C-182/00

LUTZ AND OTHERS

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 8 November 2001 1

I — Introduction overriding Community law, the general legal principle of proportionality, the fun- damental law of property and the funda- mental freedom to pursue economic activ- ities. The Court must, however, first deter- 1. The Landesgericht (Regional Court) mine whether it has jurisdiction to consider Wels (Republic of Austria), sitting as a the questions which have been referred to it commercial court, has referred to the Court for a preliminary ruling. Indeed, the ques- of Justice for a preliminary ruling a number tion arises whether the Landesgericht Wels of questions on the validity of certain qualifies in the present proceedings as a provisions of two directives concerning 'national court or tribunal' within the companies2 and on the interpretation of meaning of Article 234 EC. the Treaty.

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the opinion submitted by the person revised Paragraphs 277 and 283 of the responsible for auditing the accounts, must Austrian Commercial Code (hereinafter be published in the manner laid down by also 'öHGB'). The second transposing law, the laws of each Member State in accord- namely the EU-Gesellschaftsrechtsände- ance with Article 3 of the First Directive. rungsgesetz 4 (Law amending Company Law for EU purposes) strengthened the disclosure obligation, ensuring that the Directive has been fully transposed.

3 — BGBl. 475/1990. 4 — BGBl. 304/1996.

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documents in order to comply with the Register — hereinafter 'FBG') 5 provides time-limit, the opinion and the proposal as follows: must be submitted immediately after they become available, the resolutions immedi- ately after they are adopted, and the auditor's report immediately after it is 'Anyone who is required to effect a regis- issued. Where the annual accounts are tration, provide a signature or submit amended as a result of a subsequent audit documents to the Companies Register, or or discovery, that amendment must also be who uses a commercial name which he is submitted.' not entitled to use, shall be required by the court, by means of a periodic penalty of up to ATS 50 000, to fulfil his obligation or to cease using the commercial name, or to demonstrate that he is not so required, or that the use of the commercial name is lawful.' 9. Paragraph 283(1) of the öHGB, as amended by the second transposing law, provides the following sanction:

I I I— Facts and procedure and the ques- tions referred for a preliminary ruling

of 13 September 1999 cannot be the subject 2. Do the measures provided for in of an action, Lutz submitted an application Article 2(1)(f) of First Directive ('Individualantrag') to the Verfassungsger- 68/151/EEC and Article 47 of Fourth ichtshof (Constitutional Court) for a dec- Directive 78/660/EEC regarding the laration that the provisions relating to disclosure obligation on capital com- disclosure infringe certain fundamental panies infringe Article 44(2)(g) EC, in rights and provisions of Community law. that they are not necessary to eliminate By decision of 2 November 1999, the restrictions on establishment or to Landesgericht Wels, sitting in its commer- attain other objectives of the EC Treaty cial capacity, extended the time-limit for (in particular the establishment of uni- submission of the documents relating to the form general legal requirements) ? accounts to the date on which the Verf- assungsgerichtshof should make its order. The Verfassungsgerichtshof dismissed Lutz's application by order of 29 November 1999. It based its decision on the fact that a periodic penalty may be suspended pending a ruling on the lawfulness of the require- ment with which the penalty is associated. 3. Is the fact that Article 2(1)(f) of First Directive 68/151/EEC in conjunction with Article 47 of Fourth Directive 78/660/EEC compels undertakings to reveal business secrets by imposing the 13. In its order of 9 May 2000, the Land- obligation to disclose the balance sheet esgericht Wels, sitting as a commercial and the profit and loss account for each court, accordingly ruled of its own motion financial year on pain of a penalty, and and pursuant to Lutz's application of that the protective objective provided 20 January 2000 that the following ques- for can be adequately attained by tions should be referred to the Court of other — less intrusive — measures, Justice for a preliminary ruling in accord- compatible with the general legal prin- ance with Article 234 EC: ciple of proportionality?

5. Is the fact that Article 2(1)(f) of First Directive 68/151/EEC in conjunction with Article 47 of Fourth Directive 78/660/EEC compels undertakings to reveal business secrets by imposing the 16. Under the first paragraph of Article 234 obligation to disclose the balance sheet EC, the Court of Justice has jurisdiction to and the profit and loss account for each give preliminary rulings on the interpre- financial year on pain of a penalty, and tation of the Treaty and of acts of the that the protective objective provided institutions of the Community. Under the for can be adequately attained by second paragraph of Article 234 EC, a other — less intrusive — measures, national court or tribunal may, if it con- compatible with the fundamental right siders that a decision on the question is of freedom to pursue an economic necessary to enable it to give judgment, activity in Community law?' request the Court of Justice to rule on the question.

