Case C-101/08, Audiolux SA and others v. Groupe Bruxelles Lambert SA (GBL) and others, Bertelsmann AG and others, judgment of the court (Fourth Chamber) of 15 october 2009, not yet reported

Common Market Law Review

Volumn 47, Issue 4, 2010, Pages 1173-1186

  Bengoetxea, Joxerramon ^a  

^a UNIVERSITY OF THE BASQUE COUNTRY UPV EHU   (Spain)

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[No Author keywords available]

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EID: 77957277357     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (17)

1. Case C-144/04, Mangold, [2005] ECR I-9981.
2. See paras. 67-68 of the Opinion.
3. See Tridimas, The General Principles of EU Law, 2nd ed. (OUP, 2006), p. 17 et seq. and 29 et seq.
4. For such an analysis, see Groussot, General Principles of Community Law (Europa Law Publishing, Groningen 2006).
5. see the review of this book by Bengoetxea in 45 CML Rev. (2008), 1279-1285.
6. Bertelsmann held a share of 80% in "BWTV", whilst the remaining 20% was held by West deutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co. (" WAZ" ).
7. BGL Investment Partners and the other minority shareholders.
8. Second Council Directive 77/91/EEC of 13 Dec. 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 para of Art. 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 (O.J. 1977, L 26/1).
9. Of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities (O.J. 1977, L 212/37). The Code of Conduct is an important soft law instrument, but its normative status has not really been the subject of much discussion in this case (not even as regards OECD recommendations, below); nor have the differences between soft law and general principles been spelled out.
10. Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing (O.J. 1979, L 66/21); its Annex, Schedule C, concerns "obligations of companies whose shares are admitted to official listing on a stock exchange" and para 2(A) states that "the company shall ensure equal treatment for all shareholders who are in the same position". That provision was reproduced in Art. 65(1) of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities (O.J. 2001, L 184/1, Art. 111(1) of which repealed Directive 79/279) and was itself later deleted, with effect from 20 Jan. 2007, pursuant to Art. 32(5) of Directive 2004/109/EC of the European Parliament and of the Council, of 15 Dec. 2004, on the harmonization of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (O.J. 2004, L 390/38). All these changes notwithstanding, Art. 17(1) also imposes an obligation of equal treatment: "The issuer of shares admitted to trading on a regulated market shall ensure equal treatment for all holders of shares who are in the same position.".
11. Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (O.J. 2004, L 142/12). Art. 16(2) is worth recalling: "Member States shall ensure that a holder of remaining securities is able to require the offeror to buy his/her securities from him/her at a fair price under the same circumstances as provided for in Article 15(2). "Art. 5(4) deals with the "equitable price".
12. Also of the Final Reports of the High Level Group of Company Law Experts of January (" Winter I and Winter II" ), to which the parties refer, with diverging results.
13. Its terms are unconditional: "3. Equality of treatment should be guaranteed to all holders of securities of the same type issued by the same company; in particular, any act resulting directly or indirectly in the transfer of a holding conferring de jure or de facto control of a company whose securities are dealt in on the market, should have regard to the right of all shar e holders to be treated in the same fashion.".
14. Not the (general) principle of equality of shareholders, but one of its possible derivations.
15. Or private law, see Basedow, "Der Grundsatz der Nichtdiskriminierung im europäischen Privatrecht", (2008) Zeitschrift für Europäisches Privatrecht, p. 230, 244.
16. The constitutional standing of a principle, its generality and importance, is for some commentators a defining feature of General Principles. See e.g. the comments at the Adjudicating Europe blog, Judicial Developments in European Law. In such a case, the principle of equality would count as a general principle, but not the principle of equality of shareholders. On the other hand, the general principles of non-contractual liability, although specific to that particular branch of the law, quasi-delicta or tort, would be constitutional because they are mentioned in the Treaty or because they are common to the laws of the Member States..
17. See Bengoetxea, "Is Direct Effect a General Principle of European Law" in Bernitz et al. (Eds.) General Principles of EC Law in a Process of Development (Wolters Kluwer, 2008), pp. 3-23.