CELEX: C2003/083/16
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-52/03: Reference for a preliminary ruling by the Tribunale Ordinario di Torino — Sezione GIP by order of that Court of 29 January 2003 in the case brought against Giuseppe Momblano

C 83/10                EN                         Official Journal of the European Union                                          5.4.2003
      (c)   order the defendant to pay the entire costs of both                 economic, asset or financial position which they are
            proceedings.                                                        required to provide and which concern the company
                                                                                itself or the group of companies to which it belongs?
Pleas and main arguments
                                                                          2.    With reference to the obligation upon each Member State
                                                                                to adopt ‘appropriate penalties’ for the infringements
Infringement of Community law, in particular infringement of                    provided for in the First Directive 68/151/EEC and the
Article 33 of the statute of the Court of Justice of the European               Fourth Directive 78/660/EEC ( 2), must those directives
Communities under which judgments are to state the reasons                      and, in particular, the combined provisions of Article
on which they are based, which means among other things                         44(2)(g) of the Treaty Establishing the European Com-
that the grounds relied on should be legally valid, that is to say              munity, Article 2(1)(f) and Article 6 of the First Directive
coherent, relevant, free of any error of law or fact, and                       and Article 2(2), (3) and (4) of the Fourth Directive, as
internally consistent.
                                                                                amended by Directive 83/349/EEC and Directive 90/605/
                                                                                EEC, be interpreted as precluding the legislation of a
—     the Court of First Instance did not take into consideration               Member State under which no penalty may be imposed
      all the evidence put forward by the applicant to demon-                   for breach of the duty to publish true and fair company
      strate the kind of harassment he was subjected to, nor                    documents and which lays down a system of penalties
      has it assessed it as a whole,                                            which are not responsive to the criteria of effectiveness,
                                                                                proportionality and deterrent effect?
—     the Court of First Instance has failed to mention new facts
      consisting in a new restructuring of departments which
      left the applicant the only person not to be reintegrated
      into his former unit,                                               3.    Must the directives mentioned, and in particular the
                                                                                provisions of Article 44(2)(g) of the Treaty Establishing
—     the Court of First Instance, without the least explanation,               the European Community, Article 2(1)(f) and Article 6 of
      refused to include in the case-file recent documents which                the First Directive and Article 2(2), (3) and (4) of the
      came to light after the written procedure was closed and                  Fourth Directive, as amended by Directive 83/349/EEC
      which rebutted the Commission’s arguments.                                and Directive 90/605/EEC, be interpreted as precluding
                                                                                the legislation of a Member State under which, in the case
                                                                                of breach of the duty to publish true and fair company
                                                                                information, which is intended to protect ‘the interests of
                                                                                shareholders and third parties’, permits only shareholders
                                                                                and creditors to apply for the imposition of penalties, thus
                                                                                depriving third parties generally of effective protection?
Reference for a preliminary ruling by the Tribunale
Ordinario di Torino — Sezione GIP by order of that                        4.    Must the directives mentioned, and in particular the
Court of 29 January 2003 in the case brought against                            provisions of Article 44(2)(g) of the Treaty Establishing
                      Giuseppe Momblano                                         the European Community, Article 2(1)(f) and Article 6 of
                                                                                the First Directive and Article 2(2), (3) and (4) of the
                          (Case C-52/03)                                        Fourth Directive, as amended by Directive 83/349/EEC
                                                                                and Directive 90/605/EEC, be interpreted as precluding
                                                                                the legislation of a Member State under which, in the case
                          (2003/C 83/16)                                        of breach of the duty to publish true and fair company
                                                                                information, which is intended to protect ‘the interests of
                                                                                shareholders and third parties’, lays down rules for the
                                                                                prosecution of offences and a system of penalties which
Reference has been made to the Court of Justice of the                          are differentiated, reserving to cases where material
European Communities by order of the Tribunale Ordinario di                     damage or loss is caused to shareholders or creditors the
Torino — Sezione GIP (District Court, Turin, — Preliminary                      right to submit a complaint and apply for the imposition
Investigations Section) of 29 January 2003, received at the                     of sanctions and reserving to such cases sanctions which
Court Registry on 10 February 2003, for a preliminary ruling                    are serious and effective?
in the case brought against Giuseppe Momblano on the
following questions:
1.    May Article 6 of Directive 68/151/EEC (1) be interpreted
      as imposing an obligation upon the Member States to                 (1 ) OJ L 65 of 14.3.1968, p. 8.
      establish appropriate penalties not only for failure on the         (2 ) OJ L 222 of 14.8.1978, p. 11.
      part of commercial companies to publish their balance
      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
      public or of any other information concerning their