CELEX: C2003/019/20
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-389/02: Reference for a preliminary ruling by the Finanzgericht Hamburg by order of that Court of 16 October 2002 in the case of Deutsche See-Bestattungs-Genossenschaft e. G. against Hauptzollamt Kiel

25.1.2003               EN                    Official Journal of the European Communities                                          C 19/11
Reference for a preliminary ruling by the Finanzgericht                       company law offences concerning the infringement of the
Hamburg by order of that Court of 16 October 2002 in                          obligations imposed in order to safeguard the principle of
the case of Deutsche See-Bestattungs-Genossenschaft                           public and accurate information on companies, lays
                 e. G. against Hauptzollamt Kiel                              down a sanctionative system which in the specific
                                                                              instance is not informed by the criteria of effectiveness,
                                                                              proportionality and dissuasiveness of the sanctions
                          (Case C-389/02)
                                                                              imposed in order to ensure that that principle is upheld?
                           (2003/C 19/20)
                                                                         2.   Must those directives and, in particular, Article 44(3)(g)
Reference has been made to the Court of Justice of the                        of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
European Communities by order of the Finanzgericht Ham-                       (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
                                                                              fourth directive (Directive 78/660/EEC), as consolidated
burg (Finance Court, Hamburg) of 16 October 2002, received
at the Court Registry on 5 November 2002, for a preliminary                   by Directive 83/349 and Directive 90/605), be interpreted
                                                                              as meaning that that legislation precludes a law of a
ruling in the case of Deutsche See-Bestattungs-Genossenschaft
e. G. against Hauptzollamt Kiel on the following question:                    Member State which does not make it a punishable
                                                                              offence for companies to infringe obligations concerning
                                                                              disclosure and the provisions of accurate information on
Does sailing in Community waters in craft for other than                      certain company documents (including the balance sheet
private non-commercial purposes constitute navigation within                  and the profit and loss account) where the disclosure
the meaning of the first paragraph of Article 8(1)(c) of Directive            of false company accounts or the failure to provide
92/81 (1)?                                                                    information result in a distortion of the financial results
                                                                              for a given period, or a distortion in the net assets, which
                                                                              does not exceed a certain percentage threshold?
( 1) OJ L 316 of 31.10.1992, p. 12.
                                                                         3.   Must those directives and, in particular, Article 44(3)(g)
                                                                              of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
                                                                              (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
                                                                              fourth directive (Directive 78/660/EEC), as consolidated
Reference for a preliminary ruling by the Corte di Appello                    by Directive 83/349 and Directive 90/605), be interpreted
                                                                              as meaning that that legislation precludes a law of a
di Lecce — Sezione penale by order of that Court of
7 October 2002 in the criminal proceedings against Sergio                     Member State which does not make it a punishable
                                                                              offence for companies to infringe obligations concerning
                               Adelchi
                                                                              disclosure and the provision of accurate information
                                                                              where statements are made which, although aimed at
                          (Case C-391/02)                                     deceiving members or the public with a view to securing
                                                                              an unjust profit, are the consequence of estimated
                                                                              valuations which, taken individually, depart from actual
                           (2003/C 19/21)
                                                                              values to an extent not greater than a certain threshold?
Reference has been made to the Court of Justice of the
European Communities by order of the Corte di Appello di                 4.   Irrespective of progressive limits or thresholds, must
Lecce — Sezione penale (Court of Appeal, Lecce, Criminal                      those directives and, in particular, Article 44(3)(g) of the
division) of 7 October 2002, received at the Court Registry on                EC Treaty, Articles 2(1)(f) and 6 of the first directive
8 November 2002, for a preliminary ruling in the criminal                     (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
proceedings against Sergio Adelchi on the following questions:                fourth directive (Directive 78/660/EEC), as consolidated
                                                                              by Directive 83/349 and Directive 90/605), be interpreted
1.    With reference to the duty of each Member State to adopt                as meaning that that legislation precludes a law of a
      ‘appropriate penalties’ for the infringements established               Member State which does not make it a punishable
      by the first and fourth directives (Directive 68/151/                   offence for companies to infringe obligations concerning
      EEC (1) and Directive 78/660/EEC ( 2), must the directives              disclosure and the provision of accurate information
      themselves and in particular the combined provisions of                 where the false statements or the fraudulent omissions
      Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of            and, thus, the disclosures and statements which do not
      the first directive (Directive 68/151/EEC) and Article 2(2),            give a true and fair view of the company’s assets and
      (3) and (4) of the fourth directive (Directive 78/660/EEC),             liabilities and financial position do not distort ‘to an
      as consolidated by Directive 83/349 ( 3) and Directive 90/              appreciable extent’ the company’s assets, liabilities and
      605 ( 4), be interpreted as meaning that that legislation               financial position (even though it is for the national
      precludes a law of a Member State which, in amending                    legislature to define the concept of ‘appreciable distor-
      the system of penalties already in force in respect of                  tion’?