# Official Journal C 143/11 J

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 143 |
| | |
| English edition | Information and Notices | Volume 4811 June 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 143

English edition

Information and Notices

Volume 4811 June 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 143/1 | Information note on references from national courts for a preliminary ruling | 1 |
| 2005/C 143/2 | Judgment of the Court (Grand Chamber) of 26 April 2005 in Case C-494/01: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Environment — Waste management — Directive 75/442/EEC, as amended by Directive 91/156/EC — Articles 4, 5, 8, 9, 10, 12, 13 and 14) | 5 |
| 2005/C 143/3 | Judgment of the Court (First Chamber) of 17 March 2005 in Case C-294/02: Commission of the European Communities v AMI Semiconductor Belgium BVBA and Others (Arbitration clause — Designation of the Court of First Instance — Jurisdiction of the Court of Justice — Parties in liquidation — Capacity to be parties to legal proceedings — Regulation (EC) No 1346/2000 — Insolvency proceedings — Recovery of advances — Reimbursement under a clause of the contract — Joint and several liability — Recovery of sums paid but not due) | 5 |
| 2005/C 143/4 | Judgment of the Court (First Chamber) of 14 April 2005 in Case C-341/02: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 96/71/EC — Posting of workers in the framework of the provision of services — Undertakings in the construction industry — Minimum wages — Comparison between the minimum wage established by the provisions of the Member State to the territory of which a worker is posted and the remuneration actually paid by his employer established in another Member State — Failure to take into account, as constituent elements of the minimum wage, all of the allowances and supplements paid by the employer established in another Member State) | 6 |
| 2005/C 143/5 | Judgment of the Court (Grand Chamber) of 26 April 2005 in Case C-376/02 Reference for a preliminary ruling from the Hoge Raad der Nederlanden Stichting Goed Wonen v Staatssecretaris van Financiën (Turnover tax — Common system of value added tax — Article 17 of Sixth Directive 77/388/EEC — Deduction of input tax — Amendment of national legislation — Retroactive effect — Principles of the protection of legitimate expectations and legal certainty) | 6 |
| 2005/C 143/6 | Judgment of the Court (Second Chamber) of 21 April 2005 in Case C-25/03 Reference for a preliminary ruling from the Bundesfinanzhof (Germany) Finanzamt Bergisch Gladbach v HE (Sixth VAT Directive — Construction of a dwelling by two spouses forming a community which does not itself perform an economic activity — Use of one room by one of the co-owners for business purposes — Status of taxable person — Right to deduct — Rules governing exercise of that right — Invoicing requirements) | 7 |
| 2005/C 143/7 | Judgment of the Court (Second Chamber) of 21 April 2005 in Case C-140/03 Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil obligations — Articles 43 EC and 48 EC — Opticians — Conditions of establishment — Establishment and operation of opticians' shops — Restrictions — Justification — Principle of proportionality) | 8 |
| 2005/C 143/8 | Judgment of the Court (Sixth Chamber) of 14 April 2005 in Case C-163/03: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 80/68/EEC — Protection of groundwater against pollution caused by certain dangerous substances — Articles 3, 4 and 5 — Directive 91/689/EEC — Hazardous waste — Article 2(1) and Article 6(1) | 8 |
| 2005/C 143/9 | Judgment of the Court (Second Chamber) of 21 April 2005 in Joined Cases C-207/03 and C-252/03: References for preliminary rulings from the High Court of Justice of England and Wales, Chancery Division (Patents Court) (United Kingdom, C-207/03), and from the Cour administrative (Luxembourg, C-252/03) Novartis AG and Others v Comptroller-General of Patents, Designs and Trade Marks for the United Kingdom, and Ministre de l'Économie v Millennium Pharmaceuticals Inc. (Patent law — Medicinal products — Supplementary protection certificate for medicinal products) | 9 |
| 2005/C 143/0 | Judgment of the Court (Second Chamber) of 21 April 2005 in Case C-267/03 Reference for a preliminary ruling from the Högsta domstolen Lars Erik Staffan Lindberg (Directive 83/189/EEC — Notification procedure in the field of technical standards and regulations — Obligation to notify draft technical regulations — National legislation on gaming and lotteries — Gaming machines — Prohibition on the organisation of games on gaming machines which do not pay out winnings directly — Machines of the wheel of fortune type — Definition of technical regulation) | 9 |
| 2005/C 143/1 | Judgment of the Court (First Chamber) of 14 April 2005 in Case C-385/03: Reference for a preliminary ruling from the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v Käserei Champignon Hofmeister GmbH & Co. KG (Export refunds — Misdeclaration — Meaning of request — Sanction — Requirements) | 10 |
| 2005/C 143/2 | Judgment of the Court (Second Chamber) of 14 April 2005 in Case C-441/03: Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Directives 79/409/EEC and 92/43/EEC — Conservation of wild birds — Conservation of natural habitats — Failure to transpose within the prescribed periods) | 11 |
| 2005/C 143/3 | Judgment of the Court (Third Chamber) of 14 April 2005 in Case C-519/03: Commission of the European Communities v Grand Duchy of Luxembourg (Framework agreement on parental leave — Substitution of maternity leave for parental leave — Date from which an individual right to parental leave is granted) | 11 |
| 2005/C 143/4 | Judgment of the Court (Fifth Chamber) of 14 April 2005 in Case C-22/04 Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Regulation (EEC) No 2847/93 — Fishing vessels — Establishment of a satellite-based position monitoring system — Failure to transpose within the prescribed periods) | 12 |
| 2005/C 143/5 | Judgment of the Court (Sixth Chamber) of 14 April 2005 in Case C-146/04: Commission of the European Communities against the Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directives 2000/69/EC and 2001/81/EC — Atmospheric pollutants — Failure to transpose) | 12 |
| 2005/C 143/6 | Judgment of the Court (Fourth Chamber) of 14 April 2005 in Case C-171/04 Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil its obligations — Directive 2001/80/EC — non-transposition) | 13 |
| 2005/C 143/7 | Judgment of the Court (Sixth Chamber) of 14 April 2005 in Case C-299/04: Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil its obligations — Directive 2002/77/EC — Markets for electronic communications networks and services — Failure to transpose within the prescribed period) | 13 |
| 2005/C 143/8 | Judgment of the Court (Fifth Chamber) of 28 April 2005 in Case C-329/04: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Directive 2000/43/EC — Failure to transpose within the prescribed period) | 13 |
| 2005/C 143/9 | Judgment of the Court (Sixth Chamber) of 28 April 2005 in Case C-375/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/58/EC — Electronic communications — Processing of personal data — Protection of privacy — Protection of natural persons — Failure to tranpose within the prescribed period) | 14 |
| 2005/C 143/0 | Judgment of the Court (Sixth Chamber) of 28 April 2005 in Case C-376/04: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2002/58/EC — Electronic communications — Processing of personal data — Protection of privacy — Protection of natural persons — Failure to transpose within the prescribed period) | 14 |
| 2005/C 143/1 | Case C-93/05: Reference for a preliminary ruling from the Korsholms tingsrätt by order of that court of 18 February 2005 in Teemu Hakala v Oy L Simons Transport AB | 15 |
| 2005/C 143/2 | Case C-112/05: Action brought on 4 March 2005 by the Commission of the European Communities against the Federal Republic of Germany | 15 |
| 2005/C 143/3 | Case C-120/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 2 March 2005 in Heinrich Schulze GmbH & Co. KG i.L represented by the liquidator, Ravensberger Honig GmbH v Hauptzollamt Hamburg-Jonas | 16 |
| 2005/C 143/4 | Case C-121/05 P: Appeal brought on 15 March 2005 (fax: 11 March 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 12 January 2005 by the Court of First Instance (Third Chamber) in Case T-334/03 between Deutsche Post Euro Express GmbH and the Office for Harmonisation in the Internal Market. | 16 |
| 2005/C 143/5 | Case C-125/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 15 March 2005 in VW-Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S | 17 |
| 2005/C 143/6 | Case C-127/05: Action brought on 21 March 2005 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland | 18 |
| 2005/C 143/7 | Case C-129/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven te 's-Gravenhage by order of that court of 17 March 2005 in N.V. Raverco v Minister van Landbouw, Natuur en Voedselkwaliteit | 19 |
| 2005/C 143/8 | Case C-130/05: Reference for a preliminary ruling from the Administrative Court for Trade and Industry by order of that court of 17 March 2005 in Coxon and Chatterton Limited v Minister of Agriculture, Nature and Food Quality | 20 |
| 2005/C 143/9 | Case C-133/05: Action brought on 21 March 2005 by the Commission of the European Communities against the Republic of Austria | 20 |
| 2005/C 143/0 | Case C-134/05: Action brought on 22 March 2005 by the Commission of the European Communities against the Italian Republic | 21 |
| 2005/C 143/1 | Case C-138/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 22 March 2005 in Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit(intervener: LTO Nederland) | 22 |
| 2005/C 143/2 | Case C-140/05: Reference for a preliminary ruling from the Unabhängiger Finanzsenat by order of that court of 17 March 2005 in the proceedings between Amalia Valesko and Zollamt Klagenfurt | 23 |
| 2005/C 143/3 | Case C-142/05: Reference for a preliminary ruling from the Luleå tingsrätt by order of that court of 21 March 2005 in Åklagaren v Percy Mickelsson and Joakim Roos | 23 |
| 2005/C 143/4 | Case C-143/05: Action brought on 29 March 2005 by the Commission of the European Communities against the Kingdom of Belgium | 24 |
| 2005/C 143/5 | Case C-144/05: Action brought on 30 March 2005 by the Commission of the European Communities against the Kingdom of Belgium | 24 |
| 2005/C 143/6 | Case C-146/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 10 February 2005 in the case of Albert Collée, as full legal successor to Collée KG v Finanzamt Limburg a.d. Lahn | 25 |
| 2005/C 143/7 | Case C-147/05: Action brought on 1 April 2005 by the Commission of the European Communities against the Kingdom of the Netherlands | 25 |
| 2005/C 143/8 | Case C-151/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 13 January 2005 in F. Weissheimer Malzfabrik v Hauptzollamt Hamburg-Jonas | 25 |
| 2005/C 143/9 | Case C-153/05: Action brought on 5 April 2005 by the Commission of the European Communities against the Republic of Austria | 26 |
| 2005/C 143/0 | Case C-157/05: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) by order of that court of 28 January 2005 in Winfried L. Holböck v Finanzamt Salzburg-Land | 26 |
| 2005/C 143/1 | Case C-158/05: Action brought on 6 April 2005 by the Commission of the European Communities against the Federal Republic of Germany | 26 |
| 2005/C 143/2 | Case C-162/05 P: Appeal brought on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities | 27 |
| 2005/C 143/3 | Case C-166/05: Reference for a preliminary ruling from the Verwaltungsgerichtshof by judgment of that court of 31 March 2005 in Heger Rudi GmbH v Finanzamt Graz-Stadt | 28 |
| 2005/C 143/4 | Case C-169/05: Reference for a preliminary ruling from the Cour de Cassation de Belgique by judgment of that court of 4 April 2005, in URADEX SCRL v Union Professionelle de la Radio et de la Télédistribution, abbreviated as RTD and Société Intercommunale pour la Diffusion de la Télévision, abbreviated as BRUTELE | 28 |
| 2005/C 143/5 | Case C-176/05: Reference for a preliminary ruling from the Landesgericht für ZRS Wien by order of that court of 8 April 2005 in KVZ retec GmbH v Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management) | 28 |
| 2005/C 143/6 | Removal from the register of Case C-273/02 | 29 |
| 2005/C 143/7 | Removal from the register of Case C-458/02 | 29 |
| 2005/C 143/8 | Removal from the register of Case C-395/03 | 29 |
| 2005/C 143/9 | Removal from the register of Case C-504/03 | 29 |
| 2005/C 143/0 | Removal from the register of Case C-49/04 | 29 |
| 2005/C 143/1 | Removal from the register of Case C-57/04 | 30 |
| 2005/C 143/2 | Removal from the register of Case C-165/04 | 30 |
| 2005/C 143/3 | Removal from the register of Case C-179/04 | 30 |
| 2005/C 143/4 | Removal from the register of Case C-261/04 | 30 |
| 2005/C 143/5 | Removal from the register of Case C-262/04 | 30 |
| 2005/C 143/6 | Removal from the register of Case C-277/04 | 30 |
| 2005/C 143/7 | Removal from the register of Case C-399/04 | 30 |
| 2005/C 143/8 | Removal from the register of Case C-460/04 | 31 |
| 2005/C 143/9 | Removal from the register of Case C-516/04 | 31 |
| | COURT OF FIRST INSTANCE |
| 2005/C 143/0 | Judgment of the Court of First Instance of 5 April 2005 in Case T-336/02 Susan Christensen v Commission of the European Communities (Staff case — Selection procedure for temporary staff — Composition of the Selection Committee and conduct of the procedure) | 32 |
| 2005/C 143/1 | Judgment of the Court of First Instance of 17 March 2005 in Case T-187/03 Isabella Scippacercola v Commission of the European Communities (Access to documents of the institutions — Article 4(5) of Regulation (EC) No 1049/2001) | 32 |
| 2005/C 143/2 | Judgment of the Court of First Instance of 5 April 2005 in Case T-376/03 Michel Hendrickx v Council of the European Union (Officials — Internal competition — Non-admission to oral tests — Requirement of specific knowledge of languages — Principle of equal treatment — Access to Council documents — Obligation to state grounds) | 33 |
| 2005/C 143/3 | Order of the Court of First Instance of 6 December 2004 in Case T-55/02 Peter Finch v Commission of the European Communities (Officials — Complaint — Implied rejection — Express rejection within the time-limit for appeals — Late notification of rejection — Admissibility — Pensions — Transfer of national pension rights — Calculation of years of service to be taken into account in the Community scheme — Salary taken as basis — Action manifestly unfounded in law) | 33 |
| 2005/C 143/4 | Order of the Court of First Instance of 15 February 2005 in Case T-206/02 Kurdistan National Congress (KNK) v Council of the European Union (Action for annulment — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Locus standi — Association — Admissibility) | 34 |
| 2005/C 143/5 | Order of the Court of First Instance of 15 February 2005 in Case T-229/02 Kurdistan Workers' Party (PKK) and Kurdistan National Congress (KNK) v Council of the European Union (Action for annulment — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Capacity to bring proceedings — Locus standi — Association — Admissibility) | 34 |
| 2005/C 143/6 | Order of the Court of First Instance of 14 February 2005 in Case T-406/03 Nicolas Ravailhe v Committee of the Regions of the European Union (Officials — Prior administrative procedure — Inadmissibility) | 35 |
| 2005/C 143/7 | Order of the Court of First Instance of 12 January 2005 in Case T-268/04 Spa Monopole, Compagnie fermière de Spa v the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate) | 35 |
| 2005/C 143/8 | Case T-35/05: Action brought on 21 January 2005 by Elisabeth Agne-Dapper against the Commission of the European Communities | 35 |
| 2005/C 143/9 | Case T-80/05: Action brought on 17 February 2005 by Hinrich Bavendam and others against the Commission of the European Communities | 36 |
| 2005/C 143/0 | Case T-112/05: Action brought on 2 March 2005 by Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV against the Commission of the European Communities | 37 |
| 2005/C 143/1 | Case T-117/05: Action brought on 9 March 2005 by Andreas Rodenbröker and Others against the Commission of the European Communities | 37 |
| 2005/C 143/2 | Case T-121/05: Action brought on 15 March 2005 by Borax Europe Ltd against the Commission of the European Communities | 38 |
| 2005/C 143/3 | Case T-132/05: Action brought on 16 March 2005 by Nicola Falcione against the Commission of the European Communities | 38 |
| 2005/C 143/4 | Case T-133/05: Action brought on 17 March 2005 by Gérard Meric against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 39 |
| 2005/C 143/5 | Case T-141/05: Action brought on 11 April 2005 by the Internationaler Hilfsfonds e.V. against the Commission of the European Communities | 40 |
| 2005/C 143/6 | Case T-146/05: Action brought on 14 April 2005 by Flex Equipos de Descanso, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 40 |
| 2005/C 143/7 | Case T-148/05: Action brought on 11 April 2005 by the Comunidad Autónoma de Madrid and Madrid, Infraestructuras del Transporte (MINTRA) against Commission of the European Communities | 41 |
| 2005/C 143/8 | Case T-150/05: Action brought on 18 April 2005 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö against the Commission of the European Communities | 42 |
| 2005/C 143/9 | Case T-152/05: Action brought on 18 April 2005 by John Arthur Slater against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 43 |
| 2005/C 143/0 | Removal from the Register of Case T-176/00 | 43 |
| 2005/C 143/1 | Removal from the Register of Case T-225/01 | 44 |
| 2005/C 143/2 | Removal from the Register of Case T-142/04 | 44 |
| 2005/C 143/3 | Removal from the Register of Case T-228/04 | 44 |
| 2005/C 143/4 | Removal from the Register of Case T-470/04 | 44 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 143/1

