CELEX: C2003/101/49
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-102/03: Reference for a preliminary ruling by the Tribunale di Brindisi — Ufficio per le Indagini Preliminari by order of that Court of 14 January 2003 in the criminal proceedings against Gianfranco Casale and Giuseppe Eugenio Caroli

26.4.2003              EN                         Official Journal of the European Union                                           C 101/29
Reference for a preliminary ruling by the Tribunale di                    3.   Must those directives and, in particular, Article 44(3)(g)
Brindisi — Ufficio per le Indagini Preliminari by order of                     of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
that Court of 14 January 2003 in the criminal proceedings                      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
 against Gianfranco Casale and Giuseppe Eugenio Caroli                         fourth directive (Directive 78/660/EEC), as consolidated
                                                                               by Directive 83/349 and Directive 90/605), be interpreted
                                                                               as meaning that that legislation precludes a law of a
                                                                               Member State which does not make it a punishable
                         (Case C-102/03)                                       offence for companies to infringe obligations concerning
                                                                               disclosure and the provision of accurate information
                                                                               where statements are made which, although aimed at
                                                                               deceiving members or the public with a view to securing
                         (2003/C 101/49)                                       an unjust profit, are the consequence of estimated
                                                                               valuations which, taken individually, depart from actual
                                                                               values to an extent not greater than a certain threshold?
Reference has been made to the Court of Justice of the                    4.   Irrespective of progressive limits or thresholds, must
European Communities by order of the Tribunale di Brindisi                     those directives and, in particular, Article 44(3)(g) of the
— Ufficio per le Indagini Preliminari (Brindisi District Court,                EC Treaty, Articles 2(1)(f) and 6 of the first directive
Office of the Investigating Judge) of 14 January 2003, received                (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
at the Court Registry on 5 March 2003, for a preliminary                       fourth directive (Directive 78/660/EEC), as consolidated
ruling in the criminal proceedings against Gianfranco Casale                   by Directive 83/349 and Directive 90/605), be interpreted
and Giuseppe Eugenio Caroli on the following questions:                        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
1.   With reference to the duty of each Member State to adopt                  where the false statements or the fraudulent omissions
     ‘appropriate penalties’ for the infringements established                 and, thus, the disclosures and statements which do not
     by the first and fourth directives (Directive 68/151/                     give a true and fair view of the company’s assets and
     EEC (1) and Directive 78/660/EEC ( 2)), must the directives               liabilities and financial position do not distort ‘to an
     themselves and in particular the combined provisions of                   appreciable extent’ the company’s assets, liabilities and
     Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of              financial position (even though it is for the national
     the first directive (Directive 68/151/EEC) and Article 2(2),              legislature to define the concept of ‘appreciable distor-
     (3) and (4) of the fourth directive (Directive 78/660/EEC),               tion’?
     as consolidated by Directive 83/349 ( 3) and Directive 90/
     605 ( 4)), be interpreted as meaning that that legislation
     precludes a law of a Member State which, in amending
     the system of penalties already in force in respect of
     company law offences concerning the infringement of the
     obligations imposed in order to safeguard the principle of           5.   Must those directives and, in particular, Article 44(3)(g)
     public and accurate information on companies, lays                        of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
     down a sanctionative system which in the specific                         (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
     instance is not informed by the criteria of effectiveness,                fourth directive (Directive 78/660/EEC), as consolidated
     proportionality and dissuasiveness of the sanctions                       by Directive 83/349 and Directive 90/605), be interpreted
     imposed in order to ensure that that principle is upheld?                 as meaning that that legislation precludes a law of a
                                                                               Member State which, in response to an infringement by
                                                                               companies of those obligations concerning disclosure
                                                                               and the provision of accurate information imposed on
2.   Must those directives and, in particular, Article 44(3)(g)
                                                                               them in order to safeguard ‘the interests of both members
     of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
                                                                               and third parties’, allows only members and creditors to
     (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
                                                                               seek imposition of a penalty, thereby excluding third
     fourth directive (Directive 78/660/EEC), as consolidated
                                                                               parties from any general and effective protection?
