CELEX: C2003/264/26
Language: en
Date: 2003-11-01 00:00:00
Title: Case C-346/03: Reference for a preliminary ruling by the Tribunale di Cagliari — Sezione Civile — by order of that Court of 29 April 2003 in the case of Giuseppe Atzeni and Others against Regione Autonoma della Sardegna

C 264/16                 EN                         Official Journal of the European Union                                            1.11.2003
4.    Irrespective of progressive limits or thresholds, must                (3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
      those directives and, in particular, Article 44(3)(g) of the              the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
      EC Treaty, Articles 2(1)(f) and 6 of the first directive                  L 193 of 18.7.1983, p. 1).
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the           (4) Council Directive 90/605/EEC of 8 November 1990 amending
                                                                                Directive 78/660/EEC on annual accounts and Directive 83/349/
      fourth directive (Directive 78/660/EEC), as consolidated                  EEC on consolidated accounts as regards the scope of those
      by Directive 83/349 and Directive 90/605), be interpreted                 Directives (OJ L 317 of 16.11.1990, p. 60).
      as meaning that that legislation precludes a law of a
      Member State which does not make it a punishable
      offence for companies to infringe obligations concerning
      disclosure and the provision of accurate information
      where the false statements or the fraudulent omissions
      and, thus, the disclosures and statements which do not
      give a true and fair view of the company’s assets and
      liabilities and financial position do not distort ‘to an              Reference for a preliminary ruling by the Tribunale di
      appreciable extent’ the company’s assets, liabilities and             Cagliari — Sezione Civile — by order of that Court of
      financial position (even though it is for the national                29 April 2003 in the case of Giuseppe Atzeni and Others
      legislature to define the concept of ‘appreciable distor-                       against Regione Autonoma della Sardegna
      tion’?
                                                                                                       (Case C-346/03)
5.    Must those directives and, in particular, Article 44(3)(g)
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive                                 (2003/C 264/26)
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated
      by Directive 83/349 and Directive 90/605), be interpreted
                                                                            Reference has been made to the Court of Justice of the
      as meaning that that legislation precludes a law of a
                                                                            European Communities by order of the Tribunale di Cagliari
      Member State which, in response to an infringement by
                                                                            — Sezione Civile (Cagliari District Court — Civil Chamber) of
      companies of those obligations concerning disclosure
                                                                            29 April 2003, received at the Court Registry on 6 August
      and the provision of accurate information imposed on
                                                                            2003, for a preliminary ruling in the case of Giuseppe Atzeni
      them in order to safeguard ‘the interests of both members
                                                                            and Others against Regione Autonoma della Sardegna on the
      and third parties’, allows only members and creditors to
                                                                            following questions on the validity of Commission Decision
      seek imposition of a penalty, thereby excluding third
                                                                            No 612/97 (1), with regard to the following defects:
      parties from any general and effective protection?
                                                                            (a)   lack of competence of the Commission to adopt the
                                                                                  contested decision inasmuch as it infringes Article 32 of
6.    Must those directives and, in particular, Article 44(3)(g)                  the Treaty on European Union in conjunction with
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive             Articles 33, 34, 35, 36, 37 and 38 thereof;
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated              (b) infringement of the rules which govern the procedure
      by Directive 83/349 and Directive 90/605), be interpreted                   provided for in Article 88(1) of the Treaty on European
      as meaning that that legislation precludes a law of a                       Union;
      Member State which, in response to the infringement by
      companies of those obligations concerning disclosure                  (c)   infringement of the rules which govern the procedure
      and the provision of accurate information imposed on                        provided for in Article 88(2) and (3) of the Treaty on
      them in order to safeguard ‘the interests of both members                   European Union;
      and third parties’, provides for prosecution machinery and
      a sanctionative system which are markedly differentiated,
                                                                            (d) failure to provide a statement of reasons as required
      whereby the possibility of the imposition of a punishment
                                                                                  by Article 253 of the Treaty on European Union in
      upon complaint being made, together with more serious
                                                                                  conjunction with Articles 88(3) and 87(1) thereof;
      and effective penalties, is reserved solely for infringements
      occasioning loss to members and creditors?
                                                                            (e)   infringement and misapplication of Council Regulation
                                                                                  No 797/85 (2) on improving the efficiency of agricultural
                                                                                  structures;
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-               (f)   infringement of and failure to observe ‘practice for aid to
    ordination of safeguards which, for the protection of the interests           farms in difficulty’ and the ‘Community guidelines on
    of members and others, are required by Member States of                       State aid for rescuing and restructuring firms in difficulty’.
    companies within the meaning of the second paragraph of
    Article 58 of the Treaty, with a view to making such safeguards
    equivalent throughout the Community (English special edition...:
                                                                            (1) OJ L 248 of 11.9.1997, p. 27.
    Series-I I Chapter 1968(I), p. 41).
                                                                            (2) OJ L 93 of 30.3.1985, p. 1.
(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
    Article 54 (3) (g) of the Treaty on the annual accounts of certain
    types of companies (OJ L 222 of 14.8.1978, p. 11).