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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
    Bailii
    EEC Treaty 5 189, Council Directive 68/151 A-11
    European
    Cited by:
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    Same Sex Partner Entitled to tenancy Succession
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    CitedBritish Airways Plc v Ryanair Limited ChD 25-Oct-2000
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    CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
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    CitedWebb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
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    CitedRevenue and Customs v IDT Card Services Ireland Ltd CA 27-Jan-2006
    Under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the Directive in question. However this . .
    CitedVibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
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    CitedNova Productions Ltd v Mazooma Games Ltd and others CA 14-Mar-2007
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    CitedMurphy v Media Protection Services Ltd Admn 21-Dec-2007
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    CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
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    Held: The question amounted . .
    CitedAge UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
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    CitedBritish Airways Plc v Williams and Others SC 24-Mar-2010
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    CitedChurchill Insurance Company Ltd v Wilkinson and Others CA 19-May-2010
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    CitedTwentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
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    CitedHouldsworth and Another v Bridge Trustees Ltd and Another SC 27-Jul-2011
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    CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
    Rossetti_diamondQBD2011
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    CitedForensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
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    CitedRussell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
    russell_transocean
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    CitedX v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
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    CitedEM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
    SSHD must examine safety of country for return
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    CitedNATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
    NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
    CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
    Parliament’s Approval if statute rights affected
    In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
    CitedThe United States of America v Nolan SC 21-Oct-2015
    Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
    CitedMoreno v The Motor Insurers’ Bureau SC 3-Aug-2016
    The claimant had been severely injured when hit by a car in Greece. The car’s driver was uninsured. The Court was now asked whether the scope of her claim to damages was to be determined in accordance with English or Greek law. The implementation of . .
    CitedNuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd) SC 11-Apr-2017
    This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council . .
    CitedP v Commissioner of Police of The Metropolis SC 25-Oct-2017
    This appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment . .
    CitedZ and Another, Regina (on The Application of) v Hackney London Borough Council and Another SC 16-Oct-2020
    Housing Orthodox Jewish Only not Discriminatory
    Hackney had statutory housing functions as to allocating social housing. It also nominated applicants to properties owned by housing associations, including AIHA, which only accepted for such nominations households belonging to the Orthodox Jewish . .

    Lists of cited by and citing cases may be incomplete.

    Company, Constitutional

    Leading Case

    Updated: 01 November 2021; Ref: scu.160251

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