# Official Journal C 251/9 Oc

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 251 |
| | |
| English edition | Information and Notices | Volume 479 October 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 251

English edition

Information and Notices

Volume 479 October 2004

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 251/1 | Case C-234/04: Reference for a preliminary ruling by the Landesgericht Innsbruck by order of that court of 26 May 2004 in the case of Rosmarie Kapferer against Schlank & Schick GmbH | 1 |
| 2004/C 251/2 | Case C-245/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II) | 2 |
| 2004/C 251/3 | Case C-246/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol | 2 |
| 2004/C 251/4 | Case C-288/04: Reference for a preliminary ruling by the Unabhängiger Finanzsenat by order of that court of 28 June 2004 in the case of AB against Finanzamt für den 6., 7. und 15. Bezirk | 3 |
| 2004/C 251/5 | Case C-295/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Vincenzo Manfredi against Lloyd Italico Assicurazioni | 3 |
| 2004/C 251/6 | Case C-296/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Antonio Cannito against Fondiaria SAI SpA | 3 |
| 2004/C 251/7 | Case C-297/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Nicolò Tricarico against Assitalia Assicurazioni SpA | 4 |
| 2004/C 251/8 | Case C-298/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA | 4 |
| 2004/C 251/9 | Case C-302/04: Reference for a preliminary ruling by the Szombathelyi Városi Bíróság by order of that court of 10 June 2004 in the case Ynos Kft. against János Varga | 5 |
| 2004/C 251/0 | Case C-336/04: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Pordenone — Second Chamber — by order of that court of 14 July 2004 in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone | 5 |
| 2004/C 251/1 | Case C-339/04: Reference for a preliminary ruling by the Consiglio di Stato sitting in judicial capacity (Sixth Chamber) by order of that court of 24 February 2004, in the case of Nuova Società di Telecomunicazioni SpA against Ministero delle Comunicazioni (Ministry of Communications) | 6 |
| 2004/C 251/2 | Case C-340/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Lombardia (Sezione Terza) by order of 27 May 2004 in the case Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.) | 6 |
| 2004/C 251/3 | Case C-341/04: Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that court dated 27 July 2004, in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders | 7 |
| 2004/C 251/4 | Case C-343/04: Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 21 July 2004 in the case of Land Oberösterreich against ČEZ a.s. | 8 |
| 2004/C 251/5 | Case C-344/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 14 July 2004, in the case of The Queen on the application of International Air Transport Association against Department for Transport and in the case of The Queen on the application of European Low Fares Airline Association and Hapag-Lloyd Express GmbH against Department for Transport | 8 |
| 2004/C 251/6 | Case C-346/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt | 9 |
| 2004/C 251/7 | Case C-354/04 P: Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom | 9 |
| 2004/C 251/8 | Case C-355/04 P: Appeal brought on 17 August 2004 by SEGI, A. Zubimendi Izaga, A. Galarraga against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-338/02 between SEGI, A. Zubimendi Izaga, A. Galarraga and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom | 10 |
| 2004/C 251/9 | Case C-373/04 P: Appeal brought on 27 August 2004 by the Commission of the European Communities against the judgment delivered on 10 June 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T-153/01 and T-323/01 between Ms M. Alvarez Moreno and Commission of the European Communities | 10 |
| 2004/C 251/0 | Removal from the register of Case C-55/04 | 11 |
| | COURT OF FIRST INSTANCE |
| 2004/C 251/1 | Election of the President of the Court of First Instance | 12 |
| 2004/C 251/2 | Election of the Presidents of Chambers | 12 |
| 2004/C 251/3 | Assignment of Judges to the Chambers | 12 |
| 2004/C 251/4 | Judgment of the Court of First Instance of 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and Others v Commission of the European Communities (Competition — Appeal — Cartel — Graphite electrodes market — Price-fixing and market-sharing — Calculation of fines — Concurrent sanctions — Guidelines on the method of setting fines — Applicability — Gravity and duration of the infringement — Aggravating circumstances — Attenuating circumstances — Ability to pay — Cooperation during the administrative procedure — Arrangements for payment) | 13 |
| 2004/C 251/5 | Judgment of the Court of First Instance of 20 July 2004 in Case T-311/02: Vitaly Lissotschenko and Joachim Hentze v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Application to register the word mark LIMO — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94) | 15 |
| 2004/C 251/6 | Order of the Court of First Instance of 28 June 2004 in Case T- 342/99 DEP: Airtours plc v Commission of the European Communities (Taxation of costs — Solicitors' and barristers' fees — Economists' fees — VAT) | 15 |
| 2004/C 251/7 | Order of the Court of First Instance of 8 July 2004 in Case T-341/02: Regione Siciliana v Commission of the European Communities (ERDF — Regulation (EEC) No 4253/88 — Termination of financial assistance — Action for annulment — Direct concern — Inadmissibility) | 15 |
| 2004/C 251/8 | Order of the Court of First Instance of 15 June 2004 in Case T-21/03: S v Commission of the European Communities (Officials — Action for annulment — Occupational illness — Recognition of illness as occupational in origin — Request for removal of certain documents from the file held by the medical committee — Refusal — Act adversely affecting an official — Manifest inadmissibility) | 16 |
| 2004/C 251/9 | Order of the Court of First Instance of 5 July 2004 in Case T-39/03 DaimlerChrysler AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate) | 16 |
| 2004/C 251/0 | Order of the Court of First Instance of 2 July 2004 in Case T-256/03: Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV and Josef Kloh v Commission of the European Communities (Action for annulment — Regulation (EC) No 1774/2002 — Decision 2003/328/EC — Use of catering waste in feed for pigs — Inadmissible) | 16 |
| 2004/C 251/1 | Order of the President of the Court of First Instance of 2 July 2004 in Case T-422/03 R II, Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities (Interim Measures — Directives 67/548/EEC and 2004/73/EC — Conditions of admissibility) | 17 |
| 2004/C 251/2 | Order of the President of the Court of First Instance of 2 July 2004 in Case T-76/04 R, Bactria Industriehygiene-Service Verwaltungs GmbH & Co. KG v Commission of the European Communities (Interim measures — Regulation (EC) No 2032/2003 — Biocidal products — Admissibility of the application) | 17 |
| 2004/C 251/3 | Order of the President of the Court of First Instance of 2 July 2004 in Case T-78/04 R, Sumitomo Chemical (UK) plc v Commission of the European Communities (Interim measures — Regulation (EC) No 2032/2003 — Biocidal products — Admissibility of the application) | 17 |
| 2004/C 251/4 | Order of the Court of First Instance of 9 July 2004 in Case T-132/04: André Bonnet v Court of Justice of the European Communities (Officials — Prior administrative procedure — Manifest inadmissibility) | 18 |
| 2004/C 251/5 | Case T-163/04: Action brought on 30 April 2004 by M. Schäfer against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 18 |
| 2004/C 251/6 | Case T-193/04: Action brought on 1 June 2004 by Hans-Martin Tillack against the Commission of the European Communities | 19 |
| 2004/C 251/7 | Case T-237/04: Action brought on 14 June 2004 by Ultradent Products, Inc., and Michael J.S. Renouf against the Commission of the European Communities | 19 |
| 2004/C 251/8 | Case T-257/04: Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities | 20 |
| 2004/C 251/9 | Case T-258/04: Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities | 21 |
| 2004/C 251/0 | Case T-262/04: Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market | 22 |
| 2004/C 251/1 | Case T-263/04: Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market | 22 |
| 2004/C 251/2 | Case T-273/04: Action brought on 7 July 2004 by Brandt Industries against the Commission of the European Communities | 23 |
| 2004/C 251/3 | Case T-278/04: Action brought on 9 July 2004 by Jabones Pardo, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 23 |
| 2004/C 251/4 | Case T-282/04: Action brought on 9 July 2004 by the Italian Republic against the Commission of the European Communities | 24 |
| 2004/C 251/5 | Case T-284/04: Action brought on 12 July 2004 by UPS Europe N.V./S.A. and UPS Deutschland Inc. & Co OHG against the Commission of the European Communities | 25 |
| 2004/C 251/6 | Case T-286/04: Action brought on 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities | 25 |
| 2004/C 251/7 | Case T-288/04: Action brought on 15 July 2004 by Kris Van Neyghem against the Committee of the Regions | 26 |
| 2004/C 251/8 | Case T-292/04: Action brought on 19 July 2004 by Caremar SpA against the Commission of the European Communities | 26 |
| 2004/C 251/9 | Case T-295/04: Action brought on 22 July 2004 by Centro Provincial de Jóvenes Agricultores de Jaén against Council of the European Union | 27 |
| 2004/C 251/0 | Case T-297/04: Action brought on 22 July 2004 by Cristóbal Gallego Martínez, Benito García Burgos and Antonio Parras Rosa against Council of the European Union | 27 |
| 2004/C 251/1 | Case T-304/04: Action brought on 22 July 2004 by the Italian Republic against the Commission of the European Communities | 27 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 251/1

Case C-234/04: Reference for a preliminary ruling by the Landesgericht Innsbruck by order of that court of 26 May 2004 in the case of Rosmarie Kapferer against Schlank & Schick GmbH

1

2004/C 251/2

Case C-245/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II)

2

2004/C 251/3

Case C-246/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol

2

2004/C 251/4

Case C-288/04: Reference for a preliminary ruling by the Unabhängiger Finanzsenat by order of that court of 28 June 2004 in the case of AB against Finanzamt für den 6., 7. und 15. Bezirk

3

2004/C 251/5

Case C-295/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Vincenzo Manfredi against Lloyd Italico Assicurazioni

3

2004/C 251/6

Case C-296/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Antonio Cannito against Fondiaria SAI SpA

3

2004/C 251/7

Case C-297/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Nicolò Tricarico against Assitalia Assicurazioni SpA

4

2004/C 251/8

Case C-298/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA

4

2004/C 251/9

Case C-302/04: Reference for a preliminary ruling by the Szombathelyi Városi Bíróság by order of that court of 10 June 2004 in the case Ynos Kft. against János Varga

5

2004/C 251/0

Case C-336/04: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Pordenone — Second Chamber — by order of that court of 14 July 2004 in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone

5

2004/C 251/1

Case C-339/04: Reference for a preliminary ruling by the Consiglio di Stato sitting in judicial capacity (Sixth Chamber) by order of that court of 24 February 2004, in the case of Nuova Società di Telecomunicazioni SpA against Ministero delle Comunicazioni (Ministry of Communications)

6

2004/C 251/2

Case C-340/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Lombardia (Sezione Terza) by order of 27 May 2004 in the case Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.)

6

2004/C 251/3

Case C-341/04: Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that court dated 27 July 2004, in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders

7

2004/C 251/4

Case C-343/04: Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 21 July 2004 in the case of Land Oberösterreich against ČEZ a.s.

8

2004/C 251/5

Case C-344/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 14 July 2004, in the case of The Queen on the application of International Air Transport Association against Department for Transport and in the case of The Queen on the application of European Low Fares Airline Association and Hapag-Lloyd Express GmbH against Department for Transport

8

2004/C 251/6

Case C-346/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt

9

2004/C 251/7

Case C-354/04 P: Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

9

2004/C 251/8

Case C-355/04 P: Appeal brought on 17 August 2004 by SEGI, A. Zubimendi Izaga, A. Galarraga against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-338/02 between SEGI, A. Zubimendi Izaga, A. Galarraga and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

10

2004/C 251/9

Case C-373/04 P: Appeal brought on 27 August 2004 by the Commission of the European Communities against the judgment delivered on 10 June 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T-153/01 and T-323/01 between Ms M. Alvarez Moreno and Commission of the European Communities

10

2004/C 251/0

Removal from the register of Case C-55/04

11

COURT OF FIRST INSTANCE

2004/C 251/1

Election of the President of the Court of First Instance

12

2004/C 251/2

Election of the Presidents of Chambers

12

2004/C 251/3

Assignment of Judges to the Chambers

12

2004/C 251/4

Judgment of the Court of First Instance of 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and Others v Commission of the European Communities (Competition — Appeal — Cartel — Graphite electrodes market — Price-fixing and market-sharing — Calculation of fines — Concurrent sanctions — Guidelines on the method of setting fines — Applicability — Gravity and duration of the infringement — Aggravating circumstances — Attenuating circumstances — Ability to pay — Cooperation during the administrative procedure — Arrangements for payment)

13

2004/C 251/5

Judgment of the Court of First Instance of 20 July 2004 in Case T-311/02: Vitaly Lissotschenko and Joachim Hentze v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Application to register the word mark LIMO — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

15

2004/C 251/6

Order of the Court of First Instance of 28 June 2004 in Case T- 342/99 DEP: Airtours plc v Commission of the European Communities (Taxation of costs — Solicitors' and barristers' fees — Economists' fees — VAT)

15

2004/C 251/7

Order of the Court of First Instance of 8 July 2004 in Case T-341/02: Regione Siciliana v Commission of the European Communities (ERDF — Regulation (EEC) No 4253/88 — Termination of financial assistance — Action for annulment — Direct concern — Inadmissibility)

15

2004/C 251/8

Order of the Court of First Instance of 15 June 2004 in Case T-21/03: S v Commission of the European Communities (Officials — Action for annulment — Occupational illness — Recognition of illness as occupational in origin — Request for removal of certain documents from the file held by the medical committee — Refusal — Act adversely affecting an official — Manifest inadmissibility)

16

2004/C 251/9

Order of the Court of First Instance of 5 July 2004 in Case T-39/03 DaimlerChrysler AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate)

16

2004/C 251/0

Order of the Court of First Instance of 2 July 2004 in Case T-256/03: Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV and Josef Kloh v Commission of the European Communities (Action for annulment — Regulation (EC) No 1774/2002 — Decision 2003/328/EC — Use of catering waste in feed for pigs — Inadmissible)

16

2004/C 251/1

Order of the President of the Court of First Instance of 2 July 2004 in Case T-422/03 R II, Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities (Interim Measures — Directives 67/548/EEC and 2004/73/EC — Conditions of admissibility)

17

2004/C 251/2

Order of the President of the Court of First Instance of 2 July 2004 in Case T-76/04 R, Bactria Industriehygiene-Service Verwaltungs GmbH & Co. KG v Commission of the European Communities (Interim measures — Regulation (EC) No 2032/2003 — Biocidal products — Admissibility of the application)

17

2004/C 251/3

Order of the President of the Court of First Instance of 2 July 2004 in Case T-78/04 R, Sumitomo Chemical (UK) plc v Commission of the European Communities (Interim measures — Regulation (EC) No 2032/2003 — Biocidal products — Admissibility of the application)

17

2004/C 251/4

Order of the Court of First Instance of 9 July 2004 in Case T-132/04: André Bonnet v Court of Justice of the European Communities (Officials — Prior administrative procedure — Manifest inadmissibility)

18

2004/C 251/5

Case T-163/04: Action brought on 30 April 2004 by M. Schäfer against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

18

2004/C 251/6

Case T-193/04: Action brought on 1 June 2004 by Hans-Martin Tillack against the Commission of the European Communities

19

2004/C 251/7

Case T-237/04: Action brought on 14 June 2004 by Ultradent Products, Inc., and Michael J.S. Renouf against the Commission of the European Communities

19

2004/C 251/8

Case T-257/04: Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

20

2004/C 251/9

Case T-258/04: Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

21

2004/C 251/0

Case T-262/04: Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market

22

2004/C 251/1

Case T-263/04: Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market

22

2004/C 251/2

Case T-273/04: Action brought on 7 July 2004 by Brandt Industries against the Commission of the European Communities

23

2004/C 251/3

Case T-278/04: Action brought on 9 July 2004 by Jabones Pardo, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

23

2004/C 251/4

Case T-282/04: Action brought on 9 July 2004 by the Italian Republic against the Commission of the European Communities

24

2004/C 251/5

Case T-284/04: Action brought on 12 July 2004 by UPS Europe N.V./S.A. and UPS Deutschland Inc. & Co OHG against the Commission of the European Communities

25

2004/C 251/6

Case T-286/04: Action brought on 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities

25

2004/C 251/7

Case T-288/04: Action brought on 15 July 2004 by Kris Van Neyghem against the Committee of the Regions

26

2004/C 251/8

Case T-292/04: Action brought on 19 July 2004 by Caremar SpA against the Commission of the European Communities

