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CJEU Case C-418/11 / Opinion

Texdata Software GmbH

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
31/01/2013

Key facts of the case:

Reference for a preliminary ruling: Oberlandesgericht Innsbruck - Austria.
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.

Outcome of the case:

For the reasons set out above, I therefore propose that the Court give the following answer to the question referred by the Oberlandesgericht Innsbruck:

National legislation under which, in cases where the statutory nine-month period for disclosing annual accounts to the relevant court has expired, requires that court – without first allowing an opportunity to state views and without first putting the company concerned, or the bodies authorised to represent it, on notice to comply with the disclosure obligation – to impose immediately a fine of EUR 700 on the company and on each of the bodies authorised to represent it, and, in the event of continuing failure for a two-month period, immediately to impose in respect of each such period further minimum fines in the amount of EUR 700 on those same persons is not precluded by the freedom of establishment laid down in Articles 49 TFEU and 54 TFEU and the principles of effective legal protection, respect for the rights of the defence and non bis in idem, laid down in Articles 47, 48(2) and 50 of the Charter of Fundamental Rights of the European Union, or by Directive 2009/101/EC, Fourth Directive 78/660/EEC and Eleventh Directive 89/666/EEC.