Case C-20/03: Reference for a preliminary ruling by the Rechtbank van eerste Aanleg, Bruges by order of that Court of 17 January 2003 in the criminal matters brought by the Public Prosecutor against 1. Marcel Burmanjer, 2. René Alexander van der Linden, and 3. Anthony de Jong
Date: 2003-03-22
Institutions: Court of Justice
Subjects: free movement of goods, free movement of persons, freedom to provide services, interpretation of the law, market approval, serial publication

22.3.2003

EN

Official Journal of the European Union

C 70/7

— annul Commission Decision C (1999) 541 of

1.

4 March 1999

— annul Commission Decision C (1999) 532 of

4 March 1999

— annul Commission Decision C (1999) 533 of

4 March 1999

in the alternative, reduce the amount of subsidy to repay
to the Commission to a lesser amount as may be decided
in the course of proceedings;

2.

as a measure of inquiry, allow the claims submitted in the
present proceedings;

3.

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

The judgment of the Court of First Instance rejected all the
pleas in law submitted by the appellants and thus dismissed
the applications in their entirety. As regards the first plea in
law, the appellant undertakings share the view the Court of
First Instance in its reasoning from the legal point of view.

On the other hand, the appellants argue that so far as the
remaining pleas are concerned, the Court of First Instance has
not made clear the reasons for its own view, nor does it
even demonstrate that the Commission’s decisions were well
founded:
it merely repeated the arguments used in the
contested decisions.

According to the appellants, the judgment of the Court of First
Instance is vitiated by the inadequacy,
inconsistency and
contradictions of the grounds.

Is the first sentence of Article 5 of Regulation 1103/97 (1)
to be understood as meaning that,
in a private-law
contractual relationship, only the final amount of the
invoice, or an individual amount detailed on the invoice,
may or must be rounded, or does a contractually agreed
unit price/tariff (in this case a price per minute) constitute
a monetary amount to be paid or accounted for within
the meaning of that provision? In determining whether a
tariff is a monetary amount to be paid or accounted for
within the meaning of Article 5 of Regulation 1103/97,
is it decisive whether the tariff relates to a particular
multiple (in this case six) of a unit on the basis of which
the final amount of the invoice is ascertained (in this case
a ten-second unit), or whether it is the tariff as perceived
by consumers that represents the relevant amount of the
invoice?

2.

Is Regulation 1103/97(and in particular Article 5) to be
understood as constituting an exhaustive rule whereby
sums other than monetary amounts to be paid or
accounted for (if any) may not be rounded in the manner
described in Article 5, in other words, must they either
continue to be displayed in the former national currency,
or be quoted in the exact amount produced on conver-
sion?

(1) OJ L 162 of 19.06.1997, p. 1.

Reference for a preliminary ruling by the Rechtbank van
eerste Aanleg, Bruges by order of that Court of 17 January
2003 in the criminal matters brought by the Public
Prosecutor against 1. Marcel Burmanjer, 2. René Alexan-
der van der Linden, and 3. Anthony de Jong

(Case C-20/03)

(2003/C 70/12)

Reference for a preliminary ruling by the Landgericht
München by order of that Court of 17 December 2002 in
the proceedings between Verbraucher-Zentrale Hamburg
e.V. and 02 (Germany) GmbH & Co. OHG

(Case C-19/03)

(2003/C 70/11)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht München
(Regional Court, Munich) of 17 December 2002, received at
the Court Registry on 20 January 2003, for a preliminary
ruling in the proceedings between Verbraucher-Zentrale Ham-
burg e.V. and 02 (Germany) GmbH & Co. OHG on the
following questions:

Reference has been made to the Court of
Justice of the
European Communities by order of the Rechtbank van eerste
Aanleg (Court of First Instance), Bruges of 17 January 2003,
received at the Court Registry on 21 January 2003, for a
preliminary ruling in the criminal matters brought by the
Public Prosecutor against 1. Marcel Burmanjer, 2. René Alex-
ander van der Linden, and 3. Anthony de Jong on the following
questions:

