Marleasing SA v La Comercial Internacional de Alimentacion SA: ECJ 13 Nov 1990

Sympathetic construction of national legislation

LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC Directive designed to protect companies and third parties from the adverse effects of the doctrine of nullity. The Directive should have been implemented in 1986 but the Spanish authorities had failed to implement the Directive. The Spanish judge sought a ruling under Art.177[Art.234] EC as to whether the (non-implemented) Directive was directly effective.
Held: ECJ ruled (ruling is usually applied in the case of unimplemented directives in preference to Von Colson).

  • Upholding Marshall decision that a Directive cannot impose obligations on private parties (no HDE).
  • Re-affirmed the position in Van Colson and Harz ‘that national courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive’ whilst ‘having regard to the usual methods of interpretation in its legal system, give precedence to the method which enables it to construe the national provision concerned in a manner consistent with the directive.’
  • Adding, that this obligation applied, whether the national provisions in question were adopted before or after the Directive was issued.
  • National courts are ‘required’ to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved.
    Europa The Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by it and thereby comply with the third paragraph of Article 189 of the Treaty,
    A national court hearing a case which falls within the scope of Directive 68/151 on the 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, is required to interpret its national law in the light of the purpose and the wording of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive. Those grounds must themselves be strictly interpreted, in the light of that purpose, so as to ensure that nullity on the ground that the objects of the company are unlawful or contrary to public policy must be understood as referring exclusively to the objects of the company as described in the instrument of incorporation or the articles of association.
    ‘in applying national law, whether the provisions in questions were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and purpose of the directive in order to achieve the result pursued by the latter . . ‘
  • (1992) 1 CMLR 305, C-106/89, [1990] ECR I-4135, [1990] EUECJ C-106/89, [1990] 1 ECR 3313
    EEC Treaty 5 189, Council Directive 68/151 A-11
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    Lists of cited by and citing cases may be incomplete.

    Company, Constitutional

    Leading Case

    Updated: 01 November 2021; Ref: scu.160251