CELEX: C2003/019/21
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-391/02: Reference for a preliminary ruling by the Corte di Appello di Lecce — Sezione penale by order of that Court of 7 October 2002 in the criminal proceedings against Sergio Adelchi

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’?
 ---pagebreak--- C 19/12                   EN                     Official Journal of the European Communities                                      25.1.2003
5.     Must those directives and, in particular, Article 44(3)(g)           2002 by the Commission of the European Communities,
       of the EC Treaty, Articles 2(1)(f) and 6 of the first directive      represented by Michel Nolin and Minas Konstantinidis, of its
       (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the          Legal Service, with an address for service in Luxembourg.
       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, in response to an infringement by                The Commission claims that the Court should:
       companies of those obligations concerning disclosure
       and the provision of accurate information imposed on
       them in order to safeguard ‘the interests of both members            a)    declare that, as a result of the award by the Dimosia
       and third parties’, allows only members and creditors to                   Epikhirisi Ilektrismou (DEI) of work for the construction
       seek imposition of a penalty, thereby excluding third                      of a conveyor system at the steam-generated electricity
       parties from any general and effective protection?                         station at Megalopolis by a procedure of negotiation
                                                                                  without a competition first being called, the Hellenic
6.     Must those directives and, in particular, Article 44(3)(g)                 Republic has failed to fulfil its obligations under Council
       of the EC Treaty, Articles 2(1)(f) and 6 of the first directive            Directive 93/38/EEC ( 1) of 14 June 1993 coordinating
       (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the                the procurement procedures of entities operating in the
       fourth directive (Directive 78/660/EEC), as consolidated                   water, energy, transport and telecommunications sectors
       by Directive 83/349 and Directive 90/605), be interpreted                  and, in particular, under Article 20 et seq. of the
       as meaning that that legislation precludes a law of a                      directive;
       Member State which, in response to the infringement by
       companies of those obligations concerning disclosure
       and the provision of accurate information imposed on                 b)    order the Hellenic Republic to pay the costs.
       them in order to safeguard ‘the interests of both members
       and third parties’, provides for prosecution machinery and
       a sanctionative system which are markedly differentiated,
       whereby the possibility of the imposition of a punishment
       upon complaint being made, together with more serious
       and effective penalties, is reserved solely for infringements        Pleas in law and main arguments
       occasioning loss to members and creditors?
( 1) First Council Directive 68/151/EEC of 9 March 1968 on co-
     ordination of safeguards which, for the protection of the interests    Directive 93/38 governs the choice of procurement procedures
     of members and others, are required by Member States of                in the water, energy, transport and telecommunications sectors
     companies within the meaning of the second paragraph of                and applies to contracts whose estimated value is not less than
     Article 58 of the Treaty, with a view to making such safeguards        EUR 5 000 000.
     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, 14.08.1978, p. 11).                      According to the Commission, the contract at issue, by reason
( 3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on          of its value and type, is covered by the directive. Consequently,
     the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ      the contracting entity (Dimosia Epikhirisi Ilektrismou (DEI);
     L 193, 18.07.1983, p. 1).                                              the State Electricity Undertaking) had to follow the procedures
( 4) Council Directive 90/605/EEC of 8 November 1990 amending               under Article 20(1) of the directive and call a competition in
     Directive 78/660/EEC on annual accounts and Directive 83/349/          accordance with Article 21 of the directive. However, the
     EEC on consolidated accounts as regards the scope of those
                                                                            contract was not put out to tender but was awarded following
     Directives (OJ L 317, 16.11.1990, p. 60).
                                                                            private negotiation.
                                                                            The Commission maintains that in the present case neither
                                                                            Article 20(2)(c) of the directive (technical or artistic reasons
Action brought on 8 November 2002 by the Commission                         rendering it absolutely essential to place the contract with a
of the European Communities against the Hellenic Repub-                     particular contractor) nor Article 20(2)(d) (extreme urgency
                                    lic                                     brought about by events unforeseeable by the contracting
                                                                            entity) is applicable.
                            (Case C-394/02)
                             (2003/C 19/22)
                                                                            (1 ) OJ L 199, 9.8.1993, p. 84.
An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 8 November