C-106/89, MARLEASING SA V LA COMERCIAL INTERNACIONAL DE ALIMENTACION S.A

The direct effect of the EU law

In this relevant case, concerning the direct effect of the community law (EU law), it was clarified by the European Court of Justice (ECJ) that National courts are required to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved, and that also applies in the case of unimplemented directives.


Thus, the duty of harmonious interpretation was not limited to legislation adopted specifically to implement a directive.


This decision gave entirely fulfilment to Article 5 of the EEC Treaty, which established that the Member States shall take all general or particular measures which are appropriate for ensuring the carrying out of the obligations of the Treaty.


The ECJ ruling extended the interpretation given by some previous similar cases, such as C-14/83, Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen and C-152/84, M. H. Marshall v Southampton.

Case Summary

The Juzgado de Primera Instancia e Instrucción No 1, Oviedo, Spain, referred the ECJ for a preliminary ruling in proceedings pending between Marleasing SA and La Comercial Internacional de Alimentación S.A. on the interpretation of Article 11 of the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by the Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, to make such safeguards equivalent throughout the Community. 

 

Marleasing claimed that the founders’ contract that establish La Comercial is void on the ground that the establishment of the company lacked cause, was a sham transaction and was carried out to defraud the creditors, which is illegal under Spanish law. 

 

La Comercial, from its part, alleged that Article 11 of Directive 68/151, which lists exhaustively the cases in which the nullity of a company may be ordered, did not include lack of cause.

 

In this context, the national court asked the ECJ if Article 11 of Council Directive 68/151/EEC of 9 March 1968, is directly applicable even if it has not been implemented in the national law.

 

The ECJ ruled that a national court must interpret its national law in the light of the wording and the purpose of the community law, in this specific case following a directive even if it was not implemented in the national legal system. 

 

[1] Judgment of the Court of 13 November 1990. C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion S.A, ECLI:EU:C:1990:395.

 

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