Keywords

Summary



Keywords

1. Preliminary rulings — Jurisdiction of the Court — Interpretation of Community law in a context where it is not directly applicable — Admissibility, in this case, of the questions referred — (Art. 234 EC; Council Directive 78/660)

2. Freedom of movement for persons — Freedom of establishment — Companies — Directive 78/660 — Annual accounts of certain types of companies — Provision to cover the risk arising from a commitment appearing at the foot of the balance sheet — Whether possible to enter such risk on the liabilities side of the balance sheet — Condition — Valuation of asset and liability items — Whether possible to make a globalised assessment — Condition — (Council Directive 78/660, Arts 14, 20(1), and 31(1)(e))

3. Freedom of movement for persons — Freedom of establishment — Companies — Directive 78/660 — Annual accounts of certain types of companies — Principle of valuing asset and liability items at the balance-sheet date — Repayment after that date of a loan for which credit risk provision had been made — Retrospective revaluation — No obligation — Condition — (Council Directive 78/660, Art. 31(1)(c)(bb))

Summary

1. Questions referred for a preliminary ruling in the context of a dispute concerning the valuation of a provision for potential losses arising from a credit institution's sub-participation in the risk of non-repayment of a loan, and concerning the annual accounts of certain types of companies, are admissible, notwithstanding the circumstances that, at the material date in the main proceedings, Member States were not required to apply the provisions of the Fourth Directive to the annual accounts of a body like that in question, that the national legislation transposing the Fourth Directive did not reproduce the principles set out in the directive verbatim , and that the legislation on tax accounts, being based only indirectly on that national transposing legislation, transposes the Fourth Directive outside the context which it envisages, where the following factors are present:

─ the problems of interpretation of Community law which the national court seeks to resolve are essentially concerned with the accounting approach required by the Fourth Directive;

─ subsequently to the facts in the main action, the provisions in question were applied, without modification, to bodies such as those in question and the questions referred are therefore neither general nor hypothetical;

─ there is nothing in the national legislation to prevent full compliance, when drawing up the annual accounts of such bodies, with the aim, principles and provisions of that directive.

see paras 78, 90-92, 94, operative part 1

2. The Fourth Directive 78/660 on the annual accounts of certain types of companies does not preclude a provision intended to cover possible losses or debts arising from a commitment appearing at the foot of the balance sheet pursuant to Article 14 of that directive from being entered on the liabilities side of the balance-sheet pursuant to Article 20(1), provided that the loss or debt in question may be characterised as "likely or certain" at the balance-sheet date, that assessment being a matter for the national court.

Article 31(1)(e) of that directive, which provides that the components of asset and liability items must be valued separately, does not exclude the possibility that, in order to ensure compliance with the principle of prudence and the principle that a true and fair view of the assets and liabilities be given, the most appropriate method of valuation might be to carry out a globalised assessment of all the relevant factors. In the absence of further particulars in the directive, which merely sets out general principles without seeking to regulate all their possible applications, assessment of the relevant criteria is a matter for national law, read where appropriate in the light of the international accounting standards (IAS), provided always that the general principles set out by that directive are fully complied with.

see paras 112, 116, 118-119, operative part 2

3. Pursuant to Article 31(1)(c)(bb) of the Fourth Directive 78/660 on the annual accounts of certain types of companies, for the purposes of valuing items in the annual accounts, account must be taken of all foreseeable liabilities and potential losses arising in the course of the financial year concerned or of a previous one, the relevant date for valuing asset and liability items being therefore, in principle, the balance-sheet date.

In that respect, repayment of a loan which takes place after the balance-sheet date does not constitute a fact necessitating retrospective revaluation of a provision intended to cover the risks relating to that loan and entered on the liabilities side of the balance-sheet. However, compliance with the principle that a "true and fair view" be given of the company's assets and liabilities requires that mention should be made in the annual accounts of the disappearance of the risk covered by that provision.

see paras 121, 126, operative part 3