CELEX: C2003/019/24
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-403/02: Reference for a preliminary ruling by the Tribunale di Milano, Sezione IV Penale by order of that Court of 29 October 2002 in the criminal proceedings against Marcello Dell'Utri, Romano Luzi and Romano Comincioli

C 19/14                EN                     Official Journal of the European Communities                                          25.1.2003
Reference for a preliminary ruling by the Tribunale di                          interest may assume a Community dimension, to provide
Milano, Sezione IV Penale by order of that Court of                             in respect of offences under Article 2622(1) of the Civil
29 October 2002 in the criminal proceedings against                             Code (those committed in regard to companies not listed
Marcello Dell’Utri, Romano Luzi and Romano Comincioli                           on the stock exchange) that proceedings may only be
                                                                                brought upon a complaint by members of the company
                                                                                concerned or by its creditors?
                        (Case C-403/02)
                                                                         (1 ) First Council Directive 68/151/EEC of 9 March 1968 on co-
                                                                              ordination of safeguards which, for the protection of the interests
                                                                              of members and others, are required by Member States of
                                                                              companies within the meaning of the second paragraph of
                         (2003/C 19/24)                                       Article 58 of the Treaty, with a view to making such safeguards
                                                                              equivalent throughout the Community (English Special Edition...:
                                                                              Series-I I Chapter 1968(I), p. 41).
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Sezione IV Penale (Milan District Court, Fourth Criminal
                                                                         Action brought on 15 November 2002 by the Com-
Chamber) of 29 October 2002, received at the Court Registry
                                                                         mission of the European Communities against the Hellen-
on 12 November 2002, for a preliminary ruling in the criminal
                                                                                                       ic Republic
proceedings against Marcello Dell’Utri, Romano Luzi and
Romano Comincioli on the following questions:
                                                                                                    (Case C-407/02)
—    May Article 6 of Directive 68/151/EEC ( 1) (first directive)                                    (2003/C 19/25)
     be understood as requiring the Member States to establish
     appropriate penalties not only for non-disclosure by
     commercial companies of balance sheets and profit and
     loss accounts but also for false disclosure of such                 An action against the Hellenic Republic was brought before
     documents, of other company documents addressed to                  the Court of Justice of the European Communities on 15 Nov-
     members or to the public, or of any information on a                ember 2002 by the Commission of the European Communi-
     company’s assets and liabilities, and economic and finan-           ties, represented by Michel Nolin and Minas Konstantinidis, of
     cial situation which the company is required to provide             its Legal Service, with an address for service in Luxembourg.
     in relation to itself or to the group of which it forms a
     part?
                                                                         The Commission claims that the Court should:
—    Must the concept of the ‘appropriateness’ of the penalty,           a)     declare that, as a result of the direct award by the
     for the purposes also of Article 5 of the EC Treaty, be                    municipality of Serres of the contract ‘Renewal of the
     understood in terms to be specifically assessed within the                 town of Serres: framework of investigative study models
     legislative scope (both criminal and procedural) of the                    and pilot realisation programme’ without tenders first
     Member States as requiring a penalty which is ‘efficacious,                being invited, the Hellenic Republic has failed to fulfil its
     effective and genuinely dissuasive’?                                       obligations under the provisions of Directive 92/50/
                                                                                EEC (1) (Article 8 et seq.) which require a tender procedure
                                                                                to be carried out and lay down the tender procedure for
—    Do the combined provisions of new Articles 2621 and                        the award of public service contracts;
     2622 of the Civil Code, as amended by Legislative Decree
     No 61 of 11 April 2002, satisfy those criteria: in                  b)     order the Hellenic Republic to pay the costs.
     particular can Article 2621 of the Civil Code, which
     summarily punishes by a term of imprisonment of one
     year and six months offences in connection with non-
     disclosure of balance sheets not occasioning financial loss         Pleas in law and main arguments
     or occasioning loss but in respect of which no prosecution
     may be brought under Article 2622 of the Civil Code
     owing to the absence of a complaint, be described as                The provisions of Directive 92/50 govern the choice of
     ‘effectively dissuasive’ and ‘genuinely appropriate’? Finally,      procedures for the award of public service contracts and lay
     is it appropriate, in terms not least of the specific               down common rules in the field of design contests and in the
     protection of the collective interest in the ‘transparency’         technical field. Those provisions apply to contracts whose
     of the corporate market, and the possibility that that              estimated value is equal to or exceeds a specified threshold.