26

2004/C 251/9

Case T-295/04: Action brought on 22 July 2004 by Centro Provincial de Jóvenes Agricultores de Jaén against Council of the European Union

27

2004/C 251/0

Case T-297/04: Action brought on 22 July 2004 by Cristóbal Gallego Martínez, Benito García Burgos and Antonio Parras Rosa against Council of the European Union

27

2004/C 251/1

Case T-304/04: Action brought on 22 July 2004 by the Italian Republic against the Commission of the European Communities

27

| | III   Notices |
| --- | --- |
| 2004/C 251/2 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 239, 25.9.2004 | 29 |

III   Notices

2004/C 251/2

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 239, 25.9.2004

Official Journal of the European Union

29

| EN | |
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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 9.10.2004 | EN | Official Journal of the European Union | C 251/1 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/1

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Reference for a preliminary ruling by the Landesgericht Innsbruck by order of that court of 26 May 2004 in the case of Rosmarie Kapferer against Schlank & Schick GmbH

(Case C-234/04)

(2004/C 251/01)

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht Innsbruck (Regional Court Innsbruck) (Austria) of 26 May 2004 received at the Court Registry on 3 June 2004, for a preliminary ruling in the case of Rosmarie Kapferer against Schlank & Schick GmbH on the following questions:

| A) | The jurisdiction decision of the court of first instance:






  1) | Is the principle of cooperation enshrined in Article 10 EC to be interpreted as meaning that, in the circumstances stated in the judgment of the Court of Justice in Case C-453/00 Kühne & Heitz, a national court is also obliged to review and reopen a final judicial decision if it should infringe Community law? Are there any other conditions applicable to the review and reopening of judicial decisions in contrast to administrative decisions? |
| --- | --- | --- |

A)

The jurisdiction decision of the court of first instance:

1)

Is the principle of cooperation enshrined in Article 10 EC to be interpreted as meaning that, in the circumstances stated in the judgment of the Court of Justice in Case C-453/00 Kühne & Heitz, a national court is also obliged to review and reopen a final judicial decision if it should infringe Community law? Are there any other conditions applicable to the review and reopening of judicial decisions in contrast to administrative decisions?

| 2) | If the answer to the first question should be in the affirmative:
  Is the period given under Paragraph 534 of the Zivilprozessordnung (Austrian Code of Civil Procedure) for the reopening of judicial decisions that are contrary to Community law compatible with the principle of full effectiveness of Community law? |
| --- | --- |

2)

If the answer to the first question should be in the affirmative:

Is the period given under Paragraph 534 of the Zivilprozessordnung (Austrian Code of Civil Procedure) for the reopening of judicial decisions that are contrary to Community law compatible with the principle of full effectiveness of Community law?

| 3) | Furthermore, if the answer to the first question should be in the affirmative:
  Does a lack of international (or local) jurisdiction that is not remedied by Article 24 of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters constitute a breach of Community law that, under the principles concerned, can set aside the legal force of a judicial decision?
  If the answer to the third question should be in the affirmative: |
| --- | --- |

3)

Furthermore, if the answer to the first question should be in the affirmative:

Does a lack of international (or local) jurisdiction that is not remedied by Article 24 of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters constitute a breach of Community law that, under the principles concerned, can set aside the legal force of a judicial decision?

If the answer to the third question should be in the affirmative:

| 4) | Is a court of appeal obliged to review the issue of international (or local) jurisdiction under Regulation No 44/2001 if the jurisdiction decision of the court of first instance has become final but the decision on the merits of the case has not? If so, is that review to be conducted by the court of its own motion or only at the instigation of one of the parties to the proceedings? |
| --- | --- |

4)

Is a court of appeal obliged to review the issue of international (or local) jurisdiction under Regulation No 44/2001 if the jurisdiction decision of the court of first instance has become final but the decision on the merits of the case has not? If so, is that review to be conducted by the court of its own motion or only at the instigation of one of the parties to the proceedings?

| B) | Jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No 44/2001:






  1) | Does a misleading promise of financial benefit that helps to cause a contract to be concluded — that is to say, prepares the ground for a contract — demonstrate a sufficiently close connection with the intended conclusion of a consumer contract for jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No 44/2001 to be afforded to consequent claims?
  If the answer to the first question should be in the negative: |
| --- | --- | --- |

B)

Jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No 44/2001:

1)

Does a misleading promise of financial benefit that helps to cause a contract to be concluded — that is to say, prepares the ground for a contract — demonstrate a sufficiently close connection with the intended conclusion of a consumer contract for jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No 44/2001 to be afforded to consequent claims?

If the answer to the first question should be in the negative:

| 2) | Is jurisdiction over consumer contracts afforded to claims arising out of a pre-contractual obligation and does a misleading promise of financial benefit that helps to prepare the ground for a contract demonstrate a sufficiently close connection with the pre-contractual obligation thereby established for jurisdiction over consumer contracts also to be afforded thereto? |
| --- | --- |

2)

Is jurisdiction over consumer contracts afforded to claims arising out of a pre-contractual obligation and does a misleading promise of financial benefit that helps to prepare the ground for a contract demonstrate a sufficiently close connection with the pre-contractual obligation thereby established for jurisdiction over consumer contracts also to be afforded thereto?

| 3) | Is jurisdiction over consumer contracts afforded only if the conditions stipulated by the undertaking for participation in the prize game are satisfied, even if those conditions are not to be given any consideration in the substantive claim under Paragraph 5j of the Konsumentenschutzgesetz (Austrian Consumer Protection Law)?
  If the answers to the first and second questions should be in the negative: |
| --- | --- |

3)

Is jurisdiction over consumer contracts afforded only if the conditions stipulated by the undertaking for participation in the prize game are satisfied, even if those conditions are not to be given any consideration in the substantive claim under Paragraph 5j of the Konsumentenschutzgesetz (Austrian Consumer Protection Law)?

If the answers to the first and second questions should be in the negative:

| 4) | Is jurisdiction over consumer contracts afforded sui generis to a specific statutory form of contractual performance claim or sui generis to a constructive quasi-contractual performance claim which arises as a result of a promise of financial benefit made by an undertaking and the claiming of the financial benefit by the consumer? |
| --- | --- |

4)

Is jurisdiction over consumer contracts afforded sui generis to a specific statutory form of contractual performance claim or sui generis to a constructive quasi-contractual performance claim which arises as a result of a promise of financial benefit made by an undertaking and the claiming of the financial benefit by the consumer?

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(1)  OJ L 12, 2001, p. 1.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/2 |
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Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II)

(Case C-245/04)

(2004/C 251/02)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria), of 26 May 2004, received at the Court Registry on 10 June 2004, for a preliminary ruling in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II) (Second Appeal Chamber of the Carinthia Regional Tax Authority) for a preliminary ruling on the following questions:

| 1. | Is the first sentence of Article 8(1)(a) of the Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (77/388/EEC) (1) to be interpreted as meaning that the place where dispatch or transport begins is relevant even when several undertakings enter into arrangements for the supply of the same goods and those arrangements are implemented by way of a single movement of goods? |
| --- | --- |

1.

Is the first sentence of Article 8(1)(a) of the Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (77/388/EEC) (1) to be interpreted as meaning that the place where dispatch or transport begins is relevant even when several undertakings enter into arrangements for the supply of the same goods and those arrangements are implemented by way of a single movement of goods?

| 2. | Are successive supplies to be treated as exempted intra-Community supplies when several undertakings enter into arrangements for the supply of the same goods and those arrangements are implemented by way of a single movement of goods? |
| --- | --- |

2.

Are successive supplies to be treated as exempted intra-Community supplies when several undertakings enter into arrangements for the supply of the same goods and those arrangements are implemented by way of a single movement of goods?

| 3. | If the answer to the first question is in the affirmative, is the place at which the second supply begins the actual place of departure of the goods or the place where the first supply finishes? |
| --- | --- |

3.

If the answer to the first question is in the affirmative, is the place at which the second supply begins the actual place of departure of the goods or the place where the first supply finishes?

| 4. | Is the identity of the party having the right of disposal of the goods during their movement a relevant factor in answering the first, second and third questions? |
| --- | --- |

4.

Is the identity of the party having the right of disposal of the goods during their movement a relevant factor in answering the first, second and third questions?

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(1)  OJ 1977 L 145, p. 1.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/2 |
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Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol

(Case C-246/04)

(2004/C 251/03)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria), of 26 May 2004, which was received at the Court Registry on 10 June 2004, for a preliminary ruling in the case of Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol.

The Verwaltungsgerichtshof asks the Court of Justice to give a preliminary ruling on the following questions:

| 1. | May a Member State exercise its discretion under Article 13 C of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘the directive’) to give taxable persons the right, despite the tax exemption for the letting of property provided for in Article 13 B(b) of the directive, to opt for taxation only in a uniform manner or may the Member State distinguish by reference to the type of turnover or the group of taxable persons? |
| --- | --- |

1.

May a Member State exercise its discretion under Article 13 C of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘the directive’) to give taxable persons the right, despite the tax exemption for the letting of property provided for in Article 13 B(b) of the directive, to opt for taxation only in a uniform manner or may the Member State distinguish by reference to the type of turnover or the group of taxable persons?

| 2. | Does Article 13 B(b) in conjunction with C(a) of the directive permit Member States' legislation, like Paragraph 6(1)(14) of the Umsatzsteuergesetz 1994 (Law on turnover tax; hereinafter ‘UStG 1994’) in conjunction with Paragraph 6(1)(16) of the UStG 1994, under which the possibility of opting for taxation of turnover from leasing and letting is limited in such a way that non-profit-making sport clubs do not have that option? |
| --- | --- |

2.

Does Article 13 B(b) in conjunction with C(a) of the directive permit Member States' legislation, like Paragraph 6(1)(14) of the Umsatzsteuergesetz 1994 (Law on turnover tax; hereinafter ‘UStG 1994’) in conjunction with Paragraph 6(1)(16) of the UStG 1994, under which the possibility of opting for taxation of turnover from leasing and letting is limited in such a way that non-profit-making sport clubs do not have that option?

| 3. | Does Article 13 B(b) in conjunction with C(a) of the directive permit Member States' legislation, like Paragraph 2(5)(2) of the UStG 1994 in conjunction with Paragraph 1(2)(1) of the version of the Hobbies Order in BGBl Nr 33/1993 (Bundesgesetzblatt; Austrian Official Journal), under which the possibility of opting for taxation of turnover from letting does not exist where the letting does not lead within a foreseeable period of time to an overall profit or surplus in income and concerns a building suitable for use as a private dwelling? |
| --- | --- |

3.

Does Article 13 B(b) in conjunction with C(a) of the directive permit Member States' legislation, like Paragraph 2(5)(2) of the UStG 1994 in conjunction with Paragraph 1(2)(1) of the version of the Hobbies Order in BGBl Nr 33/1993 (Bundesgesetzblatt; Austrian Official Journal), under which the possibility of opting for taxation of turnover from letting does not exist where the letting does not lead within a foreseeable period of time to an overall profit or surplus in income and concerns a building suitable for use as a private dwelling?

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(1)  OJ L 145, p. 1.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/3 |
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C 251/3

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Reference for a preliminary ruling by the Unabhängiger Finanzsenat by order of that court of 28 June 2004 in the case of AB against Finanzamt für den 6., 7. und 15. Bezirk

(Case C-288/04)

(2004/C 251/04)

Reference has been made to the Court of Justice of the European Communities by order of the Unabhängiger Finanzsenat (Independent Tax Chamber) (Austria), of 28 June 2004, which was received at the Court Registry on 6 July 2004, for a preliminary ruling in the case of AB against Finanzamt für den 6., 7. und 15. Bezirk.

The Unabhängiger Finanzsenat asks the Court of Justice to give a preliminary ruling on the following question:

| 1. | Does the first paragraph of Article 13 of the Protocol on the Privileges and Immunities of the European Communities preclude the taxation in the Member States of the salaries, wages and emoluments which the Communities pay to their officials and other servants only if the European Communities exercise their right of taxation? |
| --- | --- |

1.

Does the first paragraph of Article 13 of the Protocol on the Privileges and Immunities of the European Communities preclude the taxation in the Member States of the salaries, wages and emoluments which the Communities pay to their officials and other servants only if the European Communities exercise their right of taxation?

| 2. | Does the second paragraph of Article 16 of the Protocol on the Privileges and Immunities of the European Communities preclude the taxation in the Member States of the salaries, wages and emoluments which the Communities pay to their officials and other servants only if those officials or other servants are listed in a communication within the meaning of that article, and does a communication forwarded on the basis of that article automatically entitle the tax authorities of the Member State to exercise the national right of taxation in respect of officials and other servants not listed in that communication and thus in respect of those servants whom the European Communities regard as local staff? |
| --- | --- |

2.

Does the second paragraph of Article 16 of the Protocol on the Privileges and Immunities of the European Communities preclude the taxation in the Member States of the salaries, wages and emoluments which the Communities pay to their officials and other servants only if those officials or other servants are listed in a communication within the meaning of that article, and does a communication forwarded on the basis of that article automatically entitle the tax authorities of the Member State to exercise the national right of taxation in respect of officials and other servants not listed in that communication and thus in respect of those servants whom the European Communities regard as local staff?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/3 |
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C 251/3

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Vincenzo Manfredi against Lloyd Italico Assicurazioni

(Case C-295/04)

(2004/C 251/05)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Vincenzo Manfredi against Lloyd Italico Assicurazioni on the following questions:

| 1. | Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice? |
| --- | --- |

1.

Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice?

| 2. | Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm? |
| --- | --- |

2.

Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm?

| 3. | Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end? |
| --- | --- |

3.

Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end?

| 4. | Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty? |
| --- | --- |

4.

Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/3 |
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9.10.2004

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Official Journal of the European Union

C 251/3

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Antonio Cannito against Fondiaria SAI SpA

(Case C-296/04)

(2004/C 251/06)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Antonio Cannito against Fondiaria SAI SpA on the following questions:

| 1. | Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice? |
| --- | --- |

1.

Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice?

| 2. | Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm? |
| --- | --- |

2.

Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm?

| 3. | Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end? |
| --- | --- |

3.

Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end?

| 4. | Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty? |
| --- | --- |

4.

Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/4 |
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9.10.2004

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Official Journal of the European Union

C 251/4

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Nicolò Tricarico against Assitalia Assicurazioni SpA

(Case C-297/04)

(2004/C 251/07)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Nicolò Tricarico against Assitalia Assicurazioni SpA on the following questions:

| 1. | Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice? |
| --- | --- |

1.

Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice?

| 2. | Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm? |
| --- | --- |

2.

Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm?

| 3. | Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end? |
| --- | --- |

3.

Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end?

| 4. | Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty? |
| --- | --- |

4.

Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/4 |
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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA

(Case C-298/04)

(2004/C 251/08)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA on the following questions:

| 1. | Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice? |
| --- | --- |

1.

Is Article 81 of the Treaty to be interpreted as meaning that it renders void an agreement or concerted practice between insurance companies consisting of a mutual exchange of information which makes it possible to increase RC auto insurance policy premiums which are not justified by market conditions, including in view of the fact that undertakings from several Member States took part in the agreement or concerted practice?

| 2. | Is Article 81 of the EC Treaty to be interpreted as meaning that it precludes the application of a national provision similar to that in Article 33 of Italian Law 287/90 under which a claim for damages for infringement of Community and national provisions for anti-competitive agreements must be made also by third parties before a court other than that which usually has jurisdiction for claims of similar value, thus involving a considerable increase in costs and time? |
| --- | --- |

2.

Is Article 81 of the EC Treaty to be interpreted as meaning that it precludes the application of a national provision similar to that in Article 33 of Italian Law 287/90 under which a claim for damages for infringement of Community and national provisions for anti-competitive agreements must be made also by third parties before a court other than that which usually has jurisdiction for claims of similar value, thus involving a considerable increase in costs and time?

| 3. | Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm? |
| --- | --- |

3.

Is Article 81 of the EC Treaty to be interpreted as meaning that it entitles third parties who have a relevant legal interest to rely on the invalidity of an agreement or practice prohibited by that Community provision and claim damages for the harm suffered where there is a causal relationship between the agreement or concerted practice and the harm?

| 4. | Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end? |
| --- | --- |

4.

Is Article 81 of the Treaty to be interpreted as meaning that for the purposes of the limitation period for bringing an action for damages based thereon, time begins to run from the day on which the agreement or concerted practice was adopted or the day on which the agreement or concerted practice came to an end?

| 5. | Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty? |
| --- | --- |

5.

