CELEX: C2003/083/15
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-47/03 P: Appeal brought on 7 February 2003 by Mr Cwik against the judgment delivered on 26 November 2002 by the Second Chamber of the Court of First Instance of the European Communities in Case T-103/01 between Mr Cwik and Commission of the European Communities

5.4.2003              EN                        Official Journal of the European Union                                                C 83/9
     forcibly to arrest and deport any person whom they                 6.     Are the Community rules set out above — Articles 7, 8
     unilaterally consider not to be entitled to remain within                 and 9 of Council Directive 64/221/EEC of 25 February
     that State, and to do so within such a period of time and                 1964 and Articles 2, 5, 6, 13 and 14 of the Convention
     in such a way that their action escape any practical and                  for the Protection of Human Rights and Fundamental
     effective review by any third-party impartial authority                   Freedoms, signed at Rome on 4 November 1950 — and
     whether before, during or after their actions?                            the general, fundamental principles of Community law to
                                                                               be interpreted as meaning that Articles 13(3), (4) and (5)a
                                                                               of Legislative Decree No 286 of 25 July 1998, as amended
                                                                               are inconsistent with them?
3.   Are the Community rules set out above — Articles 7, 8              (1 ) Council Directive 64/221/EEC of 25 February 1964 on the co-
     and 9 of Council Directive 64/221/EEC of 25 February                    ordination of special measures concerning the movement and
     1964 and Articles 2, 5, 6, 13 and 14 of the Convention                  residence of foreign nationals which are justified on grounds of
     for the Protection of Human Rights and Fundamental                      public policy, public security or public health (OJ P 56 of
     Freedoms, signed at Rome on 4 November 1950 — and                       4.4.1964, p. 850).
     the general, fundamental principles of Community law to
     be interpreted as meaning that it is illogical and unlawful
     for a Member State of the European Community to lay
     down a system for the judicial review of orders for the
     deportation of foreigners and of police action taken to
     execute such orders which, essentially, has no effect on
     the consequences which flow from such orders or on the
     actions taken to execute them, and is thus nothing more            Appeal brought on 7 February 2003 by Mr Cwik against
     than a semblance of legal protection, wholly deprived of           the judgment delivered on 26 November 2002 by the
     any practical effect or usefulness?                                Second Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-103/01 between Mr
                                                                            Cwik and Commission of the European Communities
                                                                                                  (Case C-47/03 P)
4.   Are the Community rules set out above — Articles 7, 8
     and 9 of Council Directive 64/221/EEC of 25 February                                          (2003/C 83/15)
     1964 and Articles 2, 5, 6, 13 and 14 of the Convention
     for the Protection of Human Rights and Fundamental
     Freedoms, signed in Rome on 4 November 1950 — and
     the general, fundamental principles of Community law to            An appeal against the judgment delivered on 26 November
     be interpreted as meaning that it is unlawful for a Member         2002 by the Second Chamber of the Court of First Instance
     State of the European Community to lay down provisions             of the European Communities in Case T-103/01 Cwik v
     governing orders for the deportation of foreigners and             Commission was brought before the Court of Justice of the
     the execution of such orders in such a way as to preclude          European Communities on 7 February 2003 by Mr Cwik,
     the person deported from actually exercising any right of          represented by N. Lhoëst, lawyer, with an address for service
     asylum?                                                            in Luxembourg.
                                                                        The appellant claims that the Court should:
                                                                        1.     declare the appeal admissible and well founded;
5.   Are the Community rules set out above — Articles 7, 8
     and 9 of Council Directive 64/221/EEC of 25 February
     1964 and Articles 2, 5, 6, 13 and 14 of the Convention             2.     accordingly:
     for the Protection of Human Rights and Fundamental
     Freedoms, signed in Rome on 4 November 1950 — and                         (a)   set aside the contested judgment;
     the general, fundamental principles of Community law to
     be interpreted as meaning that it is unlawful, in the sense               (b) refer the case back to the Court of First Instance so
     that it disproportionately and unfairly denies and limits                       that it may rule, first, on the application seeking the
     the right to personal liberty accorded to all persons in                        annulment of the decision of the Commission of
     the European Community, for a Member State of the                               13 June 2000 transferring the applicant from the
     Community to provide that orders for the deportation of                         ‘Economic Information, Publications and Docu-
     foreigners in possession of a valid passport be forcibly                        mentation’ Unit, which, following restructuring,
     executed immediately (in the sense of within a few                              subsequently became the ‘Information: EURO, EMU’
     minutes) following their notification to the foreigner                          Unit (CFIN-04 under the direction of Mr Blackie), to
     concerned, even in the absence of genuine and specific                          the ‘General Coordination, Human Resources and
     reasons of public security or public order justifying                           Administration’ Unit, (ECFIN-01 under the direction
     recourse to such physical coercion?                                             of Mr Verhaeven), and (ii) on the claim for damages;
 ---pagebreak--- C 83/10                EN                         Official Journal of the European Union                                          5.4.2003
      (c)   order the defendant to pay the entire costs of both                 economic, asset or financial position which they are
            proceedings.                                                        required to provide and which concern the company
                                                                                itself or the group of companies to which it belongs?