     by Directive 83/349 and Directive 90/605), be interpreted
     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 provisions of accurate information on
     certain company documents (including the balance sheet               6.   Must those directives and, in particular, Article 44(3)(g)
     and the profit and loss account) where the disclosure                     of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
     of false company accounts or the failure to provide                       (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
     information result in a distortion of the financial results               fourth directive (Directive 78/660/EEC), as consolidated
     for a given period, or a distortion in the net assets, which              by Directive 83/349 and Directive 90/605), be interpreted
     does not exceed a certain percentage threshold?                           as meaning that that legislation precludes a law of a
 ---pagebreak--- C 101/30                  EN                         Official Journal of the European Union                                         26.4.2003
       Member State which, in response to the infringement by                      particular, to provide an opportunity for persons involved
       companies of those obligations concerning disclosure                        in an action subsequently brought before the civil courts
       and the provision of accurate information imposed on                        — those considering bringing such an action, those who
       them in order to safeguard ‘the interests of both members                   anticipate that the action will be brought against them,
       and third parties’, provides for prosecution machinery and                  or third parties otherwise concerned by such an action
       a sanctionative system which are markedly differentiated,                   — to obtain advance clarification of the facts (with which
       whereby the possibility of the imposition of a punishment                   they are perhaps not entirely familiar), so as to enable
       upon complaint being made, together with more serious                       them better to assess their position, particularly also with
       and effective penalties, is reserved solely for infringements               regard to the issue of identification of the party against
       occasioning loss to members and creditors?                                  whom proceedings must be instituted?
                                                                             —     If so, can the provision in that case constitute a measure
( 1) First Council Directive 68/151/EEC of 9 March 1968 on co-                     within the meaning of Article 24 of the Brussels Conven-
     ordination of safeguards which, for the protection of the interests           tion?
     of members and others, are required by Member States of
     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...:
     Series-I I Chapter 1968(I), p. 41).
( 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).
( 3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
     the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
     L 193 of 18.7.1983, p. 1).                                                      Removal from the register of Case C-435/01 ( 1)
( 4) Council Directive 90/605/EEC of 8 November 1990 amending
     Directive 78/660/EEC on annual accounts and Directive 83/349/
     EEC on consolidated accounts as regards the scope of those                                       (2003/C 101/51)
     Directives (OJ L 317 of 16.11.1990, p. 60).
                                                                             By order of 6 January 2003 the President of the Court of
                                                                             Justice of the European Communities ordered the removal
                                                                             from the register of Case C-435/01: Commission of the
                                                                             European Communities v Kingdom of Belgium.
Reference for a preliminary ruling by the Gerechtshof te
Amsterdam by order of that Court of 12 December 2002                         (1 ) OJ C 17 of 19.1.2002.
in the case of St Paul Dairy Industries NV against Unibel
                              Exser BVBA
                            (Case C-104/03)
                            (2003/C 101/50)
                                                                                     Removal from the register of Case C-324/02 ( 1)
Reference has been made to the Court of Justice of the                                                (2003/C 101/52)
European Communities by order of the Gerechtshof te Amster-
dam (Regional Court of Appeal, Amsterdam) of 12 December
2002, received at the Court Registry on 6 March 2003, for a
preliminary ruling in the case of St Paul Dairy Industries NV
against Unibel Exser BVBA on the following questions:                        By order of 10 February 2003 the President of the Court of
                                                                             Justice of the European Communities ordered the removal
—      Does the provision in Article 186 et seq. of the Nether-              from the register of Case C-324/02: Commission of the
       lands Code of Civil Procedure concerning the ‘preliminary             European Communities v Kingdom of Spain.
       hearing of witnesses prior to the bringing of proceedings’
       come within the scope of the Brussels Convention in light
       of the fact also that, as provided for in that legislation, it        (1 ) OJ C 274 of 9.11.2002.
       seeks not only to enable material evidence to be taken
       from witnesses shortly after the facts in dispute and to
       prevent evidence from being lost but also, and in