CELEX: C2003/070/12
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-20/03: Reference for a preliminary ruling by the Rechtbank van eerste Aanleg, Bruges by order of that Court of 17 January 2003 in the criminal matters brought by the Public Prosecutor against 1. Marcel Burmanjer, 2. René Alexander van der Linden, and 3. Anthony de Jong

22.3.2003              EN                       Official Journal of the European Union                                              C 70/7
      —     annul Commission Decision C (1999) 541 of                   1.    Is the first sentence of Article 5 of Regulation 1103/97 (1)
            4 March 1999                                                      to be understood as meaning that, in a private-law
                                                                              contractual relationship, only the final amount of the
      —     annul Commission Decision C (1999) 532 of                         invoice, or an individual amount detailed on the invoice,
            4 March 1999                                                      may or must be rounded, or does a contractually agreed
                                                                              unit price/tariff (in this case a price per minute) constitute
      —     annul Commission Decision C (1999) 533 of                         a monetary amount to be paid or accounted for within
            4 March 1999                                                      the meaning of that provision? In determining whether a
                                                                              tariff is a monetary amount to be paid or accounted for
      in the alternative, reduce the amount of subsidy to repay               within the meaning of Article 5 of Regulation 1103/97,
      to the Commission to a lesser amount as may be decided                  is it decisive whether the tariff relates to a particular
      in the course of proceedings;                                           multiple (in this case six) of a unit on the basis of which
                                                                              the final amount of the invoice is ascertained (in this case
2.    as a measure of inquiry, allow the claims submitted in the              a ten-second unit), or whether it is the tariff as perceived
      present proceedings;                                                    by consumers that represents the relevant amount of the
                                                                              invoice?
3.    in any event, order the Commission to pay the costs.
                                                                        2.    Is Regulation 1103/97(and in particular Article 5) to be
                                                                              understood as constituting an exhaustive rule whereby
                                                                              sums other than monetary amounts to be paid or
Pleas in law and main arguments
                                                                              accounted for (if any) may not be rounded in the manner
                                                                              described in Article 5, in other words, must they either
The judgment of the Court of First Instance rejected all the                  continue to be displayed in the former national currency,
pleas in law submitted by the appellants and thus dismissed                   or be quoted in the exact amount produced on conver-
the applications in their entirety. As regards the first plea in              sion?
law, the appellant undertakings share the view the Court of
First Instance in its reasoning from the legal point of view.
                                                                        (1 ) OJ L 162 of 19.06.1997, p. 1.
On the other hand, the appellants argue that so far as the
remaining pleas are concerned, the Court of First Instance has
not made clear the reasons for its own view, nor does it
even demonstrate that the Commission’s decisions were well
founded: it merely repeated the arguments used in the
contested decisions.                                                    Reference for a preliminary ruling by the Rechtbank van
                                                                        eerste Aanleg, Bruges by order of that Court of 17 January
                                                                        2003 in the criminal matters brought by the Public
According to the appellants, the judgment of the Court of First         Prosecutor against 1. Marcel Burmanjer, 2. René Alexan-
Instance is vitiated by the inadequacy, inconsistency and                        der van der Linden, and 3. Anthony de Jong
contradictions of the grounds.