Is Article 81 of the Treaty to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement or concerted practice, should also award of its own motion punitive damages to the injured third party in order to make the compensable amount higher than the advantage gained by the infringing party and deter the adoption of agreements or concerted practices prohibited under Article 81 of the Treaty?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/5 |
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Official Journal of the European Union

C 251/5

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Reference for a preliminary ruling by the Szombathelyi Városi Bíróság by order of that court of 10 June 2004 in the case Ynos Kft. against János Varga

(Case C-302/04)

(2004/C 251/09)

Reference has been made to the Court of Justice of the European Communities by order of the Szombathelyi Városi Bíróság (Szombathely City Court, Hungary), of 10 June 2004, which was received at the Court Registry on 19 July 2004, for a preliminary ruling in the case of Ynos Kft. against János Varga.

The Szombathelyi Városi Bíróság asks the Court of Justice to give a preliminary ruling on the following questions:

| 1. | May Article 6(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, which provides that Member States are to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer, be interpreted as meaning that it may constitute the basis of a national provision such as Article 209(1) of Law No IV of 1959 on the Civil Code, applicable when a general condition in a contract stating that unfair terms do not cease to bind the consumer ipso jure, but do so only where an express declaration to that effect is made, that is to say, when they are successfully contested, is found to be unfair? |
| --- | --- |

1.

May Article 6(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, which provides that Member States are to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer, be interpreted as meaning that it may constitute the basis of a national provision such as Article 209(1) of Law No IV of 1959 on the Civil Code, applicable when a general condition in a contract stating that unfair terms do not cease to bind the consumer ipso jure, but do so only where an express declaration to that effect is made, that is to say, when they are successfully contested, is found to be unfair?

| 2. | Does it follow from that provision of the Directive, according to which the contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms, that where the unfair terms inserted by a seller or supplier are not binding on the consumer as provided for under national law, but where in the absence of those terms, which form part of the contract, the seller or supplier would not have concluded the contract with the consumer, the validity of the contract as a whole cannot be affected if it is capable of continuing in existence without the unfair terms? |
| --- | --- |

2.

Does it follow from that provision of the Directive, according to which the contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms, that where the unfair terms inserted by a seller or supplier are not binding on the consumer as provided for under national law, but where in the absence of those terms, which form part of the contract, the seller or supplier would not have concluded the contract with the consumer, the validity of the contract as a whole cannot be affected if it is capable of continuing in existence without the unfair terms?

| 3. | From the point of view of the application of Community law, is it relevant that the main dispute arose before the accession of the Republic of Hungary to the European Union, but after the adaptation of its domestic law to the Directive? |
| --- | --- |

3.

From the point of view of the application of Community law, is it relevant that the main dispute arose before the accession of the Republic of Hungary to the European Union, but after the adaptation of its domestic law to the Directive?

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(1)  OJ L 95, p. 29.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/5 |
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C 251/5

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Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Pordenone — Second Chamber — by order of that court of 14 July 2004 in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone

(Case C-336/04)

(2004/C 251/10)

Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Provinciale di Pordenone (Provincial Tax Commission of Pordenone) (Italy) of 14 July 2004, received at the Court Registry on 2 August 2004, for a preliminary ruling in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone on the following questions:

| 1. | Is Commission Decision 2002/581/EC (1) of 11 December 2001 (OJ 2002 L 184, p. 27) invalid and incompatible with Community law, in that the provisions of Law 461/98 and the related Legislative Decree 153/99 regarding banks are compatible with the Common Market, contrary to the opinion of the European Commission, or do they in any case fall within the scope of the derogations provided for by Article 87(3)(b) and (c) of the EC Treaty? |
| --- | --- |

1.

Is Commission Decision 2002/581/EC (1) of 11 December 2001 (OJ 2002 L 184, p. 27) invalid and incompatible with Community law, in that the provisions of Law 461/98 and the related Legislative Decree 153/99 regarding banks are compatible with the Common Market, contrary to the opinion of the European Commission, or do they in any case fall within the scope of the derogations provided for by Article 87(3)(b) and (c) of the EC Treaty?

| 2. | In particular, is Article 4 of the above-mentioned decision invalid and incompatible with Community law, in that the Commission:






  (a) | failed in its duty to provide adequate reasons in accordance with Article 253 of the EC Treaty; and/or |
| --- | --- | --- |

2.

In particular, is Article 4 of the above-mentioned decision invalid and incompatible with Community law, in that the Commission:

(a)

failed in its duty to provide adequate reasons in accordance with Article 253 of the EC Treaty; and/or

| (b) | infringed the principle of the protection of legitimate expectations; and/or |
| --- | --- |

(b)

infringed the principle of the protection of legitimate expectations; and/or

| (c) | infringed the principle of proportionality? |
| --- | --- |

(c)

infringed the principle of proportionality?

| 3. | In any event, does a correct interpretation of Article 87 et seq. of the EC Treaty, Article 14 of Council Regulation (EC) No 659/1999 (2) and the general principles of Community law, in particular those mentioned in the grounds of the order for reference, preclude the application of Article 1 of Decree Law 282 of 24 December 2002 (converted into Law 27 of 21 February 2003)? |
| --- | --- |

3.

In any event, does a correct interpretation of Article 87 et seq. of the EC Treaty, Article 14 of Council Regulation (EC) No 659/1999 (2) and the general principles of Community law, in particular those mentioned in the grounds of the order for reference, preclude the application of Article 1 of Decree Law 282 of 24 December 2002 (converted into Law 27 of 21 February 2003)?

---

(1)  On the tax measures for banks and banking foundations implemented by Italy.

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ L 83 of 27.03.1999, p. 1.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/6 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/6

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Reference for a preliminary ruling by the Consiglio di Stato sitting in judicial capacity (Sixth Chamber) by order of that court of 24 February 2004, in the case of Nuova Società di Telecomunicazioni SpA against Ministero delle Comunicazioni (Ministry of Communications)

(Case C-339/04)

(2004/C 251/11)

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato sitting in judicial capacity (Sixth Chamber) (Italy) of 24 February 2004, received at the Court Registry on 9 August 2004, for a preliminary ruling in the case of Nuova Società di Telecomunicazioni SpA against Ministero delle Comunicazioni (Ministry of Communications) and ENI SpA on the following questions:

| (a) | Is a national provision which — having required companies entitled to provide public utility services, which have established telecommunications networks in the past to meet their own needs under a system of paid franchises, to set up a separate company to carry out any activity in the field of telecommunications — provides that the separate company, although licensed to provide public services, must pay, albeit only on a temporary basis, an additional fee for the allocation of the telecommunications network to the parent company, compatible with the basic principles laid down in the abovementioned Directive 97/13? (1) |
| --- | --- |

(a)

Is a national provision which — having required companies entitled to provide public utility services, which have established telecommunications networks in the past to meet their own needs under a system of paid franchises, to set up a separate company to carry out any activity in the field of telecommunications — provides that the separate company, although licensed to provide public services, must pay, albeit only on a temporary basis, an additional fee for the allocation of the telecommunications network to the parent company, compatible with the basic principles laid down in the abovementioned Directive 97/13? (1)

| (b) | Is a national provision which calculates (it should be stressed, on a temporary basis) the second and additional fee charged for the activity carried out for the parent company on the basis of what was paid in the past by the parent company under the previous system of exclusive rights, with separate franchises for telecommunication systems for public use and franchises for systems for private use, consistent with Community law and the interpretation placed thereon by the Fifth Chamber of the Court of Justice in its judgment of 18 September 2003? |
| --- | --- |

(b)

Is a national provision which calculates (it should be stressed, on a temporary basis) the second and additional fee charged for the activity carried out for the parent company on the basis of what was paid in the past by the parent company under the previous system of exclusive rights, with separate franchises for telecommunication systems for public use and franchises for systems for private use, consistent with Community law and the interpretation placed thereon by the Fifth Chamber of the Court of Justice in its judgment of 18 September 2003?

---

(1)  OJ L 117, p. 15.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/6 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/6

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Lombardia (Sezione Terza) by order of 27 May 2004 in the case Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.)

(Case C-340/04)

(2004/C 251/12)

Reference has been made to the Court of Justice of the European Communities by order of 27 May 2004 of the Tribunale Amministrativo Regionale della Lombardia, which was received at the Court Registry on 9 August 2004, for a preliminary ruling in the case of Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.) on the following questions:

| (1) | Is the direct award of a contract for the supply of fuel for heating appliances in buildings owned by or within the competence of the Municipality, and relating to operation, supervision and maintenance (the main value of which lies in supply), to a joint stock company whose capital is, at present, held entirely by another joint stock company, of which the awarding Municipality is, for its part, the major shareholder (with 99.98 % of the shares), or to a company (AGESP) in which a direct holding is owned not by the public authority but by another company (AGESP Holding), 99.98 % of whose capital is presently owned by the public administration, compatible with Directive 93/36/EEC (1)? |
| --- | --- |

(1)

Is the direct award of a contract for the supply of fuel for heating appliances in buildings owned by or within the competence of the Municipality, and relating to operation, supervision and maintenance (the main value of which lies in supply), to a joint stock company whose capital is, at present, held entirely by another joint stock company, of which the awarding Municipality is, for its part, the major shareholder (with 99.98 % of the shares), or to a company (AGESP) in which a direct holding is owned not by the public authority but by another company (AGESP Holding), 99.98 % of whose capital is presently owned by the public administration, compatible with Directive 93/36/EEC (1)?

| (2) | Must the requirement that the undertaking to which the supply contract is awarded directly carry out the essential part of its activities with the controlling authority be ascertained by applying Article 13 of Directive 93/38/EC (2) and can it be concluded that it has been satisfied where that undertaking derives the majority of its turnover from the controlling public authority or, alternatively, in the territory of that authority? |
| --- | --- |

(2)

Must the requirement that the undertaking to which the supply contract is awarded directly carry out the essential part of its activities with the controlling authority be ascertained by applying Article 13 of Directive 93/38/EC (2) and can it be concluded that it has been satisfied where that undertaking derives the majority of its turnover from the controlling public authority or, alternatively, in the territory of that authority?

---

(1)  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts.

(2)  OJ 1993, L 199 of 9.8.1993, p. 1.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/7 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/7

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Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that court dated 27 July 2004, in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders

(Case C-341/04)

(2004/C 251/13)

Reference has been made to the Court of Justice of the European Communities by order of the Supreme Court, Ireland, dated 27 July 2004, which was received at the Court Registry on 9 August 2004, for a preliminary ruling in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders on the following questions:

| 1. | Where a petition is presented to a Court of competent jurisdiction in Ireland for the winding up of an insolvent company and that Court makes an Order, pending the making of an Order for winding up, appointing a provisional liquidator with powers to take possession of the assets of the company, manage its affairs, open a bank account and appoint a solicitor all with the effect in law of depriving the directors of the company of power to act, does that Order combined with the presentation of the petition constitute a Judgment opening of insolvency proceedings for the purposes of Article 16, interpreted in the light of Articles 1 and 2, of Council Regulation (EC) No 1346 of 2000? (1) |
| --- | --- |

1.

Where a petition is presented to a Court of competent jurisdiction in Ireland for the winding up of an insolvent company and that Court makes an Order, pending the making of an Order for winding up, appointing a provisional liquidator with powers to take possession of the assets of the company, manage its affairs, open a bank account and appoint a solicitor all with the effect in law of depriving the directors of the company of power to act, does that Order combined with the presentation of the petition constitute a Judgment opening of insolvency proceedings for the purposes of Article 16, interpreted in the light of Articles 1 and 2, of Council Regulation (EC) No 1346 of 2000? (1)

| 2. | If the answer to Question 1 is in the negative, does the presentation, in Ireland, of a petition to the High Court for the compulsory winding up of a company by the Court constitute the opening of insolvency proceedings for the purposes of that Regulation by virtue of the Irish legal provision (section 220(2) of the Companies Act, 1963) deeming the winding up of the company to commence at the date of the presentation of the petition? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, does the presentation, in Ireland, of a petition to the High Court for the compulsory winding up of a company by the Court constitute the opening of insolvency proceedings for the purposes of that Regulation by virtue of the Irish legal provision (section 220(2) of the Companies Act, 1963) deeming the winding up of the company to commence at the date of the presentation of the petition?

| 3. | Does Article 3 of the said Regulation, in combination with Article 16, have the effect that a Court in a Member State other than that in which the registered office of the company is situate and other than where the company conducts the administration of its interests on a regular basis in a manner ascertainable by third parties, but where insolvency proceedings are first opened has jurisdiction to open main insolvency proceedings? |
| --- | --- |

3.

Does Article 3 of the said Regulation, in combination with Article 16, have the effect that a Court in a Member State other than that in which the registered office of the company is situate and other than where the company conducts the administration of its interests on a regular basis in a manner ascertainable by third parties, but where insolvency proceedings are first opened has jurisdiction to open main insolvency proceedings?

| 4. | Where,






  (a) | the registered offices of a parent company and its subsidiary are in two different member states, |
| --- | --- | --- |

4.

Where,

(a)

the registered offices of a parent company and its subsidiary are in two different member states,

| (b) | the subsidiary conducts the administration of its interests on a regular basis in a manner ascertainable by third parties and in complete and regular respect for its own corporate identity in the member state where its registered office is situated and |
| --- | --- |

(b)

the subsidiary conducts the administration of its interests on a regular basis in a manner ascertainable by third parties and in complete and regular respect for its own corporate identity in the member state where its registered office is situated and

| (c) | the parent company is in a position, by virtue of its shareholding and power to appoint directors, to control and does in fact control the policy of the subsidiary, |
| --- | --- |

(c)

the parent company is in a position, by virtue of its shareholding and power to appoint directors, to control and does in fact control the policy of the subsidiary,

in determining the ‘centre of main interests’, are the governing factors those referred to at (b) above or on the other hand those referred to at (c) above?

| 5. | Where it is manifestly contrary to the public policy of a Member State to permit a judicial or administrative decision to have legal effect in relation to persons or bodies whose right to fair procedures and a fair hearing has not been respected in reaching such a decision, is that Member State bound, by virtue of Article 17 of the said Regulation, to give recognition to a decision of the courts of another Member State purporting to open insolvency proceedings in respect of a company, in a situation where the Court of the first Member State is satisfied that the decision in question has been made in disregard of those principles and, in particular, where the applicant in the second Member State has refused, in spite of requests and contrary to the Order of the Court of the second Member State, to provide the provisional liquidator of the company, duly appointed in accordance with the law of the first Member State, with any copy of the essential papers grounding the application? |
| --- | --- |

5.

Where it is manifestly contrary to the public policy of a Member State to permit a judicial or administrative decision to have legal effect in relation to persons or bodies whose right to fair procedures and a fair hearing has not been respected in reaching such a decision, is that Member State bound, by virtue of Article 17 of the said Regulation, to give recognition to a decision of the courts of another Member State purporting to open insolvency proceedings in respect of a company, in a situation where the Court of the first Member State is satisfied that the decision in question has been made in disregard of those principles and, in particular, where the applicant in the second Member State has refused, in spite of requests and contrary to the Order of the Court of the second Member State, to provide the provisional liquidator of the company, duly appointed in accordance with the law of the first Member State, with any copy of the essential papers grounding the application?

---

(1)  Of 29 May 2000 on insolvency proceedings (OJ L 160, 30.6.2000, p. 1).

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/8 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/8

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Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 21 July 2004 in the case of Land Oberösterreich against ČEZ a.s.

