CELEX: C2003/264/25
Language: en
Date: 2003-11-01 00:00:00
Title: Case C-338/03: Reference for a preliminary ruling by the Tribunale Civile e Penale di Perugia — Ufficio per le indagini preliminari — by order of that Court of 12 June 2003 in the case against Alessandrello Rosario and Others

1.11.2003                EN                           Official Journal of the European Union                                           C 264/15
1.   Council Directive 93/104/EC of 23 November 1993 concern-                 Penale di Perugia — Ufficio per le indagini preliminari —
     ing certain aspects of the organisation of working time must be          (District Civil and Criminal Court, Perugia — Preliminary
     interpreted as meaning that on-call duty (‘Bereitschaftsdienst’)         Investigations Section) of 12 June 2003, received at the Court
     performed by a doctor where he is required to be physically              Registry on 1st August 2003, for a preliminary ruling in the
     present in the hospital must be regarded as constituting in its          case against Alessandrello Rosario and Others on the following
     totality working time for the purposes of that directive even            questions:
     where the person concerned is permitted to rest at his place of
     work during the periods when his services are not required with
     the result that that directive precludes legislation of a Member
     State which classifies as rest periods an employee’s periods of
                                                                              1.   With reference to the duty of each Member State to adopt
     inactivity in the context of such on-call duty.
                                                                                   ‘appropriate penalties’ for the infringements established
                                                                                   by the first and fourth directives (Directive 68/151/
2.   Directive 93/104 must also be interpreted as meaning that:                    EEC (1) and Directive 78/660/EEC (2)), must the directives
                                                                                   themselves and in particular the combined provisions of
     —      in circumstances such as those in the main proceedings,                Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of
            that directive precludes legislation of a Member State                 the first directive (Directive 68/151/EEC) and Article 2(2),
            which, in the case of on-call duty where physical presence             (3) and (4) of the fourth directive (Directive 78/660/EEC),
            in the hospital is required, has the effect of enabling, in            as consolidated by Directive 83/349 (3) and Directive 90/
            an appropriate case by means of a collective agreement or              605 (4), be interpreted as meaning that that legislation
            a works agreement based on a collective agreement, an                  precludes a law of a Member State which, in amending
            offset only in respect of periods of on-call duty during               the system of penalties already in force in respect of
            which the worker has actually been engaged in professional             company law offences concerning the infringement of the
            activities;                                                            obligations imposed in order to safeguard the principle of
                                                                                   public and accurate information on companies, lays
                                                                                   down a sanctionative system which in the specific
     —      in order to come within the derogating provisions set out              instance is not informed by the criteria of effectiveness,
            in Article 17(2), subparagraph 2.1(c)(i) of the directive,             proportionality and dissuasiveness of the sanctions
            a reduction in the daily rest period of 11 consecutive hours           imposed in order to ensure that that principle is upheld?
            by a period of on-call duty performed in addition to
            normal working time is subject to the condition that
            equivalent compensating rest periods be accorded to the
            workers concerned at times immediately following the
            corresponding periods worked;                                     2.   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
     —      furthermore, in no circumstances may such a reduction in
                                                                                   fourth directive (Directive 78/660/EEC), as consolidated
            the daily rest period lead to the maximum weekly working
                                                                                   by Directive 83/349 and Directive 90/605), be interpreted
            time laid down in Article 6 of the directive being exceeded.
                                                                                   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
(1) OJ C 156 of 29.6.2002.                                                         disclosure and the provisions of accurate information on
                                                                                   certain company documents (including the balance sheet
                                                                                   and the profit and loss account) where the disclosure
                                                                                   of false company accounts or the failure to provide
                                                                                   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?
Reference for a preliminary ruling by the Tribunale Civile
e Penale di Perugia — Ufficio per le indagini preliminari                     3.   Must those directives and, in particular, Article 44(3)(g)
— by order of that Court of 12 June 2003 in the case                               of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
          against Alessandrello Rosario and Others                                 (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
                                                                                   fourth directive (Directive 78/660/EEC), as consolidated
                           (Case C-338/03)                                         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
                           (2003/C 264/25)                                         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
                                                                                   an unjust profit, are the consequence of estimated
Reference has been made to the Court of Justice of the                             valuations which, taken individually, depart from actual
European Communities by order of the Tribunale Civile e                            values to an extent not greater than a certain threshold?
 ---pagebreak--- C 264/16                 EN                         Official Journal of the European Union                                            1.11.2003
4.    Irrespective of progressive limits or thresholds, must                (3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
      those directives and, in particular, Article 44(3)(g) of the              the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
      EC Treaty, Articles 2(1)(f) and 6 of the first directive                  L 193 of 18.7.1983, p. 1).
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the           (4) Council Directive 90/605/EEC of 8 November 1990 amending
                                                                                Directive 78/660/EEC on annual accounts and Directive 83/349/
      fourth directive (Directive 78/660/EEC), as consolidated                  EEC on consolidated accounts as regards the scope of those
      by Directive 83/349 and Directive 90/605), be interpreted                 Directives (OJ L 317 of 16.11.1990, p. 60).
      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
      where the false statements or the fraudulent omissions
      and, thus, the disclosures and statements which do not
      give a true and fair view of the company’s assets and
      liabilities and financial position do not distort ‘to an              Reference for a preliminary ruling by the Tribunale di
      appreciable extent’ the company’s assets, liabilities and             Cagliari — Sezione Civile — by order of that Court of
      financial position (even though it is for the national                29 April 2003 in the case of Giuseppe Atzeni and Others
      legislature to define the concept of ‘appreciable distor-                       against Regione Autonoma della Sardegna
      tion’?
                                                                                                       (Case C-346/03)
5.    Must those directives and, in particular, Article 44(3)(g)
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive                                 (2003/C 264/26)
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated
      by Directive 83/349 and Directive 90/605), be interpreted
                                                                            Reference has been made to the Court of Justice of the
      as meaning that that legislation precludes a law of a
                                                                            European Communities by order of the Tribunale di Cagliari
      Member State which, in response to an infringement by
                                                                            — Sezione Civile (Cagliari District Court — Civil Chamber) of
      companies of those obligations concerning disclosure
                                                                            29 April 2003, received at the Court Registry on 6 August
      and the provision of accurate information imposed on
                                                                            2003, for a preliminary ruling in the case of Giuseppe Atzeni
      them in order to safeguard ‘the interests of both members
                                                                            and Others against Regione Autonoma della Sardegna on the
      and third parties’, allows only members and creditors to
                                                                            following questions on the validity of Commission Decision
      seek imposition of a penalty, thereby excluding third
                                                                            No 612/97 (1), with regard to the following defects:
      parties from any general and effective protection?
                                                                            (a)   lack of competence of the Commission to adopt the
                                                                                  contested decision inasmuch as it infringes Article 32 of
6.    Must those directives and, in particular, Article 44(3)(g)                  the Treaty on European Union in conjunction with
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive             Articles 33, 34, 35, 36, 37 and 38 thereof;
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated              (b) infringement of the rules which govern the procedure
      by Directive 83/349 and Directive 90/605), be interpreted                   provided for in Article 88(1) of the Treaty on European
      as meaning that that legislation precludes a law of a                       Union;
      Member State which, in response to the infringement by
      companies of those obligations concerning disclosure                  (c)   infringement of the rules which govern the procedure
      and the provision of accurate information imposed on                        provided for in Article 88(2) and (3) of the Treaty on
      them in order to safeguard ‘the interests of both members                   European Union;
      and third parties’, provides for prosecution machinery and
      a sanctionative system which are markedly differentiated,
                                                                            (d) failure to provide a statement of reasons as required
      whereby the possibility of the imposition of a punishment
                                                                                  by Article 253 of the Treaty on European Union in
      upon complaint being made, together with more serious
                                                                                  conjunction with Articles 88(3) and 87(1) thereof;
      and effective penalties, is reserved solely for infringements
      occasioning loss to members and creditors?
                                                                            (e)   infringement and misapplication of Council Regulation
                                                                                  No 797/85 (2) on improving the efficiency of agricultural
                                                                                  structures;
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-               (f)   infringement of and failure to observe ‘practice for aid to
    ordination of safeguards which, for the protection of the interests           farms in difficulty’ and the ‘Community guidelines on
    of members and others, are required by Member States of                       State aid for rescuing and restructuring firms in difficulty’.
    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...:
                                                                            (1) OJ L 248 of 11.9.1997, p. 27.
    Series-I I Chapter 1968(I), p. 41).
                                                                            (2) OJ L 93 of 30.3.1985, p. 1.
(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).