(a)

Because the interests sought to be protected by the
legislature could be safeguarded by other less stringent
means, are Articles 30 to 37 (free movement of goods) of
the EC Treaty, as applicable on 6 September 2001,
Article 48 et seq. of that Treaty (freedom of movement
for persons), or Article 59 et seq. thereof (freedom to
provide services), infringed by Articles 2, 3, 5(3) and 13
of the Belgian law of 25 June 1993 on the exercise of
itinerant activities and the organisation of public markets,

C 70/8

EN

Official Journal of the European Union

22.3.2003

construed individually or in conjunction to mean that
they make the itinerant selling on Belgian territory
by both Belgian nationals and other EU nationals of
subscriptions to periodicals subject to prior authorisation
by the Minister, or a Grade 1 official delegated by
him, failing which a punishable offence is committed
thereunder, where under those national provisions a
German company selling or wishing to sell through the
intermediary of vendors established in Belgium subscrip-
tions to periodicals is required to obtain such prior
provisional authorisation or, if it does not do so commits
an offence under those provisions?

(b) Does it make any difference to the answer to the first
question that that law of 25 June 1993 does not make
the sale of newspapers, periodicals and also subscriptions
to newspapers subject to such prior authorisation?

Reference for a preliminary ruling by the Rechtbank te
Rotterdam by order of that Court of 21 January 2003 in
the proceedings between Optiver BV and 38 Others
against Stichting Autoriteit Financiële Markten

(Case C-22/03)

(2003/C 70/13)

Reference has been made to the Court of Justice of the
European Communities by order of the Rechtbank te Rotter-
dam (District Court, Rotterdam) of 21 January 2003, received
at the Court Registry on 23 January 2003, for a preliminary
ruling in the proceedings between Optiver BV and 38 Others
against Stichting Autoriteit Financiële Markten on the follow-
ing question:

Does the Directive (1), and in particular the interpretation of
Articles 11 and 12, preclude the imposition of a levy as
described above on securities institutions in respect of their
gross profit from securities-related activities?

( 1) Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ L 249 of 03.10.1969,
p. 25).

Reference for a preliminary ruling by the Tribunale
Ordinario di Torino, Sezione IV Penale by order of that
Court of 13 January 2003 in the case brought against
Michel Mulliez and Others

(Case C-23/03)

(2003/C 70/14)

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale Ordinario di
Torino, Sezione IV Penale (District Court, Turin — Criminal
Section IV) of 13 January 2003, received at the Court Registry
on 23 January 2003, for a preliminary ruling in the case
brought against Michel Mulliez and Others on the following
questions:

1. May Article 6 of Directive 68/151/EEC (1) be interpreted
as imposing an obligation upon the Member States to
establish appropriate penalties not only for failure on the
part of commercial companies to publish their balance
sheet and profit and loss statement but also for publishing
inaccurate versions of those statements or of other
company information addressed to shareholders or the
public or of any other information concerning their
economic, asset or financial position which they are
required to provide and which concern the company
itself or the group of companies to which it belongs?

the

in particular,

2. With reference to the obligation upon each Member State
to adopt ‘appropriate penalties’ for the infringements
provided for in the First Directive 68/151/EEC and the
Fourth Directive 78/660/EEC (2), must those directives
and,
combined provisions of
Article 44(2)(g) of the Treaty Establishing the European
Community, Article 2(1)(f) and Article 6 of the First
Directive and Article 2(2),
(3) and (4) of the Fourth
Directive, as amended by Directive 83/349/EEC (3) and
Directive 90/605/EEC (4), be interpreted as precluding the
legislation of a Member State under which no penalty
may be imposed for breach of the duty to publish true
and fair company documents (including the balance sheet
and profit and loss statement) where:

(a)

the falsehood is qualitative only,

(b)

the falsehood in, or omission from, the company
statement in question gives rise to a distortion of
year-end profits or of the value of net company
assets that, nevertheless, remains below a certain
threshold expressed in percentage terms,