Criminal proceedings against Silvio Berlusconi (C-387/02), Sergio Adelchi (C-391/02) and Marcello Dell'Utri and Others (C-403/02).
Date: 2005-05-03
54. It must be stated in this regard that penalties for offences resulting from false accounting, such as the penalties provided for in the new Articles 2621 and 2622 of the Italian Civil Code, are designed to punish serious infringements of the fundamental principle, compliance with which constitutes the core objective of the Fourth Companies Directive, which follows from the fourth recital in the preamble and from Article 2(3) and (5) of that directive, that annual accounts of companies coming within the scope of that directive must give a true and fair view of the company’s assets and liabilities, financial position and profit or loss (see, in this regard, Case C-306/99 BIAO  [2003] ECR I-1, paragraph 72 and the case-law there cited).
64. The fact none the less remains that, in order to clarify the scope of the requirement that the penalties set out in Article 6 of the First Companies Directive be appropriate, account may usefully be taken of the Court’s established case-law on Article 5 of the Treaty, which sets out a similar requirement.
65. According to that case-law, while the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (see, inter alia, Commission  v Greece , cited above, paragraphs 23 and 24; Case C-326/88 Hansen  [1990] ECR I‑2911, paragraph 17; Case C-167/01 Inspire Art  [2003] ECR I-10155, paragraph 62; and Case C-230/01 Penycoed  [2004] ECR I-0000, paragraph 36 and the case-law cited therein).
The principle of the retroactive application of the more lenient penalty
67. It must be pointed out in this regard that, according to settled case-law, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, inter alia, Case C‑112/00 Schmidberger  [2003] ECR I‑5659, paragraph 71 and the case-law there cited, and Joined Cases C‑20/00 and C‑64/00 Booker Aquaculture and Hydro Seafood  [2003] ECR I‑7411, paragraph 65 and the case-law there cited).
68. The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member States.
69. It follows that this principle must be regarded as forming part of the general principles of Community law which national courts must respect when applying the national legislation adopted for the purpose of implementing Community law and, more particularly in the present cases, the directives on company law.
The ability to rely on the First Companies Directive
72. Admittedly, should the national courts which made the references conclude, on the basis of the replies to be given by the Court, that the new Articles 2621 and 2622 of the Italian Civil Code do not, by reason of certain of their provisions, satisfy the Community law requirement that penalties be appropriate, it would follow, according to the Court’s well-established case-law, that the national courts which made the references would be required to set aside, under their own authority, those new articles without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure (see, inter alia, Case 106/77 Simmenthal  [1978] ECR 629, paragraphs 21 and 24; Joined Cases C‑13/91 and C‑113/91 Debus  [1992] ECR I‑3617, paragraph 32; and Joined Cases C‑10/97 to C‑22/97 IN. CO .GE’90 and Others  [1998] ECR I‑6307, paragraph 20).
73. The Court has, however, also consistently ruled that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual (see, inter alia, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑0000, paragraph 108 and the case-law there cited).
74. In the specific context of a situation in which a directive is relied on against an individual by the authorities of a Member State within the context of criminal proceedings, the Court has ruled that a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive (see, inter alia, Case 80/86 Kolpinghuis Nijmegen  [1987] ECR 3969, paragraph 13, and Case C‑60/02 X  [2004] ECR I-0000, paragraph 61 and the case-law there cited).
75. In the situation in the present cases, reliance on Article 6 of the First Companies Directive for the purpose of assessing whether the new Articles 2621 and 2622 of the Italian Civil Code are compatible with that provision could have the effect of setting aside application of the system of more lenient penalties provided for by those articles.
76. It is clear from the decisions for referral that, if the new Articles 2621 and 2622 of the Italian Civil Code were to remain unapplied by reason of their incompatibility with Article 6 of the First Companies Directive, the result could be to render applicable a manifestly more severe criminal penalty, such as that provided for under the former Article 2621 of that code, which was in force at the time when the acts resulting in the prosecutions brought in the cases in the main proceedings were committed.
77. A consequence of that kind would be contrary to the limits which flow from the essential nature of any directive, which, as follows from the case-law cited in paragraphs 73 and 74 of this judgment, preclude a directive from having the effect of determining or increasing the liability in criminal law of accused persons.
78. In the light of all of the foregoing, the answer to the questions referred for preliminary ruling must be that, in a situation such as that in issue in the main proceedings, the First Companies Directive cannot be relied on as such against accused persons by the authorities of a Member State within the context of criminal proceedings, in view of the fact that a directive cannot, of itself and independently of national legislation adopted by a Member State for its implementation, have the effect of determining or increasing the criminal liability of those accused persons.
Costs