(Case C-343/04)

(2004/C 251/14)

Reference has been made to the Court of Justice of the European Communities by order of the Oberste Gerichtshof of 21 July 2004 received at the Court Registry on 10 August 2004, for a preliminary ruling in the case of Land Oberösterreich against ČEZ a.s. on the following question:

Is the term ‘proceedings which have as their object rights in rem in immovable property’ in Article 16(1)(a) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (‘the Brussels Convention’) to be interpreted as including a (preventive) action for an injunction, pursuant to Paragraph 364(2) of the Allgemeines bürgerliches Gesetzbuch (‘the ABGB’) (the General Civil Code), prohibiting emissions from a property located in a neighbouring State — which is not a Member State of the European Union — affecting land owned by the claimant (in this case, ionising radiation emitted from a nuclear plant in the Czech Republic)?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/8 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/8

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Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 14 July 2004, in the case of The Queen on the application of International Air Transport Association against Department for Transport and in the case of The Queen on the application of European Low Fares Airline Association and Hapag-Lloyd Express GmbH against Department for Transport

(Case C-344/04)

(2004/C 251/15)

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), dated 14 July 2004, which was received at the Court Registry on 12 August 2004 for a preliminary ruling in the case of The Queen on the application of International Air Transport Association against Department for Transport and in the case of The Queen on the application of European Low Fares Airline Association and Hapag-Lloyd Express GmbH against Department for Transport on the following questions:

| 1. | Whether Article 6 of Regulation 261/2004 (1) is invalid on grounds that it is inconsistent with the Convention for the Unification of Certain Rules for International Carriage by Air known as the Montreal Convention 1999, and in particular Articles 19, 22 and 29 of the Montreal Convention 1999, and whether this (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

1.

Whether Article 6 of Regulation 261/2004 (1) is invalid on grounds that it is inconsistent with the Convention for the Unification of Certain Rules for International Carriage by Air known as the Montreal Convention 1999, and in particular Articles 19, 22 and 29 of the Montreal Convention 1999, and whether this (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 2. | Whether the amendment of Article 5 of the Regulation during consideration of the draft text by the Conciliation Committee was done in a manner that is inconsistent with the procedural requirements provided for in Article 251 EC and, if so, whether Article 5 of the Regulation is invalid and, if so, whether this (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

2.

Whether the amendment of Article 5 of the Regulation during consideration of the draft text by the Conciliation Committee was done in a manner that is inconsistent with the procedural requirements provided for in Article 251 EC and, if so, whether Article 5 of the Regulation is invalid and, if so, whether this (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 3. | Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they are inconsistent with the principle of legal certainty, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

3.

Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they are inconsistent with the principle of legal certainty, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 4. | Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they are not supported by any or any adequate reasoning, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

4.

Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they are not supported by any or any adequate reasoning, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 5. | Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they are inconsistent with the principle of proportionality required of any Community measure, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

5.

Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they are inconsistent with the principle of proportionality required of any Community measure, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 6. | Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they discriminate, in particular, against the members of the second Claimant organisation in a manner that is arbitrary or not objectively justified, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

6.

Whether Articles 5 and 6 of Regulation 261/2004 (or part thereof) are invalid on grounds that they discriminate, in particular, against the members of the second Claimant organisation in a manner that is arbitrary or not objectively justified, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 7. | Is Article 7 of the Regulation (or part thereof) void or invalid on grounds that the imposition of a fixed liability in the event of flight cancellation for reasons that are not covered by the extraordinary circumstances defence is discriminatory, fails to meet the standards of proportionality required of any Community measure, or is not based on any adequate reasoning, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole? |
| --- | --- |

7.

Is Article 7 of the Regulation (or part thereof) void or invalid on grounds that the imposition of a fixed liability in the event of flight cancellation for reasons that are not covered by the extraordinary circumstances defence is discriminatory, fails to meet the standards of proportionality required of any Community measure, or is not based on any adequate reasoning, and if so whether this invalidity (in conjunction with any other relevant factors) affects the validity of the Regulation as a whole?

| 8. | In circumstances where a national court has granted permission to bring a claim in that national court, which raises questions as to the validity of provisions of a Community instrument and which it considers is arguable and not unfounded, are there any principles of Community law in connection with any test or threshold which the national court should apply when deciding under Article 234(2) EC whether to refer those questions of validity to the ECJ? |
| --- | --- |

8.

In circumstances where a national court has granted permission to bring a claim in that national court, which raises questions as to the validity of provisions of a Community instrument and which it considers is arguable and not unfounded, are there any principles of Community law in connection with any test or threshold which the national court should apply when deciding under Article 234(2) EC whether to refer those questions of validity to the ECJ?

---

(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Text with EEA relevance) — Common Statement (OJ L 46, 17.2.2004, p. 1).

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/9 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/9

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Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt

(Case C-346/04)

(2004/C 251/16)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Germany) of 26 May 2004, received at the Court Registry on 12 August 2004, for a preliminary ruling in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt on the following question:

Is a situation whereby a national of another Member State with restricted tax liability in Germany, unlike a person with unrestricted tax liability, may not deduct from his total income as special expenditure the costs incurred by him in obtaining tax advice contrary to Article 52 of the Treaty establishing the European Community?

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/9 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/9

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Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

(Case C-354/04 P)

(2004/C 251/17)

An appeal against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom, was brought before the Court of Justice of the European Communities on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti, represented by D. Rouget, avocat.

The appellant claims that the Court should:

| 1. | hold that the present appeal is well-founded and annul the contested order; |
| --- | --- |

1.

hold that the present appeal is well-founded and annul the contested order;

| 2. | give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, ordering the defendant to pay compensation amounting to EUR 1 000 000 to the association Gestoras Pro Amnistía and EUR 100 000 to each of the other two applicants, Juan Mari Olano Olano and Julen Zelarain Errasti. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants. |
| --- | --- |

2.

give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, ordering the defendant to pay compensation amounting to EUR 1 000 000 to the association Gestoras Pro Amnistía and EUR 100 000 to each of the other two applicants, Juan Mari Olano Olano and Julen Zelarain Errasti. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants.

Pleas and main arguments

The Community Courts have jurisdiction to hear the actions for damages in respect of the loss caused by the inclusion of the applicant association on the list of persons, groups or entities drawn up under the legislation on the fight against terrorism.

The legal basis for that jurisdiction is found in the present case in the Council Declaration of 18 December 2001, the eighth recital to Council Decision 2003/48/JHA (1) and Article 6 EU viewed together. In essence, at the time of adoption of Common Position 2001/931/CFSP, (2) the Council declared on 18 December 2001 that ‘any error as to persons, groups or entities named gives the injured party the right to seek legal compensation’. Furthermore, the right to an effective remedy against injurious acts of the institutions is one of the foundations of the European Union and the provisions which enshrine that right are therefore to be interpreted widely in order to fulfil the requirements arising out of Articles 1, 6(1) and 13 of the ECHR which must be applicable in the present case.

With regard to the existence of a loss, the inclusion of the applicant association in the disputed list causes particularly serious harm to its reputation and to its freedom of expression in that it implies that the association is accused of being a terrorist organisation. In the same way, its inclusion in the list harms the reputation, the freedom of expression, the freedom of association and the private lives of the other two applicants, who are spokesmen for the association. With regard to the causal link between the Council's behaviour and the loss suffered, the repercussions on their reputation are an inescapable and immediate consequence of the inclusion in the list.

Finally, the Council has fraudulently exploited the division into three pillars of European Union activities. In its choice of legal basis, the Council was guided by considerations of expediency such as the wish to avoid the scrutiny of the Parliament, the Ombudsman and the Court of Justice and therefore to deprive the persons concerned of the right to an effective remedy and in particular of the right to an action seeking compensation for the harm suffered. That behaviour constitutes an abuse of process.

---

(1)  Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP (OJ L 16, 22.1.2003, p. 68).

(2)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93).

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/10 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/10

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Appeal brought on 17 August 2004 by SEGI, A. Zubimendi Izaga, A. Galarraga against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-338/02 between SEGI, A. Zubimendi Izaga, A. Galarraga and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

(Case C-355/04 P)

(2004/C 251/18)

An appeal against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-338/02 between SEGI, A. Zubimendi Izaga, A. Galarraga and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom, was brought before the Court of Justice of the European Communities on 17 August 2004 by SEGI, A. Zubimendi Izaga, A. Galarraga.

The appellant claims that the Court should:

| 1. | hold that the present appeal is well-founded and annul the contested order; |
| --- | --- |

1.

hold that the present appeal is well-founded and annul the contested order;

| 2. | give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, order the defendant to pay compensation amounting to EUR 1 000 000 to the association SEGI and EUR 100 000 to each of the other two applicants, Araitz Zubimendi Izaga and Aritza Galarraga. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants. |
| --- | --- |

2.

give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, order the defendant to pay compensation amounting to EUR 1 000 000 to the association SEGI and EUR 100 000 to each of the other two applicants, Araitz Zubimendi Izaga and Aritza Galarraga. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants.

Pleas and main arguments

The pleas and main arguments relied on are identical to those in Case C-354/04 P.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/10 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/10

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Appeal brought on 27 August 2004 by the Commission of the European Communities against the judgment delivered on 10 June 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T-153/01 and T-323/01 between Ms M. Alvarez Moreno and Commission of the European Communities

(Case C-373/04 P)

(2004/C 251/19)

An appeal against the judgment delivered on 27 August 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T/153/01 and T-323/01 between M. Alvarez Moreno and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 August 2004 by the Commission of the European Communities, represented by F. Clotuche-Duvieusart and D. Martin, Agents.

The appellant claims that the Court should:

| 1. | set aside the judgment delivered by the Court of First Instance as regards Case T-323/01; |
| --- | --- |

1.

set aside the judgment delivered by the Court of First Instance as regards Case T-323/01;

| 2. | declare the application inadmissible in Case T-323/01; |
| --- | --- |

2.

declare the application inadmissible in Case T-323/01;

| 3. | in the alternative, give judgment itself in the present case, in accordance with Article 61 of the EC Statute, and dismiss the application in Case T-323/01 as unfounded; |
| --- | --- |

3.

in the alternative, give judgment itself in the present case, in accordance with Article 61 of the EC Statute, and dismiss the application in Case T-323/01 as unfounded;

| 4. | order Ms Alvarez Moreno to pay the costs of the present case and to bear her own costs in Case T-323/01. |
| --- | --- |

4.

order Ms Alvarez Moreno to pay the costs of the present case and to bear her own costs in Case T-323/01.

Pleas in law and main arguments:

The action brought by Ms Alvarez Moreno in Case T-323/01 should be declared inadmissible. The Court of First Instance erred in law in classifying the letter of 23 February 2001 as a ‘decision’ and, consequently, in conferring on it the status of an act adversely affecting the applicant. First, the applicant's letter to the Commission does not contain a request for a decision within the meaning of Article 90 of the Staff Regulations, but only a request for information concerning the legal basis on which the Commission relied when deciding that it would no longer recruit interpreters aged more than 65 years. Accordingly, the answer to that letter could not constitute an act adversely affecting the applicant within the meaning of that provision. Next, the letter of 23 February does not in any event contain any decision of the Commission producing binding legal effects, of such a kind as to affect the applicant's interests, by significantly altering her legal position.

As regards the substance, the Court of First Instance erred in law, first, by holding that Article 74 of the Conditions of Employment of Other Servants is not applicable to auxiliary staff recruited pursuant to the third paragraph of Article 78 of the Conditions of Employment and, second, by holding that the rules applicable to auxiliary session interpreters (hereinafter ‘the RIAS’), adopted by the Bureau of the European Parliament on 13 July 1999, cover the question of the end of the appointment. The third paragraph of Article 78 of the Conditions of Employment, under which the contracts of employment of conference interpreters as members of the auxiliary staff may be subject to a regime which derogates from the standard arrangements, deals exclusively with conditions of recruitment and remuneration and does not concern the end of the appointment, which is therefore governed by Article 74 of the Conditions of Employment, which lays down the age limit. It is incorrect to take the view, as the Court of First Instance did in the judgment under appeal, that in the case of contracts limited to specific days, the end of the appointment constitutes a condition of recruitment and thus to introduce a distinction not provided for in the Conditions of Employment between contracts of a few days' duration and those for longer periods. Furthermore, in accepting that it is the RIAS that must govern the question of the end of the appointment of conference interpreters who are members of the auxiliary staff, those rules contain no expression provision establishing an age limit. Where the RIAS are silent, it is the Conditions of Employment, and therefore Article 74 of those Conditions, that apply.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/11 |
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Removal from the register of Case C-55/04 (1)

(2004/C 251/20)

By order of 15 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-55/04: Commission of the European Communities v French Republic.

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(1)  OJ C 71, de 20.3.2004.

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COURT OF FIRST INSTANCE

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Election of the President of the Court of First Instance

(2004/C 251/21)

On 8 September 2004 the Court of First Instance, in accordance with Article 7 of the Rules of Procedure, elected Judge Bo Vesterdorf as President for the period from 8 September 2004 to 31 August 2007.

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Election of the Presidents of Chambers

(2004/C 251/22)

On 10 and 13 September 2004 the Court of First Instance, in accordance with Article 15 of its Rules of Procedure, elected Judge Jaeger, Judge Pirrung, Judge Vilaras and Judge Legal as Presidents of the Chambers composed of five Judges for the period from 10 September 2004 to 31 August 2007 and Judge Jaeger, Judge Pirrung, Judge Vilaras, Judge Legal and Judge Cooke as Presidents of the Chambers composed of three Judges for the period from 13 September 2004 to 30 September 2005.

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Assignment of Judges to the Chambers

(2004/C 251/23)

On 13 September 2004 the Court of First Instance decided to establish five Chambers of five Judges and five Chambers of three Judges for the period from 13 September 2004 to 30 September 2005 and to assign Judges to them as follows:

First Chamber, Extended Composition, sitting with five Judges:

Mr Vesterdorf, President, Mr Cooke, Mr García-Valdecasas, Ms Labucka and Ms Trstenjak, Judges

First Chamber, sitting with three Judges:

Mr Cooke, President of Chamber, Mr García-Valdecasas, Ms Labucka and Ms Trstenjak, Judges

Second Chamber, Extended Composition, sitting with five Judges:

Mr Pirrung, President of Chamber, Mr Meij, Mr Forwood, Ms Pelikánová and Mr Papasavvas, Judges

Second Chamber, sitting with three Judges:

Mr Pirrung, President of Chamber

| (a) | Mr Meij and Ms Pelikánová, Judges |
| --- | --- |

(a)

Mr Meij and Ms Pelikánová, Judges

| (b) | Mr Forwood et Mr Papasavvas, Judges |
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(b)

Mr Forwood et Mr Papasavvas, Judges

Third Chamber, Extended Composition, sitting with five Judges:

Mr Jaeger, President of Chamber, Ms Tiili, Mr Azizi, Ms Cremona and Mr Czúcz, Judges

Third Chamber, sitting with three Judges:

Mr Jaeger, President of Chamber

| (a) | Ms Tiili and Mr Czúcz, Judges |
| --- | --- |

(a)

Ms Tiili and Mr Czúcz, Judges

| (b) | Mr Azizi and Ms Cremona, Judges |
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(b)

Mr Azizi and Ms Cremona, Judges

Fourth Chamber, Extended Composition, sitting with five Judges:

Mr Legal, President of Chamber, Ms Lindh, Mr Mengozzi, Ms Wiszniewska-Białecka and Mr Vadapalas, Judges

Fourth Chamber, sitting with three Judges:

Mr Legal, President of Chamber

| (a) | Ms Lindh and Mr Vadapalas, Judges |
| --- | --- |

(a)

Ms Lindh and Mr Vadapalas, Judges

| (b) | Mr Mengozzi and Ms Wiszniewska-Białecka, Judges |
| --- | --- |

(b)

Mr Mengozzi and Ms Wiszniewska-Białecka, Judges

Fifth Chamber, Extended Composition, sitting with five Judges:

Mr Vilaras, President of Chamber, Ms Martins Ribeiro, Mr Dehousse, Mr Šváby and Ms Jürimäe, Judges

Fifth Chamber, sitting with three Judges:

Mr Vilaras, President of Chamber

| (a) | Ms Martins Ribeiro and Ms Jürimäe, Judges |
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(a)

Ms Martins Ribeiro and Ms Jürimäe, Judges

| (b) | Mr Dehousse and Mr Šváby, Judges |
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(b)

Mr Dehousse and Mr Šváby, Judges

In the First Chamber sitting with three Judges, the Judges who sit with the President of the Chamber to make up the Chamber will be designated in turn, in the order provided for by Article 6 of the Rules of Procedure of the Court of First Instance, subject to the presence of connected cases. In the Second to Fifth Chambers sitting with three Judges, the President of the Chamber will sit either with the Judges referred to at (a) above or with those referred to at (b) above, depending on which of those formations the Judge-Rapporteur belongs to. For cases in which the President of the Chamber is the Judge-Rapporteur, the President of the Chamber will sit with the Judges of one or other of those formations alternately in accordance with the order in which the cases are registered, subject to the presence of connected cases.

