Case C-389/02: Reference for a preliminary ruling by the Finanzgericht Hamburg by order of that Court of 16 October 2002 in the case of Deutsche See-Bestattungs-Genossenschaft e. G. against Hauptzollamt Kiel
Date: 2003-01-25
Institutions: Court of Justice
Subjects: EU waters, excise duty, interpretation of the law, maritime transport, mineral oil, pleasure craft, tax harmonisation

25.1.2003

EN

Official Journal of the European Communities

C 19/11

Reference for a preliminary ruling by the Finanzgericht
Hamburg by order of that Court of 16 October 2002 in
the case of Deutsche See-Bestattungs-Genossenschaft
e. G. against Hauptzollamt Kiel

(Case C-389/02)

(2003/C 19/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht Ham-
burg (Finance Court, Hamburg) of 16 October 2002, received
at the Court Registry on 5 November 2002, for a preliminary
ruling in the case of Deutsche See-Bestattungs-Genossenschaft
e. G. against Hauptzollamt Kiel on the following question:

Does sailing in Community waters in craft for other than
private non-commercial purposes constitute navigation within
the meaning of the first paragraph of Article 8(1)(c) of Directive
92/81 (1)?

( 1) OJ L 316 of 31.10.1992, p. 12.

Reference for a preliminary ruling by the Corte di Appello
di Lecce — Sezione penale by order of that Court of
7 October 2002 in the criminal proceedings against Sergio
Adelchi

(Case C-391/02)

(2003/C 19/21)

company law offences concerning the infringement of the
obligations imposed in order to safeguard the principle of
lays
public and accurate information on companies,
down a sanctionative system which in the specific
instance is not informed by the criteria of effectiveness,
proportionality and dissuasiveness of
the sanctions
imposed in order to ensure that that principle is upheld?

2. Must those directives and, in particular, Article 44(3)(g)
of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which does not make it a punishable
offence for companies to infringe obligations concerning
disclosure and the provisions of accurate information on
certain company documents (including the balance sheet
and the profit and loss account) where the disclosure
of false company accounts or the failure to provide
information result in a distortion of the financial results
for a given period, or a distortion in the net assets, which
does not exceed a certain percentage threshold?

3. Must those directives and, in particular, Article 44(3)(g)
of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which does not make it a punishable
offence for companies to infringe obligations concerning
disclosure and the provision of accurate information
where statements are made which, although aimed at
deceiving members or the public with a view to securing
an unjust profit, are the consequence of estimated
valuations which, taken individually, depart from actual
values to an extent not greater than a certain threshold?

Reference has been made to the Court of Justice of the
European Communities by order of the Corte di Appello di
Lecce — Sezione penale (Court of Appeal, Lecce, Criminal
division) of 7 October 2002, received at the Court Registry on
8 November 2002, for a preliminary ruling in the criminal
proceedings against Sergio Adelchi on the following questions:

4.

1. With reference to the duty of each Member State to adopt
‘appropriate penalties’ for the infringements established
by the first and fourth directives (Directive 68/151/
EEC (1) and Directive 78/660/EEC (2), must the directives
themselves and in particular the combined provisions of
Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of
the first directive (Directive 68/151/EEC) and Article 2(2),
(3) and (4) of the fourth directive (Directive 78/660/EEC),
as consolidated by Directive 83/349 (3) and Directive 90/
605 (4), be interpreted as meaning that that legislation
precludes a law of a Member State which, in amending
the system of penalties already in force in respect of

Irrespective of progressive limits or thresholds, must
those directives and, in particular, Article 44(3)(g) of the
EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which does not make it a punishable
offence for companies to infringe obligations concerning
disclosure and the provision of accurate information
where the false statements or the fraudulent omissions
and, thus, the disclosures and statements which do not
give a true and fair view of the company’s assets and
liabilities and financial position do not distort ‘to an
appreciable extent’ the company’s assets, liabilities and
financial position (even though it is for the national
legislature to define the concept of ‘appreciable distor-
tion’?