Case C-47/03 P: Appeal brought on 7 February 2003 by Mr Cwik against the judgment delivered on 26 November 2002 by the Second Chamber of the Court of First Instance of the European Communities in Case T-103/01 between Mr Cwik and Commission of the European Communities
Date: 2003-04-05
Institutions: Court of Justice
Subjects: European Commissioner, European official, General Court (EU), action for annulment (EU), staff assessment

5.4.2003

EN

Official Journal of the European Union

C 83/9

forcibly to arrest and deport any person whom they
unilaterally consider not to be entitled to remain within
that State, and to do so within such a period of time and
in such a way that their action escape any practical and
effective review by any third-party impartial authority
whether before, during or after their actions?

3. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed at Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is illogical and unlawful
for a Member State of the European Community to lay
down a system for the judicial review of orders for the
deportation of foreigners and of police action taken to
execute such orders which, essentially, has no effect on
the consequences which flow from such orders or on the
actions taken to execute them, and is thus nothing more
than a semblance of legal protection, wholly deprived of
any practical effect or usefulness?

4. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is unlawful for a Member
State of the European Community to lay down provisions
governing orders for the deportation of foreigners and
the execution of such orders in such a way as to preclude
the person deported from actually exercising any right of
asylum?

5. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is unlawful, in the sense
that it disproportionately and unfairly denies and limits
the right to personal liberty accorded to all persons in
the European Community, for a Member State of the
Community to provide that orders for the deportation of
foreigners in possession of a valid passport be forcibly
executed immediately (in the sense of within a few
minutes) following their notification to the foreigner
concerned, even in the absence of genuine and specific
reasons of public security or public order justifying
recourse to such physical coercion?

6. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed at Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that Articles 13(3), (4) and (5)a
of Legislative Decree No 286 of 25 July 1998, as amended
are inconsistent with them?

(1) Council Directive 64/221/EEC of 25 February 1964 on the co-
ordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of
public policy, public security or public health (OJ P 56 of
4.4.1964, p. 850).

Appeal brought on 7 February 2003 by Mr Cwik against
the judgment delivered on 26 November 2002 by the
Second Chamber of the Court of First Instance of the
European Communities in Case T-103/01 between Mr
Cwik and Commission of the European Communities

(Case C-47/03 P)

(2003/C 83/15)

An appeal against the judgment delivered on 26 November
2002 by the Second Chamber of the Court of First Instance
of the European Communities in Case T-103/01 Cwik v
Commission was brought before the Court of Justice of the
European Communities on 7 February 2003 by Mr Cwik,
represented by N. Lhoëst, lawyer, with an address for service
in Luxembourg.

The appellant claims that the Court should:

1.

2.

declare the appeal admissible and well founded;

accordingly:

(a)

set aside the contested judgment;

(b)

refer the case back to the Court of First Instance so
that it may rule, first, on the application seeking the
annulment of the decision of the Commission of
13 June 2000 transferring the applicant from the
‘Economic Information, Publications and Docu-
mentation’ Unit, which,
following restructuring,
subsequently became the ‘Information: EURO, EMU’
Unit (CFIN-04 under the direction of Mr Blackie), to
the ‘General Coordination, Human Resources and
Administration’ Unit, (ECFIN-01 under the direction
of Mr Verhaeven), and (ii) on the claim for damages;

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.