Europees recht – Marleasing

Facts

This case entails a preliminary question under Article 177 of the EEC Treaty to the Court of Justice on the interpretation of Article 11 of First Directive 68/151/EEC. Spain has not implemented this Directive into national law.

The two parties in this judgment are Marleasing and La Comercial. Marleasing claims, on the basis of the Spanish Civil Code, primarily for the annulment of the agreement to establish the company La Comercial. This is due to the lack of cause, simulation and disadvantage of the creditors of the company Barviesa, who is co-founder of La Comercial. La Comercial dismissed the claim, because in Article 11 of Directive 68/151 the absence of a cause is not mentioned in the cases of nullity of a public limited company.

The request to the Court concerned whether Article 11 of the Directive, which has not been implemented into national law, is directly applicable, so that a public limited company cannot be declared void on grounds other than those set out in that Article.

Court of Justice

The purpose of the Directive is to ensure legal certainty in relations between a company and third parties by limiting the nullity and retroactive effect of the annulment. The outcome of the question referred for a preliminary ruling is that, within the scope of Directive 68/151, the national court has the duty to interpret national laws in accordance with that Directive, irrespective of whether they came into being before or after the directive. This must therefore prevent the nullity of a public limited company on a ground other than those listed in Article 11 of the Directive. Relevant paragraph: 26.