Case C-403/02: Reference for a preliminary ruling by the Tribunale di Milano, Sezione IV Penale by order of that Court of 29 October 2002 in the criminal proceedings against Marcello Dell'Utri, Romano Luzi and Romano Comincioli
Date: 2003-01-25
Institutions: Court of Justice
Subjects: company law, interpretation of the law, protection of shareholders, publication of accounts

C 19/14

EN

Official Journal of the European Communities

25.1.2003

Reference for a preliminary ruling by the Tribunale di
Milano, Sezione IV Penale by order of that Court of
29 October 2002 in the criminal proceedings against
Marcello Dell’Utri, Romano Luzi and Romano Comincioli

(Case C-403/02)

(2003/C 19/24)

interest may assume a Community dimension, to provide
in respect of offences under Article 2622(1) of the Civil
Code (those committed in regard to companies not listed
on the stock exchange) that proceedings may only be
brought upon a complaint by members of the company
concerned or by its creditors?

(1) First Council Directive 68/151/EEC of 9 March 1968 on co-
ordination of safeguards which, for the protection of the interests
of members and others, are required by Member States of
companies within the meaning of the second paragraph of
Article 58 of the Treaty, with a view to making such safeguards
equivalent throughout the Community (English Special Edition...:
Series-I I Chapter 1968(I), p. 41).

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Sezione IV Penale (Milan District Court, Fourth Criminal
Chamber) of 29 October 2002, received at the Court Registry
on 12 November 2002, for a preliminary ruling in the criminal
proceedings against Marcello Dell’Utri, Romano Luzi and
Romano Comincioli on the following questions:

— May Article 6 of Directive 68/151/EEC (1) (first directive)
be understood as requiring the Member States to establish
appropriate penalties not only for non-disclosure by
commercial companies of balance sheets and profit and
loss accounts but also for false disclosure of such
documents, of other company documents addressed to
members or to the public, or of any information on a
company’s assets and liabilities, and economic and finan-
cial situation which the company is required to provide
in relation to itself or to the group of which it forms a
part?

— Must the concept of the ‘appropriateness’ of the penalty,
for the purposes also of Article 5 of the EC Treaty, be
understood in terms to be specifically assessed within the
legislative scope (both criminal and procedural) of the
Member States as requiring a penalty which is ‘efficacious,
effective and genuinely dissuasive’?

— Do the combined provisions of new Articles 2621 and
2622 of the Civil Code, as amended by Legislative Decree
in
No 61 of 11 April 2002, satisfy those criteria:
particular can Article 2621 of the Civil Code, which
summarily punishes by a term of imprisonment of one
year and six months offences in connection with non-
disclosure of balance sheets not occasioning financial loss
or occasioning loss but in respect of which no prosecution
may be brought under Article 2622 of the Civil Code
owing to the absence of a complaint, be described as
‘effectively dissuasive’ and ‘genuinely appropriate’? Finally,
the specific
is it appropriate,
protection of the collective interest in the ‘transparency’
of the corporate market, and the possibility that that

in terms not least of

Action brought on 15 November 2002 by the Com-
mission of the European Communities against the Hellen-
ic Republic

(Case C-407/02)

(2003/C 19/25)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 15 Nov-
ember 2002 by the Commission of the European Communi-
ties, represented by Michel Nolin and Minas Konstantinidis, of
its Legal Service, with an address for service in Luxembourg.

The Commission claims that the Court should:

a)

declare that, as a result of
the direct award by the
municipality of Serres of the contract ‘Renewal of the
town of Serres: framework of investigative study models
and pilot realisation programme’ without tenders first
being invited, the Hellenic Republic has failed to fulfil its
obligations under the provisions of Directive 92/50/
EEC (1) (Article 8 et seq.) which require a tender procedure
to be carried out and lay down the tender procedure for
the award of public service contracts;

b)

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The provisions of Directive 92/50 govern the choice of
procedures for the award of public service contracts and lay
down common rules in the field of design contests and in the
technical field. Those provisions apply to contracts whose
estimated value is equal to or exceeds a specified threshold.