Information note on references from national courts for a preliminary ruling

1

2005/C 143/2

Judgment of the Court (Grand Chamber) of 26 April 2005 in Case C-494/01: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Environment — Waste management — Directive 75/442/EEC, as amended by Directive 91/156/EC — Articles 4, 5, 8, 9, 10, 12, 13 and 14)

5

2005/C 143/3

Judgment of the Court (First Chamber) of 17 March 2005 in Case C-294/02: Commission of the European Communities v AMI Semiconductor Belgium BVBA and Others (Arbitration clause — Designation of the Court of First Instance — Jurisdiction of the Court of Justice — Parties in liquidation — Capacity to be parties to legal proceedings — Regulation (EC) No 1346/2000 — Insolvency proceedings — Recovery of advances — Reimbursement under a clause of the contract — Joint and several liability — Recovery of sums paid but not due)

5

2005/C 143/4

Judgment of the Court (First Chamber) of 14 April 2005 in Case C-341/02: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 96/71/EC — Posting of workers in the framework of the provision of services — Undertakings in the construction industry — Minimum wages — Comparison between the minimum wage established by the provisions of the Member State to the territory of which a worker is posted and the remuneration actually paid by his employer established in another Member State — Failure to take into account, as constituent elements of the minimum wage, all of the allowances and supplements paid by the employer established in another Member State)

6

2005/C 143/5

Judgment of the Court (Grand Chamber) of 26 April 2005 in Case C-376/02 Reference for a preliminary ruling from the Hoge Raad der Nederlanden Stichting Goed Wonen v Staatssecretaris van Financiën (Turnover tax — Common system of value added tax — Article 17 of Sixth Directive 77/388/EEC — Deduction of input tax — Amendment of national legislation — Retroactive effect — Principles of the protection of legitimate expectations and legal certainty)

6

2005/C 143/6

Judgment of the Court (Second Chamber) of 21 April 2005 in Case C-25/03 Reference for a preliminary ruling from the Bundesfinanzhof (Germany) Finanzamt Bergisch Gladbach v HE (Sixth VAT Directive — Construction of a dwelling by two spouses forming a community which does not itself perform an economic activity — Use of one room by one of the co-owners for business purposes — Status of taxable person — Right to deduct — Rules governing exercise of that right — Invoicing requirements)

7

2005/C 143/7

Judgment of the Court (Second Chamber) of 21 April 2005 in Case C-140/03 Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil obligations — Articles 43 EC and 48 EC — Opticians — Conditions of establishment — Establishment and operation of opticians' shops — Restrictions — Justification — Principle of proportionality)

8

2005/C 143/8

Judgment of the Court (Sixth Chamber) of 14 April 2005 in Case C-163/03: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 80/68/EEC — Protection of groundwater against pollution caused by certain dangerous substances — Articles 3, 4 and 5 — Directive 91/689/EEC — Hazardous waste — Article 2(1) and Article 6(1)

8

2005/C 143/9

Judgment of the Court (Second Chamber) of 21 April 2005 in Joined Cases C-207/03 and C-252/03: References for preliminary rulings from the High Court of Justice of England and Wales, Chancery Division (Patents Court) (United Kingdom, C-207/03), and from the Cour administrative (Luxembourg, C-252/03) Novartis AG and Others v Comptroller-General of Patents, Designs and Trade Marks for the United Kingdom, and Ministre de l'Économie v Millennium Pharmaceuticals Inc. (Patent law — Medicinal products — Supplementary protection certificate for medicinal products)

9

2005/C 143/0

Judgment of the Court (Second Chamber) of 21 April 2005 in Case C-267/03 Reference for a preliminary ruling from the Högsta domstolen Lars Erik Staffan Lindberg (Directive 83/189/EEC — Notification procedure in the field of technical standards and regulations — Obligation to notify draft technical regulations — National legislation on gaming and lotteries — Gaming machines — Prohibition on the organisation of games on gaming machines which do not pay out winnings directly — Machines of the wheel of fortune type — Definition of technical regulation)

9

2005/C 143/1

Judgment of the Court (First Chamber) of 14 April 2005 in Case C-385/03: Reference for a preliminary ruling from the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v Käserei Champignon Hofmeister GmbH & Co. KG (Export refunds — Misdeclaration — Meaning of request — Sanction — Requirements)

10

2005/C 143/2

Judgment of the Court (Second Chamber) of 14 April 2005 in Case C-441/03: Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Directives 79/409/EEC and 92/43/EEC — Conservation of wild birds — Conservation of natural habitats — Failure to transpose within the prescribed periods)

11

2005/C 143/3

Judgment of the Court (Third Chamber) of 14 April 2005 in Case C-519/03: Commission of the European Communities v Grand Duchy of Luxembourg (Framework agreement on parental leave — Substitution of maternity leave for parental leave — Date from which an individual right to parental leave is granted)

11

2005/C 143/4

Judgment of the Court (Fifth Chamber) of 14 April 2005 in Case C-22/04 Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Regulation (EEC) No 2847/93 — Fishing vessels — Establishment of a satellite-based position monitoring system — Failure to transpose within the prescribed periods)

12

2005/C 143/5

Judgment of the Court (Sixth Chamber) of 14 April 2005 in Case C-146/04: Commission of the European Communities against the Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directives 2000/69/EC and 2001/81/EC — Atmospheric pollutants — Failure to transpose)

12

2005/C 143/6

Judgment of the Court (Fourth Chamber) of 14 April 2005 in Case C-171/04 Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil its obligations — Directive 2001/80/EC — non-transposition)

13

2005/C 143/7

Judgment of the Court (Sixth Chamber) of 14 April 2005 in Case C-299/04: Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil its obligations — Directive 2002/77/EC — Markets for electronic communications networks and services — Failure to transpose within the prescribed period)

13

2005/C 143/8

Judgment of the Court (Fifth Chamber) of 28 April 2005 in Case C-329/04: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Directive 2000/43/EC — Failure to transpose within the prescribed period)

13

2005/C 143/9

Judgment of the Court (Sixth Chamber) of 28 April 2005 in Case C-375/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/58/EC — Electronic communications — Processing of personal data — Protection of privacy — Protection of natural persons — Failure to tranpose within the prescribed period)

14

2005/C 143/0

Judgment of the Court (Sixth Chamber) of 28 April 2005 in Case C-376/04: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2002/58/EC — Electronic communications — Processing of personal data — Protection of privacy — Protection of natural persons — Failure to transpose within the prescribed period)

14

2005/C 143/1

Case C-93/05: Reference for a preliminary ruling from the Korsholms tingsrätt by order of that court of 18 February 2005 in Teemu Hakala v Oy L Simons Transport AB

15

2005/C 143/2

Case C-112/05: Action brought on 4 March 2005 by the Commission of the European Communities against the Federal Republic of Germany

15

2005/C 143/3

Case C-120/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 2 March 2005 in Heinrich Schulze GmbH & Co. KG i.L represented by the liquidator, Ravensberger Honig GmbH v Hauptzollamt Hamburg-Jonas

16

2005/C 143/4

Case C-121/05 P: Appeal brought on 15 March 2005 (fax: 11 March 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 12 January 2005 by the Court of First Instance (Third Chamber) in Case T-334/03 between Deutsche Post Euro Express GmbH and the Office for Harmonisation in the Internal Market.

16

2005/C 143/5

Case C-125/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 15 March 2005 in VW-Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S

17

2005/C 143/6

Case C-127/05: Action brought on 21 March 2005 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

18

2005/C 143/7

Case C-129/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven te 's-Gravenhage by order of that court of 17 March 2005 in N.V. Raverco v Minister van Landbouw, Natuur en Voedselkwaliteit

19

2005/C 143/8

Case C-130/05: Reference for a preliminary ruling from the Administrative Court for Trade and Industry by order of that court of 17 March 2005 in Coxon and Chatterton Limited v Minister of Agriculture, Nature and Food Quality

20

2005/C 143/9

Case C-133/05: Action brought on 21 March 2005 by the Commission of the European Communities against the Republic of Austria

20

2005/C 143/0

Case C-134/05: Action brought on 22 March 2005 by the Commission of the European Communities against the Italian Republic

21

2005/C 143/1

Case C-138/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 22 March 2005 in Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit(intervener: LTO Nederland)

22

2005/C 143/2

Case C-140/05: Reference for a preliminary ruling from the Unabhängiger Finanzsenat by order of that court of 17 March 2005 in the proceedings between Amalia Valesko and Zollamt Klagenfurt

23

2005/C 143/3

Case C-142/05: Reference for a preliminary ruling from the Luleå tingsrätt by order of that court of 21 March 2005 in Åklagaren v Percy Mickelsson and Joakim Roos

23

2005/C 143/4

Case C-143/05: Action brought on 29 March 2005 by the Commission of the European Communities against the Kingdom of Belgium

24

2005/C 143/5

Case C-144/05: Action brought on 30 March 2005 by the Commission of the European Communities against the Kingdom of Belgium

24

2005/C 143/6

Case C-146/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 10 February 2005 in the case of Albert Collée, as full legal successor to Collée KG v Finanzamt Limburg a.d. Lahn

25

2005/C 143/7

Case C-147/05: Action brought on 1 April 2005 by the Commission of the European Communities against the Kingdom of the Netherlands

25

2005/C 143/8

Case C-151/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 13 January 2005 in F. Weissheimer Malzfabrik v Hauptzollamt Hamburg-Jonas

25

2005/C 143/9

Case C-153/05: Action brought on 5 April 2005 by the Commission of the European Communities against the Republic of Austria

26

2005/C 143/0

Case C-157/05: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) by order of that court of 28 January 2005 in Winfried L. Holböck v Finanzamt Salzburg-Land

26

2005/C 143/1

Case C-158/05: Action brought on 6 April 2005 by the Commission of the European Communities against the Federal Republic of Germany

26

2005/C 143/2

Case C-162/05 P: Appeal brought on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities

27

2005/C 143/3

Case C-166/05: Reference for a preliminary ruling from the Verwaltungsgerichtshof by judgment of that court of 31 March 2005 in Heger Rudi GmbH v Finanzamt Graz-Stadt

28

2005/C 143/4

Case C-169/05: Reference for a preliminary ruling from the Cour de Cassation de Belgique by judgment of that court of 4 April 2005, in URADEX SCRL v Union Professionelle de la Radio et de la Télédistribution, abbreviated as RTD and Société Intercommunale pour la Diffusion de la Télévision, abbreviated as BRUTELE

28

2005/C 143/5

Case C-176/05: Reference for a preliminary ruling from the Landesgericht für ZRS Wien by order of that court of 8 April 2005 in KVZ retec GmbH v Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management)

28

2005/C 143/6

Removal from the register of Case C-273/02

29

2005/C 143/7

Removal from the register of Case C-458/02

29

2005/C 143/8

Removal from the register of Case C-395/03

29

2005/C 143/9

Removal from the register of Case C-504/03

29

2005/C 143/0

Removal from the register of Case C-49/04

29

2005/C 143/1

Removal from the register of Case C-57/04

30

2005/C 143/2

Removal from the register of Case C-165/04

30

2005/C 143/3

Removal from the register of Case C-179/04

30

2005/C 143/4

Removal from the register of Case C-261/04

30

2005/C 143/5

Removal from the register of Case C-262/04

30

2005/C 143/6

Removal from the register of Case C-277/04

30

2005/C 143/7

Removal from the register of Case C-399/04

30

2005/C 143/8

Removal from the register of Case C-460/04

31

2005/C 143/9

Removal from the register of Case C-516/04

31

COURT OF FIRST INSTANCE

2005/C 143/0

Judgment of the Court of First Instance of 5 April 2005 in Case T-336/02 Susan Christensen v Commission of the European Communities (Staff case — Selection procedure for temporary staff — Composition of the Selection Committee and conduct of the procedure)

32

2005/C 143/1

Judgment of the Court of First Instance of 17 March 2005 in Case T-187/03 Isabella Scippacercola v Commission of the European Communities (Access to documents of the institutions — Article 4(5) of Regulation (EC) No 1049/2001)

32

2005/C 143/2

Judgment of the Court of First Instance of 5 April 2005 in Case T-376/03 Michel Hendrickx v Council of the European Union (Officials — Internal competition — Non-admission to oral tests — Requirement of specific knowledge of languages — Principle of equal treatment — Access to Council documents — Obligation to state grounds)

33

2005/C 143/3

Order of the Court of First Instance of 6 December 2004 in Case T-55/02 Peter Finch v Commission of the European Communities (Officials — Complaint — Implied rejection — Express rejection within the time-limit for appeals — Late notification of rejection — Admissibility — Pensions — Transfer of national pension rights — Calculation of years of service to be taken into account in the Community scheme — Salary taken as basis — Action manifestly unfounded in law)

33

2005/C 143/4

Order of the Court of First Instance of 15 February 2005 in Case T-206/02 Kurdistan National Congress (KNK) v Council of the European Union (Action for annulment — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Locus standi — Association — Admissibility)

34

2005/C 143/5

Order of the Court of First Instance of 15 February 2005 in Case T-229/02 Kurdistan Workers' Party (PKK) and Kurdistan National Congress (KNK) v Council of the European Union (Action for annulment — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Capacity to bring proceedings — Locus standi — Association — Admissibility)

34

2005/C 143/6

Order of the Court of First Instance of 14 February 2005 in Case T-406/03 Nicolas Ravailhe v Committee of the Regions of the European Union (Officials — Prior administrative procedure — Inadmissibility)

35

2005/C 143/7

Order of the Court of First Instance of 12 January 2005 in Case T-268/04 Spa Monopole, Compagnie fermière de Spa v the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate)

35

2005/C 143/8

Case T-35/05: Action brought on 21 January 2005 by Elisabeth Agne-Dapper against the Commission of the European Communities

35

2005/C 143/9

Case T-80/05: Action brought on 17 February 2005 by Hinrich Bavendam and others against the Commission of the European Communities

36

2005/C 143/0

Case T-112/05: Action brought on 2 March 2005 by Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV against the Commission of the European Communities

37

2005/C 143/1

Case T-117/05: Action brought on 9 March 2005 by Andreas Rodenbröker and Others against the Commission of the European Communities

37

2005/C 143/2

Case T-121/05: Action brought on 15 March 2005 by Borax Europe Ltd against the Commission of the European Communities

38

2005/C 143/3

Case T-132/05: Action brought on 16 March 2005 by Nicola Falcione against the Commission of the European Communities

38

2005/C 143/4

Case T-133/05: Action brought on 17 March 2005 by Gérard Meric against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

39

2005/C 143/5

Case T-141/05: Action brought on 11 April 2005 by the Internationaler Hilfsfonds e.V. against the Commission of the European Communities

40

2005/C 143/6

Case T-146/05: Action brought on 14 April 2005 by Flex Equipos de Descanso, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

40

2005/C 143/7

Case T-148/05: Action brought on 11 April 2005 by the Comunidad Autónoma de Madrid and Madrid, Infraestructuras del Transporte (MINTRA) against Commission of the European Communities

41

2005/C 143/8

Case T-150/05: Action brought on 18 April 2005 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö against the Commission of the European Communities

42

2005/C 143/9

Case T-152/05: Action brought on 18 April 2005 by John Arthur Slater against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

43

2005/C 143/0

Removal from the Register of Case T-176/00

43

2005/C 143/1

Removal from the Register of Case T-225/01

44

2005/C 143/2

Removal from the Register of Case T-142/04

44

2005/C 143/3

Removal from the Register of Case T-228/04

44

2005/C 143/4

Removal from the Register of Case T-470/04

44

| | III   Notices |
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| 2005/C 143/5 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 132, 28.5.2005 | 45 |

III   Notices

2005/C 143/5

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 132, 28.5.2005

Official Journal of the European Union

45

| EN | |
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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 11.6.2005 | EN | Official Journal of the European Union | C 143/1 |
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11.6.2005

EN

Official Journal of the European Union

C 143/1

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Notice

An information note addressed to the national courts concerning the preliminary ruling procedure before the Court of Justice was communicated to them by the competent national authorities in 1996. That note having shown itself to be of use in practice, the Court has taken steps to bring it up to date in the light of experience and now considers it appropriate to distribute it by means of publication in the Official Journal of the European Union.

INFORMATION NOTE

on references from national courts for a preliminary ruling

(2005/C 143/01)

| 1. | The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States. |
| --- | --- |

1.

The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States.

| 2. | The Court of Justice of the European Communities has jurisdiction to give preliminary rulings on the interpretation of the law of the European Union and on the validity of acts of secondary legislation. That general jurisdiction is conferred on it by Article 234 of the EC Treaty and, in certain specific cases, by other provisions. |
| --- | --- |

2.

The Court of Justice of the European Communities has jurisdiction to give preliminary rulings on the interpretation of the law of the European Union and on the validity of acts of secondary legislation. That general jurisdiction is conferred on it by Article 234 of the EC Treaty and, in certain specific cases, by other provisions.

| 3. | The preliminary ruling procedure being based on cooperation between the Court and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information. |
| --- | --- |

3.

The preliminary ruling procedure being based on cooperation between the Court and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information.

| 4. | This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court. |
| --- | --- |

4.

This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court.

The role of the Court in the preliminary ruling procedure

| 5. | Under the preliminary ruling procedure, the Court's role is to give an interpretation of Community law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law. |
| --- | --- |

5.

Under the preliminary ruling procedure, the Court's role is to give an interpretation of Community law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law.

| 6. | In ruling on the interpretation or validity of Community law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question. |
| --- | --- |

6.

In ruling on the interpretation or validity of Community law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question.

The decision to submit a question to the Court

The originator of the question

| 7. | Under Article 234 of the EC Treaty and Article 150 of the EAEC Treaty, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court for a preliminary ruling. The status of that court or tribunal is interpreted by the Court as a self-standing concept of Community law. |
| --- | --- |

7.

Under Article 234 of the EC Treaty and Article 150 of the EAEC Treaty, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court for a preliminary ruling. The status of that court or tribunal is interpreted by the Court as a self-standing concept of Community law.

| 8. | However, in the specific sphere of acts of the institutions in Title IV of Part Three of the EC Treaty on visa, asylum, immigration and other policies related to free movement of persons — in particular jurisdiction and the recognition and enforcement of judicial decisions — a reference may be made only by courts or tribunals against the decisions of which there is no appeal, in accordance with Article 68 of the EC Treaty. |
| --- | --- |

8.

However, in the specific sphere of acts of the institutions in Title IV of Part Three of the EC Treaty on visa, asylum, immigration and other policies related to free movement of persons — in particular jurisdiction and the recognition and enforcement of judicial decisions — a reference may be made only by courts or tribunals against the decisions of which there is no appeal, in accordance with Article 68 of the EC Treaty.

| 9. | Likewise, under Article 35 of the Treaty on European Union, acts of the institutions in the area of police and judicial cooperation in criminal matters may be the subject of a reference for a preliminary ruling only from courts in the Member States which have accepted the jurisdiction of the Court, each Member State specifying whether that right of referral to the Court applies to any court or tribunal of that State or only to those against the decisions of which there is no appeal. |
| --- | --- |

9.

Likewise, under Article 35 of the Treaty on European Union, acts of the institutions in the area of police and judicial cooperation in criminal matters may be the subject of a reference for a preliminary ruling only from courts in the Member States which have accepted the jurisdiction of the Court, each Member State specifying whether that right of referral to the Court applies to any court or tribunal of that State or only to those against the decisions of which there is no appeal.

| 10. | It is not necessary for the parties in the case to raise the question; the national court may do so of its own motion. |
| --- | --- |

10.

It is not necessary for the parties in the case to raise the question; the national court may do so of its own motion.

References on interpretation

| 11. | Any court or tribunal may refer a question to the Court on the interpretation of a rule of Community law if it considers it necessary to do so in order to resolve a dispute brought before it. |
| --- | --- |

11.

Any court or tribunal may refer a question to the Court on the interpretation of a rule of Community law if it considers it necessary to do so in order to resolve a dispute brought before it.

| 12. | However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of Community law is obvious. |
| --- | --- |

12.

However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of Community law is obvious.

| 13. | Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient clarification is given by the case-law of the Court, itself decide on the correct interpretation of Community law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of Community law throughout the Union, or where the existing case-law does not appear to be applicable to a new set of facts. |
| --- | --- |

13.

Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient clarification is given by the case-law of the Court, itself decide on the correct interpretation of Community law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of Community law throughout the Union, or where the existing case-law does not appear to be applicable to a new set of facts.

| 14. | It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment. |
| --- | --- |

14.

It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment.

References on determination of validity

| 15. | Although national courts may reject pleas raised before them challenging the validity of Community acts, the Court has exclusive jurisdiction to declare such acts invalid. |
| --- | --- |

15.

Although national courts may reject pleas raised before them challenging the validity of Community acts, the Court has exclusive jurisdiction to declare such acts invalid.

| 16. | All national courts must therefore refer a question to the Court when they have doubts about the validity of a Community act, stating the reasons for which they consider that the Community act may be invalid. |
| --- | --- |

16.

All national courts must therefore refer a question to the Court when they have doubts about the validity of a Community act, stating the reasons for which they consider that the Community act may be invalid.

| 17. | If a national court has serious doubts about the validity of a Community act on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the Community act to be invalid. |
| --- | --- |

17.

If a national court has serious doubts about the validity of a Community act on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the Community act to be invalid.

The stage at which to submit a question for a preliminary ruling

| 18. | A national court or tribunal may refer a question to the Court of Justice for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred. |
| --- | --- |

18.

A national court or tribunal may refer a question to the Court of Justice for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred.

| 19. | It is, however, desirable that a decision to seek a preliminary ruling should be taken when the proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court has available to it all the information necessary to check, where appropriate, that Community law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard. |
| --- | --- |

19.

It is, however, desirable that a decision to seek a preliminary ruling should be taken when the proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court has available to it all the information necessary to check, where appropriate, that Community law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard.

The form of the reference for a preliminary ruling

| 20. | The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the parties entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated. |
| --- | --- |

20.

The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the parties entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated.

| 21. | Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail. |
| --- | --- |

21.

Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail.

| 22. | A maximum of about ten pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the parties entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:






  — | include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based; |
| --- | --- | --- |

22.

A maximum of about ten pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the parties entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:

—

include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based;

| — | set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (e.g. page of an official journal or specific law report, with any internet reference); |
| --- | --- |

—

set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (e.g. page of an official journal or specific law report, with any internet reference);

| — | identify the Community provisions relevant to the case as accurately as possible; |
| --- | --- |

—

identify the Community provisions relevant to the case as accurately as possible;

| — | explain the reasons which prompted the national court to raise the question of the interpretation or validity of the Community provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings; |
| --- | --- |

—

explain the reasons which prompted the national court to raise the question of the interpretation or validity of the Community provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings;

| — | include, where appropriate, a summary of the main arguments of the parties. |
| --- | --- |

—

include, where appropriate, a summary of the main arguments of the parties.

In order to make it easier to read and refer to the document, it is helpful if the different points or paragraphs of the order for reference are numbered.

| 23. | Finally, the referring court may, if it considers itself to be in a position to do so, briefly state its view on the answer to be given to the questions referred for a preliminary ruling. |
| --- | --- |

23.

Finally, the referring court may, if it considers itself to be in a position to do so, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.

| 24. | The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which however provides the necessary background for a proper assessment. |
| --- | --- |

24.

The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which however provides the necessary background for a proper assessment.

The effects of the reference for a preliminary ruling on the national proceedings

| 25. | A reference for a preliminary ruling in general calls for the national proceedings to be stayed until the Court has given its ruling. |
| --- | --- |

25.

A reference for a preliminary ruling in general calls for the national proceedings to be stayed until the Court has given its ruling.

| 26. | However, the national court may still order protective measures, particularly in a reference on determination of validity (see point 17 above). |
| --- | --- |

26.

However, the national court may still order protective measures, particularly in a reference on determination of validity (see point 17 above).

Costs and legal aid

| 27. | Proceedings for a preliminary ruling before the Court are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs. |
| --- | --- |

27.

Proceedings for a preliminary ruling before the Court are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs.

| 28. | If a party has insufficient means and where possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers' fees, which it incurs before the Court. The Court itself may also grant legal aid. |
| --- | --- |

28.

If a party has insufficient means and where possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers' fees, which it incurs before the Court. The Court itself may also grant legal aid.

Communication between the national court and the Court of Justice

| 29. | The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice of the European Communities, L-2925 Luxembourg, telephone + 352-4303-1). |
| --- | --- |

29.

The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice of the European Communities, L-2925 Luxembourg, telephone + 352-4303-1).

| 30. | The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents. |
| --- | --- |

30.

The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents.

| 31. | The Court will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court's final decision. |
| --- | --- |

31.

The Court will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court's final decision.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/5 |
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11.6.2005

EN

Official Journal of the European Union

C 143/5

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JUDGMENT OF THE COURT

(Grand Chamber)

of 26 April 2005

in Case C-494/01: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Environment - Waste management - Directive 75/442/EEC, as amended by Directive 91/156/EC - Articles 4, 5, 8, 9, 10, 12, 13 and 14)

(2005/C 143/02)

Language of the case: English

In Case C-494/01, action under Article 226 EC for failure to fulfil obligations, brought on 20 December 2001, Commission of the European Communities (Agents: R. Wainwright and X. Lewis) v Ireland (Agent: D. O'Hagan, assisted by P. Charleton SC and A. Collins BL) — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann (Rapporteur), C.W.A. Timmermans and A. Rosas, Presidents of Chambers, J. P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, M. Ilešič, J. Malenovský, U. Lõhmus and E. Levits, Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 26 April 2005, in which it:

| 1. | Declares that, by failing to take all the measures necessary to ensure a correct implementation of the provisions of Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, Ireland has failed to comply with its obligations under those provisions; |
| --- | --- |

1.

