Banque internationale pour l'Afrique occidentale SA (BIAO) v Finanzamt für Großunternehmen in Hamburg.
Date: 2003-01-07
69.  First, as has been recalled in paragraph 5 of this judgment, the Fourth Directive is intended in particular to ensure the coordination of national provisions on the structure and content of annual accounts and reports and methods of valuation, for the purposes of protecting members and third parties.  To that end, according to the third recital in its preamble, it is designed only to establish minimum conditions as to the extent of the financial information to be made available to the public.
70.  The Fourth Directive is not designed to lay down the conditions in which the annual accounts of companies may or must serve as a basis for the determination by the tax authorities of the Member States of the basis for assessment and the amount of taxes, such as the trade tax at issue in the main proceedings.  However, it is in no way excluded that annual accounts might be used by Member States as a reference base for tax purposes.
72.  Finally, with regard to the content of the Fourth Directive, both the fourth recital in its preamble and Article 2(3) state as a fundamental principle that annual accounts must give a true and fair view of the company's assets and liabilities, financial position and profit or loss (Case C-234/94   Tomberger   [1996] ECR I-3133, paragraph 17, rectified by order of 10 July 1997, not published in the ECR). That principle requires, first, that the annual accounts of companies should reflect the activities and transactions which they are supposed to describe and, secondly, that the accounting information be given in the form judged to be the soundest and most appropriate for satisfying third parties' needs for information, without harming the interests of the company (Case C-275/97   DE+ES Bauunternehmung   [1999] ECR I-5331, paragraphs 26 and 27).
88.  In the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, in particular, Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 59, and Case C-218/00   Cisal   [2002] ECR I-691, paragraph 18).
89.  The Court of Justice is therefore bound in principle to give a ruling unless it is obvious that the request is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Case 244/80   Foglia   v   Novello   [1981] ECR 3045, paragraph 18;   Bosman  , paragraph 61; and Case C-134/95   USSL No 47 di Biella   [1997] ECR I-195, paragraph 12).
92.  It is true that the provisions of national law applicable at the material time to bodies like BIAO-Afribank did not reproduce the provisions of the Fourth Directive   verbatim  .  On the other hand, according to the German Government, nothing in German legislation prevented the aim, the principles and the provisions of that directive from being fully complied with as regards drawing up the annual accounts of such bodies.  In that respect, the German Government argues, and the order for reference moreover acknowledges, that any interpretation given by the Court of the provisions of the Fourth Directive would be binding for the resolution of the dispute in the main proceedings by the referring court.
93.  The circumstances of that case are therefore to be distinguished from those at issue in Case C-346/93   Kleinwort-Benson   [1995] ECR I-615, in which the Court held, in paragraph 18 of its judgment, that the legislation in question of the United Kingdom of Great Britain and Northern Ireland expressly provided for the authorities of the contracting State in question to adopt modifications   "designed to produce divergence"   between the provisions of that legislation and the corresponding provisions of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters signed in Brussels on 27 September 1968 (OJ 1972 L 299, p. 32), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and ─ text of the Convention as amended ─ p. 77).
123.  However, Article 31(1)(c)(bb) forms part of a list of examples, introduced by the words   "valuation must be made on a prudent basis, and in particular ..."  .  The list is therefore not exhaustive.  Similarly, as has already been pointed out a number of times, Article 2(3) of, and the fourth recital in the preamble to, the Fourth Directive, lay down the principle that the balance sheet must present a true and fair view of the company's assets and liabilities.  The Court has already held that compliance with that principle requires account to be taken of all elements, such as profits made, charges, products, risks and losses, which actually relate to the financial year in question (Tomberger  , paragraph 22).
125.  However, to omit from the annual accounts all mention of circumstances such as the reduction or disappearance of such a risk could be capable of misleading, and might therefore be contrary to the   "true and fair view"   principle (see, to that effect,   Tomberger  , paragraph 22).  Compliance with that principle requires that mention must be made somewhere in the annual accounts of the disappearance or reduction of such a risk.  Determination of the most appropriate way of showing that mention in the balance sheet is a matter for national law.