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	Číslo (Kód CELEX): Number (CELEX Code):		61991J0083

	Název: Title:		Judgment of the Court of 16 July 1992. Wienand Meilicke v Adv/orga F. A. Meyer Ag. Reference for a preliminary ruling: Landgericht Hannover -Germany. Company law - Directive 77/91/CEE. CaseC-83/91.

	Publikace: Publication:		European Court Reports 1992 page I-4871

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:		377L0091

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Schwarze Case 16/65 Schwarze v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877 · Laderer Case C-147/91 Criminal proceedings against Ferrer Laderer [1992] ECR I-4097 · Pigs Marketing Board Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347 · Durighello Case C-186/90 Durighello v INPS [1991] ECR I-5773 · Piageme I Case C-369/89 ASLB Piageme and Others v BVBA Peeters [1991] ECR I-2971 · Gmurzynska-Bscher Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Köln [1990] ECR I-4003 · Foglia II Case 244/80 Foglia v Novello [1981] ECR 3045 · Robards Case 149/82 Robards v Insurance Officer [1983] ECR 171 · Irish Creamery Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735 · Benedetti Case 52/76 Benedetti v Murani [1977] ECR 163 · Deutsche Milchkontor Joined Cases 205 to 215 Deutsche Milchkontor v Germany [1983] ECR 2633 · Dias Case C-343/90 Lorenco Dias v Director da Alfandega do Porto [1992] ECR I-4673 · Corsica Ferries Case C-18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783 · Monin Case C-428/93 Monin Automobiles-Maison du Deux-Roues [1994] ECR I-1707 Telemarsicabruzzo Joined Cases Telemarsicabruzzo SpA v Circostel, Ministero


	Plný text: Fulltext:		Ne

Fakta:
Mr Meilicke, who held one share in ADV/ORGA AG (“ADV/ORGA”), a public limited company under German law, in a meeting of shareholders requested certain information which the company’s management refused to give him. This information concerned an increase in capital and in particular related to the question whether this increase in capital constituted a so-called disguised contribution in kind. Under the case-law of the Bundesgerichtshof (Federal Supreme Court, hereinafter “BGH”) such disguised contribution in kind, although from the outer appearance a cash contribution, is subject to the rules regarding non-cash contributions which provide for more severe conditions as to publication and verification than those applicable to contributions in cash.
Having been refused the information requested, Mr Meilicke instituted proceedings against ADV/ORGA before the Landgericht Hannover. He argued in particular that the BGH’s case-law on disguised contribution in kind was incompatible with the Second Council Directive, Council Directive 77/91/EEC
Of 13 December 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 paragraph of Article 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 (OJ 1977 L 26, p. 1).
. The Landgericht stayed the proceedings and under Article 177 of the Treaty referred a number of questions to the ECJ.

Názor soudu a komentář:
The Court does not answer the reference on the merits but rejects it as being hypothetical. In its decision, the Court makes a number of general remarks on the admissibility of references under Article 177 of the Treaty.
“Article 177 is an instrument for cooperation between the Court of Justice and the national courts” (
Schwarze; Laderer
). “In the context of such cooperation, the national court, which alone has direct knowledge of the facts of the case, is in the best position to assess, having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgement” (
Pigs Marketing Board; Durighello; Piageme I; Gmurzynska-Bscher
). “[I]n order to assess whether it has jurisdiction, it is a matter for the Court of Justice to examine the conditions in which the case has been referred to it by the national court. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions” (
Foglia II; Robards
). “[I]t may be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court, so as to enable the latter to take cognizance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give” (
Irish Creamery;
). Without such information, the Court may find it impossible to give a useful interpretation” (
Benedetti; Deutsche Milchkontor
).
In the present case, Mr Meilicke had brought an action asserting his right to receive certain information. The question referred to the Court of Justice, however, related to the compatibility of the doctrine of disguised contributions in kind with the Second Directive. It appeared from the question referred by the national court as well as from the information provided by it, that it had not established the relevance of the question for the case at hand and that this question therefore was hypothetical only. In the reference, the Landgericht had merely stated that contribution in question
may
be contrary to the doctrine of disguised contribution but not that it in fact was. Furthermore, the documents forwarded by the Landgericht did not “identify matters of fact and of law which make it possible to define the context in which ADV/ORGA’s increase of capital took place and to establish the links between the contribution [in question] and the doctrine of disguised contributions in kind as set out by the German case-law.”
Although the Court, in other words, in general accepts the national courts’ prerogative in assessing the relevance of a question referred to the ECJ, it requires that the national court before making the reference establishes the relevant factual and legal aspects and in its reference takes the viewpoint that it is necessary for deciding the case. (See also
Dias; Corsica Ferries; Monin; Telemarsicabruzzo
).

Shrnutí (Summary of the Judgment):

1. Preliminary rulings - jurisdiction of the Court - limits -general or hypothetical questions - determination by the Court of its own jurisdiction (EEC Treaty, Art. 177)

2. Preliminary rulings - references to the Court - stage of the
proceedings at which reference should be made (EEC Treaty, Art. 177)

3. Preliminary rulings - jurisdiction of the Court - hypothetical question submitted in circumstances in which a useful answer is precluded - lack of jurisdiction of the Court (EEC Treaty, Art. 177)

1. In the framework of the procedure for cooperation between the Court of justice and the national Courts provided for by Article 177 of the treaty, the national Court, which alone has direct knowledge of the facts of the case, is in the best position to assess having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment. Consequently, where the questions submitted by the national Court concern the interpretation of a provision of community law, the Court is, in principle, bound to give a ruling.

Nevertheless, it is a matter for the Court of Justice, in order to determine whether it has jurisdiction, to examine the conditions in which the case has been referred to it. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national Court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.

2. The need to provide an interpretation of Community law which will be of use to the national Court makes it essential to define the legal context in which the interpretation requested should be placed. Accordingly, it may be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the court of justice, so as to enable the latter to take cognizance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give.

3. The Court would be exceeding the limits of the function entrusted to it if it decided to give a ruling on a hypothetical problem without having before it the matters of fact or law necessary to give a useful answer to the questions submitted to it.

Plný text judikátu (Entire text of the Judgment):