CELEX: C2004/021/27
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-472/03: 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 Accountants c.s.

24.1.2004               EN                          Official Journal of the European Union                                             C 21/15
—      error of law, in that the Court of First Instance considered         insurance company and the insurance risk is borne by the
       that the Commission was not required to determine the                latter, are the activities undertaken by that taxable person in
       actual effect on competition and intra-Community trade               execution of the agreement ‘related services performed by
       in its examination of the aid at issue in the light of               insurance brokers and insurance agents’ within the meaning of
       Article 87 EC;                                                       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              (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
       rules concerning the right to a fair hearing, in that the                harmonization of the laws of the Member States relating to
       Court of First Instance did not examine the claims relating              turnover taxes - Common system of value added tax: uniform
       to the existence of exceptional circumstances and the                    basis of assessment (OJ L 145 of 13.06.1977, p. 1-40).
       protection of legitimate expectations;
—      distortion of the sense of the claims in the application
       and error in law consisting of infringement 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;
                                                                            Reference for a preliminary ruling by the Tribunale
—      error of law consisting of breach of the procedural rules            Ordinario di Milano — Sezione X Penale — by order of
       concerning the right to a fair hearing, in that the Court of         that Court of 23 October 2003 in the criminal proceedings
       First Instance did not give a decision on the preparatory            against Adelio Aggio, Paolo Berlusconi and Giovanni Butti
       inquiry proposed in the application.
                                                                                                      (Case C-473/03)
                                                                                                       (2004/C 21/28)
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-                     Reference has been made to the Court of Justice of the
                               ants c.s.                                    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
                          (Case C-472/03)                                   Registry on 13 November 2003, for a preliminary ruling in
                                                                            the criminal proceedings against Adelio Aggio, Paolo Berlus-
                           (2004/C 21/27)                                   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
Reference has been made to the Court of Justice of the                            penalties not only for failing to disclose company balance
European Communities by judgment of the Hoge Raad                                 sheets and profit and loss accounts but also for falsifying
der Nederlanden (Supreme Court of the Netherlands) of                             those documents, or other company documents
7 November 2003, received at the Court Registry on 12 Nov-                        addressed to the members or the public or any infor-
ember 2003, for a preliminary ruling in the case of Staatssecre-                  mation on a company’s assets and liabilities, and econ-
taris van Financiën against the single taxable entity Arthur                      omic and financial situation which the company is
Andersen & Co Accountants c.s. on the following question:                         required to provide in relation to the company or the
                                                                                  group of which it forms a part?
Where a taxable person has concluded an agreement with a
(life) assurance company, such as the agreement at issue                    —     Do the requirements that the penalty be effective, pro-
between ACMC and UL, under which that taxable person                              portionate and dissuasive, with which terms the Court
undertakes, for a certain remuneration and with the aid of                        defined the concept of ‘appropriate penalty’ in its judg-
qualified personnel who are expert in the insurance field, most                   ment of 21 September 1989 in Case 68/88 [Commission
of the actual activities related to insurance — including, as a                   v Hellenic Republic [1989] ECR I-2965], refer to the
rule, the taking of decisions that bind the insurance company                     nature or type of penalty considered in the abstract, or
to enter into insurance contracts and maintaining contact with                    rather also to its application in practice having regard to
the agents and, as the occasion arises, with the insured —                        the structural characteristics of the legal system within
while the insurance contracts are concluded in the name of the                    which it takes effect? and finally