Cases in which the Judge-Rapporteur is assigned to another Chamber as a result of the amendment of the composition of the Chambers shall be reallocated, with effect from 13 September 2004, to the Chamber to which the Judge-Rapporteur belongs from that date.

In cases where the written procedure was completed and a hearing in the oral procedure was held or fixed before 13 September 2004, the Chamber shall continue to sit with the same composition as previously for the oral procedure, the deliberation and the judgment.

Composition of the Grand Chamber

On 13 September 2004 the Court of First Instance decided, in accordance with Article 10(1) of the Rules of Procedure, that for the period from 13 September 2004 to 30 September 2005 the Grand Chamber shall be composed of: Mr Vesterdorf, President of the Court of First Instance; Mr Jaeger, Mr Pirrung, Mr Vilaras and Mr Legal, Presidents of Chambers; the Judges of the Chamber (Extended Composition) who would have had to hear the case in question if it had been assigned to a Chamber composed of five Judges; and four other Judges designated by the President of the Court of First Instance in turn from among the Judges of each of the other Chambers, in the order of precedence of those Judges within their Chambers according to seniority in office under Article 6 of the Rules of Procedure of the Court of First Instance.

As regards cases where the written procedure was completed and, in the oral procedure, a hearing before the Grand Chamber was held or fixed before 13 September 2004, the Grand Chamber shall continue to sit with the same composition as previously for the oral procedure, the deliberation and the judgment.

Plenary session

On 13 September 2004 the Court of First Instance decided, in accordance with the second subparagraph of Article 32(1) of the Rules of Procedure, that where, following the designation of an Advocate General pursuant to Article 17 of the Rules of Procedure, there is an even number of Judges in the Court of First Instance sitting in plenary session, the rota established in advance in accordance with which the President of the Court is to designate the Judge who will not take part in the judgment of the case shall be in reverse order to the order in which the Judges rank according to their seniority in office under Article 6 of the Rules of Procedure unless the Judge who would thus be designated is the Judge-Rapporteur. In that event, it is the Judge ranking immediately above him who shall be designated.

Designation of the Judge replacing the President of the Court of First Instance as the Judge hearing an application for interim measures

On 13 September 2004 the Court of First Instance decided, in accordance with Article 106 of the Rules of Procedure, to designate Judge García-Valdecasas to replace the President of the Court of First Instance for the purpose of deciding applications for interim measures where the latter is absent or prevented from dealing with them, in respect of the period from 13 September 2004 to 30 September 2005.

Criteria for assigning cases to the Chambers

On 13 September 2004 the Court of First Instance laid down criteria as follows for the assignment of cases to the Chambers for the period from 13 September 2004 to 30 September 2005, in accordance with Article 12 of the Rules of Procedure.

| 1. | Cases shall be assigned, as soon as applications have been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to Chambers of three Judges. |
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1.

Cases shall be assigned, as soon as applications have been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to Chambers of three Judges.

| 2. | Cases shall be allocated to the Chambers in turn, in accordance with the date on which they are registered at the Registry, following four separate rotas, namely:






  — | for cases concerning application of the competition rules applicable to undertakings, the rules on State aid and the rules on trade protection measures; |
| --- | --- | --- |

2.

Cases shall be allocated to the Chambers in turn, in accordance with the date on which they are registered at the Registry, following four separate rotas, namely:

—

for cases concerning application of the competition rules applicable to undertakings, the rules on State aid and the rules on trade protection measures;

| — | for the cases referred to in Article 236 of the EC Treaty and Article 152 of the EAEC Treaty; |
| --- | --- |

—

for the cases referred to in Article 236 of the EC Treaty and Article 152 of the EAEC Treaty;

| — | for cases concerning intellectual property rights, as envisaged by Article 130(1) of the Rules of Procedure; |
| --- | --- |

—

for cases concerning intellectual property rights, as envisaged by Article 130(1) of the Rules of Procedure;

| — | for all other cases. |
| --- | --- |

—

for all other cases.

In applying those rotas, the First Chamber shall not be taken into consideration at each fifth turn.

The President of the Court of First Instance may derogate from the rotas on the ground that cases are related or with a view to ensuring an even spread of the workload.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/13 |
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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 29 April 2004

in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and Others v Commission of the European Communities (1)

(Competition - Appeal - Cartel - Graphite electrodes market - Price-fixing and market-sharing - Calculation of fines - Concurrent sanctions - Guidelines on the method of setting fines - Applicability - Gravity and duration of the infringement - Aggravating circumstances - Attenuating circumstances - Ability to pay - Cooperation during the administrative procedure - Arrangements for payment)

(2004/C 251/24)

Language of the case: German and English

In Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd, established in Tokyo (Japan), represented initially by G. Van Gerven, T. Franchoo and M. De Grave and, subsequently, by G. Van Gerven and T. Franchoo, lawyers, with an address for service in Luxembourg, SGL Carbon AG, established in Wiesbaden (Germany), represented by M. Klusmann, F. Wiemer and C. Canenbley, lawyers, Nippon Carbon Co. Ltd, established in Tokyo (Japan), represented by H. Gilliams, lawyer, Showa Denko KK, established in Tokyo (Japan), represented by M. Dolmans and P. Werdmuller, lawyers, and J. Temple Lang, Solicitor, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington, Delaware (United States), represented by K. Lasok QC and B. Hartnett, Barrister, BL, with an address for service in Luxembourg, SEC Corp., established in Amagasaki, Hyogo (Japan), represented by K. Platteau, lawyer, The Carbide/Graphite Group, Inc., established in Pittsburgh (United States), represented initially by M. Seimetz and J. Brücher and, subsequently, by P. Grund, lawyers, with an address for service in Luxembourg, against Commission of the European Communities, represented by W. Mölls and P. Hellström, and, in Case T-246/01, by W. Wils, acting as Agents, with, in Case T-239/01, H.-J. Freund, lawyer, and, in Cases T-244/01, T-246/01, T-251/01 and T-252/01, J. Flynn and C. Kilroy, Barristers, with an address for service in Luxembourg — applications for annulment, in whole or in part, of Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1) — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it:

| 1. | In Case T-236/01 Tokai Carbon v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 12 276 000; |
| --- | --- | --- |

1.

In Case T-236/01 Tokai Carbon v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 12 276 000;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party. |
| --- | --- |

—

orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

| 2. | In Case T-239/01 SGL Carbon v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 69 114 000; |
| --- | --- | --- |

2.

In Case T-239/01 SGL Carbon v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 69 114 000;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders the applicant to bear seven eighths of its own costs and to pay seven eighths of the costs incurred by the Commission and the Commission to bear one eighth of its own costs and to pay one eighth of the costs incurred by the applicant. |
| --- | --- |

—

orders the applicant to bear seven eighths of its own costs and to pay seven eighths of the costs incurred by the Commission and the Commission to bear one eighth of its own costs and to pay one eighth of the costs incurred by the applicant.

| 3. | In Case T-244/01 Nippon Carbon v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 274 400; |
| --- | --- | --- |

3.

In Case T-244/01 Nippon Carbon v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 274 400;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party. |
| --- | --- |

—

orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

| 4. | In Case T-245/01 Showa Denko v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 10 440 000; |
| --- | --- | --- |

4.

In Case T-245/01 Showa Denko v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 10 440 000;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant. |
| --- | --- |

—

orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

| 5. | In Case T-246/01 GrafTech International, formerly UCAR International v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 42 050 000; |
| --- | --- | --- |

5.

In Case T-246/01 GrafTech International, formerly UCAR International v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 42 050 000;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders the applicant to bear four fifths of its own costs and to pay four fifths of the costs incurred by the Commission and the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant. |
| --- | --- |

—

orders the applicant to bear four fifths of its own costs and to pay four fifths of the costs incurred by the Commission and the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant.

| 6. | In Case T-251/01 SEC Corporation v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 138 000; |
| --- | --- | --- |

6.

In Case T-251/01 SEC Corporation v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 138 000;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party. |
| --- | --- |

—

orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

| 7. | In Case T-252/01 The Carbide/Graphite Group v Commission:






  — | sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 480 000; |
| --- | --- | --- |

7.

In Case T-252/01 The Carbide/Graphite Group v Commission:

—

sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 480 000;

| — | dismisses the remainder of the application; |
| --- | --- |

—

dismisses the remainder of the application;

| — | orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant. |
| --- | --- |

—

orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

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(1)  OJ C 17, 19.1.2002.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/15 |
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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 20 July 2004

in Case T-311/02: Vitaly Lissotschenko and Joachim Hentze v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Application to register the word mark LIMO - Absolute grounds for refusal - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

(2004/C 251/25)

Language of the case: German

In Case T-311/02: Vitaly Lissotschenko, residing in Dortmund (Germany), Joachim Hentze, residing in Werl (Germany), represented by B. Hein, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Weberndörfer and G. Schneider) — action brought against the decision of the Second Board of Appeal of OHIM of 31 July 2002 (Case R 363/2000-2) concerning registration of the word mark LIMO as a Community trade mark — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 20 July 2004, in which it:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders the applicants to pay the costs. |
| --- | --- |

2.

Orders the applicants to pay the costs.

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(1)  OJ C 305 of 7.12.2002.

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ORDER OF THE COURT OF FIRST INSTANCE

of 28 June 2004

in Case T- 342/99 DEP: Airtours plc v Commission of the European Communities (1)

(Taxation of costs - Solicitors' and barristers' fees - Economists' fees - VAT)

(2004/C 251/26)

Language of the case: English

In Case T-342/99 DEP: Airtours plc, represented by M. Nicholson, solicitor, with an address for service in Luxembourg, against Commission of the European Communities (Agent: R. Lyal, with an address for service in Luxembourg) — application for taxation of the costs to be recovered from the Commission by Airtours plc following the judgment of the Court of First Instance of 6 June 2002 in Case T-342/99 Airtours v Commission [2002] ECR II-2585 — the Court of First Instance (Fifth Chamber, Extended Composition), composed of P. Lindh, President, R. García-Valdecasas, J.D. Cooke, P. Mengozzi and M.E. Martins Ribeiro, Judges; H. Jung, Registrar, has made an order on 28 June 2004, the operative part of which is as follows:

The total amount of the costs to be paid by the Commission to Airtours is fixed at GBP 489 615.03 (four hundred and eighty-nine thousand, six hundred and fifteen pounds and three pence).

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(1)  OJ C 79, 18.3.2000.

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ORDER OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-341/02: Regione Siciliana v Commission of the European Communities (1)

(ERDF - Regulation (EEC) No 4253/88 - Termination of financial assistance - Action for annulment - Direct concern - Inadmissibility)

(2004/C 251/27)

Language of the case: Italian

In Case T-341/02: Regione Siciliana, represented by I. Braguglia, lawyer, with an address for service in Luxembourg v Commission of the European Communities (Agents: E. de March and L. Flynn, with an address for service in Luxembourg) — action for annulment of Commission Decision D (2002) 810439 of 5 September 2002 terminating the financial contributions from the European Regional Development Fund (ERDF) in respect of the major project ‘Messina-Palermo motorway’ (ERDF No 93.05.03.001 – ARINCO No 93.IT.16.009) — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Register, made an order on 8 July 2004, the operative part of which is as follows:

| (1) | The action is dismissed as inadmissible. |
| --- | --- |

(1)

The action is dismissed as inadmissible.

| (2) | The applicant is ordered to bear its own costs and those incurred by the defendant. |
| --- | --- |

(2)

The applicant is ordered to bear its own costs and those incurred by the defendant.

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(1)  OJ No C 7 of 11.1.2003.

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ORDER OF THE COURT OF FIRST INSTANCE

of 15 June 2004

in Case T-21/03: S v Commission of the European Communities (1)

(Officials - Action for annulment - Occupational illness - Recognition of illness as occupational in origin - Request for removal of certain documents from the file held by the medical committee - Refusal - Act adversely affecting an official - Manifest inadmissibility)

(2004/C 251/28)

Language of the case: French

In Case T-21/03: S, a former official of the Commission of the European Communities, residing in Thessaloniki (Greece), represented by A. Coolen, J.-N. Louis and E. Marchal, lawyers, v Commission of the European Communities (Agents: J. Currall and F. Clotuche-Duvieusart, with an address for service in Luxembourg) — action for annulment of the Commission's decision of 11 March 2002 refusing to remove certain documents from the file held by the medical committee called upon to consider the applicant's request to have the illness from which she is suffering recognised as occupational in origin — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, J. D. Cooke and D. Šváby, Judges; H. Jung, Registrar, made an order on 15 June 2004, the operative part of which is as follows:

| (1) | The action is dismissed as manifestly inadmissible. |
| --- | --- |

(1)

The action is dismissed as manifestly inadmissible.

| (2) | Each of the parties is ordered to bear its own costs. |
| --- | --- |

(2)

Each of the parties is ordered to bear its own costs.

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(1)  OJ No C 83 of 5.4.2003.

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ORDER OF THE COURT OF FIRST INSTANCE

of 5 July 2004

in Case T-39/03 DaimlerChrysler AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition - Withdrawal of opposition - No need to adjudicate)

(2004/C 251/29)

Language of the case: German

In Case T-39/03: DaimlerChrysler AG, established in Stuttgart (Germany), represented by N. Siebertz, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider), the intervener before the Court of First Instance being Axon Leasing GmbH, established in Munich (Germany), represented by S. Lüft, lawyer — action brought against the decision of the Fourth Board of Appeal of OHIM of 4 November 2002 (Case R 329/2001-4) — the Court of First Instance (Second Chamber), composed of: J. Pirrung, President, N. J. Forwood and I. Pelikánová, Judges; H. Jung, Registrar, made an order on 5 July 2004, the operative part of which is as follows:

| 1. | There is no need to adjudicate on the action; |
| --- | --- |

1.

There is no need to adjudicate on the action;

| 2. | The applicant shall pay the costs. |
| --- | --- |

2.

The applicant shall pay the costs.

---

(1)  OJ C 101 of 26.4.2003.

---

| 9.10.2004 | EN | Official Journal of the European Union | C 251/16 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/16

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ORDER OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-256/03: Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV and Josef Kloh v Commission of the European Communities (1)

(Action for annulment - Regulation (EC) No 1774/2002 - Decision 2003/328/EC - Use of catering waste in feed for pigs - Inadmissible)

(2004/C 251/30)

Language of the case: German

In Case T-256/03: Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, established in Bochum (Germany), Josef Kloh, residing in Eichenried (Germany), represented by R. Steiling and S. von Zimmermann-Wienhues, lawyers, v Commission of the European Communities (Agent: G. Braun), with an address for service in Luxembourg — action for the partial annulment of Decision 2003/328/EC of 12 May 2003 on transitional measures under Regulation (EC) No 1774/2002 of the European Parliament and of the Council as regards the use of category 3 catering waste in feed for pigs and the intra-species recycling ban on the feeding of swill to pigs (OJ 2003 L 117, p. 46) — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A. W. H. Meij and N. J. Forwood, Judges; H. Jung, Registrar, made an order on 2 July 2004, the operative part of which is as follows:

| (1) | The action is dismissed as inadmissible. |
| --- | --- |

(1)

The action is dismissed as inadmissible.

| (2) | The applicants are ordered to bear their own costs and those incurred by the Commission. |
| --- | --- |

(2)

The applicants are ordered to bear their own costs and those incurred by the Commission.