Pleas and main arguments
                                                                          2.    With reference to the obligation upon each Member State
                                                                                to adopt ‘appropriate penalties’ for the infringements
Infringement of Community law, in particular infringement of                    provided for in the First Directive 68/151/EEC and the
Article 33 of the statute of the Court of Justice of the European               Fourth Directive 78/660/EEC ( 2), must those directives
Communities under which judgments are to state the reasons                      and, in particular, the combined provisions of Article
on which they are based, which means among other things                         44(2)(g) of the Treaty Establishing the European Com-
that the grounds relied on should be legally valid, that is to say              munity, Article 2(1)(f) and Article 6 of the First Directive
coherent, relevant, free of any error of law or fact, and                       and Article 2(2), (3) and (4) of the Fourth Directive, as
internally consistent.
                                                                                amended by Directive 83/349/EEC and Directive 90/605/
                                                                                EEC, be interpreted as precluding the legislation of a
—     the Court of First Instance did not take into consideration               Member State under which no penalty may be imposed
      all the evidence put forward by the applicant to demon-                   for breach of the duty to publish true and fair company
      strate the kind of harassment he was subjected to, nor                    documents and which lays down a system of penalties
      has it assessed it as a whole,                                            which are not responsive to the criteria of effectiveness,
                                                                                proportionality and deterrent effect?
—     the Court of First Instance has failed to mention new facts
      consisting in a new restructuring of departments which
      left the applicant the only person not to be reintegrated
      into his former unit,                                               3.    Must the directives mentioned, and in particular the
                                                                                provisions of Article 44(2)(g) of the Treaty Establishing
—     the Court of First Instance, without the least explanation,               the European Community, Article 2(1)(f) and Article 6 of
      refused to include in the case-file recent documents which                the First Directive and Article 2(2), (3) and (4) of the
      came to light after the written procedure was closed and                  Fourth Directive, as amended by Directive 83/349/EEC
      which rebutted the Commission’s arguments.                                and Directive 90/605/EEC, be interpreted as precluding
                                                                                the legislation of a Member State under which, in the case
                                                                                of breach of the duty to publish true and fair company
                                                                                information, which is intended to protect ‘the interests of
                                                                                shareholders and third parties’, permits only shareholders
                                                                                and creditors to apply for the imposition of penalties, thus
                                                                                depriving third parties generally of effective protection?
Reference for a preliminary ruling by the Tribunale
Ordinario di Torino — Sezione GIP by order of that                        4.    Must the directives mentioned, and in particular the
Court of 29 January 2003 in the case brought against                            provisions of Article 44(2)(g) of the Treaty Establishing
                      Giuseppe Momblano                                         the European Community, Article 2(1)(f) and Article 6 of
                                                                                the First Directive and Article 2(2), (3) and (4) of the
                          (Case C-52/03)                                        Fourth Directive, as amended by Directive 83/349/EEC
                                                                                and Directive 90/605/EEC, be interpreted as precluding
                                                                                the legislation of a Member State under which, in the case
                          (2003/C 83/16)                                        of breach of the duty to publish true and fair company
                                                                                information, which is intended to protect ‘the interests of
                                                                                shareholders and third parties’, lays down rules for the
                                                                                prosecution of offences and a system of penalties which
Reference has been made to the Court of Justice of the                          are differentiated, reserving to cases where material
European Communities by order of the Tribunale Ordinario di                     damage or loss is caused to shareholders or creditors the
Torino — Sezione GIP (District Court, Turin, — Preliminary                      right to submit a complaint and apply for the imposition
Investigations Section) of 29 January 2003, received at the                     of sanctions and reserving to such cases sanctions which
Court Registry on 10 February 2003, for a preliminary ruling                    are serious and effective?
in the case brought against Giuseppe Momblano on the
following questions:
1.    May Article 6 of Directive 68/151/EEC (1) be interpreted
      as imposing an obligation upon the Member States to                 (1 ) OJ L 65 of 14.3.1968, p. 8.
      establish appropriate penalties not only for failure on the         (2 ) OJ L 222 of 14.8.1978, p. 11.
      part of commercial companies to publish their balance
      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
      public or of any other information concerning their