CELEX: C2003/070/14
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-23/03: Reference for a preliminary ruling by the Tribunale Ordinario di Torino, Sezione IV Penale by order of that Court of 13 January 2003 in the case brought against Michel Mulliez and Others

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,
 ---pagebreak--- 22.3.2003               EN                        Official Journal of the European Union                                           C 70/9
      (c)   information is given, albeit with the aim of mislead-         Action brought on 15 January 2003 by Italian Republic
            ing shareholders or the public in order to obtain                 against Commission of the European Communities
            unjust enrichment, which is the result of valuations
            or appraisals which, taken individually, diverge by
            no more than a certain percentage from a correct                                       (Case C-24/03)
            valuation or appraisal,
                                                                                                   (2003/C 70/15)
      (d) the falsehood, fraudulent omission or other infor-
            mation which does not faithfully depict the asset or
            financial position or profit and loss of the company
            does not ‘appreciably affect’ the portrayal of the
                                                                          An action against the Commission of the European Communi-
            asset or financial position of the company or group           ties was brought before the Court of Justice of the European
            of companies to which it belongs?                             Communities on 15 January 2003 by the Italian Republic,
                                                                          represented by Umberto Leanza, acting as Agent, assisted by
                                                                          Maurizio Fiorilli, Avvocato dello Stato.
3.    With reference to the obligation upon each Member State
      to adopt ‘appropriate penalties’ for the infringements
      provided for in the First Directive 68/151/EEC and Fourth
      Directive 78/660/EEC, must those directives and, in                 The applicant claims that the Court should:
      particular, the combined provisions of Article 44(2)(g)
      of the Treaty Establishing the European Community,                  annul the decision of the Commission of 5 November 2002
      Article 2(1)(f) and Article 6 of the First Directive and            No 4127 (1), which excludes from Community financing
      Article 2(2), (3) and (4) of the Fourth Directive, as               certain expenditure incurred by the Italian Republic under the
      amended by Directive 83/349/EEC and Directive 90/605/               Guarantee Section of the European Agricultural Guidance and
      EEC, be interpreted as precluding the legislation of a              Guarantee Fund (EAGGF) as follows:
      Member State under which, in the case of breach of the
      duty to publish true and fair company documents, which
                                                                          —     Point B.2.1 of the report — financial year 1999-2000 —
      is intended to protect ‘the interests of shareholders and
                                                                                fruit and vegetables — amount: EUR 68 050,00
      third parties’, creates a system of penalties which:
                                                                          —     Point B.2.1 of the report — financial year 2000-2001 —
      (a)   in the most serious cases (where material damage or                 fruit and vegetables — amount: EUR 7 853,00
            loss is caused) permits only shareholders or creditors
            to apply for the imposition of penalties, thus                —     Point B.4.1.6 of the report — financial year 1998-1999
            depriving third parties generally of effective protec-              — cereal storage — amount: EUR 1 272 616,34
            tion,
      (b) in less serious cases (where no material damage is
            caused and no complaint is submitted) provides for            Pleas in law and main arguments
            a minor or summary offence (‘contravvenzione’)
            which, in the context of the Italian procedure
            system, is, for the reasons set out in the grounds for
            the present order, ineffectual,                               1. F r u i t a n d v e g e t a b l e s
      (c)   permits individuals, by means of deferred with-               The Commission finds that the Italian authorities failed to
            drawal of their complaint, to undo entirely any               observe fully the provisions of Regulation No 2200/96 (2)
            protection of the right to transparency in company            (Article 25) and Regulation No 659/97 (3) (Article 9(2) and (3))
            matters?                                                      resulting in an underestimation of the quantities communi-
                                                                          cated when fixing the Community withdrawal compensation
                                                                          (CWC): this led to the Commission adopting a CWC which
                                                                          was too high.
( 1) OJ L 65 of 14.03.1968, p. 8.
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.                                        However, the Italian authorities take the view that, according
( 4) OJ L 317 of 16.11.1990, p. 60.                                       to the Community legislation in force, they provided sufficient
                                                                          information to the Commission which should have been able
                                                                          to revise its calculation of the CWC, having found minimal
                                                                          differences with respect to the final figures provided by the
                                                                          paying agency. The failure on the part of the Commission to
                                                                          amend the CWC cannot be attributed to the Italian authorities
                                                                          which pointed it out and sought to quantify it.