---

(1)  OJ No C 213 of 6.9.2003.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/17 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/17

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-422/03 R II, Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities

(Interim Measures - Directives 67/548/EEC and 2004/73/EC - Conditions of admissibility)

(2004/C 251/31)

Language of the case: English

In Case T-422/03 R II, Enviro Tech Europe Ltd, established in Surrey (United Kingdom), Enviro Tech International Inc., established in Chicago (United States), represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application seeking, first, ‘suspension of the inclusion of nPB’ in the 29th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234); secondly, suspension of implementation of the inclusion of nPB in Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Directive 67/548 (OJ 2004 L 252, p. 1); and, thirdly, that other interim measures be ordered — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 9.10.2004 | EN | Official Journal of the European Union | C 251/17 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/17

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-76/04 R, Bactria Industriehygiene-Service Verwaltungs GmbH & Co. KG v Commission of the European Communities

(Interim measures - Regulation (EC) No 2032/2003 - Biocidal products - Admissibility of the application)

(2004/C 251/32)

Language of the case: English

In Case T-76/04 R, Bactria Industriehygiene-Service Verwaltungs GmbH & Co. KG established in Kirchheimboladen (Germany), represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application for suspension of the operation of Article 5(1) and (2) of and Annexes II and V to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and the Council, concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1) — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 9.10.2004 | EN | Official Journal of the European Union | C 251/17 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/17

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-78/04 R, Sumitomo Chemical (UK) plc v Commission of the European Communities

(Interim measures - Regulation (EC) No 2032/2003 - Biocidal products - Admissibility of the application)

(2004/C 251/33)

Language of the case: English

In Case T-78/04 R, Sumitomo Chemical (UK) plc, represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application for suspension of the operation of Article 5(1) and (2) of and Annexes II and V to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and the Council, concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1) — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 9.10.2004 | EN | Official Journal of the European Union | C 251/18 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/18

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ORDER OF THE COURT OF FIRST INSTANCE

of 9 July 2004

in Case T-132/04: André Bonnet v Court of Justice of the European Communities (1)

(Officials - Prior administrative procedure - Manifest inadmissibility)

(2004/C 251/34)

Language of the case: French

In Case T-132/04: André Bonnet, residing in Saint-Pierre-de-Vassols (France), represented by H. de Lepinau, lawyer, with an address for service in Luxembourg v Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — action for, first, annulment of the decisions of 11 February and 4 March 2004 terminating, in respect of the applicant, the procedure for recruitment to the post of lecteur d'arrêts in the cabinet of the President of the Court of Justice and annulment of the decision to appoint another candidate to that post, and, second, damages — the Court of First Instance (Second Chamber), composed of A. W. H. Meij, acting for the President, N. J. Forwood and I. Pelikánová, Judges; H. Jung, Registrar, made an order on 9 July 2004, the operative part of which is as follows:

| (1) | The action is dismissed. |
| --- | --- |

(1)

The action is dismissed.

| (2) | Each party is ordered to bear its own costs. |
| --- | --- |

(2)

Each party is ordered to bear its own costs.

---

(1)  OJ No C 168 of 26.6.2004.

---

| 9.10.2004 | EN | Official Journal of the European Union | C 251/18 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/18

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Action brought on 30 April 2004 by M. Schäfer against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-163/04)

(2004/C 251/35)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 30 April 2004 by M. Schäfer, Bergisch-Gladbach (Germany), represented by I. Reese, lawyer.

KoKa Verwaltung GmbH, Hamburg (Germany), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | vary the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 12 December 2003 so as to order the Office to pay the costs incurred by the applicant in the proceedings for restitutio in integrum and in the appeal proceedings; |
| --- | --- |

—

vary the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 12 December 2003 so as to order the Office to pay the costs incurred by the applicant in the proceedings for restitutio in integrum and in the appeal proceedings;

| — | in the alternative, vary the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market so as to order KoKa Verwaltung GmbH to pay the costs incurred by the applicant in the proceedings for restitutio in integrum and in the appeal proceedings. |
| --- | --- |

—

in the alternative, vary the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market so as to order KoKa Verwaltung GmbH to pay the costs incurred by the applicant in the proceedings for restitutio in integrum and in the appeal proceedings.

Pleas in law and main arguments:

On 26 December 2000, the applicant filed with the Office for Harmonisation in the Internal Market an application for registration of the figurative mark ‘Mike's Meals on Wheels’ as a Community trade mark for services in Classes 35 and 42. Relying on its earlier German marks, namely the figurative mark ‘MIKE'S SANDWICH MARKET’ and the word mark ‘MIKE’, KoKa Verwaltung GmbH entered opposition on the ground of a likelihood of confusion.

The Opposition Division rejected the opposition and ordered the opponent to pay the costs. The opponent objected to that decision and applied for restitutio in integrum. It also brought an appeal seeking to have the decision annulled in its entirety and the proceedings stayed pending the ruling on the application for restitutio in integrum.

By decision of 16 June 2003, the Opposition Division granted the application for restitutio in integrum and resumed the opposition proceedings.

By the contested decision, the Board of Appeal held that the appeal had become devoid of purpose. The appeal proceedings were therefore discontinued and the appeal fee was reimbursed. The Board of Appeal also ordered each of the parties to bear the costs incurred by them in the appeal proceedings.

The action brought by the applicant challenges that ruling on costs. He claims that the Office failed to exercise properly the discretion enjoyed by it under Article 81(4) of Regulation (EC) No 40/94 in the event that the proceedings are discontinued. The applicant was in no way responsible for the initiation of and need to conduct appeal proceedings. The appeal proceedings were the result of, first, the incorrect postcode in the Office's letterhead and, secondly, the appellant's exhaustion of the entire period prescribed for the submission of evidence of use. The applicant had no control over either of those two causes of the proceedings for restitutio in integrum and the appeal proceedings. Under Article 81 of Regulation (EC) No 40/94, the ruling on costs is a matter of unfettered discretion. That unfettered discretion includes the possibility of ordering the Office to pay the costs. Moreover, it is an infringement of the applicant's fundamental rights to deny him compensation for his costs and trouble.

---

| 9.10.2004 | EN | Official Journal of the European Union | C 251/19 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/19

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Action brought on 1 June 2004 by Hans-Martin Tillack against the Commission of the European Communities

(Case T-193/04)

(2004/C 251/36)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 June 2004 by Hans-Martin Tillack, Brussels, represented by Ian S. Forrester, QC, Thierry Bosly, Christoph Arhold, Nathalie Flandin, Justus Herrlinger and Juliette Siaens, lawyers.

The applicant claims that the Court should:

| — | annul the decision of OLAF to make its complaint to the German and Belgian authorities; |
| --- | --- |

—

annul the decision of OLAF to make its complaint to the German and Belgian authorities;

| — | award him pecuniary damages for an amount of money to be fixed by the Court, plus interest at a rate to be fixed by the Court; |
| --- | --- |

—

award him pecuniary damages for an amount of money to be fixed by the Court, plus interest at a rate to be fixed by the Court;

| — | award him the costs of the present action; |
| --- | --- |

—

award him the costs of the present action;

| — | take such other or further action as justice may require. |
| --- | --- |

—

take such other or further action as justice may require.

Pleas in law and main arguments:

In March 2004, the applicant's office and home were searched by the Belgian authorities following an official complaint of the Antifraud Unit of the European Commission (OLAF), accusing the applicant of bribery of an EU official.

The applicant submits that OLAF's decision must be declared void, since it was taken in breach of essential procedural requirements and it infringed the fundamental right of the protection of journalistic sources.

The applicant alleges that in breach of Article 11(7) of Regulation 1073/1999 (1), the OLAF Supervisory Committee was not informed prior to the complaints to the national authorities. During the entire internal OLAF investigation, the applicant has never been heard. Moreover, the decision was void in that it was based on the wrong legal basis. OLAF acted in the context of an internal OLAF investigation which aims to cover alleged breaches of applicable rules by officials although the applicant is neither an official nor a servant of any Community organ.

Furthermore, the applicant submits that OLAF's decision infringed the fundamental right of protection of journalistic sources, as part of freedom of the press, since the national authorities were asked to search the applicant's home and office in order to identify his informants within the Commission.

As far as his application for damages is concerned, the applicant alleges that OLAF's complaints to the national authorities and its various public accusations of the applicant constituted maladministration which caused significant injury to the applicant's professional and personal reputation.

---

(1)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25.12.1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136 of 31.5.1999, p. 1).

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/19 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/19

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Action brought on 14 June 2004 by Ultradent Products, Inc., and Michael J.S. Renouf against the Commission of the European Communities

(Case T-237/04)

(2004/C 251/37)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 14 June 2004 by Ultradent Products Inc., South Jordan, Utah, USA and Michael J. S. Renouf, Brussels, Belguim, represented by Mr S. Crosby and Mr C. Bryant, Solicitors.

The applicant claims that the Court should:

| — | Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents identified in the administrative procedure, following the applicants' three applications, all dated 27 October 2003, for access to documents connected to the classification of tooth-bleaching products; |
| --- | --- |

—

Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents identified in the administrative procedure, following the applicants' three applications, all dated 27 October 2003, for access to documents connected to the classification of tooth-bleaching products;

| — | Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents which must, given the circumstances, be presumed to exist; |
| --- | --- |

—

Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents which must, given the circumstances, be presumed to exist;

| — | Order the defendant to pay the applicants' costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

Order the defendant to pay the applicants' costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments:

By three letters dated 27 October 2003 the second applicant presented to the Commission three requests for access to documents connected to the question of whether tooth-bleaching products should be classified as cosmetic products or as medical devices. More particularly, the second applicant requested access to documents relating to a complaint made on behalf of the first applicant to the Commission contesting the classification of such products by the United Kingdom Authorities, to documents relating to the preparation of the answer by Commissioner Borino to a written question to the Commission on such products and finally to all documents of the Commission relating to the question of the classification of such products. At the same time the second applicant, who is a solicitor, declared in his application that he was acting on behalf of the first applicant.

Confirmatory applications were filed on 16 December 2003. On 17 December 2003 the Commission replied to the initial applications and the applicants filed a further confirmatory application on 7 January 2004 which purported to withdraw the three previous confirmatory applications of 16 December. The Commission replied to the application of 7 January 2004 by a letter dated 5 April 2004. Enclosed with this letter were a number of documents.

The applicants contend that the administrative procedure revealed that, apart from the documents disclosed to the applicants by the letter of 5 April 2004, a number of documents on the matters in question certainly exist and other documents may also be presumed to exist. According to the applicants all these documents are within the scope of the initial application and within the possession of the Commission, but have not been disclosed to the applicants. On this basis the applicants consider the letter of 5 April 2004 as a decision to refuse access to all these documents, and request its annulment. In support of their application they invoke a violation of Article 8 of Regulation 1049/2001 (1) Official Journal L 145, 31/05/2001 p. 43-48 and of this regulation in general. They further submit that the Commission failed to give reasons for not granting access to the documents that certainly exist, nor has it invoked any exceptions to the right of access in order to justify its refusal.

---

(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/20 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/20

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Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

(Case T-257/04)

(2004/C 251/38)

Language of the case: Polish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 June 2004 by the Republic of Poland, represented by Jarosław Pietras, acting as Agent.

The applicant claims that the Court should:

| — | declare invalid Articles 3 and 4(3) and (5), eighth indent, of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13) and Commission Regulation (EC) No 735/2004 of 20 April 2004 (OJ 2004 L 114, p. 13); |
| --- | --- |

—

declare invalid Articles 3 and 4(3) and (5), eighth indent, of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13) and Commission Regulation (EC) No 735/2004 of 20 April 2004 (OJ 2004 L 114, p. 13);

| — | order the Commission of the European Communities to pay the costs of the proceedings. |
| --- | --- |

—

order the Commission of the European Communities to pay the costs of the proceedings.

Pleas in law and main arguments

With regard to Article 3 of Regulation No 1972/2003 the applicant raises the following heads of complaint:

| — | infringement of the principle of the free movement of goods through the introduction of customs duties in the amount of a customs rate applicable erga omnes and exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union; |
| --- | --- |

—

infringement of the principle of the free movement of goods through the introduction of customs duties in the amount of a customs rate applicable erga omnes and exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union;

| — | lack of competence on the Commission's part and breach of Articles 22 and 41, first paragraph, and Part 5 of Annex IV to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) through the adoption of measures altering the conditions defined in that Act for the adoption by the Republic of Poland of the rules governing the customs union; |
| --- | --- |

—

lack of competence on the Commission's part and breach of Articles 22 and 41, first paragraph, and Part 5 of Annex IV to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) through the adoption of measures altering the conditions defined in that Act for the adoption by the Republic of Poland of the rules governing the customs union;

| — | infringement of the principle of non-discrimination on grounds of nationality by reason of the adoption of measures providing for treatment of persons from Poland that differs from that of persons from the Community of 15 States who are in a comparable position; |
| --- | --- |

—

infringement of the principle of non-discrimination on grounds of nationality by reason of the adoption of measures providing for treatment of persons from Poland that differs from that of persons from the Community of 15 States who are in a comparable position;

| — | breach of a fundamental procedural requirement by virtue of the inadequate reasoning of the measures adopted; |
| --- | --- |

—

breach of a fundamental procedural requirement by virtue of the inadequate reasoning of the measures adopted;

| — | infringement of the principle of the protection of legitimate expectations by reason of the introduction of a method, at variance with the conditions laid down in the abovementioned Act of Accession, for dealing with products which were in temporary storage on 1 May 2004, were covered by customs procedures or were in transit within the enlarged Community, and in particular by reason of the introduction of customs duties exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union. |
| --- | --- |

—

infringement of the principle of the protection of legitimate expectations by reason of the introduction of a method, at variance with the conditions laid down in the abovementioned Act of Accession, for dealing with products which were in temporary storage on 1 May 2004, were covered by customs procedures or were in transit within the enlarged Community, and in particular by reason of the introduction of customs duties exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union.

With regard to Article 4(3) of Regulation No 1972/2003 the applicant argues that the Commission lacked competence and that there has been a breach of the first paragraph of Article 41 of the abovementioned Act of Accession and infringement of the principles of proportionality and non-discrimination on grounds of nationality, in so far as the level of duty laid down in the contested provision exceeds the differential between the Community customs rate and the Polish rate as on 30 April 2004.

With regard to the eighth indent of Article 4(5) of Regulation No 1972/2003 the applicant argues that the Commission lacked competence and that there has been a breach of the first paragraph of Article 41 of the abovementioned Act of Accession and infringement of the principle of proportionality in so far as the contested provision covers products for which the Polish customs rate for imports on 30 April 2004 was greater than or equal to the Community rate and also products in respect of which there was, on 1 May 2004, no evidence of surplus stocks at national level.

With regard to all of the contested provisions of Regulation No 1972/2003, the applicant argues that the Commission abused its powers by adopting measures the real objective of which was not to facilitate Poland in adopting the rules of the Common Agricultural Policy but rather to protect the market of the Community of 15 States against competition from Polish agricultural producers.

---

(1)  OJ 2003 L 236, p. 33.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/21 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/21

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Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

(Case T-258/04)

(2004/C 251/39)

Language of the case: Polish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 June 2004 by the Republic of Poland, represented by Jarosław Pietras, acting as Agent.

The applicant claims that the Court should:

| — | declare invalid Articles 5, 6(1), (2) and (3), 7(1) and 8(2)(a) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8); |
| --- | --- |

—

declare invalid Articles 5, 6(1), (2) and (3), 7(1) and 8(2)(a) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8);

| — | order the Commission of the European Communities to pay the costs of the proceedings. |
| --- | --- |

—

order the Commission of the European Communities to pay the costs of the proceedings.

Pleas in law and main arguments

With regard to Article 5 of Regulation No 60/2004 the applicant raises the following heads of complaint:

| — | infringement of the principle of the free movement of goods through the introduction of customs duties in the amount of a customs rate applicable erga omnes and exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union; |
| --- | --- |

—

infringement of the principle of the free movement of goods through the introduction of customs duties in the amount of a customs rate applicable erga omnes and exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union;

| — | lack of competence on the Commission's part and breach of Articles 22 and 41, first paragraph, and Part 5 of Annex IV to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) through the adoption of measures altering the conditions defined in that Act for the adoption by the Republic of Poland of the rules governing the customs union and through the inclusion by the contested provision of products that are not covered by the Common Agricultural Policy; |
| --- | --- |

—

lack of competence on the Commission's part and breach of Articles 22 and 41, first paragraph, and Part 5 of Annex IV to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) through the adoption of measures altering the conditions defined in that Act for the adoption by the Republic of Poland of the rules governing the customs union and through the inclusion by the contested provision of products that are not covered by the Common Agricultural Policy;

| — | infringement of the principle of non-discrimination on grounds of nationality by reason of the adoption of measures providing for treatment of persons from Poland that differs from that of persons from the Community of 15 States who are in a comparable position; |
| --- | --- |

—

infringement of the principle of non-discrimination on grounds of nationality by reason of the adoption of measures providing for treatment of persons from Poland that differs from that of persons from the Community of 15 States who are in a comparable position;

| — | breach of a fundamental procedural requirement by virtue of the inadequate reasoning of the measures adopted; |
| --- | --- |

—

breach of a fundamental procedural requirement by virtue of the inadequate reasoning of the measures adopted;

| — | infringement of the principle of the protection of legitimate expectations by reason of the introduction of a method, at variance with the conditions laid down in the abovementioned Act of Accession, of dealing with products which were in temporary storage on 1 May 2004, were covered by customs procedures or were in transit within the enlarged Community, and in particular by reason of the introduction of customs duties exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union. |
| --- | --- |

—

infringement of the principle of the protection of legitimate expectations by reason of the introduction of a method, at variance with the conditions laid down in the abovementioned Act of Accession, of dealing with products which were in temporary storage on 1 May 2004, were covered by customs procedures or were in transit within the enlarged Community, and in particular by reason of the introduction of customs duties exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union.

