Case C-337/03: Reference for a preliminary ruling by the Tribunale Ordinario di Torino — Sezione del Giudice per le Indagini Preliminari — by order of that Court of 15 July 2003 in the case against Fabrizio Barra
Date: 2003-10-18
Institutions: Court of Justice
Subjects: balance sheet, company law, fraud, interpretation of the law, publication of accounts

C 251/4

EN

Official Journal of the European Union

18.10.2003

telephone numbers and the retrospective
quantity of
imposition of fees in respect of this old stock is not
possible for reasons of national law?

basic telecommunications networks, is exempted from those
charges which are, however, payable by every other operator.

If the answer to Question 1 is in the affirmative:

2.

In such a situation may the new entrants to the market,
irrespective of the level of their other entry costs and
their competitive
without an associated analysis of
chances in comparison with the dominant undertaking,
be charged for the allocation of a telephone number a
one-off fee in the amount of a particular percentage (in
this case 0,1 %) of the estimated annual sales which can
be attained if the telephone number is passed on to a final
customer?

(1) OJ L 117, p. 15.

The more favourable treatment reserved for PT Comunicações
compared to other operators as regards the economic condi-
tions for the granting of rights of way is not objectively
justified. Reserving to PT Comunicações treatment which
differs from that afforded to other operators without any
objective justification whatsoever constitutes unequal treat-
ment
the granting of rights of way to PT
Comunicações, which amounts to infringement of Article 4d
of the Directive.

in respect of

(1) Commission Directive 90/388/EEC of 28 June 1990 on competi-
tion in the markets for telecommunications services (OJ L 192 of
24 July 1990, p. 10).

(2) Commission Directive 96/19/EC of 13 March 1996 amending
Directive 90/388/EEC with regard to the implementation of full
competition in telecommunications markets (OJ L 74 of 22 March
1996, p. 13).

Action brought on 30 July 2003 by the Commission of
the Portuguese
the European Communities

against

Republic

(Case C-334/03)

(2003/C 251/08)

Reference for a preliminary ruling by the Tribunale
Ordinario di Torino — Sezione del Giudice per le
Indagini Preliminari — by order of that Court of 15 July
2003 in the case against Fabrizio Barra

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 30 July
the European Communities,
2003 by the Commission of
represented by A. M. Alves Vieira and S. Rating, acting as
Agents, with an address for service in Luxembourg.

(Case C-337/03)

(2003/C 251/09)

The applicant claims that the Court should:

(1) Declare that, by failing to ensure in practice the transpo-
law of Article 4d of Directive
sition into national
90/388/EEC (1)
in the latest version amended by
Directive 96/19/EC (2), the Portuguese Republic has failed
to fulfil its obligations; and

Justice of

Reference has been made to the Court of
the
European Communities by order of the Tribunale Ordinario
di Torino — Sezione del Giudice per le Indagini Preliminari —
(District Court, Turin — Preliminary Investigations Section) of
15 July 2003, received at the Court Registry on 1st August
2003, for a preliminary ruling in the case against Fabrizio
Barra on the following questions:

(2) Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 13 of Law No 91/97 exempts the operators of basic
telecommunications networks from the payment of fees for
the installations of their networks and the granting of the
necessary rights of access to the public domain. As a result
of that provision, PT Comunicações, being the sole operator of

1. Must Article 44(3)(g) of the Treaty, Articles 2(1)(f) and 6
the first directive (Directive 68/151/EEC (1)) and
of
Article 2(2), (3) and (4) of the fourth directive (Directive
78/660/EEC (2), as amended by Directive 83/349 (3) and
Directive 90/605 (4)), be interpreted as meaning that that
legislation precludes a law of a Member State according to
which it is not a punishable offence for companies to
infringe their obligations concerning disclosure and the
provision of accurate information where statements are
made which, although intended to deceive members of the
public with a view to securing an unjust profit, are the
consequence of estimated valuations which, taken indivi-

18.10.2003

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Official Journal of the European Union

C 251/5

dually, depart from actual values to an extent not greater
than a certain threshold?

and, consequently,

2. With reference to the duty of each Member State to adopt
‘appropriate penalties’ for the infringements established
by1 the first and fourth directives (Directive 68/151/EEC
and Directive 78/660/EEC), must the directives themselves
and in particular the combined provisions of Article 44(3)
(g) of the 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 amended by
Directive 83/349 and Directive 90/605), be interpreted as
meaning that that legislation precludes a law of a Member
State which, in the case of infringement of the obligations
imposed in order to safeguard the principle of public and
accurate company information, lays down a sanctionative
system which actually allows false accounting to the
extent of one fifth of the company's net assets?

(1) English special edition...: Series-I I Chapter 1968(I), p. 41.
(2) OJ L 222 of 14.8.1978, p. 11.
(3) OJ L 193 of 18.7.1983, p. 1.
(4) OJ L 317 of 16.11.1990, p. 60.

Appeal brought on 11 August by P. Del Vaglio against the
judgment delivered on 4 June 2003 by the Court of First
Instance of the European Communities (Single Judge) in
Joined Cases T-124/01 and T-320/01 between P. Del
Vaglio and Commission of the European Communities

(Case C-352/03 P)

(2003/C 251/10)

An appeal against the judgment delivered on 4 June 2003 by
the Court of First Instance of the European Communities
(Single Judge) in Joined Cases T-124/01 and T-320/01 between
P. Del Vaglio and Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 11 August 2003 by P. Del Vaglio, represented
by M. Famchon and B. Desrez, lawyers, with an address for
service in Paris.

1.

annul
the decision taken by the Commission on
5 April 2000 refusing to apply the weighting for
the United Kingdom to the applicant's pension from
8 May 1999 and, in so far as necessary, annul the
Commission's decision of 23 February 2001 rejecting
the applicant's complaint of 18 July 2000,

2. order the Commission to apply the weighting for the
United Kingdom with retroactive effect to 8 May
1999,

3. order the Commission to pay damages provisionally
assessed on an equitable basis at EUR 10 000 and to
pay interest of 7 % on the balance of the pension
payable from 8 May 1999,

4. order the Commission to pay all the costs.

B.

Set aside the decision of the Court of First Instance in so
far as it dismissed the application in Case T-320/01 for
the period prior to 1 January 2001

and, consequently,

1.

annul
the decision taken by the Commission on
6 September 2001 rejecting the applicant's complaint
in respect of the application to his pension of a
weighting for the United Kingdom with effect from
24 September 2000,

2. order the Commission to apply a weighting for the
to

Kingdom with

retroactive

effect

United
24 September 2000,

3. order the Commission to pay damages provisionally
assessed on an equitable bases at EUR 15 000 and to
pay interest of 7 % on the balance of the pension
from 24 September 2000 until 1 April 2001.

Pleas and main arguments

The appellant claims that the Court should:

A.

Set aside the judgment of the Court of First Instance of
4 June 2003 in so far as it dismisses the application in
Case T-124/01

The Court of First Instance erred in considering that the docu-
ments produced provided sufficient evidence of the applicant's
intention to establish his residence in London only from
1 January 2001. The Court of First Instance also made an
error of law in considering that the fact that the applicant was