CELEX: C2003/070/13
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-22/03: Reference for a preliminary ruling by the Rechtbank te Rotterdam by order of that Court of 21 January 2003 in the proceedings between Optiver BV and 38 Others against Stichting Autoriteit Financiële Markten

C 70/8                   EN                           Official Journal of the European Union                                        22.3.2003
       construed individually or in conjunction to mean that                  Reference for a preliminary ruling by the Tribunale
       they make the itinerant selling on Belgian territory                   Ordinario di Torino, Sezione IV Penale by order of that
       by both Belgian nationals and other EU nationals of                    Court of 13 January 2003 in the case brought against
       subscriptions to periodicals subject to prior authorisation                               Michel Mulliez and Others
       by the Minister, or a Grade 1 official delegated by
       him, failing which a punishable offence is committed
       thereunder, where under those national provisions a
       German company selling or wishing to sell through the                                           (Case C-23/03)
       intermediary of vendors established in Belgium subscrip-
       tions to periodicals is required to obtain such prior
       provisional authorisation or, if it does not do so commits
       an offence under those provisions?                                                              (2003/C 70/14)
(b)    Does it make any difference to the answer to the first
       question that that law of 25 June 1993 does not make
       the sale of newspapers, periodicals and also subscriptions
       to newspapers subject to such prior authorisation?
                                                                              Reference has been made to the Court of Justice of the
                                                                              European Communities by order of the Tribunale Ordinario di
                                                                              Torino, Sezione IV Penale (District Court, Turin — Criminal
                                                                              Section IV) of 13 January 2003, received at the Court Registry
                                                                              on 23 January 2003, for a preliminary ruling in the case
                                                                              brought against Michel Mulliez and Others on the following
                                                                              questions:
                                                                              1.   May Article 6 of Directive 68/151/EEC (1) be interpreted
Reference for a preliminary ruling by the Rechtbank te
                                                                                   as imposing an obligation upon the Member States to
Rotterdam by order of that Court of 21 January 2003 in
                                                                                   establish appropriate penalties not only for failure on the
the proceedings between Optiver BV and 38 Others
                                                                                   part of commercial companies to publish their balance
        against Stichting Autoriteit Financiële Markten
                                                                                   sheet and profit and loss statement but also for publishing
                                                                                   inaccurate versions of those statements or of other
                                                                                   company information addressed to shareholders or the
                            (Case C-22/03)                                         public or of any other information concerning their
                                                                                   economic, asset or financial position which they are
                                                                                   required to provide and which concern the company
                           (2003/C 70/13)                                          itself or the group of companies to which it belongs?
                                                                              2.   With reference to the obligation upon each Member State
                                                                                   to adopt ‘appropriate penalties’ for the infringements
Reference has been made to the Court of Justice of the                             provided for in the First Directive 68/151/EEC and the
European Communities by order of the Rechtbank te Rotter-                          Fourth Directive 78/660/EEC ( 2), must those directives
dam (District Court, Rotterdam) of 21 January 2003, received                       and, in particular, the combined provisions of
at the Court Registry on 23 January 2003, for a preliminary                        Article 44(2)(g) of the Treaty Establishing the European
ruling in the proceedings between Optiver BV and 38 Others                         Community, Article 2(1)(f) and Article 6 of the First
against Stichting Autoriteit Financiële Markten on the follow-                     Directive and Article 2(2), (3) and (4) of the Fourth
ing question:                                                                      Directive, as amended by Directive 83/349/EEC ( 3) and
                                                                                   Directive 90/605/EEC ( 4), be interpreted as precluding the
                                                                                   legislation of a Member State under which no penalty
                                                                                   may be imposed for breach of the duty to publish true
Does the Directive ( 1), and in particular the interpretation of                   and fair company documents (including the balance sheet
Articles 11 and 12, preclude the imposition of a levy as                           and profit and loss statement) where:
described above on securities institutions in respect of their
gross profit from securities-related activities?
                                                                                   (a)    the falsehood is qualitative only,
( 1) Council Directive 69/335/EEC of 17 July 1969 concerning
     indirect taxes on the raising of capital (OJ L 249 of 03.10.1969,             (b) the falsehood in, or omission from, the company
     p. 25).                                                                              statement in question gives rise to a distortion of
                                                                                          year-end profits or of the value of net company
                                                                                          assets that, nevertheless, remains below a certain
                                                                                          threshold expressed in percentage terms,