Proceedings brought by

(Reference for a preliminary ruling from the Landgericht Berlin)

(Freedom of establishment – Articles 43 EC and 48 EC – Branch of a limited company established in another Member State – Registration of the objects of the company in the national register of companies – Requirement to pay an advance on the cost of publication of the full text of the objects of the company – Compatibility)

Summary of the Judgment

Freedom of movement for persons – Freedom of establishment – Restrictions

(Arts 43 EC and 48 EC; Council Directive 89/666)

Articles 43 EC and 48 EC do not preclude legislation of a Member State which makes registration, in the register of companies, of a branch of a limited company established in another Member State subject to the payment of an advance on the anticipated cost of the publication of the objects of the company as set out in its instrument of constitution.

The requirement for payment of an advance that merely reflects the actual administrative costs of publication in accordance with Eleventh Directive 89/666 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State cannot constitute a restriction on freedom of establishment in so far as it neither prohibits, impedes nor renders less attractive the exercise of that freedom. Moreover, such legislation is not liable to place companies from other Member States in a less favourable factual or legal situation than companies from the Member State of establishment.

(see paras 38-39, 43, operative part)

1 June 2006 (*)

(Freedom of establishment – Articles 43 EC and 48 EC – Branch of a limited company established in another Member State – Registration of the objects of the company in the national register of companies – Requirement to pay an advance on the cost of publication of the full text of the objects of the company – Compatibility)

In Case C-453/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Landgericht Berlin (Germany), made by decision of 31 August 2004, received at the Court on 28 October 2004, in the proceedings brought by

innoventif Limited,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, R. Silva de Lapuerta, P. Kūris and L. Bay Larsen (Rapporteur), Judges,

Advocate General: A. Tizzano,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–the German Government, by C. Schulze-Bahr, acting as Agent,

–the Spanish Government, by F. Díez Moreno, acting as Agent,

–the Slovak Government, by R. Procházka, acting as Agent,

–the Commission of the European Communities, by G. Braun, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1 This reference for a preliminary ruling concerns the interpretation of Article 43 EC and Article 48 EC.

2 The reference was made in the course of proceedings brought by innoventif Limited (‘innoventif’) against a decision of the Amstgericht Charlottenburg (Local Court, Charlottenburg) rejecting its application to register its branch established in Germany in the national register of companies on the ground that innoventif had refused to pay an advance on the anticipated cost of publication of the objects of the company as set out in its memorandum of association.

Legal context

Community law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

15

22For the Landgericht Berlin (Regional Court, Berlin), the determination as to whether the registration of innovatif’s branch in the register of companies may be subject to the payment of an advance on the anticipated cost of the publication of the objects of that company, as required under national law, hinges on the interpretation of Article 43 EC and Article 48 EC.

23In those circumstances, the Landgericht Berlin decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is it consistent with the freedom of establishment for companies provided for by Article 43 EC and Article 48 EC for the registration, in the register of companies, of a branch set up in … Germany of a company limited by shares which has its registered office [in the United Kingdom] to be made subject to the payment of an advance calculated on the basis of the anticipated cost of the publication of the objects of the company as set out in the relevant clauses of the memorandum of association?’

Consideration of the question referred for a preliminary ruling

Admissibility

24The Commission of the European Communities and the Spanish Government entertain doubts as to whether the question referred for a preliminary ruling is admissible.

25The Commission considers that the question may be inadmissible in that the national court failed to state the reasons which led it to refer that question.

26In that regard, it should be noted that the Court has stressed that it is important for the referring court to set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. The Court has thus ruled that it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute (see, inter alia, the order in Case C‑190/02 Viacom [2002] ECR I-8287, paragraph 16, and the judgment in Joined Cases C‑453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-0000, paragraph 46).

27In the main proceedings, the national court has, firstly, set out the factual and legislative background to the question it has referred and, secondly, stated, concisely but adequately, that the reason causing it to refer the question for a preliminary ruling is because it is uncertain as to whether the requirement under national law for payment of an advance on the anticipated cost of the publication of the objects of a company which has its registered office in another Member State and seeks registration of its branch in the national register of companies may restrict the freedom of establishment conferred on that company by the EC Treaty.

28According to the Spanish Government, the question referred for a preliminary ruling is inadmissible since it concerns the interpretation of a national provision.

29In that connection, it must be noted that the jurisdiction of the Court is confined to considering provisions of Community law only (see the order in Case C-307/95 Max Mara [1995] ECR I-5083, paragraph 5). It is for national courts to assess the scope of national provisions and the manner in which they must be applied (see the judgment in Case C‑45/94 Ayuntamiento de Ceuta [1995] ECR I-4385, paragraph 26).

30In the main proceedings, whilst the national court alone has jurisdiction to determine whether there should be a requirement for payment of an advance on costs such as that provided for in Paragraph 8 of the KostO and, as the case may be, to calculate the amount of that payment and refuse an application for registration in the event of non‑payment, the question of whether the requirement for payment of such an advance may be regarded as a restriction on freedom of establishment falls within the jurisdiction of the Court.

31It follows that the question referred for a preliminary ruling is admissible.

Substance

32By its question, the national court asks, in essence, whether Article 43 EC and Article 48 EC preclude national legislation which makes registration, in the register of companies, of a branch of a limited company established in another Member State subject to the payment of an advance on the anticipated cost of the publication of the objects of the company as set out in its instrument of constitution.

33Firstly, it must be stated that the requirement in a Member State where a branch of a company having its registered office in another Member State is established that the full text is to be published of the objects of limited companies applying for registration of their branches in the register of companies is consistent with the Eleventh Directive.

34Article 2(2)(b) of the Eleventh Directive expressly authorises Member States to require publication of the instrument of constitution of a foreign company and of the memorandum and articles of association, if they are contained in a separate instrument, on registration of its branch in the register of companies.

35Paragraph 13b(3) and Paragraph 13g(3) of the HGB, in conjunction with Paragraph 10(1) of the GmbHG, which applies in the same way to companies established in national territory and abroad, merely require publication of the objects of limited companies applying for the registration of a branch in the register of companies and not, as the Eleventh Directive permits, publication of the full text of the instrument of constitution of those companies.

36Further, it is clear from Article 3 of the First Directive, to which, in accordance with Article 1(1) of the Eleventh Directive, reference must be made with regard to branches, that the documents and particulars which must be disclosed are to be published in one of the various forms set out in Article 3 of the First Directive.

37Secondly, with regard to whether the requirement for payment of an advance on costs calculated on the basis of the publication of the full text of the objects of a company is consistent with Article 43 EC and Article 48 EC, it must be considered whether such a requirement constitutes an obstacle to freedom of establishment where it requires a branch of a company constituted in accordance with the law of another Member State to comply with the rules of the State of establishment on advances on the anticipated cost of publication.

38The requirement for payment of an advance that merely reflects the actual administrative costs of publication in accordance with the Eleventh Directive cannot constitute a restriction on freedom of establishment in so far as it neither prohibits, impedes nor renders less attractive the exercise of that freedom.

39Moreover, legislation which, in circumstances such as those in the main proceedings, requires the payment of an advance is not liable to place companies from other Member States in a less favourable factual or legal situation than companies from the Member State of establishment (see, to that effect, Case C‑70/95 Sodemare and Others [1997] ECR I-3395, paragraph 33).

40It follows that, for a limited company established in a Member State, the requirement to pay such an advance on the anticipated cost of publication does not constitute an obstacle to the pursuit of its activities in another Member State through a branch situated there.

41It is for national courts, on the basis of the length of the text recording the objects of a company, to satisfy themselves that the amount of the advance demanded corresponds to the anticipated cost of publication in the relevant gazette. In so doing, they should have regard to the objects as set out in the instrument of constitution of the company applying for the registration of a branch.

42In that connection, national courts cannot be required to investigate whether, under the law of the Member State in which a company applying for registration of a branch is established, the objects of the company may be regarded as being fully defined by only some of the provisions under the heading ‘Objects of the company’ in that company’s instrument of constitution.

43The answer to the question referred must therefore be that Article 43 EC and Article 48 EC do not preclude legislation of a Member State which makes registration, in the register of companies, of a branch of a limited company established in another Member State subject to the payment of an advance on the anticipated cost of the publication of the objects of the company as set out in its instrument of constitution.

Costs

44Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Article 43 EC and Article 48 EC do not preclude legislation of a Member State which makes registration, in the register of companies, of a branch of a limited company established in another Member State subject to the payment of an advance on the anticipated cost of the publication of the objects of the company as set out in its instrument of constitution.

[Signatures]

*

Language of the case: German.