Declares that, by failing to take all the measures necessary to ensure a correct implementation of the provisions of Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, Ireland has failed to comply with its obligations under those provisions;

| 2. | Declares that, by failing to respond to a request for information dated 20 September 1999 in relation to waste operations at Fermoy, County Cork, Ireland has failed to fulfil the obligations which it has pursuant to Article 10 EC; |
| --- | --- |

2.

Declares that, by failing to respond to a request for information dated 20 September 1999 in relation to waste operations at Fermoy, County Cork, Ireland has failed to fulfil the obligations which it has pursuant to Article 10 EC;

| 3. | Orders Ireland to pay the costs. |
| --- | --- |

3.

Orders Ireland to pay the costs.

---

(1)  OJ C 56 of 02.03.2002.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/5 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/5

---

JUDGMENT OF THE COURT

(First Chamber)

of 17 March 2005

in Case C-294/02: Commission of the European Communities v AMI Semiconductor Belgium BVBA and Others (1)

(Arbitration clause - Designation of the Court of First Instance - Jurisdiction of the Court of Justice - Parties in liquidation - Capacity to be parties to legal proceedings - Regulation (EC) No 1346/2000 - Insolvency proceedings - Recovery of advances - Reimbursement under a clause of the contract - Joint and several liability - Recovery of sums paid but not due)

(2005/C 143/03)

Language of the case: German

In Case C-294/02, Commission of the European Communities (Agent: M G. Wilms, assisted by R. Karpenstein) v AMI Semiconductor Belgium BVBA, formerly Alcatel Microelectronics NV, established in Oudenaarde (Belgium), (Rechtsanwälte: M. Hallweger and R. Lutz), A-Consult EDV-Beratungsgesellschaft mbH (in liquidation), established in Vienna (Austria), (Rechtsanwalt: E. Roehlich), Intracom SA Hellenic Telecommunications & Electronic Industry, established in Athens (Greece), (avocats: M. Lienemeyer, U. Zinsmeister and D. Waelbroeck), ISION Sales + Services GmbH & Co. KG (in liquidation), established in Hamburg (Germany), (Rechtsanwälte: H. Fialski and T. Delhey), Euram-Kamino GmbH, established in Hallbergmoos (Germany), (Rechtsanwälte: M. Hallweger and R. Lutz), HSH Nordbank AG, formerly Landesbank Kiel Girozentrale, established in Kiel (Germany), (Rechtsanwälte: B. Treibmann and E. Meincke), and InterTeam GmbH (in liquidation), established in Itzehoe (Germany), (Rechtsanwälte: M. Hallweger and R. Lutz) — application under Article 238 EC brought on 12 August 2002 — the Court (First Chamber), composed of P. Jann, President of the Chamber, R. Silva de Lapuerta, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges; J. Kokott, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 17 March 2005, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | Dismisses the counterclaim by Intracom SA Hellenic Telecommunications & Electronic Industry; |
| --- | --- |

2.

Dismisses the counterclaim by Intracom SA Hellenic Telecommunications & Electronic Industry;

| 3. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

3.

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

---

(1)  OJ C 289 of 23.11.2002.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/6 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/6

---

JUDGMENT OF THE COURT

(First Chamber)

of 14 April 2005

in Case C-341/02: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations - Directive 96/71/EC - Posting of workers in the framework of the provision of services - Undertakings in the construction industry - Minimum wages - Comparison between the minimum wage established by the provisions of the Member State to the territory of which a worker is posted and the remuneration actually paid by his employer established in another Member State - Failure to take into account, as constituent elements of the minimum wage, all of the allowances and supplements paid by the employer established in another Member State)

(2005/C 143/04)

Language of the case: German

In Case C-341/02, Commission of the European Communities (Agents: J. Sack and H. Kreppel) v Federal Republic of Germany (Agents: W.-D. Plessing and A. Tiemann) — action for failure to fulfil obligations under Article 226 EC, brought on 25 September 2002, — the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), K. Lenaerts, S. von Bahr and K. Schiemann, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 14 April 2005, in which it:

| 1. | Declares that, by failing to recognise as constituent elements of the minimum wage allowances and supplements which do not alter the relationship between the service provided by a worker and the consideration which that worker receives in return, and which are paid by employers established in other Member States to their employees in the construction industry who are posted to Germany, with the exception of the general bonus granted to workers in the construction industry, the Federal Republic of Germany has failed to fulfil its obligations under Article 3 of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services; |
| --- | --- |

1.

Declares that, by failing to recognise as constituent elements of the minimum wage allowances and supplements which do not alter the relationship between the service provided by a worker and the consideration which that worker receives in return, and which are paid by employers established in other Member States to their employees in the construction industry who are posted to Germany, with the exception of the general bonus granted to workers in the construction industry, the Federal Republic of Germany has failed to fulfil its obligations under Article 3 of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services;

| 2. | Dismisses the remainder of the action; |
| --- | --- |

2.

Dismisses the remainder of the action;

| 3. | Orders each party to bear its own costs. |
| --- | --- |

3.

Orders each party to bear its own costs.

---

(1)  OJ C 305 of 07.12.2002.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/6 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/6

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 26 April 2005

in Case C-376/02 Reference for a preliminary ruling from the Hoge Raad der Nederlanden Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën (1)

(Turnover tax - Common system of value added tax - Article 17 of Sixth Directive 77/388/EEC - Deduction of input tax - Amendment of national legislation - Retroactive effect - Principles of the protection of legitimate expectations and legal certainty)

(2005/C 143/05)

Language of the case: Dutch

In Case C-376/02: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 18 October 2002, received at the Court on 21 October 2002, in the proceedings pending before that court between Stichting ‘Goed Wonen’ and Staatssecretaris van Financiën — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas (Rapporteur), R. Silva de Lapuerta and A. Borg Barthet, Presidents of Chambers, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, P. Kūris, E. Juhász, G. Arestis and M. Ilešič, Judges; A. Tizzano, Advocate General, M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 26 April 2005, the operative part of which is as follows:

| | The principles of the protection of legitimate expectations and legal certainty do not preclude a Member State, on an exceptional basis and in order to avoid the large-scale use, during the legislative process, of contrived financial arrangements intended to minimise the burden of value added tax that an amending law is specifically designed to combat, from giving that law retroactive effect when, in circumstances such as those in the main proceedings, economic operators carrying out economic transactions such as those referred to by the law were warned of the impending adoption of that law and of the retroactive effect envisaged in a way that enabled them to understand the consequences of the legislative amendment planned for the transactions they carry out. |
| --- | --- |

The principles of the protection of legitimate expectations and legal certainty do not preclude a Member State, on an exceptional basis and in order to avoid the large-scale use, during the legislative process, of contrived financial arrangements intended to minimise the burden of value added tax that an amending law is specifically designed to combat, from giving that law retroactive effect when, in circumstances such as those in the main proceedings, economic operators carrying out economic transactions such as those referred to by the law were warned of the impending adoption of that law and of the retroactive effect envisaged in a way that enabled them to understand the consequences of the legislative amendment planned for the transactions they carry out.

| | When that law exempts an economic transaction in respect of immovable property previously subject to value added tax, it may have the effect of revoking a value added tax adjustment made on account of the exercise, when immovable property was used for a transaction regarded at that time as taxable, of a right to deduct value added tax paid in respect of the supply of that immovable property. |
| --- | --- |

When that law exempts an economic transaction in respect of immovable property previously subject to value added tax, it may have the effect of revoking a value added tax adjustment made on account of the exercise, when immovable property was used for a transaction regarded at that time as taxable, of a right to deduct value added tax paid in respect of the supply of that immovable property.

---

(1)  OJ C 7 of 11.01.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/7 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/7

---

JUDGMENT OF THE COURT

(Second Chamber)

of 21 April 2005

in Case C-25/03 Reference for a preliminary ruling from the Bundesfinanzhof (Germany) Finanzamt Bergisch Gladbach v HE (1)

(Sixth VAT Directive - Construction of a dwelling by two spouses forming a community which does not itself perform an economic activity - Use of one room by one of the co-owners for business purposes - Status of taxable person - Right to deduct - Rules governing exercise of that right - Invoicing requirements)

(2005/C 143/06)

Language of the case: German

In Case C-25/03: reference for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany) made by decision of 29 August 2002, received at the Court on 23 January 2003, in the proceedings pending before that court between Finanzamt Bergisch Gladbach and HE — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, R. Schintgen (Rapporteur), G. Arestis and J. Klučka, Judges; A. Tizzano, Advocate General, K. Sztranc, for the Registrar, gave a judgment on 21 April 2005, the operative part of which is as follows:

Sixth Council Directive 77/388/EEC 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, both in its original version and following amendment by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers, is to be interpreted as follows:

| — | where a person purchases a house, or has a house built, in order to live in it with his family he is acting as a taxable person, and is thus entitled to make deductions under Article 17 of the Sixth Directive in so far as he uses one room in that building as an office for the purposes of carrying out an economic activity, albeit an ancillary one, within the meaning of Articles 2 and 4 of the directive and allocates that part of the building to the assets of his business; |
| --- | --- |

—

where a person purchases a house, or has a house built, in order to live in it with his family he is acting as a taxable person, and is thus entitled to make deductions under Article 17 of the Sixth Directive in so far as he uses one room in that building as an office for the purposes of carrying out an economic activity, albeit an ancillary one, within the meaning of Articles 2 and 4 of the directive and allocates that part of the building to the assets of his business;

| — | where a marital community which does not have legal personality and does not itself carry out an economic activity within the meaning of the Sixth Directive places an order for a capital item, the co-owners forming that community are to be regarded as recipients of the transaction for the purposes of the directive; |
| --- | --- |

—

where a marital community which does not have legal personality and does not itself carry out an economic activity within the meaning of the Sixth Directive places an order for a capital item, the co-owners forming that community are to be regarded as recipients of the transaction for the purposes of the directive;

| — | where spouses forming a community by marriage purchase a capital item, part of which is used exclusively for business purposes by one of the co-owning spouses, that spouse is entitled to deduct in respect of all the input value added tax attributable to the share of the item which he uses for the purposes of his business, in so far as the amount deducted does not exceed the limits of the taxable person's interest in the co-ownership of the item; |
| --- | --- |

—

where spouses forming a community by marriage purchase a capital item, part of which is used exclusively for business purposes by one of the co-owning spouses, that spouse is entitled to deduct in respect of all the input value added tax attributable to the share of the item which he uses for the purposes of his business, in so far as the amount deducted does not exceed the limits of the taxable person's interest in the co-ownership of the item;

| — | Articles 18(1)(a) and 22(3) of the Sixth Directive do not require the taxable person, in order to be able to exercise the right to deduct in circumstances such as those at issue in the main proceedings, to hold an invoice issued in his name and stating the proportions of the payments and value added tax corresponding to his interest in the property held in co-ownership. An invoice issued to the co-owning spouses without distinguishing between them and without reference to such apportionment is sufficient for that purpose. |
| --- | --- |

—

Articles 18(1)(a) and 22(3) of the Sixth Directive do not require the taxable person, in order to be able to exercise the right to deduct in circumstances such as those at issue in the main proceedings, to hold an invoice issued in his name and stating the proportions of the payments and value added tax corresponding to his interest in the property held in co-ownership. An invoice issued to the co-owning spouses without distinguishing between them and without reference to such apportionment is sufficient for that purpose.

---

(1)  OJ C 70 of 22.3.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/8 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/8

---

JUDGMENT OF THE COURT

(Second Chamber)

of 21 April 2005

in Case C-140/03 Commission of the European Communities v Hellenic Republic (1)

(Failure by a Member State to fulfil obligations - Articles 43 EC and 48 EC - Opticians - Conditions of establishment - Establishment and operation of opticians' shops - Restrictions - Justification - Principle of proportionality)

(2005/C 143/07)

Language of the case: Greek

In Case C-140/03 Commission of the European Communities (Agent: M. Patakia) v Hellenic Republic (Agent: E. Skandalou) — action under Article 226 EC for failure to fulfil obligations, brought on 27 March 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann (Rapporteur), P. Kūris and G. Arestis, Judges; D. Ruiz-Jarabo Colomer, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 21 April 2005, in which it:

| 1. | Declares that by enacting and maintaining in force Law No 971/79 on the exercise of the profession of optician and on shops for the sale of optical articles, which does not permit a qualified optician as a natural person to operate more than one optician's shop, the Hellenic Republic has failed to fulfil its obligations under Article 43 EC; |
| --- | --- |

1.

Declares that by enacting and maintaining in force Law No 971/79 on the exercise of the profession of optician and on shops for the sale of optical articles, which does not permit a qualified optician as a natural person to operate more than one optician's shop, the Hellenic Republic has failed to fulfil its obligations under Article 43 EC;

| 2. | Declares that by enacting and maintaining in force Law No 971/79 and Law No 2646/98 on the development of a national social security system and other provisions, under which the establishment by a legal person of an optician's shop in Greece is subject to the following conditions:






  — | authorisation for the establishment and operation of the optician's shop must have been granted to a recognised optician who is a natural person, the person holding the authorisation to operate the shop must hold at least 50 % of the company's share capital and must participate at least to that extent in the profits and losses of the company, and the company must be in the form of a collective or limited partnership, and |
| --- | --- | --- |

2.

