Case C-248/01: Reference for a preliminary ruling from the Landesgericht Feldkirch by order of that court of 22 June 2001 in the commercial register cases of (1) Hermann Pfanner Getränke Gesellschaft mbH and Others and (2) Getränkebetrieb Gesellschaft m.b.H. and Others v Republic of Austria
Date: 2001-10-13
Institutions: Court of Justice
Subjects: company with share capital, data processing, fundamental rights, interpretation of the law, protection of privacy, publication of accounts

13.10.2001

EN

Official Journal of the European Communities

C 289/9

— Failure to examine the principles of ‘dolo agit, qui petit,
quod statim redditurus est’ and ‘fraus omnia corrumpit’.
In the absence of a legally operative judgment imposing
a penalty the Commission is able to rely only on existing
suspicions and results of investigations, as soon as, and
in so far as, these are available. This the Commission did
in the present proceedings. By excluding, as a legal
objection, application of the legal principle ‘fraus omnia
corrumpit’ in conjunction with the legal principle ‘dolo
agit, qui petit, quod statim redditurus est’, in a case such
as the present (but without having examined that issue in
any detail), and instead calling for the adoption of a new
decision with a fresh statement of reasons, the Court of
First Instance is in effect obliging the Commission to pay
so long as its suspicions have not developed into
incontrovertible certainty. As a general rule, however,
any subsequent claim for repayment would fail on the
ground that the debtor has disappeared, no longer has
assets or has become insolvent.

2. What criteria must be satisfied for a broadcast of several
feature films and films made for television to be classified
as a ‘serial’, derogating from the advertising restrictions
for feature films and films made for television?

3. Are broadcasts consisting of several parts which manifest
a common concept due to common features of theme,
content and form, and which are broadcast at connected
times, to be regarded as a ‘serial’ for the purposes of
Article 11(3) of Directive 89/552/EEC as amended by
Directive 97/36/EEC?

4. Does the interpretation of

the term ‘serial’

for the
purposes of Article 11(3) of Directive 89/552/EEC as
amended by Directive 97/36/EEC permit common points
of theme or content of the episodes to be wholly or
largely regarded as unnecessary and predominantly points
of form or form of reception taken as the criterion?

(1) Not yet published in the European Court Reports.

(1) OJ 1989 L 298, p. 23.
(2) OJ 1997 L 202, p. 60.

Reference for a preliminary ruling by the Niedersächsi-
sches Oberverwaltungsgericht by order of that court of
15 June 2001 in the case of RTL Television GmbH against
Niedersächsische Landesmedienanstalt für privaten Rund-
funk

Reference for a preliminary ruling from the Landesgericht
Feldkirch by order of that court of 22 June 2001 in
the commercial register cases of (1) Hermann Pfanner
Getränke Gesellschaft mbH and Others and (2) Getränke-
betrieb Gesellschaft m.b.H. and Others v Republic of
Austria

(Case C-245/01)

(2001/C 289/16)

(Case C-248/01)

(2001/C 289/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony Higher Administrative
Court) of 15 June 2001, which was received at the Court
Registry on 25 June 2001, for a preliminary ruling in the case
of RTL Television GmbH against Niedersachsische Landesme-
dienanstalt für privaten Rundfunk on the following questions:

1. Does Article 11(3) of Council Directive 89/552/EEC(1) of
3 October 1989 on the coordination of certain provisions
laid down by law, regulation or administrative action in
Member States concerning the pursuit of
television
broadcasting activities as amended by Directive 97/36/EC
of the European Parliament and of the Council (2) of
30 June 1997, by restricting advertising breaks, pursue
the objective of protecting the artistic value of feature
films and films made for television,
irrespective of
whether films made for television have from the outset
been produced for television and provided with breaks
designed for the insertion of advertising spots?

Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht
Feldkirch (Regional Court, Feldkirch), Austria, of 22 June
2001, which was received at the Court Registry on 27 June
2001, for a preliminary ruling in the commercial register cases
of
(1) Hermann Pfanner Getränke Gesellschaft mbH and
Others and (2) Getränkebetrieb Gesellschaft m.b.H. and Others
v Republic of Austria on the following questions on the
validity of the First Council Directive 68/151/EEC (1) and the
Fourth Council Directive 78/660/EEC (2):

1.