With regard to Article 6(1) and (2) of Regulation No 60/2004, the applicant argues that the Commission lacked competence and that there has been a breach of Article 22, the first paragraph of Article 41 and Part 4 of Annex IV to the abovementioned Act of Accession, in conjunction with Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (2) — to the extent to which the contested provisions provide for account to be taken by the Commission of processed products containing sugar (sugar equivalent) when determining the existence of surplus quantities of sugar and isoglucose and impose a prohibition on the elimination of surplus quantities of sugar and isoglucose by way of exportation of processed products containing sugar (sugar equivalent).

With regard to Articles 6(3), 7(1) and 8(2)(a) of Regulation No 60/2004, the applicant alleges infringement of the principles of solidarity and good faith in relations between the Member States and the Community institutions (Article 10 EC) by reason of the imposition on Poland, through the contested measures, of obligations with which it is in practice not possible to comply, and by reason of the refusal to cooperate with a view to overcoming difficulties which have arisen.

With regard to all of the contested provisions of Regulation No 60/2004, the applicant argues that the Commission abused its powers by adopting measures the real objective of which is not to facilitate Poland in adopting the rules of the Common Agricultural Policy but rather to protect the market of the Community of 15 States against competition from Polish agricultural producers.

---

(1)  OJ 2003 L 236, p. 33.

(2)  OJ 2001 L 178, p. 1, as subsequently amended.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/22 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/22

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Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market

(Case T-262/04)

(2004/C 251/40)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 25 June 2004 by BIC S.A., established in Clichy (France), represented by Michel-Paul Escande, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2004 (Case R 468/2003-4), in so far as it decided that Community trade mark application No 1 738 392 should be refused on the grounds laid down in Article 7 of Regulation No 40/94, since BIC has shown that the conditions for the application of that article were not satisfied in the present case; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2004 (Case R 468/2003-4), in so far as it decided that Community trade mark application No 1 738 392 should be refused on the grounds laid down in Article 7 of Regulation No 40/94, since BIC has shown that the conditions for the application of that article were not satisfied in the present case;

| — | order the defendant to pay the costs. |
| --- | --- |

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Community trade mark applied for: | Three-dimensional trade mark in the shape of a lighter. |
| --- | --- |
| Goods or services: | Goods in Class 34 (smoker's articles, lighters) — application No 1 738 392. |
| Decision contested before the Board of Appeal: | Refusal to register by the examiner. |
| Decision of the Board of Appeal: | Appeal dismissed. |
| Pleas in law: | The applicant has shown that the shape of the lighter in respect of which the application for registration as a Community trade mark was made is widely recognised by consumers as belonging to it.
  The applicant has established that the shape of the BIC lighter had acquired a distinctive character within the meaning of Article 7 of Regulation (EC) No 40/94. |

Community trade mark applied for:

Three-dimensional trade mark in the shape of a lighter.

Goods or services:

Goods in Class 34 (smoker's articles, lighters) — application No 1 738 392.

Decision contested before the Board of Appeal:

Refusal to register by the examiner.

Decision of the Board of Appeal:

Appeal dismissed.

Pleas in law:

The applicant has shown that the shape of the lighter in respect of which the application for registration as a Community trade mark was made is widely recognised by consumers as belonging to it.

The applicant has established that the shape of the BIC lighter had acquired a distinctive character within the meaning of Article 7 of Regulation (EC) No 40/94.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/22 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/22

---

Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market

(Case T-263/04)

(2004/C 251/41)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 25 June 2004 by BIC S.A., established in Clichy (France), represented by Michel-Paul Escande, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2004 (Case R 468/2003-4), (1) in so far as it decided that Community trade mark application No 1 738 566 should be refused on the grounds laid down in Article 7 of Regulation No 40/94, since BIC has shown that the conditions for the application of that article were not satisfied in the present case; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2004 (Case R 468/2003-4), (1) in so far as it decided that Community trade mark application No 1 738 566 should be refused on the grounds laid down in Article 7 of Regulation No 40/94, since BIC has shown that the conditions for the application of that article were not satisfied in the present case;

| — | order the defendant to pay the costs. |
| --- | --- |

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Community trade mark applied for: | Three-dimensional trade mark in the shape of a lighter. |
| --- | --- |
| Goods or services: | Goods in Class 34 (smoker's articles, lighters) — application No 1 738 566. |
| Decision contested before the Board of Appeal: | Refusal to register by the examiner. |
| Decision of the Board of Appeal: | Appeal dismissed. |
| Pleas in law: | The applicant has shown that the shape of the lighter in respect of which the application for registration as a Community trade mark was made is widely recognised by consumers as belonging to it.
  The applicant has established that the shape of the BIC lighter had acquired a distinctive character within the meaning of Article 7 of Regulation (EC) No 40/94. |

Community trade mark applied for:

Three-dimensional trade mark in the shape of a lighter.

Goods or services:

Goods in Class 34 (smoker's articles, lighters) — application No 1 738 566.

Decision contested before the Board of Appeal:

Refusal to register by the examiner.

Decision of the Board of Appeal:

Appeal dismissed.

Pleas in law:

The applicant has shown that the shape of the lighter in respect of which the application for registration as a Community trade mark was made is widely recognised by consumers as belonging to it.

The applicant has established that the shape of the BIC lighter had acquired a distinctive character within the meaning of Article 7 of Regulation (EC) No 40/94.

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(1)  Probably R 469/2003-4.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/23 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/23

---

Action brought on 7 July 2004 by Brandt Industries against the Commission of the European Communities

(Case T-273/04)

(2004/C 251/42)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 July 2004 by Brandt Industries, established in Rueil-Malmaison (France), represented by Niels Dejean and Christophe Delrieu, lawyers.

The applicant claims that the Court should:

| — | annul the Commission decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty on the grounds that it does not state adequate reasons as required under Article 253 EC and that it is contrary to Article 14 of Regulation (EC) No 659/1999 (1) of 22 March 1999; |
| --- | --- |

—

annul the Commission decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty on the grounds that it does not state adequate reasons as required under Article 253 EC and that it is contrary to Article 14 of Regulation (EC) No 659/1999 (1) of 22 March 1999;

| — | order the Commission to pay the costs. |
| --- | --- |

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the decision of 16 December 2003 the Commission concluded that the scheme provided for in Article 44 septies of the Code Général des Impôts (French General Taxation Code) constituted a State aid incompatible with the common market, without prejudice to de minimis aid and aid compatible with the guidelines on aid for regional purposes or with the exemption rule regarding aid to small and medium-sized undertakings. It ordered France to recover the aid granted.

The applicant contests the Commission decision. It submits that the decision should be annulled on the ground that the decision does not show adequate reasons in light of the requirements of Article 253 EC. In the decision, the Commission itself recognised that it had no specific information on the firms which automatically benefited from the scheme under Article 44 septies of the Code Général des Impôts.

Furthermore, the applicant submits that the contested decision is in breach of Article 14 of Regulation (EC) No 659/1999. The Commission did not take account of the fact that the tax aid to companies formed to take over firms in difficulty had the effect of bringing those companies to propose a higher price for the assets than that which they would have offered if that aid had not existed. Consequently, all or part of the aid was transferred, by way of an increase in the repurchase price of those assets, to the creditors of the firm in receivership, so that the takeover companies could not be regarded as the actual beneficiaries of the entirety of the aid. Reimbursement of the aid received by the takeover companies is not a measure necessary for the return of the competition situation to what it was before the grant of the aid, but, on the contrary, would place the takeover companies in a less favourable position than that in which they would have been without the aid, so that it contravenes the principles of fair competition and of proportionality.

---

(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ L 83, p. 1).

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/23 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/23

---

Action brought on 9 July 2004 by Jabones Pardo, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-278/04)

(2004/C 251/43)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 July 2004 by Jabones Pardo, S.A., established in Madrid, represented by José Enrique Astiz Suárez, of the Madrid Bar.

The applicant claims that the Court should:

| — | vary the findings of the contested decision as regards the similarity of the signs and the goods, ordering that the opposition be admitted and the application refused in respect of goods in classes 3 and 5; and |
| --- | --- |

—

vary the findings of the contested decision as regards the similarity of the signs and the goods, ordering that the opposition be admitted and the application refused in respect of goods in classes 3 and 5; and

| — | annul the decision in order that a new and accurate comparison of the signs and goods which they identify may be carried out, regard being had to the high degree of visual and phonetic similarity between ‘YUPI’ and ‘YUKI’, as well as the fact that many of the goods which they designate are identical or almost identical. |
| --- | --- |

—

annul the decision in order that a new and accurate comparison of the signs and goods which they identify may be carried out, regard being had to the high degree of visual and phonetic similarity between ‘YUPI’ and ‘YUKI’, as well as the fact that many of the goods which they designate are identical or almost identical.

Pleas in law and main arguments:

| Applicant for Community trade mark: | QUIMI ROMAR S.L. |
| --- | --- |
| Community trade mark sought: | Word mark ‘YUKI’ — Application No 1. 353.515 for goods in classes 3, 5 and 28. |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant. |
| Mark or sign cited in opposition. | The Spanish word mark ‘YUPI’ (No 246.715) for goods in class 3 (all types of perfumery, waxes, essential oils and dentifrices). |
| Decision of the Opposition Division: | Opposition upheld in part in respect of the goods against which it was directed: i.e. ‘soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices’ (class 3) and ‘pharmaceutical and sanitary preparations’ (class 5) |
| Decision of the Board of Appeal: | Upheld the appeal brought by the applicant for the trade mark, annulled the contested decision in so far as it upheld the opposition in respect of ‘soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices’ (class 3) and ‘pharmaceutical and sanitary preparations’ (class 5) and rejected the case of the opposing party. |
| Pleas in law: | Incorrect interpretation of Article 8(1)(b) of Regulation (EC) No 40/94. |

Applicant for Community trade mark:

QUIMI ROMAR S.L.

Community trade mark sought:

Word mark ‘YUKI’ — Application No 1. 353.515 for goods in classes 3, 5 and 28.

Proprietor of mark or sign cited in the opposition proceedings:

The applicant.

Mark or sign cited in opposition.

The Spanish word mark ‘YUPI’ (No 246.715) for goods in class 3 (all types of perfumery, waxes, essential oils and dentifrices).

Decision of the Opposition Division:

Opposition upheld in part in respect of the goods against which it was directed: i.e. ‘soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices’ (class 3) and ‘pharmaceutical and sanitary preparations’ (class 5)

Decision of the Board of Appeal:

Upheld the appeal brought by the applicant for the trade mark, annulled the contested decision in so far as it upheld the opposition in respect of ‘soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices’ (class 3) and ‘pharmaceutical and sanitary preparations’ (class 5) and rejected the case of the opposing party.

Pleas in law:

Incorrect interpretation of Article 8(1)(b) of Regulation (EC) No 40/94.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/24 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/24

---

Action brought on 9 July 2004 by the Italian Republic against the Commission of the European Communities

(Case T-282/04)

(2004/C 251/44)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 July 2004 by the Italian Republic, represented by Gianni De Bellis, avvocato dello Stato.

The applicant claims that the Court should:

| — | annul Commission Decision C(2004) 1706 final of 24 April 2004‘which excludes from Community financing certain expenditure incurred by the Member States in respect of the Guarantee section of the European Agricultural Guidance and Guarantee Fund (EAGGF)’ in part in so far as it |
| --- | --- |

—

annul Commission Decision C(2004) 1706 final of 24 April 2004‘which excludes from Community financing certain expenditure incurred by the Member States in respect of the Guarantee section of the European Agricultural Guidance and Guarantee Fund (EAGGF)’ in part in so far as it

| — | makes a specific adjustment of EUR 19 058 682 for Rural Development — Measure (b) ‘Settlement of Young Farmers’ of the Rural Development Programme for the Region of Tuscany |
| --- | --- |

—

makes a specific adjustment of EUR 19 058 682 for Rural Development — Measure (b) ‘Settlement of Young Farmers’ of the Rural Development Programme for the Region of Tuscany

| — | makes a flat-rate adjustment of 2 % of the sum of EUR 2 758 501 relating to the supply of food aid for the needy |
| --- | --- |

—

makes a flat-rate adjustment of 2 % of the sum of EUR 2 758 501 relating to the supply of food aid for the needy

| — | order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments:

The expenditure excluded from Community financing by the contested decision, as regards the applicant, relates to the ‘Settlement of Young Farmers’ measure provided for in the document on the planning of rural development in the Region of Tuscany, approved by Decision C(2000) 2510 of 7 September 2000, and the flat-rate adjustment of 2 % applied to the supply of food aid for the needy which, according to the Commission, does not offer a system of checks with sufficient safeguards.

In support of its claim, the applicant pleads:

| — | As regards the ‘Settlement of Young Farmers’ measure, infringement of Articles 2 and 3 of Council Regulation (EEC) No 729/70 (1), of Articles 35 and 37 of Council Regulation (EC) No 1750/99 (2), of Article 2(1) of Council Regulation (EC, Euratom) No 2988/95 (3), as well as of the principles concerning financial adjustments. |
| --- | --- |

—

As regards the ‘Settlement of Young Farmers’ measure, infringement of Articles 2 and 3 of Council Regulation (EEC) No 729/70 (1), of Articles 35 and 37 of Council Regulation (EC) No 1750/99 (2), of Article 2(1) of Council Regulation (EC, Euratom) No 2988/95 (3), as well as of the principles concerning financial adjustments.

| — | As regards the supply of food aid for the needy, the infringement of Articles 2 and 3 of Regulation (EC) No 729/70, already cited. |
| --- | --- |

—

As regards the supply of food aid for the needy, the infringement of Articles 2 and 3 of Regulation (EC) No 729/70, already cited.

---

(1)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition, Series II Chapter 1970(I), p. 218).

(2)  Commission Regulation (EC) No 1750/1999 of 23 July 1999 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 214 of 13.8.1999, p. 31).

(3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests (OJ L 312 of 23.12.1995, p. 1).

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/25 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/25

---

Action brought on 12 July 2004 by UPS Europe N.V./S.A. and UPS Deutschland Inc. & Co OHG against the Commission of the European Communities

(Case T-284/04)

(2004/C 251/45)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 July 2004 by UPS Europe N.V./S.A., Brussels, Belguim and UPS Deutschland Inc. & C. OHG, represented by Mr T.R. Ottervanger and Ms A.S. Bijleveld, lawyers.

The applicant claims that the Court should:

| — | Annul the implied Commission decision to refuse their confirmatory request of 13 April 2004 for access to certain documents; |
| --- | --- |

—

Annul the implied Commission decision to refuse their confirmatory request of 13 April 2004 for access to certain documents;

| — | Order the Commission to pay the costs of this procedure. |
| --- | --- |

—

Order the Commission to pay the costs of this procedure.

Pleas in law and main arguments:

By a decision dated 20 March 2001 (1) the Commission decided that Deutsche Post AG had infringed Article 82 of the EC Treaty through its practices in the mail-order parcel sector. It further required Deutsche Post to create a separate commercial parcel services subsidiary as well as a system of transparent and market-based pricing between Deutsche Post AG and that subsidiary. Deutsche Post was required to inform the Commission annually on the fulfilment of these undertakings. Deutsche Post did so by letter of 22 May 2003. The applicants, who are also active in the same business sector, requested and received a non-confidential version of that letter on 22 September 2003. On 20 October 2003 the applicants requested the Commission to grant them access to the average internal transfer prices charged by Deutsche Post to its subsidiary, information which had been blanked out in the non-confidential version of the letter of 22 May 2003. They also requested access to a report and a calculation which, according to the same letter, had been submitted to the Commission on 16 November 2001. The request was made on the basis of Regulation 1049/2001 (2) Official Journal L 145, 31/05/2001, p. 43-48. The applicants repeated their request on 18 November 2003 and made a confirmatory application on 13 April 2004. By letter of 21 April 2004 the Commission acknowledged receipt of the confirmatory application and stated that it was consulting Deutsche Post on the exact scope of the commercially sensitive information in the documents requested. Not having received any further answer, the applicants consider that there is an implied Commission decision to refuse their application for access, and request the Court to annul it.

