CELEX: C2001/289/17
Language: en
Date: 2001-10-13 00:00:00
Title: Case C-248/01: Reference for a preliminary ruling from the Landesgericht Feldkirch by order of that court of 22 June 2001 in the commercial register cases of (1) Hermann Pfanner Getränke Gesellschaft mbH and Others and (2) Getränkebetrieb Gesellschaft m.b.H. and Others v Republic of Austria

13.10.2001             EN                    Official Journal of the European Communities                                        C 289/9
—    Failure to examine the principles of ‘dolo agit, qui petit,        2.    What criteria must be satisfied for a broadcast of several
     quod statim redditurus est’ and ‘fraus omnia corrumpit’.                 feature films and films made for television to be classified
     In the absence of a legally operative judgment imposing                  as a ‘serial’, derogating from the advertising restrictions
     a penalty the Commission is able to rely only on existing                for feature films and films made for television?
     suspicions and results of investigations, as soon as, and
     in so far as, these are available. This the Commission did         3.    Are broadcasts consisting of several parts which manifest
     in the present proceedings. By excluding, as a legal                     a common concept due to common features of theme,
     objection, application of the legal principle ‘fraus omnia               content and form, and which are broadcast at connected
     corrumpit’ in conjunction with the legal principle ‘dolo                 times, to be regarded as a ‘serial’ for the purposes of
     agit, qui petit, quod statim redditurus est’, in a case such             Article 11(3) of Directive 89/552/EEC as amended by
     as the present (but without having examined that issue in                Directive 97/36/EEC?
     any detail), and instead calling for the adoption of a new
     decision with a fresh statement of reasons, the Court of           4.    Does the interpretation of the term ‘serial’ for the
     First Instance is in effect obliging the Commission to pay               purposes of Article 11(3) of Directive 89/552/EEC as
     so long as its suspicions have not developed into                        amended by Directive 97/36/EEC permit common points
     incontrovertible certainty. As a general rule, however,                  of theme or content of the episodes to be wholly or
     any subsequent claim for repayment would fail on the                     largely regarded as unnecessary and predominantly points
     ground that the debtor has disappeared, no longer has                    of form or form of reception taken as the criterion?
     assets or has become insolvent.
                                                                        (1) OJ 1989 L 298, p. 23.
(1) Not yet published in the European Court Reports.                    (2) OJ 1997 L 202, p. 60.
                                                                        Reference for a preliminary ruling from the Landesgericht
                                                                        Feldkirch by order of that court of 22 June 2001 in
Reference for a preliminary ruling by the Niedersächsi-                 the commercial register cases of (1) Hermann Pfanner
sches Oberverwaltungsgericht by order of that court of                  Getränke Gesellschaft mbH and Others and (2) Getränke-
15 June 2001 in the case of RTL Television GmbH against                 betrieb Gesellschaft m.b.H. and Others v Republic of
Niedersächsische Landesmedienanstalt für privaten Rund-                                               Austria
                                funk
                                                                                                 (Case C-248/01)
                          (Case C-245/01)
                                                                                                 (2001/C 289/17)
                         (2001/C 289/16)
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Landesgericht
Reference has been made to the Court of Justice of the                  Feldkirch (Regional Court, Feldkirch), Austria, of 22 June
European Communities by order of the Niedersächsisches                  2001, which was received at the Court Registry on 27 June
Oberverwaltungsgericht (Lower Saxony Higher Administrative              2001, for a preliminary ruling in the commercial register cases
Court) of 15 June 2001, which was received at the Court                 of (1) Hermann Pfanner Getränke Gesellschaft mbH and
Registry on 25 June 2001, for a preliminary ruling in the case          Others and (2) Getränkebetrieb Gesellschaft m.b.H. and Others
of RTL Television GmbH against Niedersachsische Landesme-               v Republic of Austria on the following questions on the
dienanstalt für privaten Rundfunk on the following questions:           validity of the First Council Directive 68/151/EEC (1) and the
                                                                        Fourth Council Directive 78/660/EEC (2):
1.   Does Article 11(3) of Council Directive 89/552/EEC(1) of
     3 October 1989 on the coordination of certain provisions           1.    Is the obligation of general disclosure of the annual
     laid down by law, regulation or administrative action in                 accounts of every capital company regardless of its
     Member States concerning the pursuit of television                       economic circumstances compatible with the fundamental
     broadcasting activities as amended by Directive 97/36/EC                 and human rights guaranteed in Community law, funda-
     of the European Parliament and of the Council (2) of                     mental freedoms and general principles of law of the
     30 June 1997, by restricting advertising breaks, pursue                  Member States, in particular the rights to data protection,
     the objective of protecting the artistic value of feature                freedom of expression, informational self-determination,
     films and films made for television, irrespective of                     private life, protection of business and commercial sec-
     whether films made for television have from the outset                   rets, property and freedom to carry on a trade, private
     been produced for television and provided with breaks                    autonomy and compliance with the requirement of
     designed for the insertion of advertising spots?                         reasonableness (proportionality)?
