Case C-52/03: Reference for a preliminary ruling by the Tribunale Ordinario di Torino — Sezione GIP by order of that Court of 29 January 2003 in the case brought against Giuseppe Momblano
Date: 2003-04-05
Institutions: Court of Justice
Subjects: company law, interpretation of the law, organisation, protection of shareholders, publication of accounts

C 83/10

EN

Official Journal of the European Union

5.4.2003

(c) order the defendant to pay the entire costs of both

proceedings.

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?

Pleas and main arguments

Infringement of Community law, in particular infringement of
Article 33 of the statute of the Court of Justice of the European
Communities under which judgments are to state the reasons
on which they are based, which means among other things
that the grounds relied on should be legally valid, that is to say
coherent, relevant,
free of any error of law or fact, and
internally consistent.

— the Court of First Instance did not take into consideration
all the evidence put forward by the applicant to demon-
strate the kind of harassment he was subjected to, nor
has it assessed it as a whole,

— the Court of First Instance has failed to mention new facts
consisting in a new restructuring of departments which
left the applicant the only person not to be reintegrated
into his former unit,

— the Court of First Instance, without the least explanation,
refused to include in the case-file recent documents which
came to light after the written procedure was closed and
which rebutted the Commission’s arguments.

Reference for a preliminary ruling by the Tribunale
Ordinario di Torino — Sezione GIP by order of that
Court of 29 January 2003 in the case brought against
Giuseppe Momblano

(Case C-52/03)

(2003/C 83/16)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Ordinario di
Torino — Sezione GIP (District Court, Turin, — Preliminary
Investigations Section) of 29 January 2003, received at the
Court Registry on 10 February 2003, for a preliminary ruling
in the case brought against Giuseppe Momblano 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
those statements or of other
inaccurate versions of
company information addressed to shareholders or the
public or of any other information concerning their

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, in particular, the combined provisions of Article
44(2)(g) of the Treaty Establishing the European Com-
munity, 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 no penalty may be imposed
for breach of the duty to publish true and fair company
documents and which lays down a system of penalties
which are not responsive to the criteria of effectiveness,
proportionality and deterrent effect?

3. Must the directives mentioned, and in particular the
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
information, which is intended to protect ‘the interests of
shareholders and third parties’, permits only shareholders
and creditors to apply for the imposition of penalties, thus
depriving third parties generally of effective protection?

4. Must the directives mentioned, and in particular the
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
information, which is intended to protect ‘the interests of
shareholders and third parties’, lays down rules for the
prosecution of offences and a system of penalties which
are differentiated, reserving to cases where material
damage or loss is caused to shareholders or creditors the
right to submit a complaint and apply for the imposition
of sanctions and reserving to such cases sanctions which
are serious and effective?

(1) OJ L 65 of 14.3.1968, p. 8.
(2) OJ L 222 of 14.8.1978, p. 11.