Is the obligation of general disclosure of the annual
accounts of every capital company regardless of
its
economic circumstances compatible with the fundamental
and human rights guaranteed in Community law, funda-
mental freedoms and general principles of law of the
Member States, in particular the rights to data protection,
freedom of expression, informational self-determination,
private life, protection of business and commercial sec-
rets, property and freedom to carry on a trade, private
autonomy and compliance with the requirement of
reasonableness (proportionality)?

C 289/10

EN

Official Journal of the European Communities

13.10.2001

2. Would it not be an alternative more compatible with
fundamental rights to restrict the obligation to disclose
company data to undertakings for which independent
auditors have found problems with specific data of
the undertaking and hence a special public need for
information?

3. Are the disclosure obligations in the First and Fourth
Directives compatible with the fundamental rights under
the European Charter of Fundamental Rights?

4. Did the data protection directive, telecommunications
directive and administrative assistance directive derogate
substantively from the disclosure directives?

registered, the holder commits an offence when driving a
motor vehicle in the Netherlands?

2. Does national legislation such as that described in the
first question and which has the consequences set out
therein constitute a restriction on the free movement of
persons and, if so, can that restriction be justified by the
consideration that it enables the data featured on the
document to be regularly renewed and the document to
be adjusted to technological improvements as regards the
requirements which the document should meet from the
point of view of security and prevention of fraud?

(1) OJ 1991, L 237, p. 1.

(1) OJ, English Special Edition 1968(I), p. 41.
(2) OJ 1978 L 222, p. 11.

Reference for a preliminary ruling by the Arrondisse-
mentsrechtbank Rotterdam by judgment of that court of
27 June 2001 in the case of S. Klip-Krüger against Board
of the Dienst Wegverkeer, a public agency having legal
personality

(Case C-253/01)

(2001/C 289/18)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondissements-
rechtbank Rotterdam (District Court, Rotterdam) of 27 June
2001, received at the Court Registry on 2 July 2001, for a
preliminary ruling in the case of S. Klip-Krüger v Board of the
Dienst Wegverkeer (road traffic authority), a public agency
having legal personality, on the following questions:

1. Must the Directive (1) — more particularly Article 1(1)
and (2) thereof — be interpreted as meaning that national
legislation adopted in implementation thereof is consist
with it where under that legislation an obligation exists
or arises for the holder of a driving licence issued by the
competent authority in the Federal Republic of Germany,
which is valid for the holder’s lifetime, to exchange that
licence within one year of moving his normal place of
residence to the Netherlands, because a driving licence
issued more than ten years previously cannot be registered
if the driving licence is not
in the Netherlands and,

Reference for a preliminary ruling by the Simvoulio tis
Epikratias by judgment of that court of 12 June 2001 in
the case of Panagiotis Markopoulos and Others against
the Soma Orkoton
the Minister for Development,

Elegkton and Others

(Case C-255/01)

(2001/C 289/19)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Simvoulio tis
Epikratias (Council of State) of 12 June 2001, received at the
Court Registry on 3 July 2001, for a preliminary ruling in the
case of Panagiotis Markopoulos and Others against the Minister
for Development, the Soma Orkoton Elegkton (Institute of
Certified Auditors) and Others on the following questions:

a) May the national legislature, on the basis of Article 15 of
the Eighth Council Directive 84/253/EEC of 10 April
1984 (1), make use of the power provided for by that
article and provide for the possibility for various catego-
ries of persons to be approved to audit accounting
documents,
in derogation from the permanent rules,
that is to say without first sitting an examination of
professional competence, when the Member State in
question has already, before the adoption of the directive,
laid down that examination in national law? In any event,
may the national legislature make repeated use of the
power to adopt transitional provisions on the basis of the
abovementioned article of the directive, in particular after
the deadline of 1 January 1991 (Article 15 in conjunction
with Article 30(2) of the directive)?