Case C-473/03: Reference for a preliminary ruling by the Tribunale Ordinario di Milano — Sezione X Penale — by order of that Court of 23 October 2003 in the criminal proceedings against Adelio Aggio, Paolo Berlusconi and Giovanni Butti
Date: 2004-01-24
Institutions: Court of Justice
Subjects: Italy, interpretation of the law, penalty, public accounting, publication of accounts

24.1.2004

EN

Official Journal of the European Union

C 21/15

— error of law, in that the Court of First Instance considered
that the Commission was not required to determine the
actual effect on competition and intra-Community trade
in its examination of the aid at issue in the light of
Article 87 EC;

insurance company and the insurance risk is borne by the
latter, are the activities undertaken by that taxable person in
execution of the agreement ‘related services performed by
insurance brokers and insurance agents’ within the meaning of
Article 13B(a) of the Sixth Directive (1)?

— distortion of the sense of the claims in the application
and error in law consisting of breach of the procedural
rules concerning the right to a fair hearing, in that the
Court of First Instance did not examine the claims relating
to the existence of exceptional circumstances and the
protection of legitimate expectations;

— distortion of the sense of the claims in the application
and error in law consisting of
the
procedural rules concerning the right to a fair hearing, in
that the Court of First Instance did not examine the
claims relating to infringement of Article 10 EC and
breach of the principle of good and proper administration
by the Commission;

infringement of

— error of law consisting of breach of the procedural rules
concerning the right to a fair hearing, in that the Court of
First Instance did not give a decision on the preparatory
inquiry proposed in the application.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 7 November
2003 in the case of Staatssecretaris van Financiën against
the single taxable entity Arthur Andersen & Co Account-
ants c.s.

(Case C-472/03)

(2004/C 21/27)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
der Nederlanden (Supreme Court of
the Netherlands) of
7 November 2003, received at the Court Registry on 12 Nov-
ember 2003, for a preliminary ruling in the case of Staatssecre-
taris van Financiën against the single taxable entity Arthur
Andersen & Co Accountants c.s. on the following question:

Where a taxable person has concluded an agreement with a
(life) assurance company, such as the agreement at issue
between ACMC and UL, under which that taxable person
undertakes, for a certain remuneration and with the aid of
qualified personnel who are expert in the insurance field, most
of the actual activities related to insurance — including, as a
rule, the taking of decisions that bind the insurance company
to enter into insurance contracts and maintaining contact with
the agents and, as the occasion arises, with the insured —
while the insurance contracts are concluded in the name of the

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes - Common system of value added tax: uniform
basis of assessment (OJ L 145 of 13.06.1977, p. 1-40).

Reference for a preliminary ruling by the Tribunale
Ordinario di Milano — Sezione X Penale — by order of
that Court of 23 October 2003 in the criminal proceedings
against Adelio Aggio, Paolo Berlusconi and Giovanni Butti

(Case C-473/03)

(2004/C 21/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Ordinario di
Milano - Sezione X Penale - (Milan District Court, Tenth
Criminal Chamber) of 23 October 2003, received at the Court
Registry on 13 November 2003, for a preliminary ruling in
the criminal proceedings against Adelio Aggio, Paolo Berlus-
coni and Giovanni Butti on the following question:

— Is Article 6 of Directive 68/151/EEC (1) to be understood
as requiring the Member States to establish appropriate
penalties not only for failing to disclose company balance
sheets and profit and loss accounts but also for falsifying
those documents, or other
company documents
addressed to the members or the public or any infor-
mation on a company’s assets and liabilities, and econ-
omic and financial situation which the company is
required to provide in relation to the company or the
group of which it forms a part?

— Do the requirements that the penalty be effective, pro-
portionate and dissuasive, with which terms the Court
defined the concept of ‘appropriate penalty’ in its judg-
ment of 21 September 1989 in Case 68/88 [Commission
v Hellenic Republic [1989] ECR I-2965], refer to the
nature or type of penalty considered in the abstract, or
rather also to its application in practice having regard to
the structural characteristics of the legal system within
which it takes effect? and finally

C 21/16

EN

Official Journal of the European Union

24.1.2004

— Does Article 2621 of the Codice Civile (as amended by
Legislative Decree No 61 of 11 April 2002), which
provides for a sentence of
imprisonment of up to
18 months and consequently a maximum limitation
period from the time when the offence is committed of
four and a half years, satisfy those requirements? That
occurs in a legal system which provides, after the
investigating judge completes his investigation and the
public prosecutor brings criminal proceedings, for review
there is
by the investigating judge to ascertain that
sufficient evidence to commit the accused for trial and
for the possibility of three tiers of courts before judgment
is definitive and thus, in the case of a conviction, the
penalty is actually imposed. In addition, account must be
taken of the complexity of the findings required under
Article 2621 of the Codice Civile, given the thresholds
of criminal relevance set by Articles 2621, paragraphs 3
and 4.

(1) OJ L 65 of 14.3.1968, p. 8; English Special Edition: Series-I I

Chapter 1968(I), p. 41.

Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Cremona, Sezione 02 by order
of that Court of 9 October 2003 in the case of Banca
Popolare di Cremona Soc. Coop.a.r.l. against Agenzia
Entrate Ufficio Cremona

(Case C-475/03)

(2004/C 21/29)

Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria Provinciale di Cremona, Sezione 02 (Cremona Tax Court,
Second Chamber) of 9 October 2003, received at the Court
Registry on 17 November 2003, for a preliminary ruling in
the case of Banca Popolare di Cremona Soc. Coop.a.r.l. against
Agenzia Entrate Ufficio Cremona on the following question:

Must Article 33 of Directive 77/388/EEC (1) (as amended by
Directive 91/680/EEC (2)) be interpreted as meaning that it
prohibits a charge to IRAP of the net value of production
deriving from the regular exercise of independent activity to
produce or exchange goods or to provide services?

Action brought on 17 November 2003 by the Com-
mission of the European Communities against the Repub-
lic of Austria

(Case C-476/03)

(2004/C 21/30)

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
17 November 2003 by the Commission of the European
Communities, represented by Dr Claudia Schmidt and Dr
Wouter Wils, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

2.

3.

declare that, by failing to adopt the laws, regulations of
administrative provisions necessary to transpose Directive
2001/12/EC of the European Parliament and of the
Council of 26 February 2001 amending Council Directive
91/440/EEC on the development of the Community’s
railways (1) or, at any rate, by failing to inform the
Commission thereof, the Republic of Austria has failed to
fulfil its obligations under that directive;

declare that, by failing to adopt the laws, regulations of
administrative provisions necessary to transpose Directive
2001/13/EC of the European Parliament and of the
Council of 26 February 2001 amending Council Directive
95/18/EC on the licensing of railway undertakings (2) or,
at any rate, by failing to inform the Commission thereof,
the Republic of Austria has failed to fulfil its obligations
under that directive;

declare that, by failing to adopt the laws, regulations of
administrative provisions necessary to transpose Directive
2001/14/EC of the European Parliament and of the
Council of 26 February 2001 on the allocation of railway
infrastructure capacity and the levying of charges for the
use of railway infrastructure and safety certification (3) or,
at any rate, by failing to inform the Commission thereof,
the Republic of Austria has failed to fulfil its obligations
under that directive;

4.

order the Republic of Austria to pay the costs of the
proceedings.

Pleas in law and main arguments

The period for transposition of those directives expired on
15 March 2003.

(1) OJ L 145 of 3.6.1977, p. 1.
(2) OJ L 376 of 31.12.1991, p. 1.

(1) OJ No L 75, 15.03.2001, p. 1.
(2) OJ No L 75, 15.03.2001, p. 26.
(3) OJ No L 75, 15.03.2001, p. 29.