Declares that by enacting and maintaining in force Law No 971/79 and Law No 2646/98 on the development of a national social security system and other provisions, under which the establishment by a legal person of an optician's shop in Greece is subject to the following conditions:

—

authorisation for the establishment and operation of the optician's shop must have been granted to a recognised optician who is a natural person, the person holding the authorisation to operate the shop must hold at least 50 % of the company's share capital and must participate at least to that extent in the profits and losses of the company, and the company must be in the form of a collective or limited partnership, and

| — | the optician in question may participate at most in one other company owning an optician's shop, subject to the condition that the authorisation for the establishment and operation of that shop is in the name of another authorised optician, |
| --- | --- |

—

the optician in question may participate at most in one other company owning an optician's shop, subject to the condition that the authorisation for the establishment and operation of that shop is in the name of another authorised optician,

the Hellenic Republic has failed to fulfil its obligations under Articles 43 EC and 48 EC;

| 3. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

3.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 135 of 07.06.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/8 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/8

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 14 April 2005

in Case C-163/03: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 80/68/EEC - Protection of groundwater against pollution caused by certain dangerous substances - Articles 3, 4 and 5 - Directive 91/689/EEC - Hazardous waste - Article 2(1) and Article 6(1)

(2005/C 143/08)

Language of the case: Greek

In Case C-163/03 Commission of the European Communities (Agents: G. Valero Jordana and M. Konstantinidis) v Hellenic Republic (Agent: E. Skandalou) — action under Article 226 EC for failure to fulfil obligations, brought on 8 April 2003 — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 14 April 2005, in which it:

| 1. | Declares that, having failed, as regards the region of Thriassion Pedion:






  — | to adopt the measures necessary to prevent the introduction into groundwater of substances in list I of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, and to limit the introduction into groundwater of substances in list II of that directive so as to avoid pollution of that water by those substances, |
| --- | --- | --- |

1.

Declares that, having failed, as regards the region of Thriassion Pedion:

—

to adopt the measures necessary to prevent the introduction into groundwater of substances in list I of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, and to limit the introduction into groundwater of substances in list II of that directive so as to avoid pollution of that water by those substances,

| — | to subject to prior investigation any disposal or tipping for the purpose of disposal of the substances in list I of that directive which might lead to indirect discharge, and |
| --- | --- |

—

to subject to prior investigation any disposal or tipping for the purpose of disposal of the substances in list I of that directive which might lead to indirect discharge, and

| — | to subject to prior investigation all direct discharge of substances in list II of Directive 80/68 and the disposal or tipping for the purpose of disposal of those substances which might lead to indirect discharge, |
| --- | --- |

—

to subject to prior investigation all direct discharge of substances in list II of Directive 80/68 and the disposal or tipping for the purpose of disposal of those substances which might lead to indirect discharge,

the Hellenic Republic has failed to fulfil its obligations under Articles 3, 4 and 5 of Directive 80/68.

| 2. | Declares that, having failed to take the measures necessary to record and identify the hazardous waste tipped in the region of Thriassion Pedion and to draw up, either separately or in the framework of their general waste management plans, plans for the management of hazardous waste in the region of Thriassion Pedion, the Hellenic Republic has failed to fulfil its obligations under Article 2(1) and Article 6(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste. |
| --- | --- |

2.

Declares that, having failed to take the measures necessary to record and identify the hazardous waste tipped in the region of Thriassion Pedion and to draw up, either separately or in the framework of their general waste management plans, plans for the management of hazardous waste in the region of Thriassion Pedion, the Hellenic Republic has failed to fulfil its obligations under Article 2(1) and Article 6(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste.

| 3. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

3.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 135 of 07.06.2003

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/9 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/9

---

JUDGMENT OF THE COURT

(Second Chamber)

of 21 April 2005

in Joined Cases C-207/03 and C-252/03: References for preliminary rulings from the High Court of Justice of England and Wales, Chancery Division (Patents Court) (United Kingdom, C-207/03), and from the Cour administrative (Luxembourg, C-252/03) Novartis AG and Others v Comptroller-General of Patents, Designs and Trade Marks for the United Kingdom, and Ministre de l'Économie v Millennium Pharmaceuticals Inc. (1)

(Patent law - Medicinal products - Supplementary protection certificate for medicinal products)

(2005/C 143/09)

Languages of the case: English and French

In Joined Cases C-207/03 and C-252/03: References for preliminary rulings under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (Patents Court) (United Kingdom, C-207/03), and from the Cour administrative (Luxembourg, C-252/03), made by decisions of 6 May and 3 June 2003, received at the Court on 14 May and 13 June 2003, in the proceedings between Novartis AG (C-207/03), University College London, Institute of Microbiology and Epidemiology and Comptroller-General of Patents, Designs and Trade Marks for the United Kingdom and between Ministre de l'Économie (C-252/03) and Millennium Pharmaceuticals Inc., formerly Cor Therapeutics Inc. — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate General, M. Múgica Arzamendi, Administrator, for the Registrar, gave a judgment on 21 April 2005, the operative part of which is as follows:

In so far as an authorisation to place a medicinal product on the market issued by the Swiss authorities and automatically recognised by the Principality of Liechtenstein under that State's legislation is the first authorisation to place that product on the market in one of the States of the European Economic Area, it constitutes the first authorisation to place the product on the market within the meaning of Article 13 of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as it is to be read for the purposes of the application of the Agreement on the European Economic Area.

---

(1)  OJ C 158 of 05.07.2003, OJ C 200 of 23.08.2003.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/9 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/9

---

JUDGMENT OF THE COURT

(Second Chamber)

of 21 April 2005

in Case C-267/03 Reference for a preliminary ruling from the Högsta domstolen Lars Erik Staffan Lindberg (1)

(Directive 83/189/EEC - Notification procedure in the field of technical standards and regulations - Obligation to notify draft technical regulations - National legislation on gaming and lotteries - Gaming machines - Prohibition on the organisation of games on gaming machines which do not pay out winnings directly - Machines of the ‘wheel of fortune’ type - Definition of 'technical regulation')

(2005/C 143/10)

Language of the case: Swedish

In Case C-267/03: reference for a preliminary ruling under Article 234 EC from the Högsta domstolen (Sweden), made by decision of 10 April 2003, received at the Court on 18 June 2003, in the criminal proceedings against Lars Erik Staffan Lindberg — the Court: (Second Chamber) composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges; F.G. Jacobs, Advocate General, H. von Holstein, Deputy Registrar, gave a judgment on 21 April 2005, the operative part of which is as follows:

| 1. | National provisions such as the Law on Lotteries (lotterilagen (1994:1000)), in the version resulting from the law amending the Law on Lotteries (lag om ändring i lotterilagen (1996:1168)), which entail a prohibition on the organisation of games of chance using certain gaming machines are liable to constitute a technical regulation within the meaning of Article 1(9) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994, where it is established that the scope of the prohibition at issue leaves no room for any use which can reasonably be expected of the product concerned other than a purely marginal one or, if that is not the case, where it is established that that prohibition may significantly influence the composition or nature of the product or its marketing. |
| --- | --- |

1.

National provisions such as the Law on Lotteries (lotterilagen (1994:1000)), in the version resulting from the law amending the Law on Lotteries (lag om ändring i lotterilagen (1996:1168)), which entail a prohibition on the organisation of games of chance using certain gaming machines are liable to constitute a technical regulation within the meaning of Article 1(9) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994, where it is established that the scope of the prohibition at issue leaves no room for any use which can reasonably be expected of the product concerned other than a purely marginal one or, if that is not the case, where it is established that that prohibition may significantly influence the composition or nature of the product or its marketing.

| 2. | Redefining in national legislation a service connected with the design of a product, in particular that of operating certain gaming machines, as the law (1996:1168) amending the Law on Lotteries did, can constitute a technical regulation which must be notified under Directive 83/189, as amended by Directive 94/10, if that new legislation does not merely reproduce or replace, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189 in the Member State concerned, have been duly notified to the Commission of the European Communities. |
| --- | --- |

2.

Redefining in national legislation a service connected with the design of a product, in particular that of operating certain gaming machines, as the law (1996:1168) amending the Law on Lotteries did, can constitute a technical regulation which must be notified under Directive 83/189, as amended by Directive 94/10, if that new legislation does not merely reproduce or replace, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189 in the Member State concerned, have been duly notified to the Commission of the European Communities.

| 3. | The replacement of a licence requirement by a prohibition in national law may be a significant factor with regard to the obligation to notify provided for by Directive 83/189, as amended by Directive 94/10.
  The greater or lesser value of the product or service or the size of the market for the product or service are factors which are not relevant as regards the obligation to notify provided for by that directive. |
| --- | --- |

3.

The replacement of a licence requirement by a prohibition in national law may be a significant factor with regard to the obligation to notify provided for by Directive 83/189, as amended by Directive 94/10.

The greater or lesser value of the product or service or the size of the market for the product or service are factors which are not relevant as regards the obligation to notify provided for by that directive.

---

(1)  OJ C 213 of 06.09.2003.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/10 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/10

---

JUDGMENT OF THE COURT

(First Chamber)

of 14 April 2005

in Case C-385/03: Reference for a preliminary ruling from the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v Käserei Champignon Hofmeister GmbH & Co. KG (1)

(Export refunds - Misdeclaration - Meaning of ‘request’ - Sanction - Requirements)

(2005/C 143/11)

Language of the case: German

In Case C-385/03: reference for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 30 July 2003, received at the Court on 12 September 2003, in the proceedings between Hauptzollamt Hamburg-Jonas and Käserei Champignon Hofmeister GmbH & Co. KG — the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues, E. Juhász (Rapporteur) and E. Levits, Judges; C. Stix-Hackl, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 14 April 2005, the operative part of which is as follows:

The first and second subparagraphs of Article 11(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994, are to be interpreted as meaning that wrong information contained in a document referred to in Article 3(5) of that regulation, that is, the export declaration or another document used for export, and capable of leading to a refund in excess of the refund applicable, gives rise to the imposition of the sanction prescribed by Article 11. That rule applies even if, in connection with the application for payment referred to in Article 47 of that regulation, it is expressly stated that payment of the export refund is not sought for certain products covered by that document.

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(1)  OJ C 275 of 15.11.2003.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/11 |
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C 143/11

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JUDGMENT OF THE COURT

(Second Chamber)

of 14 April 2005

in Case C-441/03: Commission of the European Communities v Kingdom of the Netherlands (1)

(Failure by a Member State to fulfil its obligations - Directives 79/409/EEC and 92/43/EEC - Conservation of wild birds - Conservation of natural habitats - Failure to transpose within the prescribed periods)

(2005/C 143/12)

Language of the case: Dutch

In Case C-441/03: Action under Article 226 EC for failure to fulfil obligations, brought on 16 October 2003, Commission of the European Communities (Agent: M. van Beek) v Kingdom of the Netherlands (Agents: H.G. Sevenster and N.A.J. Bel) — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), R. Schintgen, P. Kūris and G. Arestis, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 14 April 2005, in which it:

| 1. | Declares that, by failing to bring into force within the prescribed periods all the laws, regulations and administrative provisions necessary to comply with the requirements of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and of Article 6(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Articles 2(2), 1(a), (e) and (i), 6(2) to (4), 7, 11 and 15 thereof and by maintaining in force Article 13(4) of the Nature Conservancy Law (Natuurbeschermingswet), which is incompatible with Article 6(4) of Directive 92/43, the Kingdom of the Netherlands has failed to fulfil its obligations under those directives; |
| --- | --- |

1.

Declares that, by failing to bring into force within the prescribed periods all the laws, regulations and administrative provisions necessary to comply with the requirements of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and of Article 6(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Articles 2(2), 1(a), (e) and (i), 6(2) to (4), 7, 11 and 15 thereof and by maintaining in force Article 13(4) of the Nature Conservancy Law (Natuurbeschermingswet), which is incompatible with Article 6(4) of Directive 92/43, the Kingdom of the Netherlands has failed to fulfil its obligations under those directives;

| 2. | Dismisses the remainder of the application; |
| --- | --- |

2.

Dismisses the remainder of the application;

| 3. | Orders the Kingdom of the Netherlands to pay the costs. |
| --- | --- |

3.

Orders the Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 304 of 13.12.2003.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/11 |
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JUDGMENT OF THE COURT

(Third Chamber)

of 14 April 2005

in Case C-519/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Framework agreement on parental leave - Substitution of maternity leave for parental leave - Date from which an individual right to parental leave is granted)

(2005/C 143/13)

Language of the case: French

In Case C-519/03 Commission of the European Communities (Agent: D. Martin) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to fulfil obligations, brought on 12 December 2003 — the Court (Third Chamber), composed of A. Borg Barthet (Rapporteur), acting for the President of the Third Chamber, J.-P. Puissochet, S. von Bahr, U. Lõhmus and A. Ó Caoimh, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 14 April 2005, in which it:

| 1. | Declares that, by providing that the right to maternity leave or adoption leave arising during parental leave replaces the latter which must then come to an end, without its being possible for the parent to defer the portion of the parental leave which he or she was unable to take and by limiting the grant of the right to parental leave to parents of children born after 31 December 1998, or in respect of whom adoption proceedings were initiated after that date, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC; |
| --- | --- |

1.

Declares that, by providing that the right to maternity leave or adoption leave arising during parental leave replaces the latter which must then come to an end, without its being possible for the parent to defer the portion of the parental leave which he or she was unable to take and by limiting the grant of the right to parental leave to parents of children born after 31 December 1998, or in respect of whom adoption proceedings were initiated after that date, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

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(1)  OJ C 35 of 07.02.2004, p. 5.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/12 |
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C 143/12

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 14 April 2005

in Case C-22/04 Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil its obligations - Regulation (EEC) No 2847/93 - Fishing vessels - Establishment of a satellite-based position monitoring system - Failure to transpose within the prescribed periods)

(2005/C 143/14)

Language of the case: Greek

In Case C-22/04 Commission of the European Communities (Agents: M Condou-Durande and T. van Rijn) v Hellenic Republic (Agents: A. Samoni-Rantou and S. Chala) — action under Article 226 EC for failure to fulfil obligations, brought on 26 January 2004 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and P. Kūris (Rapporteur), Judges; C. Stix-Hackl, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 14 April 2005, in which it:

| 1. | Declares that by failing to ensure that fishing vessels which fly its flag and must be equipped with satellite-tracking devices were in fact equipped with such devices, according to the type of vessel concerned, on 30 June 1998 or 1 January 2000, the Hellenic Republic has failed to fulfil its obligations under Article 3 of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 686/97 of 14 April 1997; |
| --- | --- |

1.

