CELEX: C2003/101/48
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-101/03: Reference for a preliminary ruling by the Tribunale di Milano — Prima sezione penale by order of that Court of 26 November 2002 in the criminal proceedings against Alfonso Galeazzo and Marco Benatti

C 101/28                 EN                       Official Journal of the European Union                                         26.4.2003
Action brought on 4 March 2003 by the Commission of                       — Prima sezione penale (Milan District Court, First Criminal
          the European Communities against Ireland                        Chamber) of 26 November 2002, received at the Court
                                                                          Registry on 4 March 2003, for a preliminary ruling in the
                            (Case C-99/03)                                criminal proceedings against Alfonso Galeazzo and Marco
                                                                          Benatti on the following questions:
                           (2003/C 101/47)
                                                                          1.    Does Article 6 of Directive 68/151/EEC ( 1) on co-ordi-
                                                                                nation of safeguards which, for the protection of the
An action against Ireland was brought before the Court of                       interests of members and others, are required by Member
Justice of the European Communities on 4 March 2003 by the                      States of companies within the meaning of the second
Commission of the European Communities, represented by                          paragraph of Article 58 of the Treaty, with a view
James Flett, acting as agent, with an address for service in                    to making such safeguards equivalent throughout the
Luxembourg.                                                                     Community concern not only cases of failure to publish
                                                                                the balance sheet and profit and loss account, but also
                                                                                cases where those documents are published but their
The Applicant claims that the Court should:                                     contents are false, given that the harm to the interests of
                                                                                members and third parties is clearly greater in the latter
1)    declare that, by failing to adopt the laws, regulations                   case? Is the directive intended in that respect to lay down
      and administrative provisions necessary to comply with                    a minimum level of protection at Community level
      Directive 2000/52/EC of the Commission of 26 July                         leaving it to the Member States to put in place means of
      2000 amending Directive 80/723/EC on the transparency                     protection against the submitting of false balance sheets
      of financial relations between Member States and public                   or the publishing of false company accounts?
      undertakings ( 1), or in any event by failing to communi-
      cate them forthwith to the Commission, Ireland has failed
      to fulfil its obligations under the Treaty and the Directive;       2.    Do the criteria of effectiveness, proportionality and
                                                                                dissuasiveness, which the penalties to be adopted by the
2)    order Ireland to pay the costs.                                           Member States under Council Directive 68/151 must
                                                                                satisfy in order to be regarded as appropriate, refer to the
                                                                                nature or type of penalty considered in the abstract, or
                                                                                rather to its application in practice having regard to the
Pleas in law and main arguments                                                 structural characteristics of the legal system within which
                                                                                it takes effect?
Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the             3.    Are the principles set out in Council Directive 78/660/
period for compliance laid down in the directive. When that                     EEC (2) of 25 July 1978 based on Article 54(3)(g) of the
period expired on 31 July 2001 Ireland had failed to adopt the                  Treaty on the annual accounts of certain types of
measures necessary to comply with the directive referred to in                  companies, Council Directive 83/349/EEC (3) of 13 June
the conclusions of the Commission, or in any event had failed                   1983 based on Article 54(3)(g) of the Treaty on consoli-
to inform the Commission of such measures.                                      dated accounts and Council Directive 90/605/EEC (4) of
                                                                                8 November 1990 amending Directive 78/660/EEC on
                                                                                annual accounts and Directive 83/349/EEC on consoli-
( 1) OJ L 193 of 29.7.2000, p. 75.                                              dated accounts as regards the scope of those directives,
                                                                                upon which national measures relating to the drafting
                                                                                and contents of annual accounts and annual reports, in
                                                                                particular, of capital companies, must be based, to be
                                                                                interpreted as precluding a Member State from setting
                                                                                minimum thresholds below which inaccurate statements
                                                                                in annual accounts and annual reports relating to com-
Reference for a preliminary ruling by the Tribunale di                          panies limited by shares, partnerships limited by shares
Milano — Prima sezione penale by order of that Court of                         and limited liability companies are not punishable?
26 November 2002 in the criminal proceedings against
             Alfonso Galeazzo and Marco Benatti
                           (Case C-101/03)                                (1 ) OJ, English Special Edition 1968 (I), p. 41.
                                                                          (2 ) OJ 1978 L 222, p. 11.
                                                                          (3 ) OJ 1983 L 193, p. 1.
                           (2003/C 101/48)                                (4 ) OJ 1990 L 317, p. 60.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano