12.11.2011

Official Journal of the European Union

C 331/7

(Case C-418/11)

2011/C 331/11

Language of the case: German

Referring court

Party to the main proceedings

*Applicant: TEXDATA Software GmbH

Question referred

Does European Union law, as it stands at present, and in particular:

1.the freedom of establishment laid down in Articles 49 TFEU and 54 TFEU;

2.the general legal principle (Article 6(3) TEU) of effective legal protection (principle of effectiveness);

3.the principle of the right to a fair hearing laid down in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (Article 6(1) TEU) and in Article 6(2) of the ECHR (Article 6(1) TEU);

4.the principle of non bis in idem laid down in Article 50 of the Charter of Fundamental Rights of the European Union; or

5.the conditions governing penalties in the disclosure procedure laid down in Article 6 of Directive 68/151/EEC, Article 60a of Directive 78/660/EEC and Article 38(6) of Directive 83/349/EEC;

preclude a national rule which, in the case where the statutory nine-month period for compiling and disclosing annual accounts to the relevant court maintaining the commercial register is exceeded,

without a prior opportunity to state views on the existence of an obligation to disclose and on any potential obstacles to doing so, in particular without prior examination as to whether those annual accounts have in fact already been submitted to the court which maintains the register in the judicial district of which the principal place of business is situated; and

without a prior individual request to the company or the bodies authorised to represent it to comply with the disclosure obligation,

requires that the court maintaining the commercial register impose immediately a minimum fine of EUR 700 on the company and on each of the bodies authorised to represent it, in the absence of the provision of proof to the contrary and pursuant to the fiction that the company and its bodies were culpable in failing to effect disclosure; and which requires, in the event of further failure for periods of two months, the further and immediate imposition in each case of further minimum fines of EUR 700 on the company and on each of the bodies authorised to represent it, again in the absence of the provision of proof to the contrary and pursuant to the fiction that the company and its bodies were culpable in failing to effect disclosure?

*

First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of 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 (OJ, English special edition 1968(I), p. 41).

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 1978 L 222, p. 11; amended version at OJ 2006 L 224, p. 1).

Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1).