In support of their application the applicants invoke a breach of Regulation 1049/2001, contending that none of the exceptions of Article 4 apply and that therefore access should have been granted as requested. They also invoke a breach by the Commission of the duty, under Article 253 EC, to state reasons for its decision. The applicants submit that the Commission is in breach of Regulation 1049/2001 also on the grounds that it neither replied within the prescribed time limit nor stated any reasons for refusing to grant access. Finally, they argue that the Commission has violated its own Rules of Procedure as amended by the Commission's decision of 5 December 2001 (3). According to the applicants, the Commission should have finalised its consultation of Deutsche Post and have taken a decision within the 15 day working period.

---

(1)  Commission Decision of 20 March 2001 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/35.141 — Deutsche Post AG) (notified under document number C(2001) 728), OJ L 125 5/5/2001 p. 27.

(2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

(3)  OJ L 345, 29/12/2001 p. 94.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/25 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/25

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Action brought on 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities

(Case T-286/04)

(2004/C 251/46)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland, represented by Mr R. Thompson QC and Mr S. Grodzinski Barrister with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul Article 2 of Commission Decision 2004/451/EC on the clearance of the accounts of Member States' expenditure financed by the European Agricultural Guidance and Guarantee Fund, for the 2003 financial year, notified under document number C(2004) 1699 (1), insofar as it relates to the accounts of the Rural Payments Agency, the Department of Agriculture and Rural Development, the Forestry Commission and the Countryside Council for Wales; |
| --- | --- |

—

Annul Article 2 of Commission Decision 2004/451/EC on the clearance of the accounts of Member States' expenditure financed by the European Agricultural Guidance and Guarantee Fund, for the 2003 financial year, notified under document number C(2004) 1699 (1), insofar as it relates to the accounts of the Rural Payments Agency, the Department of Agriculture and Rural Development, the Forestry Commission and the Countryside Council for Wales;

| — | Grant a declaration that the decision to disjoin the Scottish Executive Environment and Rural Affairs Department accounts is unlawful to the extent that it is based on non-compliance with the sampling methodology set out in Guideline 8 issued by the Commission Directorate-General VI (Agriculture) in July 1998; |
| --- | --- |

—

Grant a declaration that the decision to disjoin the Scottish Executive Environment and Rural Affairs Department accounts is unlawful to the extent that it is based on non-compliance with the sampling methodology set out in Guideline 8 issued by the Commission Directorate-General VI (Agriculture) in July 1998;

| — | Order the Commission to pay the costs. |
| --- | --- |

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The Commission's Decision 2004/451 was taken within the framework of Council Regulation (EC) 1258/1999 (2) on the financing of the common agricultural policy. By the contested Article 2 the Commission decided to disjoin the accounts of, among others, the paying agencies referred to by the applicant, and make those accounts the subject of a future clearance decision.

The applicant contends that, as far as those agencies are concerned, the decision to disjoin their accounts was made on the sole or principal basis that the ‘sampling’ methodology used by the United Kingdom's National Audit Office for the purposes of preparing its audit report and certificates for the 2003 accounts, was different from the particular sampling methodology suggested for use in Guideline 8.

In support of its application the applicant first of all submits that the Commission has no legal competence to require national certifying bodies to conform to the methodology laid down in a Guideline, where it accepts that the criteria laid down in Regulation 1258/99 as well as Regulation 1663/1995 (3), have been met. The applicant further contends that the Commission has misdirected itself in law by interpreting its own Guideline as a binding rule of law. Even were it to be decided, contrary to the applicant's submissions, that the Guideline is in principle capable of laying down a binding rule of law, the applicant argues that it is at least ambiguous in its meaning and the Commission's interpretation is contrary to the principle of legal certainty. The applicant also alleges that in the light of the history of the matter, the conduct of the Commission in seeking to impose its own interpretation of Guideline 8 is contrary to the protection of legitimate expectations. Moreover, the Commission's attempt to control the way in which the United Kingdom National Audit Office exercises its expertise is, according to the applicant, contrary to the principle of subsidiarity laid down in Article 5 of the EC Treaty and manifested by Article 3 paragraph 1 of Regulation 1663/95. Finally, the applicant submits that, to the extent that it may be argued by the Commission that the contested decision was based on other considerations, it is vitiated by a manifest error of assessment.

---

(1)  OJ L 155, 30/04/2004, p. 129-133.

(2)  OJ L 160, 26/06/1999, p. 103-112.

(3)  Commission Regulation (REGULATION) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section, OJ L 158, 08/07/1995, p. 6.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/26 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/26

---

Action brought on 15 July 2004 by Kris Van Neyghem against the Committee of the Regions

(Case T-288/04)

(2004/C 251/47)

Language of the case: Dutch

An action against the Committee of the Regions was brought before the Court of First Instance of the European Communities on 15 July 2004 by Kris Van Neyghem, residing in Tienen (Belgium), represented by Dirk Janssens.

The applicant claims that the Court should:

| — | annul Decision 87/03; |
| --- | --- |

—

annul Decision 87/03;

| — | annul any decision connected with or resulting from Decision 87/03; |
| --- | --- |

—

annul any decision connected with or resulting from Decision 87/03;

| — | classify the applicant in Grade B 1, or at least no lower than Grade B 4, Step 4; |
| --- | --- |

—

classify the applicant in Grade B 1, or at least no lower than Grade B 4, Step 4;

| — | order the Committee of the Regions to pay all costs of the proceedings. |
| --- | --- |

—

order the Committee of the Regions to pay all costs of the proceedings.

Pleas in law and main arguments:

The applicant has been working as an official of the Committee of the Regions since 1 December 2002. He is challenging the decision of 26 March 2003 whereby he was definitively classified in Grade B 5, Step 4.

In support of his application, the applicant argues that the contested decision is inadequately reasoned and that there has been a breach of Articles 5(3), 31 and 32 of the Staff Regulations, in conjunction with an infringement of the principle of equal treatment.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/26 |
| --- | --- | --- | --- |

9.10.2004

EN

Official Journal of the European Union

C 251/26

---

Action brought on 19 July 2004 by Caremar SpA against the Commission of the European Communities

(Case T-292/04)

(2004/C 251/48)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 July 2004 by Caremar SpA and others, represented by Gian Michele Roberti, Alessandra Franchi and Guido Bellitti, lawyers.

The applicants claim that the Court should:

| — | annul that part of the challenged decision in which the subsidies for public service obligations paid to Caremar, Toremar, Siremar and Saremar are regarded as State aid; |
| --- | --- |

—

annul that part of the challenged decision in which the subsidies for public service obligations paid to Caremar, Toremar, Siremar and Saremar are regarded as State aid;

| — | in the alternative, annul that part of the challenged decision in which the subsidies for public service obligations paid to Caremar, Toremar, Siremar and Saremar are classified as new aid, and not as existing aid; |
| --- | --- |

—

in the alternative, annul that part of the challenged decision in which the subsidies for public service obligations paid to Caremar, Toremar, Siremar and Saremar are classified as new aid, and not as existing aid;

| — | order the Commission to pay the costs. |
| --- | --- |

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments are similar to those relied on in Case T-265/04 Adriatica di Navigazione and Others v Commission (1).

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(1)  Not yet published in the Official Journal.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/27 |
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9.10.2004

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Official Journal of the European Union

C 251/27

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Action brought on 22 July 2004 by Centro Provincial de Jóvenes Agricultores de Jaén against Council of the European Union

(Case T-295/04)

(2004/C 251/49)

Language of the case: Spanish

An action against Council of the European Union was brought before the Court of First Instance of the European Communities on 22 July 2004 by Centro Provincial de Jóvenes Agricultores de Jaén, established in Jaen (Spain), represented by José Francisco Vázquez Medina, of the Jaen Bar.

The applicant claims that the Court should:

| — | annul ipso jure Article 1(7) of Council Regulation (EC) No 864/04 |
| --- | --- |

—

annul ipso jure Article 1(7) of Council Regulation (EC) No 864/04

| — | reserve its decision on costs. |
| --- | --- |

—

reserve its decision on costs.

Pleas in law and main arguments

The applicant is contesting the abovementioned provision insofar as it includes, exclusively in respect of olive oil, the 1999/2000 marketing year together with the other 3 planned for the remaining agricultural sectors (2000/2001, 2001/2002 and 2002/2003), for the determination of the direct support to be provided for producers.

In support of its claims, the applicant maintains that not only is there an inadequate statement of reasons for the contested provision, contrary to the duty to provide reasons, it also discriminates against certain regions and many farmers in view of the fact that in the 1999/2000 marketing year the harvest was very poor in Andalusia, particularly in Jaen. Thus, by calculating the assistance to be provided by taking into account the aforementioned marketing year, olive oil producers in Jaen, together with others in Cordoba and Granada, will, by that mere fact, suffer serious economic harm and thus be discriminated against.

Finally, the applicant alleges misuse of powers.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/27 |
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Official Journal of the European Union

C 251/27

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Action brought on 22 July 2004 by Cristóbal Gallego Martínez, Benito García Burgos and Antonio Parras Rosa against Council of the European Union

(Case T-297/04)

(2004/C 251/50)

Language of the case: Spanish

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 22 July 2004 by Cristóbal Gallego Martínez, Benito García Burgos and Antonio Parras Rosa, residing in Jaen (Spain), represented by José Francisco Vázquez Medina, of the Jaen Bar.

The applicant claims that the Court should:

| — | annul ipso jure Article 1(7) of Council Regulation (EC) No 864/04 |
| --- | --- |

—

annul ipso jure Article 1(7) of Council Regulation (EC) No 864/04

| — | reserve its decision on costs. |
| --- | --- |

—

reserve its decision on costs.

Pleas in law and main arguments

The pleas in law and main arguments are identical with those put forward in Case T-295/04.

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| 9.10.2004 | EN | Official Journal of the European Union | C 251/27 |
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9.10.2004

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Official Journal of the European Union

C 251/27

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Action brought on 22 July 2004 by the Italian Republic against the Commission of the European Communities

(Case T-304/04)

(2004/C 251/51)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 July 2004 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato.

The applicant claims that the Court should:

| — | annul Commission Decision C(2004) 1812 final of 19 May 2004 declaring unlawful aid granted by Italy (under Law No 394 of 1981) in the form of interest relief to WAM SpA of EUR 103 313.20 from 24 April 1996 and EUR 106 366.60 from 9 November 2000 (State aid No C 4/2003/(ex NN 102/2002), with order for recovery; |
| --- | --- |

—

annul Commission Decision C(2004) 1812 final of 19 May 2004 declaring unlawful aid granted by Italy (under Law No 394 of 1981) in the form of interest relief to WAM SpA of EUR 103 313.20 from 24 April 1996 and EUR 106 366.60 from 9 November 2000 (State aid No C 4/2003/(ex NN 102/2002), with order for recovery;

| — | annul any other connected or conditional measure which may exist and order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

annul any other connected or conditional measure which may exist and order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments:

The Italian Republic has challenged before the Court of First Instance of the European Communities Commission Decision C(2004) 1812 final of 19 May 2004 declaring unlawful aid granted by Italy (under Law No 394 of 1981) in the form of interest relief to WAM SpA of EUR 103 313.20 from 24 April 1996 and EUR 106 366.60 from 9 November 2000 (State aid No C 4/2003/(ex NN 102/2002), with order for recovery. Law No 394 of 1981 supports, inter alia, Italian companies wishing to set up a subsidiary, representative offices, shops and warehouses.

In support of its claim, the Italian Republic has pleaded:

| (A) | Infringement of essential procedural requirements as regards the right of defence, the principle of transparency and the principle of the right to be heard, since the Commission has never sent Italy a copy of the complaint in the proceedings. |
| --- | --- |

(A)

Infringement of essential procedural requirements as regards the right of defence, the principle of transparency and the principle of the right to be heard, since the Commission has never sent Italy a copy of the complaint in the proceedings.

| (B) | Infringement of essential procedural requirements as regards the right of defence and failure adequately to state reasons for lack of preliminary inquiries, since the Commission failed to carry out the necessary investigations into the complaint and the subsequent measures using the powers granted to it under procedural Regulation No 659/1999 (1). |
| --- | --- |

(B)

Infringement of essential procedural requirements as regards the right of defence and failure adequately to state reasons for lack of preliminary inquiries, since the Commission failed to carry out the necessary investigations into the complaint and the subsequent measures using the powers granted to it under procedural Regulation No 659/1999 (1).

| (C) | Error by the Commission in classifying the facts and infringement of Article 1(b) of Regulations No 69/2001 (2) and 70/2001 (3) since it classified the aid in question as ‘export aid’. |
| --- | --- |

(C)

Error by the Commission in classifying the facts and infringement of Article 1(b) of Regulations No 69/2001 (2) and 70/2001 (3) since it classified the aid in question as ‘export aid’.

| (D) | Infringement of the principles of the protection of legitimate expectations and good faith, since the Commission contested the failure to communicate the aid, even though it was aware of Law No 394/81. On the contrary, the aim of the aid in question is not directly export-related, although its principal aim is internationalisation through the creation of fixed production bases abroad. |
| --- | --- |

(D)

Infringement of the principles of the protection of legitimate expectations and good faith, since the Commission contested the failure to communicate the aid, even though it was aware of Law No 394/81. On the contrary, the aim of the aid in question is not directly export-related, although its principal aim is internationalisation through the creation of fixed production bases abroad.

| (E) | Infringement of Article 87 et seq of the EC Treaty and failure adequately to state reasons. It is claimed that in the contested decision the Commission never explains why and to what extent aid such as that in question, which is individual and for a very low amount, is capable of having an effect on trade between Member States. Nor does the defendant explain on what evidence it bases its claim of the risk of distortion of competition within the Community, above all with respect to aid which is very limited in amount. |
| --- | --- |

(E)

Infringement of Article 87 et seq of the EC Treaty and failure adequately to state reasons. It is claimed that in the contested decision the Commission never explains why and to what extent aid such as that in question, which is individual and for a very low amount, is capable of having an effect on trade between Member States. Nor does the defendant explain on what evidence it bases its claim of the risk of distortion of competition within the Community, above all with respect to aid which is very limited in amount.

| (F) | Infringement of Article 4 of Regulation No 69/2001 and failure adequately to state reasons, since the Commission applied that provision retroactively to circumstances governed by the rules previously in force. |
| --- | --- |

(F)

Infringement of Article 4 of Regulation No 69/2001 and failure adequately to state reasons, since the Commission applied that provision retroactively to circumstances governed by the rules previously in force.

| (G) | Failure adequately to state reasons, illogicality, infringement of the principle of fairness and wrongful application of Regulation No 69/2001 and Regulation No 70/2001, since the Commission adjusted the amount of the aid to be returned according to criteria which should be regarded as irrelevant and erroneous. |
| --- | --- |

(G)

Failure adequately to state reasons, illogicality, infringement of the principle of fairness and wrongful application of Regulation No 69/2001 and Regulation No 70/2001, since the Commission adjusted the amount of the aid to be returned according to criteria which should be regarded as irrelevant and erroneous.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83 of 27.03.1999, p. 1).

(2)  Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid (OJ L 10, 13.01.2001, p. 30).

(3)  Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (OJ L 10, 13.01.2001, p. 30).

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III Notices

| 9.10.2004 | EN | Official Journal of the European Union | C 251/29 |
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9.10.2004

EN

Official Journal of the European Union

C 251/29

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(2004/C 251/52)

Last publication of the Court of Justice in the
  Official Journal of the European Union

OJ C 239, 25.9.2004

Past publications

OJ C 228, 11.9.2004

OJ C 217, 28.8.2004

OJ C 201, 7.8.2004

OJ C 190, 24.7.2004

OJ C 179, 10.7.2004

OJ C 168, 26.6.2004

These texts are available on:

| | EUR-Lex:http://europa.eu.int/eur-lex |
| --- | --- |

EUR-Lex:http://europa.eu.int/eur-lex

| | CELEX:http://europa.eu.int/celex |
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CELEX:http://europa.eu.int/celex

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