 ---pagebreak--- C 289/10                EN                      Official Journal of the European Communities                                   13.10.2001
2.   Would it not be an alternative more compatible with                        registered, the holder commits an offence when driving a
     fundamental rights to restrict the obligation to disclose                  motor vehicle in the Netherlands?
     company data to undertakings for which independent
     auditors have found problems with specific data of
     the undertaking and hence a special public need for                   2.   Does national legislation such as that described in the
     information?                                                               first question and which has the consequences set out
                                                                                therein constitute a restriction on the free movement of
                                                                                persons and, if so, can that restriction be justified by the
3.   Are the disclosure obligations in the First and Fourth                     consideration that it enables the data featured on the
     Directives compatible with the fundamental rights under                    document to be regularly renewed and the document to
     the European Charter of Fundamental Rights?                                be adjusted to technological improvements as regards the
                                                                                requirements which the document should meet from the
                                                                                point of view of security and prevention of fraud?
4.   Did the data protection directive, telecommunications
     directive and administrative assistance directive derogate
     substantively from the disclosure directives?
                                                                           (1) OJ 1991, L 237, p. 1.
(1) OJ, English Special Edition 1968(I), p. 41.
(2) OJ 1978 L 222, p. 11.
                                                                           Reference for a preliminary ruling by the Simvoulio tis
                                                                           Epikratias by judgment of that court of 12 June 2001 in
                                                                           the case of Panagiotis Markopoulos and Others against
                                                                           the Minister for Development, the Soma Orkoton
Reference for a preliminary ruling by the Arrondisse-                                           Elegkton and Others
mentsrechtbank Rotterdam by judgment of that court of
27 June 2001 in the case of S. Klip-Krüger against Board
of the Dienst Wegverkeer, a public agency having legal                                               (Case C-255/01)
                             personality
                                                                                                    (2001/C 289/19)
                          (Case C-253/01)
                                                                           Reference has been made to the Court of Justice of the
                          (2001/C 289/18)                                  European Communities by judgment of the Simvoulio tis
                                                                           Epikratias (Council of State) of 12 June 2001, received at the
                                                                           Court Registry on 3 July 2001, for a preliminary ruling in the
Reference has been made to the Court of Justice of the                     case of Panagiotis Markopoulos and Others against the Minister
European Communities by judgment of the Arrondissements-                   for Development, the Soma Orkoton Elegkton (Institute of
rechtbank Rotterdam (District Court, Rotterdam) of 27 June                 Certified Auditors) and Others on the following questions:
2001, received at the Court Registry on 2 July 2001, for a
preliminary ruling in the case of S. Klip-Krüger v Board of the
Dienst Wegverkeer (road traffic authority), a public agency                a)   May the national legislature, on the basis of Article 15 of
having legal personality, on the following questions:                           the Eighth Council Directive 84/253/EEC of 10 April
                                                                                1984 (1), make use of the power provided for by that
                                                                                article and provide for the possibility for various catego-
1.   Must the Directive (1) — more particularly Article 1(1)                    ries of persons to be approved to audit accounting
     and (2) thereof — be interpreted as meaning that national                  documents, in derogation from the permanent rules,
     legislation adopted in implementation thereof is consist                   that is to say without first sitting an examination of
     with it where under that legislation an obligation exists                  professional competence, when the Member State in
     or arises for the holder of a driving licence issued by the                question has already, before the adoption of the directive,
     competent authority in the Federal Republic of Germany,                    laid down that examination in national law? In any event,
     which is valid for the holder’s lifetime, to exchange that                 may the national legislature make repeated use of the
     licence within one year of moving his normal place of                      power to adopt transitional provisions on the basis of the
     residence to the Netherlands, because a driving licence                    abovementioned article of the directive, in particular after
     issued more than ten years previously cannot be registered                 the deadline of 1 January 1991 (Article 15 in conjunction
     in the Netherlands and, if the driving licence is not                      with Article 30(2) of the directive)?