Declares that by failing to ensure that fishing vessels which fly its flag and must be equipped with satellite-tracking devices were in fact equipped with such devices, according to the type of vessel concerned, on 30 June 1998 or 1 January 2000, the Hellenic Republic has failed to fulfil its obligations under Article 3 of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 686/97 of 14 April 1997;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 85 of 3.4.2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/12 |
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C 143/12

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 14 April 2005

in Case C-146/04: Commission of the European Communities against the Kingdom of the Netherlands (1)

(Failure of a Member State to fulfil obligations - Directives 2000/69/EC and 2001/81/EC - Atmospheric pollutants - Failure to transpose)

(2005/C 143/15)

Language of the case: Dutch

In Case C-146/04, action for failure to fulfil obligations brought on 19 March 2004 under Article 226 EC, Commission of the European Communities (Agents: M. van Beel and G. Valero Jordana) against Kingdom of the Netherlands (agents: H.G. Sevenster and J. van Bakel), the Court (Sixth Chamber), composed of A. Borg Barthet (Rapporteur), President of the Chamber, S. von Bahr and J. Malenkovský, Judges, Advocate General: P. Léger, Registrar: R. Grass, has given a judgment on 14 April 2005 in which it:

| 1. | Declares that by failing to adopt the necessary laws, regulations and administrative measures necessary to comply with Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air and Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, the Kingdom of the Netherlands has failed to fulfil its obligations under those directives; |
| --- | --- |

1.

Declares that by failing to adopt the necessary laws, regulations and administrative measures necessary to comply with Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air and Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, the Kingdom of the Netherlands has failed to fulfil its obligations under those directives;

| 2. | Orders Kingdom of the Netherlands to pay the costs. |
| --- | --- |

2.

Orders Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 106 of 30.4.2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/13 |
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C 143/13

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 14 April 2005

in Case C-171/04 Commission of the European Communities v Kingdom of the Netherlands (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/80/EC - non-transposition)

(2005/C 143/16)

Language of the case: Dutch

In Case C-171/04 Commission of the European Communities (Agents: M. van Beek and G. Valero Jordana) v Kingdom of the Netherlands (Agents: H. Sevenster and J. van Bakel) — action under Article 226 EC for failure to fulfil obligations, brought on 5 April 2004 — the Court (Fourth Chamber), composed of K. Lenaerts, President of Chamber, N. Colneric and E. Juhász (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 14 April 2005, in which it:

| 1. | Declares that by not adopting the legislation, regulations and administrative provisions necessary to comply with Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by not adopting the legislation, regulations and administrative provisions necessary to comply with Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

| 2. | Orders the Kingdom of the Netherlands to pay the costs. |
| --- | --- |

2.

Orders the Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 106 of 30.4.2004

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/13 |
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11.6.2005

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C 143/13

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 14 April 2005

in Case C-299/04: Commission of the European Communities v Hellenic Republic (1)

(Failure by a Member State to fulfil its obligations - Directive 2002/77/EC - Markets for electronic communications networks and services - Failure to transpose within the prescribed period)

(2005/C 143/17)

Language of the case: Greek

In Case C-299/04, Commission of the European Communities (Agents: T. Christoforou and K. Mojzesowicz) v Hellenic Republic (Agent: N. Dafniou) — action for failure to fulfil obligations under Article 226 EC, brought on 14 July 2004 — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and J. Malenovský, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 14 April 2005, in which it:

| (1) | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, the Hellenic Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

(1)

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, the Hellenic Republic has failed to fulfil its obligations under that directive.

| (2) | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

(2)

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 228 of 11. 09. 2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/13 |
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C 143/13

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 28 April 2005

in Case C-329/04: Commission of the European Communities v Federal Republic of Germany (1)

(Failure by a Member State to fulfil its obligations - Directive 2000/43/EC - Failure to transpose within the prescribed period)

(2005/C 143/18)

Language of the case: German

In Case C-329/04 Commission of the European Communities (Agents: D. Martin and H. Kreppel) v Federal Republic of Germany (Agent: C.-D Quassowski) — action for failure to fulfil obligations under Article 226 EC, brought on 29 July 2004 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, P. Kūris and J. Klučka, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 28 April 2005, in which it:

| (1) | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, the Federal Republic of Germany has failed to fulfil its obligations under that directive. |
| --- | --- |

(1)

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, the Federal Republic of Germany has failed to fulfil its obligations under that directive.

| (2) | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

(2)

Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 239 of 25. 09. 2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/14 |
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11.6.2005

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Official Journal of the European Union

C 143/14

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 28 April 2005

in Case C-375/04: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 2002/58/EC - Electronic communications - Processing of personal data - Protection of privacy - Protection of natural persons - Failure to tranpose within the prescribed period)

(2005/C 143/19)

Language of the case: French

In Case C-375/04 Commission of the European Communities (Agent: M. Shotter) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to fulfil obligations, brought on 1 September 2004 — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, U. Lõhmus (Rapporteur) and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 28 April 2005, in which it:

| 1. | Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

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(1)  OJ C 262 of 23.10.2004.

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11.6.2005

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Official Journal of the European Union

C 143/14

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 28 April 2005

in Case C-376/04: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations - Directive 2002/58/EC - Electronic communications - Processing of personal data - Protection of privacy - Protection of natural persons - Failure to transpose within the prescribed period)

(2005/C 143/20)

Language of the case: French

In Case C-376/04 Commission of the European Communities (Agent: M. Shotter) v Kingdom of Belgium (Agent: E. Dominkovits) — action under Article 226 EC for failure to fulfil obligations, brought on 2 September 2004 — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, U. Lõhmus (Rapporteur) and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 28 April 2005, in which it:

| 1. | Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the Kingdom of Belgium has failed to fulfil its obligations under that directive;

| 2. | Orders the Kingdom of Belgium to pay the costs. |
| --- | --- |

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 262 of 23.10.2004.

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Reference for a preliminary ruling from the Korsholms tingsrätt by order of that court of 18 February 2005 in Teemu Hakala v Oy L Simons Transport AB

(Case C-93/05)

(2005/C 143/21)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Korsholms tingsrätt (Sweden) of 18 February 2005, received at the Court Registry on 22 February 2005, for a preliminary ruling in the proceedings between Teemu Hakala and Oy L Simons Transport AB on the following question:

Is a pay scheme which is based on distance covered, in circumstances such as those of this case, contrary to Council Regulation (EEC) No 3820/85 (1) and in particular to Article 10 thereof?

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(1)  of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ L 370, 31.12.1985, p. 1).

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/15 |
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Action brought on 4 March 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-112/05)

(2005/C 143/22)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 4 March 2005 by the Commission of the European Communities, represented by F. Benyon and G. Braun, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that Paragraphs 2(1), 4(1) and 4(3) of the VW-Gesetz infringe Articles 56 EC and 43 EC; |
| --- | --- |

1.

declare that Paragraphs 2(1), 4(1) and 4(3) of the VW-Gesetz infringe Articles 56 EC and 43 EC;

| 2. | order the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Federal Republic of Germany's Gesetz über die Überführung der Anteilsrechte an der Volkswagen Gesellschaft mit beschränkter Haftung in private Hand (Law on the privatisation of equity in the Volkswagenwerk limited company; hereinafter ‘VW-Gesetz’) limits, by way of derogation from the provisions of the Aktiengesetz (Company Law), each shareholder's voting rights to a maximum of 20 % of the share capital. The Federal Republic of Germany and the Land Lower Saxony are each entitled to appoint two members of the supervisory board of VW AG, provided that they hold shares in the company. Resolutions of the general shareholders' meeting of Volkswagen AG, for which a majority of 75 % of the share capital represented at the time of voting is required under the Aktiengesetz, require a majority of more than 80 % of the share capital represented.

Those provisions are an infringement of the free movement of capital under Article 56 EC and the freedom of establishment under Article 43 EC.

The Annex to Directive 88/361/EEC includes among movements of capital not only investment in shares and securities, but also participation in undertakings or their acquisition in full.

The Court of Justice has previously held that the sphere of protection afforded by the free movement of capital covers any legislation which is liable to dissuade investors in other Member States from investing in a company and participating in its management and control. The aim of the prohibition in Article 56 EC is not merely to prevent discrimination against foreign market participants in relation to their domestic counterparts, but it applies to any measure which inhibits the exercise of the free movement of capital in any way. In the light of the Court's findings in relation to the prohibition of restrictions under Article 56 EC, the State-ordered ceiling on voting rights in the VW-Gesetz constitutes an indirect restriction on earnings and thus an infringement of the free movement of capital.

At general shareholders' meetings — at which the voting capital is not usually fully represented — the shares held by the Land Lower Saxony give it the 20 % of votes needed to block resolutions requiring more than 80 % of the capital represented. That provision of the VW-Gesetz constitutes an impediment by the exercise of State power, since it enables the Land to prevent unwanted changes to the status quo in so far as such changes have to be brought in under the category of resolutions for which, according to the Aktiengesetz, a higher quorum is required.

The right of the Federal Republic of Germany and the Land Lower Saxony to make appointments to the supervisory board under the VW-Gesetz, notwithstanding the provisions of the Aktiengesetz, restricts the rights of other shareholders to appropriate representation on the company's supervisory board. Since, as the Court has held on several occasions, a provision which restricts the acquisition of shares, or in some other way restricts the possibility of actual participation in the management of a company or in its control, constitutes a restriction on the free movement of capital, that statutory provision constitutes a restriction on the free movement of capital, contrary to Community law.

A restriction on the free movement of capital is justified only on the grounds referred to in Article 58 EC or on so-called overriding grounds relating to the public interest. According to the criteria established by the Court, such public interest measures must not be discriminatory, must be objectively necessary and must be proportionate in relation to the objective being pursued. In particular, those grounds must apply to all persons or undertakings pursuing an activity in the territory of the host Member State. General financial interests which are outside the scope of those grounds in Article 58 EC relating to tax law, as well as other economic aims of the Member State cannot, according to settled case-law, justify any restriction prohibited under the EC Treaty. By the standards of Article 56 EC and relevant case-law, the provisions of the aforementioned VW-Gesetz constitute indirect restrictions on earnings for which there is no relevant justification under Community law.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/16 |
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C 143/16

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Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 2 March 2005 in Heinrich Schulze GmbH & Co. KG i.L represented by the liquidator, Ravensberger Honig GmbH v Hauptzollamt Hamburg-Jonas

(Case C-120/05)

(2005/C 143/23)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg (Hamburg Finance Court) (Germany) of 2 March 2005, received at the Court Registry on 15 March 2005, for a preliminary ruling in the proceedings between Heinrich Schulze GmbH & Co. KG i.L represented by the liquidator, Ravensberger Honig GmbH and Hauptzollamt Hamburg-Jonas, on the following questions:

| | Can the documentary evidence provided for in the third subparagraph of Article 7(1) of Commission Regulation (EC) No 1222/94 (1) of 30 May 1994 be disregarded and the exporter permitted to adduce evidence as to the products actually used in the manufacture of the exported goods by means of other types of evidence if the exporter cannot (is no longer able to) adduce the documents relating to production by reason of force majeure? |
| --- | --- |

Can the documentary evidence provided for in the third subparagraph of Article 7(1) of Commission Regulation (EC) No 1222/94 (1) of 30 May 1994 be disregarded and the exporter permitted to adduce evidence as to the products actually used in the manufacture of the exported goods by means of other types of evidence if the exporter cannot (is no longer able to) adduce the documents relating to production by reason of force majeure?

| | Does the incidence of force majeure also lead to a reduction in the standard of proof in the sense that the exporter merely has to produce prima facie evidence of or plausibly demonstrate the products actually used in the manufacture of the exported goods? |
| --- | --- |

Does the incidence of force majeure also lead to a reduction in the standard of proof in the sense that the exporter merely has to produce prima facie evidence of or plausibly demonstrate the products actually used in the manufacture of the exported goods?

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(1)  OJ L 136, p. 5.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/16 |
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Official Journal of the European Union

C 143/16

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Appeal brought on 15 March 2005 (fax: 11 March 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 12 January 2005 by the Court of First Instance (Third Chamber) in Case T-334/03 between Deutsche Post Euro Express GmbH and the Office for Harmonisation in the Internal Market.

(Case C-121/05 P)

(2005/C 143/24)

Language of the case: German

An appeal against the judgment delivered on 12 January 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-334/03 between Deutsche Post Euro Express GmbH and the Office for Harmonisation in the Internal Market was brought before the Court of Justice of the European Communities on 15 March 2005 (fax: 11 March 2005) by the Office for Harmonisation in the Internal Market, represented by A. von Mühlendahl, Vice-President of the Office, and G. Schneider, member of the litigation department in the field of intellectual property.

The appellant claims that the Court should:

| 1. | set aside the judgment of the Court of First Instance (Third Chamber) of 12 January 2005 in Case T-334/03 (1) and dismiss the application; |
| --- | --- |

1.

set aside the judgment of the Court of First Instance (Third Chamber) of 12 January 2005 in Case T-334/03 (1) and dismiss the application;

| 2. | refer the case back to the Court of First Instance. |
| --- | --- |

2.

refer the case back to the Court of First Instance.

