23.11.2013

Official Journal of the European Union

C 344/10

(Case C-418/11) (<span class="super">1</span>)

(Company law - Freedom of establishment - Eleventh Directive 89/666/EEC - Disclosure of accounting documents - Branch of a capital company established in another Member State - Pecuniary penalty in the event of failure to disclose within the prescribed period - Right to effective judicial protection - Principle of respect for the rights of the defence - Effective, proportionate and dissuasive nature of the penalty)

2013/C 344/14

Language of the case: German

Referring court

Parties to the main proceedings

Re:

Request for a preliminary ruling — Oberlandesgericht Innsbruck — Interpretation of Articles 49 TFEU and 54 TFEU; the second paragraph of Article 47 and Article 50 of the Charter of Fundamental Rights of the European Union; the general principle of the right to effective legal protection; Article 6 of 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); Article 60a of 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, as amended (OJ 1978 L 222, p. 11); and of Article 38(6) of 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) — Publication of consolidated annual accounts of certain types of company — Legislation of a Member State under which, in the event of failure to disclose within nine months the consolidated annual accounts to the court having jurisdiction, a pecuniary penalty is to be imposed without the bodies authorised to represent the company being given an opportunity to state their views

Operative part of the judgment

Subject to the verifications to be carried out by the referring court, Articles 49 TFEU and 54 TFEU, the principles of effective judicial protection and respect for the rights of the defence, and Article 12 of Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State are to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides that, where the statutory nine-month period for disclosing accounting documents is exceeded, a minimum periodic penalty of EUR 700 is to be imposed immediately on the capital company whose branch is located in the Member State concerned, without prior notice and without the company first being given an opportunity to state its views on the alleged breach of the disclosure obligation.

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Language of the case: German.