Case C-338/03: Reference for a preliminary ruling by the Tribunale Civile e Penale di Perugia — Ufficio per le indagini preliminari — by order of that Court of 12 June 2003 in the case against Alessandrello Rosario and Others
Date: 2003-11-01
Institutions: Court of Justice
Subjects: balance sheet, company law, interpretation of the law, offence, publication of accounts

1.11.2003

EN

Official Journal of the European Union

C 264/15

1.

Council Directive 93/104/EC of 23 November 1993 concern-
ing certain aspects of the organisation of working time must be
interpreted as meaning that on-call duty (‘Bereitschaftsdienst’)
performed by a doctor where he is required to be physically
present in the hospital must be regarded as constituting in its
totality working time for the purposes of that directive even
where the person concerned is permitted to rest at his place of
work during the periods when his services are not required with
the result that that directive precludes legislation of a Member
State which classifies as rest periods an employee’s periods of
inactivity in the context of such on-call duty.

2. Directive 93/104 must also be interpreted as meaning that:

— in circumstances such as those in the main proceedings,
that directive precludes legislation of a Member State
which, in the case of on-call duty where physical presence
in the hospital is required, has the effect of enabling, in
an appropriate case by means of a collective agreement or
a works agreement based on a collective agreement, an
offset only in respect of periods of on-call duty during
which the worker has actually been engaged in professional
activities;

— in order to come within the derogating provisions set out
in Article 17(2), subparagraph 2.1(c)(i) of the directive,
a reduction in the daily rest period of 11 consecutive hours
by a period of on-call duty performed in addition to
normal working time is subject to the condition that
equivalent compensating rest periods be accorded to the
workers concerned at times immediately following the
corresponding periods worked;

— furthermore, in no circumstances may such a reduction in
the daily rest period lead to the maximum weekly working
time laid down in Article 6 of the directive being exceeded.

(1) OJ C 156 of 29.6.2002.

Reference for a preliminary ruling by the Tribunale Civile
e Penale di Perugia — Ufficio per le indagini preliminari
— by order of that Court of 12 June 2003 in the case
against Alessandrello Rosario and Others

(Case C-338/03)

(2003/C 264/25)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Civile e

Penale di Perugia — Ufficio per le indagini preliminari —
(District Civil and Criminal Court, Perugia — Preliminary
Investigations Section) of 12 June 2003, received at the Court
Registry on 1st August 2003, for a preliminary ruling in the
case against Alessandrello Rosario and Others on the following
questions:

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?

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?

C 264/16

EN

Official Journal of the European Union

1.11.2003

4.

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
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?

(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).

Reference for a preliminary ruling by the Tribunale di
Cagliari — Sezione Civile — by order of that Court of
29 April 2003 in the case of Giuseppe Atzeni and Others
against Regione Autonoma della Sardegna

(Case C-346/03)

(2003/C 264/26)

Justice of the
Reference has been made to the Court of
European Communities by order of the Tribunale di Cagliari
— Sezione Civile (Cagliari District Court — Civil Chamber) of
29 April 2003, received at the Court Registry on 6 August
2003, for a preliminary ruling in the case of Giuseppe Atzeni
and Others against Regione Autonoma della Sardegna on the
following questions on the validity of Commission Decision
No 612/97 (1), with regard to the following defects:

(a)

(b)

(c)

(d)

(e)

(f)

lack of competence of the Commission to adopt the
contested decision inasmuch as it infringes Article 32 of
the Treaty on European Union in conjunction with
Articles 33, 34, 35, 36, 37 and 38 thereof;

infringement of the rules which govern the procedure
provided for in Article 88(1) of the Treaty on European
Union;

infringement of the rules which govern the procedure
provided for in Article 88(2) and (3) of the Treaty on
European Union;

failure to provide a statement of reasons as required
by Article 253 of the Treaty on European Union in
conjunction with Articles 88(3) and 87(1) thereof;

infringement and misapplication of Council Regulation
No 797/85 (2) on improving the efficiency of agricultural
structures;

infringement of and failure to observe ‘practice for aid to
farms in difficulty’ and the ‘Community guidelines on
State aid for rescuing and restructuring firms in difficulty’.

(1) OJ L 248 of 11.9.1997, p. 27.
(2) OJ L 93 of 30.3.1985, p. 1.