25.2.2012

EN

Official Journal of the European Union

C 58/4

(Case C-635/11)

2012/C 58/05

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: J. Enegren and M. van Beek, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

—Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to ensure that, in the case of a company resulting from a cross-border merger which has its registered office in the Netherlands, the employees of establishments of that company that are situated in other Member States have the same entitlement to exercise participation rights as is enjoyed by the employees employed in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under subparagraph (b) of Article 16(2) (introductory sentence and second part of the sentence) of Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies; (<span class="super">1</span>)

—order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

It is apparent from Article 16(2)(b) of Directive 2005/56/EC that the national law of the Member State in which the company resulting from the cross-border merger has its registered office must provide that employees of establishments of the company resulting from the cross-border merger that are situated in other Member States are to have the same entitlement to exercise participation rights in the company resulting from the cross-border merger as is enjoyed by those employees employed in the Member State in which that new company has its registered office.

Consequently, the national law transposing Directive 2005/56 must provide for all the situations envisaged in Article 16(2) of that directive.

This has not been the case in the Netherlands.

(<span class="super">1</span>) OJ 2005 L 310, p. 1.