                                                                                                   (Case C-20/03)
                                                                                                   (2003/C 70/12)
Reference for a preliminary ruling by the Landgericht
                                                                        Reference has been made to the Court of Justice of the
München by order of that Court of 17 December 2002 in
                                                                        European Communities by order of the Rechtbank van eerste
the proceedings between Verbraucher-Zentrale Hamburg
                                                                        Aanleg (Court of First Instance), Bruges of 17 January 2003,
          e.V. and 02 (Germany) GmbH & Co. OHG
                                                                        received at the Court Registry on 21 January 2003, for a
                                                                        preliminary ruling in the criminal matters brought by the
                          (Case C-19/03)                                Public Prosecutor against 1. Marcel Burmanjer, 2. René Alex-
                                                                        ander van der Linden, and 3. Anthony de Jong on the following
                          (2003/C 70/11)                                questions:
                                                                        (a)   Because the interests sought to be protected by the
                                                                              legislature could be safeguarded by other less stringent
Reference has been made to the Court of Justice of the                        means, are Articles 30 to 37 (free movement of goods) of
European Communities by order of the Landgericht München                      the EC Treaty, as applicable on 6 September 2001,
(Regional Court, Munich) of 17 December 2002, received at                     Article 48 et seq. of that Treaty (freedom of movement
the Court Registry on 20 January 2003, for a preliminary                      for persons), or Article 59 et seq. thereof (freedom to
ruling in the proceedings between Verbraucher-Zentrale Ham-                   provide services), infringed by Articles 2, 3, 5(3) and 13
burg e.V. and 02 (Germany) GmbH & Co. OHG on the                              of the Belgian law of 25 June 1993 on the exercise of
following questions:                                                          itinerant activities and the organisation of public markets,
 ---pagebreak--- C 70/8                   EN                           Official Journal of the European Union                                        22.3.2003
       construed individually or in conjunction to mean that                  Reference for a preliminary ruling by the Tribunale
       they make the itinerant selling on Belgian territory                   Ordinario di Torino, Sezione IV Penale by order of that
       by both Belgian nationals and other EU nationals of                    Court of 13 January 2003 in the case brought against
       subscriptions to periodicals subject to prior authorisation                               Michel Mulliez and Others
       by the Minister, or a Grade 1 official delegated by
       him, failing which a punishable offence is committed
       thereunder, where under those national provisions a
       German company selling or wishing to sell through the                                           (Case C-23/03)
       intermediary of vendors established in Belgium subscrip-
       tions to periodicals is required to obtain such prior
       provisional authorisation or, if it does not do so commits
       an offence under those provisions?                                                              (2003/C 70/14)
(b)    Does it make any difference to the answer to the first
       question that that law of 25 June 1993 does not make
       the sale of newspapers, periodicals and also subscriptions
       to newspapers subject to such prior authorisation?
                                                                              Reference has been made to the Court of Justice of the
                                                                              European Communities by order of the Tribunale Ordinario di
                                                                              Torino, Sezione IV Penale (District Court, Turin — Criminal
                                                                              Section IV) of 13 January 2003, received at the Court Registry
                                                                              on 23 January 2003, for a preliminary ruling in the case
                                                                              brought against Michel Mulliez and Others on the following
                                                                              questions:
                                                                              1.   May Article 6 of Directive 68/151/EEC (1) be interpreted
Reference for a preliminary ruling by the Rechtbank te
                                                                                   as imposing an obligation upon the Member States to
Rotterdam by order of that Court of 21 January 2003 in
                                                                                   establish appropriate penalties not only for failure on the
the proceedings between Optiver BV and 38 Others
                                                                                   part of commercial companies to publish their balance
        against Stichting Autoriteit Financiële Markten
                                                                                   sheet and profit and loss statement but also for publishing
                                                                                   inaccurate versions of those statements or of other
                                                                                   company information addressed to shareholders or the
                            (Case C-22/03)                                         public or of any other information concerning their
                                                                                   economic, asset or financial position which they are
                                                                                   required to provide and which concern the company
                           (2003/C 70/13)                                          itself or the group of companies to which it belongs?
                                                                              2.   With reference to the obligation upon each Member State
                                                                                   to adopt ‘appropriate penalties’ for the infringements
Reference has been made to the Court of Justice of the                             provided for in the First Directive 68/151/EEC and the
European Communities by order of the Rechtbank te Rotter-                          Fourth Directive 78/660/EEC ( 2), must those directives
dam (District Court, Rotterdam) of 21 January 2003, received                       and, in particular, the combined provisions of
at the Court Registry on 23 January 2003, for a preliminary                        Article 44(2)(g) of the Treaty Establishing the European
ruling in the proceedings between Optiver BV and 38 Others                         Community, Article 2(1)(f) and Article 6 of the First
against Stichting Autoriteit Financiële Markten on the follow-                     Directive and Article 2(2), (3) and (4) of the Fourth
ing question:                                                                      Directive, as amended by Directive 83/349/EEC ( 3) and
                                                                                   Directive 90/605/EEC ( 4), be interpreted as precluding the
                                                                                   legislation of a Member State under which no penalty
                                                                                   may be imposed for breach of the duty to publish true
Does the Directive ( 1), and in particular the interpretation of                   and fair company documents (including the balance sheet
Articles 11 and 12, preclude the imposition of a levy as                           and profit and loss statement) where:
described above on securities institutions in respect of their
gross profit from securities-related activities?
                                                                                   (a)    the falsehood is qualitative only,
( 1) Council Directive 69/335/EEC of 17 July 1969 concerning
     indirect taxes on the raising of capital (OJ L 249 of 03.10.1969,             (b) the falsehood in, or omission from, the company
     p. 25).                                                                              statement in question gives rise to a distortion of
                                                                                          year-end profits or of the value of net company
                                                                                          assets that, nevertheless, remains below a certain
                                                                                          threshold expressed in percentage terms,