Case C-101/03: Reference for a preliminary ruling by the Tribunale di Milano — Prima sezione penale by order of that Court of 26 November 2002 in the criminal proceedings against Alfonso Galeazzo and Marco Benatti
Date: 2003-04-26
Institutions: Court of Justice
Subjects: company law, consolidated account, interpretation of the law, legal status, organisation, protection of shareholders, publication of accounts, right of establishment

C 101/28

EN

Official Journal of the European Union

26.4.2003

Action brought on 4 March 2003 by the Commission of
the European Communities against Ireland

(Case C-99/03)

(2003/C 101/47)

An action against Ireland was brought before the Court of
Justice of the European Communities on 4 March 2003 by the
Commission of the European Communities, represented by
James Flett, acting as agent, with an address for service in
Luxembourg.

The Applicant claims that the Court should:

1)

declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2000/52/EC of the Commission of 26 July
2000 amending Directive 80/723/EC on the transparency
of financial relations between Member States and public
undertakings (1), or in any event by failing to communi-
cate them forthwith to the Commission, Ireland has failed
to fulfil its obligations under the Treaty and the Directive;

2)

order Ireland to pay the costs.

Pleas in law and main arguments

Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. When that
period expired on 31 July 2001 Ireland had failed to adopt the
measures necessary to comply with the directive referred to in
the conclusions of the Commission, or in any event had failed
to inform the Commission of such measures.

( 1) OJ L 193 of 29.7.2000, p. 75.

Reference for a preliminary ruling by the Tribunale di
Milano — Prima sezione penale by order of that Court of
26 November 2002 in the criminal proceedings against
Alfonso Galeazzo and Marco Benatti

— Prima sezione penale (Milan District Court, First Criminal
Chamber) of 26 November 2002, received at
the Court
Registry on 4 March 2003, for a preliminary ruling in the
criminal proceedings against Alfonso Galeazzo and Marco
Benatti on the following questions:

1. Does Article 6 of Directive 68/151/EEC (1) on co-ordi-
nation 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 concern not only cases of failure to publish
the balance sheet and profit and loss account, but also
cases where those documents are published but their
contents are false, given that the harm to the interests of
members and third parties is clearly greater in the latter
case? Is the directive intended in that respect to lay down
a minimum level of protection at Community level
leaving it to the Member States to put in place means of
protection against the submitting of false balance sheets
or the publishing of false company accounts?

2. Do the criteria of effectiveness, proportionality and
dissuasiveness, which the penalties to be adopted by the
Member States under Council Directive 68/151 must
satisfy in order to be regarded as appropriate, refer to the
nature or type of penalty considered in the abstract, or
rather to its application in practice having regard to the
structural characteristics of the legal system within which
it takes effect?

3. Are the principles set out in Council Directive 78/660/
EEC (2) of 25 July 1978 based on Article 54(3)(g) of the
Treaty on the annual accounts of certain types of
companies, Council Directive 83/349/EEC (3) of 13 June
1983 based on Article 54(3)(g) of the Treaty on consoli-
dated accounts and Council Directive 90/605/EEC (4) of
8 November 1990 amending Directive 78/660/EEC on
annual accounts and Directive 83/349/EEC on consoli-
dated accounts as regards the scope of those directives,
upon which national measures relating to the drafting
and contents of annual accounts and annual reports, in
particular, of capital companies, must be based, to be
interpreted as precluding a Member State from setting
minimum thresholds below which inaccurate statements
in annual accounts and annual reports relating to com-
panies limited by shares, partnerships limited by shares
and limited liability companies are not punishable?

(Case C-101/03)

(2003/C 101/48)

(1) OJ, English Special Edition 1968 (I), p. 41.
(2) OJ 1978 L 222, p. 11.
(3) OJ 1983 L 193, p. 1.
(4) OJ 1990 L 317, p. 60.

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano