It is clear from both the wording and the subject-matter of the first subparagraph of Article 9(1) of the First Directive that it concerns the limits on a company's powers as allocated by law to the various organs of the company and is not intended to coordinate the national laws applicable where a member of an organ finds himself in a conflict of interests with the company represented because of his personal circumstances.