Case C-102/03: Reference for a preliminary ruling by the Tribunale di Brindisi — Ufficio per le Indagini Preliminari by order of that Court of 14 January 2003 in the criminal proceedings against Gianfranco Casale and Giuseppe Eugenio Caroli
Date: 2003-04-26
Institutions: Court of Justice
Subjects: company law, consolidated account, interpretation of the law, organisation, protection of shareholders, publication of accounts

26.4.2003

EN

Official Journal of the European Union

C 101/29

Reference for a preliminary ruling by the Tribunale di
Brindisi — Ufficio per le Indagini Preliminari by order of
that Court of 14 January 2003 in the criminal proceedings
against Gianfranco Casale and Giuseppe Eugenio Caroli

(Case C-102/03)

(2003/C 101/49)

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 Tribunale di Brindisi
— Ufficio per le Indagini Preliminari (Brindisi District Court,
Office of the Investigating Judge) of 14 January 2003, received
at the Court Registry on 5 March 2003, for a preliminary
ruling in the criminal proceedings against Gianfranco Casale
and Giuseppe Eugenio Caroli 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
company law offences concerning the infringement of the
obligations imposed in order to safeguard the principle of
public and accurate information on companies,
lays
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?

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’?

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

C 101/30

EN

Official Journal of the European Union

26.4.2003

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?

particular, to provide an opportunity for persons involved
in an action subsequently brought before the civil courts
— those considering bringing such an action, those who
anticipate that the action will be brought against them,
or third parties otherwise concerned by such an action
— to obtain advance clarification of the facts (with which
they are perhaps not entirely familiar), so as to enable
them better to assess their position, particularly also with
regard to the issue of identification of the party against
whom proceedings must be instituted?

( 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 of 14.8.1978, 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 of 18.7.1983, 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 of 16.11.1990, p. 60).

— If so, can the provision in that case constitute a measure
within the meaning of Article 24 of the Brussels Conven-
tion?

Removal from the register of Case C-435/01 (1)

(2003/C 101/51)

By order of 6 January 2003 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-435/01: Commission of the
European Communities v Kingdom of Belgium.

Reference for a preliminary ruling by the Gerechtshof te
Amsterdam by order of that Court of 12 December 2002
in the case of St Paul Dairy Industries NV against Unibel
Exser BVBA

(1) OJ C 17 of 19.1.2002.

(Case C-104/03)

(2003/C 101/50)

Reference has been made to the Court of Justice of the
European Communities by order of the Gerechtshof te Amster-
dam (Regional Court of Appeal, Amsterdam) of 12 December
2002, received at the Court Registry on 6 March 2003, for a
preliminary ruling in the case of St Paul Dairy Industries NV
against Unibel Exser BVBA on the following questions:

— Does the provision in Article 186 et seq. of the Nether-
lands Code of Civil Procedure concerning the ‘preliminary
hearing of witnesses prior to the bringing of proceedings’
come within the scope of the Brussels Convention in light
of the fact also that, as provided for in that legislation, it
seeks not only to enable material evidence to be taken
from witnesses shortly after the facts in dispute and to
prevent evidence from being lost but also, and in

Removal from the register of Case C-324/02 (1)

(2003/C 101/52)

By order of 10 February 2003 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-324/02: Commission of the
European Communities v Kingdom of Spain.

(1) OJ C 274 of 9.11.2002.