Berlusconi (Law relating to undertakings) [2005] EUECJ C-403/02 (03 May 2005)

Berlusconi (Law relating to undertakings) [2005] EUECJ C-403/02 (03 May 2005)

First Companies Directive 68/151/EEC cannot be relied on as such against accused persons by national authorities in criminal proceedings, as a directive cannot, of itself and independently of national implementing legislation, have the effect of determining or increasing the criminal liability of those accused persons.

Citation
[2005] EUECJ C-403/02
Parties
Accused: Mr Berlusconi; Accused: Mr Adelchi; Accused: Mr Dell'Utri; Accused: Mr Luzi; Accused: Mr Comincioli; Company: Fininvest SpA; Company: Nuova Adelchi Srl; Company: Calzaturificio Adelchi Srl; Referring Court: Tribunale di Milano; Referring Court: Corte d’appello di Lecce
Jurisdiction
European Union
Judgment Date
03 May 2005
Procedural Posture
Preliminary Reference (joined Criminal Proceedings) / Preliminary Ruling by ECJ (grand Chamber)
Outcome
Preliminary ruling: First Companies Directive cannot be relied on as such against accused persons in criminal proceedings to determine or increase criminal liability.
Legal Topics
Direct Effect of Directives, False Accounting, Disclosure Obligations, Penalties and Sanctions, Retroactive Application of Criminal Law, Primacy of EU Law
European Union Law Criminal Law Company Law Direct Effect of Directives False Accounting Disclosure Obligations Penalties and Sanctions Retroactive Application of Criminal Law +1 more

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Parties

Mr Berlusconi

Accused

Mr Adelchi

Accused

Mr Dell'Utri

Accused

Mr Luzi

Accused

Mr Comincioli

Accused

Fininvest SpA

Company

Nuova Adelchi Srl

Company

Calzaturificio Adelchi Srl

Company

Tribunale di Milano

Referring Court

Corte d’appello di Lecce

Referring Court

Procedural Posture

Preliminary Reference (joined Criminal Proceedings) / Preliminary Ruling by ECJ (grand Chamber)

Legal Issues

  1. 1 Whether Article 6 of First Companies Directive requires penalties for false as well as non-disclosure of company accounts
  2. 2 Whether EU law precludes national law that sets thresholds below which false accounting is not punishable
  3. 3 Whether more lenient criminal penalties must be applied retroactively even if incompatible with EU law

Ratio Decidendi

First Companies Directive 68/151/EEC cannot be relied on as such against accused persons by national authorities in criminal proceedings, as a directive cannot, of itself and independently of national implementing legislation, have the effect of determining or increasing the criminal liability of those accused persons.

Court Disposition

Preliminary ruling: First Companies Directive cannot be relied on as such against accused persons in criminal proceedings to determine or increase criminal liability.

Orders

  • National authorities cannot rely directly on the First Companies Directive to impose or aggravate criminal liability in the absence of national implementing legislation.