Judgment of the Court (Grand Chamber) of 3 May 2005 in Joined Cases C-387/02, C-391/02 and C-403/02: References for preliminary rulings from the Tribunale di Milano and the Corte d'appello di Lecce in the criminal proceedings against Silvio Berlusconi, Sergio Adelchi, Marcello Dell'Utri and Others (Company law — Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, after amendment, Article 44(2)(g) EC) — First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC — Annual accounts — Principle of a true and fair view — Penalties provided for in cases of false information on companies (false accounting) — Article 6 of First Directive 68/151 — Requirement that penalties for breaches of Community law be appropriate)
Date: 2005-07-09
Institutions: Court of Justice
Subjects: Italy, company law, company with share capital, interpretation of the law, protection of shareholders, publication of accounts

9.7.2005

EN

Official Journal of the European Union

C 171/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

3. Orders the parties to bear their own costs.

(Grand Chamber)

of 10 May 2005

(1) OJ C 20 of 22.01.2000.

in Case C-400/99: Italian Republic v Commission of the
European Communities (1)

(Action for annulment — State aid — Measures regarding
maritime transport undertakings — Public service contracts
— No aid, existing aid or new aid — Initiation of the proce-
dure under Article 88(2) EC — Obligation to suspend)

(2005/C 171/01)

(Language of the case: Italian)

In Case C-400/99: Italian Republic (Agents: U. Leanza, I. Bragu-
glia assisted by P.G. Ferri and M. Fiorilli) v Commission of the
European Communities (Agents: E. De Persio, D. Triantafyllou
and V. Di Bucci) — Action for annulment under Article 230
EC, brought on 18 October 1999 — the Court
(Grand
Chamber), composed of V. Skouris, President, P. Jann, C.W.A.
Timmermans and A. Rosas, Presidents of Chambers, J.-P. Puis-
sochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr and
J. N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, gave a judgment on 10 May 2005,
in
which it:

1. Annuls the Commission decision, notified to the Italian authorities
by letter SG(99) D/6463, of 6 August 1999, to initiate the
procedure under Article 88(2) EC concerning State aid C 64/99
(ex NN 68/99) to the extent to which it entailed, until notifica-
tion to the Italian authorities of the decision closing the procedure
in relation to the undertaking concerned (Commission Decision
C(2001) 1684 of 21 June 2001 or Commission Decision
C(2004) 470 final of 16 March 2004) suspension of the tax
treatment applied for the supply of fuel and lubricating oil to the
vessels of Gruppo Tirrenia di Navigazione;

2. For the rest, dismisses the application;

JUDGMENT OF THE COURT

(Grand Chamber)

of 3 May 2005

in Joined Cases C-387/02, C-391/02 and C-403/02: Refer-
ences for preliminary rulings from the Tribunale di Milano
and the Corte d'appello di Lecce in the criminal proceed-
ings against Silvio Berlusconi, Sergio Adelchi, Marcello
Dell'Utri and Others (1)

(Company law — Article 5 of the EEC Treaty (subsequently
Article 5 of the EC Treaty, in turn Article 10 EC) and Article
54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of
the EC Treaty, in turn, after amendment, Article 44(2)(g)
EC) — First Directive 68/151/EEC, Fourth Directive
78/660/EEC and Seventh Directive 83/349/EEC — Annual
accounts — Principle of a true and fair view — Penalties
provided for in cases of false information on companies (false
accounting) — Article 6 of First Directive 68/151 —
Requirement that penalties for breaches of Community law
be appropriate)

(2005/C 171/02)

(Language of the cases: Italian)

In Joined Cases C-387/02, C-391/02 and C-403/02: references
for preliminary rulings under Article 234 EC from the Tribu-
nale di Milano (C-387/02 and C-403/02) and the Corte d'ap-
pello di Lecce (C-391/02)
(Italy), made by decisions of 26
October 2002, 29 October 2002 and 7 October 2002, received

C 171/2

EN

Official Journal of the European Union

9.7.2005

(C-387/02), Sergio Adelchi

at the Court on 28 October 2002, 12 November 2002 and 8
in the criminal proceedings
November 2002 respectively,
against Silvio Berlusconi
(C-391/
02), Marcello Dell'Utri and Others (C-403/02) — the Court
(Grand Chamber), composed of V. Skouris, President of the
Chamber, P. Jann, C.W.A. Timmermans (Rapporteur), A. Rosas
and A. Borg Barthet, Presidents of Chambers, J.-P. Puissochet,
R. Schintgen, N. Colneric, S. von Bahr, M. Ilešič, J. Malenovský,
U. Lõhmus and E. Levits, Judges; J. Kokott, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, gave a
judgment on 3 May 2005, the operative part of which is as
follows:

In a situation such as that in issue in the main proceedings, First
Council Directive 68/151/EEC of 9 March 1968 on coordination 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
the Com-
munity, cannot be relied on as such against accused persons by the
authorities of a Member State within the context of criminal proceed-
ings, in view of the fact that a directive cannot, of itself and indepen-
dently of national
legislation adopted by a Member State for its
implementation, have the effect of determining or increasing the crim-
inal liability of those accused persons.

throughout

(1) OJ C 19 of 25.01.2003.

between St. Paul Dairy Industries NV and Unibel Exser
BVBA — the Court (First Chamber), composed of P.
Jann
(Rapporteur), President of the Chamber, N. Colneric, J.N. Cunha
Judges; D. Ruiz-Jarabo
Rodrigues, M.
Colomer, Advocate General, M.-F. Contet, Principal Adminis-
trator, for the Registrar, gave a judgment on 28 April 2005,
the operative part of which is as follows:

Ilešič and E. Levits,

Article 24 of the Convention of 27 September 1968 on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters,
as amended by the Convention of 9 October 1978 on the Accession
of the Kingdom of Denmark, of Ireland and of the United Kingdom
of Great Britain and Northern Ireland, by the Convention of 25
October 1982 on the Accession of the Hellenic Republic, by the
Convention of 26 May 1989 on the Accession of the Kingdom of
Spain and the Portuguese Republic and by the Convention of 29
November 1996 on the Accession of the Republic of Austria, the
Republic of Finland and the Kingdom of Sweden, must be interpreted
as meaning that a measure ordering the hearing of a witness for the
purpose of enabling the applicant to decide whether to bring a case,
determine whether it would be well founded and assess the relevance of
evidence which might be adduced in that regard is not covered by the
notion of ‘provisional, including protective, measures’.

(1) JO C 101, 26.04.2003.

JUDGMENT OF THE COURT

(First Chamber)

of 28 April 2005

in Case C-104/03: Reference for a preliminary ruling from
the Gerechtshof te Amsterdam St. Paul Dairy Industries
NV v Unibel Exser BVBA (1)

(Brussels Convention — Provisional,

including protective,

measures — Hearing of witnesses)

(2005/C 171/03)

(Language of the case: Dutch)

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 April 2005

in Case C-410/03: Commission of the European Commu-
nities v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
1999/95/EC — Seafarers' hours of work on board ships —
Failure to transpose within the prescribed period)

(2005/C 171/04)

(Language of the case: Italian)

In Case C-104/03: Reference for a preliminary ruling pursuant
to the Protocol of 3 June 1971 on the interpretation by the
Court of Justice of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters
te Amsterdam
(Netherlands), made by decision of 12 December 2002,
received at the Court on 6 March 2003, in the proceedings

from the Gerechtshof

In Case C-410/03, Commission of the European Communities
(Agents: K. Banks and K. Simonsson) v Italian Republic (Agent:
I.M. Braguglia, assisted by A. Cingolo) — action under Article
226 EC for failure to fulfil obligations, brought on 1 October
2003 — the Court (Fourth Chamber), composed of K. Lenaerts,
President of the Chamber, N. Colneric (Rapporteur) and J.N.
Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate
General; R. Grass, Registrar, gave a judgment on 28 April
2005, in which it: