Case C-391/02: 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
Date: 2003-01-25
Institutions: Court of Justice
Subjects: EU law - national law, company law, interpretation of the law, protection of shareholders, publication of accounts

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’?

C 19/12

EN

Official Journal of the European Communities

25.1.2003

5. 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, in response to an infringement by
companies of those obligations concerning disclosure
and the provision of accurate information imposed on
them in order to safeguard ‘the interests of both members
and third parties’, allows only members and creditors to
seek imposition of a penalty, thereby excluding third
parties from any general and effective protection?

6. 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, in response to the infringement by
companies of those obligations concerning disclosure
and the provision of accurate information imposed on
them in order to safeguard ‘the interests of both members
and third parties’, provides for prosecution machinery and
a sanctionative system which are markedly differentiated,
whereby the possibility of the imposition of a punishment
upon complaint being made, together with more serious
and effective penalties, is reserved solely for infringements
occasioning loss to members and 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).

( 2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 54 (3) (g) of the Treaty on the annual accounts of certain
types of companies (OJ L 222, 14.08.1978, p. 11).

( 3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
L 193, 18.07.1983, p. 1).

( 4) Council Directive 90/605/EEC of 8 November 1990 amending
Directive 78/660/EEC on annual accounts and Directive 83/349/
EEC on consolidated accounts as regards the scope of those
Directives (OJ L 317, 16.11.1990, p. 60).

Action brought on 8 November 2002 by the Commission
of the European Communities against the Hellenic Repub-
lic

2002 by the Commission of the European Communities,
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 award by the Dimosia
Epikhirisi Ilektrismou (DEI) of work for the construction
of a conveyor system at the steam-generated electricity
station at Megalopolis by a procedure of negotiation
without a competition first being called, the Hellenic
Republic has failed to fulfil its obligations under Council
Directive 93/38/EEC (1) of 14 June 1993 coordinating
the procurement procedures of entities operating in the
water, energy, transport and telecommunications sectors
and,
the
in particular, under Article 20 et seq. of
directive;

b)

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Directive 93/38 governs the choice of procurement procedures
in the water, energy, transport and telecommunications sectors
and applies to contracts whose estimated value is not less than
EUR 5 000 000.

According to the Commission, the contract at issue, by reason
of its value and type, is covered by the directive. Consequently,
the contracting entity (Dimosia Epikhirisi Ilektrismou (DEI);
the State Electricity Undertaking) had to follow the procedures
under Article 20(1) of the directive and call a competition in
accordance with Article 21 of the directive. However, the
contract was not put out to tender but was awarded following
private negotiation.

The Commission maintains that in the present case neither
Article 20(2)(c) of the directive (technical or artistic reasons
rendering it absolutely essential to place the contract with a
particular contractor) nor Article 20(2)(d) (extreme urgency
brought about by events unforeseeable by the contracting
entity) is applicable.

(Case C-394/02)

(2003/C 19/22)

(1) OJ L 199, 9.8.1993, p. 84.

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 8 November