17. The Court has now established in a number of cases that national courts and tribunals which, as in this case, satisfy the 14. Written observations were submitted, institutional requirements, but which apply in accordance with Article 20 of the EC the procedure for obtaining a preliminary Statute of the Court of Justice, by Lutz, by ruling when exercising a non-judicial func- the Spanish, Italian and Austrian Govern- tion, are not courts or tribunals within the ments, and by the Council and the Com- meaning of Article 234 EC. In such cases, mission. The hearing took place on they are considering a particular adminis- 25 October 2001 and Lutz, the Italian trative matter in a judicial manner, and the Government, the Council and the Commis- Court has held that it has no jurisdiction to sion were represented. answer the questions raised. The first

authority for this is the judgment in Job tration in the land register of a contract for Centre I,6 recently confirmed by the the sale of land for development. According Court's judgment in Salzmann 7and its to the Austrian Federal Land Register Law order in HSB-Wohnbau GmbH. 8 of 1955, the Bezirksgericht is competent to register real property transactions in the land register. In this regard, it considers whether an application for registration satisfies the conditions laid down by law.

articles of association under proceedings carrying out such an activity it is exercising known as 'voluntary jurisdiction'. Under a non-judicial function. The applicant in the Italian Civil Code, the Tribunale must the main proceedings claimed that she had order the registration of a company if, after applied to the Bezirksgericht by way of hearing submissions of the public auth- appeal for registration of her title in the orities, it finds that the company's articles land register in view of the fact that a of association satisfy the conditions laid Rechtspfleger — a judicial officer — had down by law. The Court took the view that rejected her application at first instance, a national court is entitled to refer ques- but the Court held that the decision of the tions for a preliminary ruling only 'if there Rechtspfleger had the character of an is a case pending before it and if it is called internal administrative complaint within upon to give a judgment in proceedings the responsible body. 10 intended to lead to a decision of a judicial

19. The Salzmann case concerned a refer- Articles 43 EC and 48 EC following a ence for a preliminary ruling by the dispute concerning entry in the German Bezirksgericht (District Court) Bregenz commercial register of the transfer of the (Austria) in connection with the regis- registered office of a GmbH (limited com- pany) from Germany to Spain, on which the Amtsgericht had to give its decision. It 6 — Case C-111/94 Job Centre ('Job Centre I') [1995] ECR I-3361. 7 — Case C-178/99 Sahmann [2001] ECR I-4421. 10 — Paragraphs 13 to 22 of Salzmann, cited above.

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is clear from the order of reference that the — a judicial remedy lay against the Amtsgericht applied to the Court in its decision taken. capacity as an authority responsible for maintaining the commercial register in Germany, and in the context of a case involving entry in that register. The Amts- gericht was the first authority to deal with that application for entry of the company. It followed, according to the Court, that the Amtsgericht was not performing a 22. In the present case, the decision to refer judicial function in relation to that activ- provides little information on the factual ity. 11 circumstances of this particular case, although the referring court and the parties which submitted written observations have set out the most relevant provisions of national law. In my opinion, it may be concluded from the Austrian law relating to 21. The conclusion to be drawn from these disclosure obligations and the law relating three cases is that the activities concerned to judicial structures that the Landesgericht had an administrative, not judicial, char- Wels — sitting as a commercial court — acter, on the basis of the following factors: has referred questions for a preliminary ruling not as a judicial authority, but in the context of activities of an administrative nature.

— the questions arose in proceedings in which the application related to the entry of a particular legal situation in a register;

24. The commercial court must simply establish that the statutory conditions of disclosure have not been met. On that basis, it may order the company in default to lodge the accounting documents. The periodic penalty is essentially an adminis- 26. The Landesgericht Wels has, therefore, trative penalty designed to induce the referred the questions for a preliminary company concerned to fulfil its statutory ruling in the context of an administrative obligations, and it is frequently applied in appeal procedure, in the exercise of a Austrian law. It is imposed automatically. non-judicial, administrative function. The commercial court has a discretionary Those questions do not, therefore, emanate power only to determine the amount of the from a court or tribunal performing a fine. 13 Where the commercial court exer- judicial function within the meaning of cises these powers, it is bound by the Article 234 EC. The Court has no jurisdic- exhaustive statutory provisions of the Han- tion to reply to them. 17 delsgesetzbuch and of the Firmenbuch- gesetz. 14

25. To challenge a decision ordering the submission of documents and the associ- 27. A company wishing to challenge a ated threat of a periodic penalty, a com- decision ordering disclosure and the pen- pany may, according to Austrian law, alty associated with it may apply to the request the commercial court which made Oberlandesgericht. If the Oberlandesger- the decision to review it ('Vorstellung'), or icht is required to rule on an appeal, in its it may lodge an appeal to the Oberland- judicial capacity, on the lawfulness of the esgericht (Higher Regional Court) ('Re- obligation imposed and of the associated kurs'). 15 In the present proceedings, Lutz penalty, it may apply to the Court for a submitted an application to the commercial preliminary ruling.