Case C-23/03: 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
Date: 2003-03-22
Institutions: Court of Justice
Subjects: administrative sanction, disinformation, dissemination of information, firm governed by commercial law, fraud, interpretation of the law, publication of accounts

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,

22.3.2003

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Official Journal of the European Union

C 70/9

(c)

(d)

information is given, albeit with the aim of mislead-
ing shareholders or the public in order to obtain
unjust enrichment, which is the result of valuations
or appraisals which, taken individually, diverge by
no more than a certain percentage from a correct
valuation or appraisal,

the falsehood, fraudulent omission or other infor-
mation which does not faithfully depict the asset or
financial position or profit and loss of the company
does not ‘appreciably affect’ the portrayal of the
asset or financial position of the company or group
of companies to which it belongs?

those directives and,

3. 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 Fourth
Directive 78/660/EEC, must
in
particular, the 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 and Directive 90/605/
EEC, be interpreted as precluding the legislation of a
Member State under which, in the case of breach of the
duty to publish true and fair company documents, which
is intended to protect ‘the interests of shareholders and
third parties’, creates a system of penalties which:

in the most serious cases (where material damage or
loss is caused) permits only shareholders or creditors
thus
to apply for the imposition of penalties,
depriving third parties generally of effective protec-
tion,

(a)

(b)

Action brought on 15 January 2003 by Italian Republic
against Commission of the European Communities

(Case C-24/03)

(2003/C 70/15)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 15 January 2003 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Maurizio Fiorilli, Avvocato dello Stato.

The applicant claims that the Court should:

annul the decision of the Commission of 5 November 2002
No 4127 (1), which excludes from Community financing
certain expenditure incurred by the Italian Republic under the
Guarantee Section of the European Agricultural Guidance and
Guarantee Fund (EAGGF) as follows:

— Point B.2.1 of the report — financial year 1999-2000 —

fruit and vegetables — amount: EUR 68 050,00

— Point B.2.1 of the report — financial year 2000-2001 —

fruit and vegetables — amount: EUR 7 853,00

— Point B.4.1.6 of the report — financial year 1998-1999

— cereal storage — amount: EUR 1 272 616,34

in less serious cases (where no material damage is
caused and no complaint is submitted) provides for
a minor or summary offence (‘contravvenzione’)
which,
the Italian procedure
system, is, for the reasons set out in the grounds for
the present order, ineffectual,

in the context of

Pleas in law and main arguments

1.

F r u i t a n d v e g e t a b l e s

(c) permits individuals, by means of deferred with-
drawal of their complaint, to undo entirely any
protection of the right to transparency in company
matters?

( 1) OJ L 65 of 14.03.1968, p. 8.
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.
( 4) OJ L 317 of 16.11.1990, p. 60.

The Commission finds that the Italian authorities failed to
observe fully the provisions of Regulation No 2200/96 (2)
(Article 25) and Regulation No 659/97 (3) (Article 9(2) and (3))
resulting in an underestimation of the quantities communi-
cated when fixing the Community withdrawal compensation
(CWC): this led to the Commission adopting a CWC which
was too high.

However, the Italian authorities take the view that, according
to the Community legislation in force, they provided sufficient
information to the Commission which should have been able
to revise its calculation of the CWC, having found minimal
differences with respect to the final figures provided by the
paying agency. The failure on the part of the Commission to
amend the CWC cannot be attributed to the Italian authorities
which pointed it out and sought to quantify it.