Pleas in law and main arguments

The Office for Harmonisation in the Internal Market (Trade Marks and Designs) submits the following grounds of appeal against the above-mentioned judgment:

| | As a result of the considerations set out in paragraphs 35 and 36 of the judgment under appeal, the Court of First Instance infringed Article 7(1)(c) of Regulation No 40/94, in so far as it deemed the designation ‘EURO’ to be an indication of the geographical origin of the goods or services, but at the same time ruled that it could only be excluded from registration as a Community trade mark if the geographical origin which is designated by the mark is an ‘essential’ characteristic for the relevant public. This contradicts the clear wording of that article, which excludes from registration indications designating geographical origin without any further qualification. It also follows from Case C-363/99 Koninklijke KPN Nederland NV v Benelux-Merkenbureau [2004] ECR II-0000 that all signs or indications which describe the characteristics of goods or services applied for are to be excluded from registration, irrespective of whether those characteristics are ‘essential’. |
| --- | --- |

As a result of the considerations set out in paragraphs 35 and 36 of the judgment under appeal, the Court of First Instance infringed Article 7(1)(c) of Regulation No 40/94, in so far as it deemed the designation ‘EURO’ to be an indication of the geographical origin of the goods or services, but at the same time ruled that it could only be excluded from registration as a Community trade mark if the geographical origin which is designated by the mark is an ‘essential’ characteristic for the relevant public. This contradicts the clear wording of that article, which excludes from registration indications designating geographical origin without any further qualification. It also follows from Case C-363/99 Koninklijke KPN Nederland NV v Benelux-Merkenbureau [2004] ECR II-0000 that all signs or indications which describe the characteristics of goods or services applied for are to be excluded from registration, irrespective of whether those characteristics are ‘essential’.

| | As a result of the considerations set out in paragraphs 36 to 43 of the judgment under appeal, the Court of First Instance infringed Article 7(1)(c) of Regulation No 40/94, in so far as it deemed the designation ‘PREMIUM’ to be an indication of quality, but at the same time refused to apply that provision to that designation. Article 7(1)(c) of Regulation No 40/94 excludes from registration indications of value without any further qualification, since every competitor of the applicant should be entitled to use indications of value without being adversely affected by trademark rights of third parties to such indications. The Court of First Instance's argument (paragraph 39) that designations such as ‘PREMIUM’ fall to be assessed (only) under Article 7(1)(b) of Regulation No 40/94 is mistaken in this case. Since the designation ‘PREMIUM’ already falls within Article 7(1)(c) of Regulation No 40/94 as an indication of quality, there is no need to have further recourse to Article 7(1)(b) of the Regulation. |
| --- | --- |

As a result of the considerations set out in paragraphs 36 to 43 of the judgment under appeal, the Court of First Instance infringed Article 7(1)(c) of Regulation No 40/94, in so far as it deemed the designation ‘PREMIUM’ to be an indication of quality, but at the same time refused to apply that provision to that designation. Article 7(1)(c) of Regulation No 40/94 excludes from registration indications of value without any further qualification, since every competitor of the applicant should be entitled to use indications of value without being adversely affected by trademark rights of third parties to such indications. The Court of First Instance's argument (paragraph 39) that designations such as ‘PREMIUM’ fall to be assessed (only) under Article 7(1)(b) of Regulation No 40/94 is mistaken in this case. Since the designation ‘PREMIUM’ already falls within Article 7(1)(c) of Regulation No 40/94 as an indication of quality, there is no need to have further recourse to Article 7(1)(b) of the Regulation.

| | According to the principles laid down in judgments of the Court of Justice, which are referred to in paragraph 44 of the judgment under appeal, descriptive elements of a compound trade mark are also descriptive when considered as a whole, unless it is established that the overall designation, when considered as a whole, has a meaning other than that of its individual components. It is obvious in this case that the designation ‘EUROPREMIUM’ — a combination of the two elements ‘EURO’ and ‘PREMIUM’ which is formed according to the rules of common language usage — does not indicate anything in this connection other than that the goods and services applied for are of European origin and of particular quality. |
| --- | --- |

According to the principles laid down in judgments of the Court of Justice, which are referred to in paragraph 44 of the judgment under appeal, descriptive elements of a compound trade mark are also descriptive when considered as a whole, unless it is established that the overall designation, when considered as a whole, has a meaning other than that of its individual components. It is obvious in this case that the designation ‘EUROPREMIUM’ — a combination of the two elements ‘EURO’ and ‘PREMIUM’ which is formed according to the rules of common language usage — does not indicate anything in this connection other than that the goods and services applied for are of European origin and of particular quality.

| | For the reasons set out above, the contested decision is thus based on an infringement of Article 7(1)(c) of Regulation No 40/94 and must therefore be set aside. |
| --- | --- |

For the reasons set out above, the contested decision is thus based on an infringement of Article 7(1)(c) of Regulation No 40/94 and must therefore be set aside.

---

(1)  OJ C 69, 19.03.2005, p. 14.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/17 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/17

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Reference for a preliminary ruling from the Østre Landsret by order of that court of 15 March 2005 in VW-Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S

(Case C-125/05)

(2005/C 143/25)

Language of the case: Danish

Reference has been made to the Court of Justice of the European Communities by order of the Østre Landsret (Denmark) of 15 March 2005, received at the Court Registry on 17 March 2005, for a preliminary ruling in the proceedings between VW-Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S and Skandinavisk Motor Co. A/S on the following questions:

| 1. | Is Article 5(3) of Commission Regulation (EC) No 1475/95 (1) of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Group Exemption Regulation No 1475/95’) to be interpreted as meaning that reasons must be stated for a supplier's termination of an agreement with a dealer on one year's notice which go beyond the supplier's reference to that provision? |
| --- | --- |

1.

Is Article 5(3) of Commission Regulation (EC) No 1475/95 (1) of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Group Exemption Regulation No 1475/95’) to be interpreted as meaning that reasons must be stated for a supplier's termination of an agreement with a dealer on one year's notice which go beyond the supplier's reference to that provision?

| 2. | If Question 1 is answered in the affirmative:
  What requirement may be placed under Community law on the content of such a statement of reasons and when must such a statement be provided? |
| --- | --- |

2.

If Question 1 is answered in the affirmative:

What requirement may be placed under Community law on the content of such a statement of reasons and when must such a statement be provided?

| 3. | What is the consequence of not providing a proper or timely statement of reasons? |
| --- | --- |

3.

What is the consequence of not providing a proper or timely statement of reasons?

| 4. | Is Article 5(3) of Group Exemption Regulation No 1475/95 to be interpreted as requiring that the termination of an agreement with a dealer on one year's notice must be effected on the basis of a reorganisation plan already drawn up by the supplier? |
| --- | --- |

4.

Is Article 5(3) of Group Exemption Regulation No 1475/95 to be interpreted as requiring that the termination of an agreement with a dealer on one year's notice must be effected on the basis of a reorganisation plan already drawn up by the supplier?

| 5. | If Question 4 is answered in the affirmative:
  What requirement can be placed under Community law on the content and form of a reorganisation plan drawn up by the supplier and when must the reorganisation plan be submitted? |
| --- | --- |

5.

If Question 4 is answered in the affirmative:

What requirement can be placed under Community law on the content and form of a reorganisation plan drawn up by the supplier and when must the reorganisation plan be submitted?

| 6. | If the answer to Question 4 is in the affirmative:
  Must the supplier inform the dealer whose contract has been terminated of the content of the reorganisation plan, and when and in what form must notification to the dealer be effected in a particular case? |
| --- | --- |

6.

If the answer to Question 4 is in the affirmative:

Must the supplier inform the dealer whose contract has been terminated of the content of the reorganisation plan, and when and in what form must notification to the dealer be effected in a particular case?

| 7. | If the answer to Question 4 is in the affirmative:
  What is the consequence of a reorganisation plan not fulfilling the requirement which may be placed on the form and content of such a plan? |
| --- | --- |

7.

If the answer to Question 4 is in the affirmative:

What is the consequence of a reorganisation plan not fulfilling the requirement which may be placed on the form and content of such a plan?

| 8. | According to the Danish version of Article 5(3) of Group Exemption Regulation No 1475/95, the supplier's termination of an agreement with a dealer on one year's notice presupposes that ‘... det er nødvendigt at foretage en gennemgribende reorganisering af hele forhandlernettet eller en del heraf ...’ (it is necessary to reorganise radically the whole or part of the network). The word ‘necessary’ appears in all the language versions of Group Exemption Regulation No 1475/95 but the word ‘gennemgribende’ (radically) appears only in the Danish version.
  In this context:
  What requirement may be placed on the nature of the reorganisation so that the supplier is able to terminate the dealer's contract on one year's notice under Article 5(3) of Group Exemption Regulation No 1475/95? |
| --- | --- |

8.

According to the Danish version of Article 5(3) of Group Exemption Regulation No 1475/95, the supplier's termination of an agreement with a dealer on one year's notice presupposes that ‘... det er nødvendigt at foretage en gennemgribende reorganisering af hele forhandlernettet eller en del heraf ...’ (it is necessary to reorganise radically the whole or part of the network). The word ‘necessary’ appears in all the language versions of Group Exemption Regulation No 1475/95 but the word ‘gennemgribende’ (radically) appears only in the Danish version.

In this context:

What requirement may be placed on the nature of the reorganisation so that the supplier is able to terminate the dealer's contract on one year's notice under Article 5(3) of Group Exemption Regulation No 1475/95?

| 9. | In assessing whether the conditions — for the supplier to be able to terminate the agreement on one year's notice under Article 5(3) of Group Exemption Regulation No 1475/95 — are satisfied, is it of importance what the economic consequences would be for the supplier if it had terminated the dealer's contract on two years' notice? |
| --- | --- |

9.

In assessing whether the conditions — for the supplier to be able to terminate the agreement on one year's notice under Article 5(3) of Group Exemption Regulation No 1475/95 — are satisfied, is it of importance what the economic consequences would be for the supplier if it had terminated the dealer's contract on two years' notice?

| 10. | Who bears the burden of proving that the conditions for the supplier being able to terminate the agreement on one year's notice under Article 5(3) of Group Exemption Regulation No 1475/95 are satisfied, and how can such a burden of proof be lifted? |
| --- | --- |

10.

Who bears the burden of proving that the conditions for the supplier being able to terminate the agreement on one year's notice under Article 5(3) of Group Exemption Regulation No 1475/95 are satisfied, and how can such a burden of proof be lifted?

| 11. | Is Article 5(3) of Group Exemption Regulation No 1475/95 to be interpreted as meaning that the conditions — for the supplier to be able to terminate the agreement on one year's notice under that provision — can be satisfied simply on the grounds that the implementation of Group Exemption Regulation No 1400/2002 in itself could have necessitated a radical reorganisation of the supplier's dealer network? |
| --- | --- |

11.

Is Article 5(3) of Group Exemption Regulation No 1475/95 to be interpreted as meaning that the conditions — for the supplier to be able to terminate the agreement on one year's notice under that provision — can be satisfied simply on the grounds that the implementation of Group Exemption Regulation No 1400/2002 in itself could have necessitated a radical reorganisation of the supplier's dealer network?

---

(1)  OJ L 145 of 29.6.1995, p. 25.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/18 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/18

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Action brought on 21 March 2005 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

(Case C-127/05)

(2005/C 143/26)

Language of the case: English

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 21 March 2005 by the Commission of the European Communities, represented by M.-J. Jonczy and N. Yerrell, of its Legal Service.

The Commission claims that the Court should:

| 1. | declare that in restricting the duty upon employers to ensure the safety and health of workers in every aspect related to the work to a duty to do this ‘so far as is reasonably practicable’, the United Kingdom has failed to fulfil its obligations under Articles 5(1) and 5(4) of Council Directive 89/391/EEC of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (1); |
| --- | --- |

1.

declare that in restricting the duty upon employers to ensure the safety and health of workers in every aspect related to the work to a duty to do this ‘so far as is reasonably practicable’, the United Kingdom has failed to fulfil its obligations under Articles 5(1) and 5(4) of Council Directive 89/391/EEC of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (1);

| 2. | order the United Kingdom of Great Britain and Northern Ireland to pay the costs. |
| --- | --- |

2.

order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The Commission's complaint is based upon Section 2(1) of the Health and Safety at Work Act 1974 which states that it shall be the duty of every employer to ensure the health, safety and welfare of all his employees at work ‘so far as is reasonable practicable’. The Commission considers that this qualification placed upon the employers' duty is incompatible with Articles 5(1) and 5(4) of Directive 89/391/EEC (‘the Directive’).

The Commission maintains that:

| i) | Article 5(1) imposes responsibility upon the employer in relation to all events adverse to the health and safety of his workers unless the very special circumstances of Article 5(4) can be invoked. |
| --- | --- |

i)

Article 5(1) imposes responsibility upon the employer in relation to all events adverse to the health and safety of his workers unless the very special circumstances of Article 5(4) can be invoked.

| ii) | This is confirmed inter alia by the legislative history of the Directive and the express rejection of the inclusion of a ‘so far as is reasonable practicable’ clause by the Community legislator. |
| --- | --- |

ii)

This is confirmed inter alia by the legislative history of the Directive and the express rejection of the inclusion of a ‘so far as is reasonable practicable’ clause by the Community legislator.

| iii) | By way of contrast, the UK's legislation (as interpreted by the national courts) permits an employer to escape responsibility if he can prove that the sacrifice involved in taking further measures, whether in money, time or trouble, would be grossly disproportionate to the risk. |
| --- | --- |

iii)

By way of contrast, the UK's legislation (as interpreted by the national courts) permits an employer to escape responsibility if he can prove that the sacrifice involved in taking further measures, whether in money, time or trouble, would be grossly disproportionate to the risk.

| iv) | This ‘balancing test’ is apparently applied by the national courts in all cases and not only in the exceptional situations falling within Article 5(4) of the Directive. |
| --- | --- |

iv)

This ‘balancing test’ is apparently applied by the national courts in all cases and not only in the exceptional situations falling within Article 5(4) of the Directive.

| v) | Further, the assessment of what is ‘reasonably practicable’ permits the incorporation of considerations of the cost (in financial terms) to the employer, contrary to Article 5(4) of the Directive as read in light of its 13th recital. |
| --- | --- |

v)

Further, the assessment of what is ‘reasonably practicable’ permits the incorporation of considerations of the cost (in financial terms) to the employer, contrary to Article 5(4) of the Directive as read in light of its 13th recital.

---

(1)  OJ L 183, p. 1.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/19 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/19

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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven te 's-Gravenhage by order of that court of 17 March 2005 in N.V. Raverco v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-129/05)

(2005/C 143/27)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven te 's-Gravenhage (Administrative Court for Trade and Industry) (Netherlands) of 17 March 2005, received at the Court Registry on 21 March 2005, for a preliminary ruling in the proceedings between N.V. Raverco and Minister van Landbouw, Natuur en Voedselkwaliteit on the following questions:

| 1. | Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC (1) be so interpreted that the objection to the redispatch of a consignment that does not satisfy the import conditions lies in the non-satisfaction of the Community conditions for import or in the conditions that apply at the destination outside the territories listed in Annex I to Directive 97/78/EC agreed with the person responsible for the load? |
| --- | --- |

1.

Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC (1) be so interpreted that the objection to the redispatch of a consignment that does not satisfy the import conditions lies in the non-satisfaction of the Community conditions for import or in the conditions that apply at the destination outside the territories listed in Annex I to Directive 97/78/EC agreed with the person responsible for the load?

| 2. | Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC, read in conjunction with Article 22(2) of Directive 97/78/EC and Article 5 of Regulation 2377/90/EEC (2), be so interpreted that in all cases in which any one of the checks provided for in Directive 97/78/EC indicates that a consignment of products is likely to constitute a danger to animal or human health this provision imperatively requires the destruction of the consignments of animal products concerned? |
| --- | --- |

2.

Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC, read in conjunction with Article 22(2) of Directive 97/78/EC and Article 5 of Regulation 2377/90/EEC (2), be so interpreted that in all cases in which any one of the checks provided for in Directive 97/78/EC indicates that a consignment of products is likely to constitute a danger to animal or human health this provision imperatively requires the destruction of the consignments of animal products concerned?

| 3. | Must Article 22 of Directive 97/78/EC, in conjunction with Article 5 of Regulation 2377/90/EEC, be so interpreted that the mere fact that residues of a substance listed in Annex V to Regulation 2377/90/EC are found in a consignment means that the consignment in question is likely to constitute such a danger to animal or human health as to preclude redispatch? |
| --- | --- |

3.

Must Article 22 of Directive 97/78/EC, in conjunction with Article 5 of Regulation 2377/90/EEC, be so interpreted that the mere fact that residues of a substance listed in Annex V to Regulation 2377/90/EC are found in a consignment means that the consignment in question is likely to constitute such a danger to animal or human health as to preclude redispatch?

| 4. | If the second question is answered in the negative, must Article 17(2) of Directive 97/78/EC be so interpreted that it also serves to protect the interests of the third country into which, after redispatch, the consignment is to be imported, even if those interests do not also involve the protection of an interest that can be located in Member States of the EU? |
| --- | --- |

4.

If the second question is answered in the negative, must Article 17(2) of Directive 97/78/EC be so interpreted that it also serves to protect the interests of the third country into which, after redispatch, the consignment is to be imported, even if those interests do not also involve the protection of an interest that can be located in Member States of the EU?

---

(1)  Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (OJ 1997 L 24, p. 9.)

(2)  Council Regulation (EEC) No 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (OJ L 224, p. 1).

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/20 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/20

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Reference for a preliminary ruling from the Administrative Court for Trade and Industry by order of that court of 17 March 2005 in Coxon and Chatterton Limited v Minister of Agriculture, Nature and Food Quality

(Case C-130/05)

(2005/C 143/28)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Administrative Court for Trade and Industry (Netherlands) of 17 March 2005, received at the Court Registry on 21 March 2005, for a preliminary ruling in the proceedings between Coxon and Chatterton Limited and Minister of Agriculture, Nature and Food Quality on the following questions:

| 1. | Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC (1) be so interpreted that the objection to the redispatch of a consignment that does not satisfy the import conditions lies in the non-satisfaction of the Community conditions for import or in the conditions that apply at the destination outside the territories listed in Annex I to Directive 97/78/EC agreed with the person responsible for the load? |
| --- | --- |

1.

Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC (1) be so interpreted that the objection to the redispatch of a consignment that does not satisfy the import conditions lies in the non-satisfaction of the Community conditions for import or in the conditions that apply at the destination outside the territories listed in Annex I to Directive 97/78/EC agreed with the person responsible for the load?

| 2. | Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC, read in conjunction with Article 22(2) of Directive 97/78/EC and Article 5 of Regulation 2377/90/EEC (2), be so interpreted that in all cases in which any one of the checks provided for in Directive 97/78/EC indicates that a consignment of products is likely to constitute a danger to animal or human health this provision imperatively requires the destruction of the consignments of animal products concerned? |
| --- | --- |

2.

Must the introduction to and subparagraph (a) of Article 17(2) of Directive 97/78/EC, read in conjunction with Article 22(2) of Directive 97/78/EC and Article 5 of Regulation 2377/90/EEC (2), be so interpreted that in all cases in which any one of the checks provided for in Directive 97/78/EC indicates that a consignment of products is likely to constitute a danger to animal or human health this provision imperatively requires the destruction of the consignments of animal products concerned?

| 3. | Must Article 22 of Directive 97/78/EC, in conjunction with Article 5 of Regulation 2377/90/EEC, be so interpreted that the mere fact that residues of a substance listed in Annex V to Regulation 2377/90/EC are found in a consignment means that the consignment in question is likely to constitute such a danger to animal or human health as to preclude redispatch? |
| --- | --- |

3.

Must Article 22 of Directive 97/78/EC, in conjunction with Article 5 of Regulation 2377/90/EEC, be so interpreted that the mere fact that residues of a substance listed in Annex V to Regulation 2377/90/EC are found in a consignment means that the consignment in question is likely to constitute such a danger to animal or human health as to preclude redispatch?

| 4 | If the second question is answered in the negative, must Article 17(2) of Directive 97/78/EC be so interpreted that it also serves to protect the interests of the third country into which, after redispatch, the consignment is to be imported, even if those interests do not also involve the protection of an interest that can be located in Member States of the EU? |
| --- | --- |

4

If the second question is answered in the negative, must Article 17(2) of Directive 97/78/EC be so interpreted that it also serves to protect the interests of the third country into which, after redispatch, the consignment is to be imported, even if those interests do not also involve the protection of an interest that can be located in Member States of the EU?

---

(1)  Council Directive of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (OJ 1997 L 24, p. 9).

(2)  Council Regulation of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (OJ L 224, p. 1).

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/20 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/20

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Action brought on 21 March 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-133/05)

(2005/C 143/29)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 21 March 2005 by the Commission of the European Communities, represented by D. Martin, acting as Agent, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by failing to adopt by 2 December 2003 all/the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78/EC of 27 November 2000 (1) establishing a general framework for equal treatment in employment and occupation, at the federal level as regards the provisions on discrimination on the grounds of disability, and at the regional level — with the exception of the regions of Vienna and Lower Austria — as regards all provisions of the directive, or in any event by failing to communicate them to the Commission, the Republic of Austria has failed to fulfil its obligations under Article 18 of that directive. |
| --- | --- |

1.

declare that, by failing to adopt by 2 December 2003 all/the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78/EC of 27 November 2000 (1) establishing a general framework for equal treatment in employment and occupation, at the federal level as regards the provisions on discrimination on the grounds of disability, and at the regional level — with the exception of the regions of Vienna and Lower Austria — as regards all provisions of the directive, or in any event by failing to communicate them to the Commission, the Republic of Austria has failed to fulfil its obligations under Article 18 of that directive.

| 2. | order the Republic of Austria to pay the costs. |
| --- | --- |

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Republic of Austria has failed to adopt the measures necessary to implement the Directive at federal level in relation to the provisions concerning discrimination on the grounds of disability, and has altogether failed, with the exception of the regions of Vienna and Lower Austria, to adopt the measures necessary to implement the directive at regional level or, in any event, has failed to communicate them to the Commission.

---

(1)  OJ L 303, 02.12.2000, p. 16.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/21 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/21

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Action brought on 22 March 2005 by the Commission of the European Communities against the Italian Republic

(Case C-134/05)

(2005/C 143/30)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 22 March 2005 by the Commission of the European Communities, represented by E. Traversa, member of the Commission's Legal Service.

The applicant claims that the Court should:

| — | declare that:






  1. | by subjecting the business of extrajudicial credit recovery to a licence issued by the local police authority (Questore); |
| --- | --- | --- |

—

declare that:

1.

by subjecting the business of extrajudicial credit recovery to a licence issued by the local police authority (Questore);

| 2. | by limiting the validity of the licence to the province in which it was issued; |
| --- | --- |

2.

by limiting the validity of the licence to the province in which it was issued;

| 3. | by tying the carrying on of the business of extrajudicial credit recovery to specific premises set out in the licence; |
| --- | --- |

3.

by tying the carrying on of the business of extrajudicial credit recovery to specific premises set out in the licence;

| 4. | by making the carrying on of that business in a province for which the operator does not have a licence subject to contract of agency with an authorised representative; |
| --- | --- |

4.

by making the carrying on of that business in a province for which the operator does not have a licence subject to contract of agency with an authorised representative;

| 5. | by requiring traders visibly to display a table setting out all the services which can be supplied to clients; |
| --- | --- |

5.

by requiring traders visibly to display a table setting out all the services which can be supplied to clients;

| 6. | by providing that the local police authority (Questore) may make the licence subject to further restrictions; |
| --- | --- |

6.

by providing that the local police authority (Questore) may make the licence subject to further restrictions;

| 7. | by restricting the freedom of traders to set prices; |
| --- | --- |

7.

by restricting the freedom of traders to set prices;

| 8. | by declaring that the business of credit recovery is incompatible with the banking and credit services which are the subject of Legislative Decree No 385/93; |
| --- | --- |

8.

by declaring that the business of credit recovery is incompatible with the banking and credit services which are the subject of Legislative Decree No 385/93;

the Italian Republic has failed to fulfil its obligations under Articles 43 and 49 of the EC Treaty;

| — | order the Italian Republic to pay the costs. |
| --- | --- |

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

| 1. | The obligation to obtain a licence from the police authority is incompatible with Article 49 of the Treaty in that it applies without distinction to all suppliers established in another Member State, without regard to whether those suppliers have complied with the rules for the protection of the public interest in their country of origin. |
| --- | --- |

1.

The obligation to obtain a licence from the police authority is incompatible with Article 49 of the Treaty in that it applies without distinction to all suppliers established in another Member State, without regard to whether those suppliers have complied with the rules for the protection of the public interest in their country of origin.

| 2. | Italy is currently divided into 103 provinces. That means that a Community trader who wants to set up business in Italy and extend his business throughout a substantial part of Italy must make as many applications for a licence as there are provinces making up the area he wishes to cover and a total of 103 applications if he wishes to set up and carry on business in the whole of Italy. |
| --- | --- |

2.

Italy is currently divided into 103 provinces. That means that a Community trader who wants to set up business in Italy and extend his business throughout a substantial part of Italy must make as many applications for a licence as there are provinces making up the area he wishes to cover and a total of 103 applications if he wishes to set up and carry on business in the whole of Italy.

| 3. | A company which wishes to set up in Italy and operate in a certain area not only has to obtain several licences but also has to acquire as many premises as he has licences and as provinces are covered. That obligation is clearly disproportionate, given the cost to the operators, as well as not being indispensable to the carrying on of the business. Furthermore, the obligation to have premises amounts to a requirement that a person who provides cross-border services must become established in the recipient Member State. |
| --- | --- |

3.

A company which wishes to set up in Italy and operate in a certain area not only has to obtain several licences but also has to acquire as many premises as he has licences and as provinces are covered. That obligation is clearly disproportionate, given the cost to the operators, as well as not being indispensable to the carrying on of the business. Furthermore, the obligation to have premises amounts to a requirement that a person who provides cross-border services must become established in the recipient Member State.

| 4. | A trader who lawfully carries on business must be able to operate throughout Italy without having to enter into a contract of agency with an intermediary where that operator wishes to operate outside the province for which he has obtained a licence. Indeed since that intermediary works in the same sector he is a potential competitor of the principal and furthermore the appointment of an intermediary costs the principal time and money. |
| --- | --- |

4.

A trader who lawfully carries on business must be able to operate throughout Italy without having to enter into a contract of agency with an intermediary where that operator wishes to operate outside the province for which he has obtained a licence. Indeed since that intermediary works in the same sector he is a potential competitor of the principal and furthermore the appointment of an intermediary costs the principal time and money.

| 5. | The obligation visibly to display the table of services in the premises presupposes that the trader necessarily disposes of premises from which to operate. According to the Court's settled case-law, the obligation to dispose of premises in the recipient Member State amounts to a requirement that the trader who supplies cross-border services be established in the recipient Member State. |
| --- | --- |

5.

The obligation visibly to display the table of services in the premises presupposes that the trader necessarily disposes of premises from which to operate. According to the Court's settled case-law, the obligation to dispose of premises in the recipient Member State amounts to a requirement that the trader who supplies cross-border services be established in the recipient Member State.

| 6. | The residual power of each provincial police authority (Questore) to make the licence for the business of credit recovery subject to ill defined ‘additional requirements’ infringes the requirements of transparency and objectivity which the Court's case-law stipulates, even where the power of the Questore is circumscribed by the law and by the objective pursued. |
| --- | --- |

6.

The residual power of each provincial police authority (Questore) to make the licence for the business of credit recovery subject to ill defined ‘additional requirements’ infringes the requirements of transparency and objectivity which the Court's case-law stipulates, even where the power of the Questore is circumscribed by the law and by the objective pursued.

| 7. | The restrictions on the freedom to set prices constitute an obstacle both to the freedom of establishment and the freedom to provide services. A new trader who attempts to enter a given market must be able to compete with traders already operating in that market and the price of the services is a factor of primary importance in acquiring customers. |
| --- | --- |

7.

The restrictions on the freedom to set prices constitute an obstacle both to the freedom of establishment and the freedom to provide services. A new trader who attempts to enter a given market must be able to compete with traders already operating in that market and the price of the services is a factor of primary importance in acquiring customers.

| 8. | The incompatibility of the Italian rules with the carrying on of banking and credit services results in a prohibition on the suppliers of banking and credit services from other Member States from carrying on the business of credit recovery in Italy, pursuant either to the freedom of establishment or the freedom to provide services guaranteed by the Treaty. |
| --- | --- |

8.

The incompatibility of the Italian rules with the carrying on of banking and credit services results in a prohibition on the suppliers of banking and credit services from other Member States from carrying on the business of credit recovery in Italy, pursuant either to the freedom of establishment or the freedom to provide services guaranteed by the Treaty.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/22 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/22

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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 22 March 2005 in Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit(intervener: LTO Nederland)

(Case C-138/05)

(2005/C 143/31)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Netherlands) of 22 March 2005, received at the Court Registry on 25 March 2005, for a preliminary ruling in the proceedings between Stichting Zuid-Hollandse Milieufederatie and Minister van Landbouw, Natuur en Voedselkwaliteit (intervener: LTO Nederland) on the following questions:

| 1. | May Article 8 of the Plant Protection Products Directive (1) be applied by the national court after the period referred to in Article 23 thereof has expired? |
| --- | --- |

1.

May Article 8 of the Plant Protection Products Directive (1) be applied by the national court after the period referred to in Article 23 thereof has expired?

| 2. | Must Article 16 of the Biocidal Product Directive (2) be interpreted as having the same meaning as Article 8(2) of the Plant Protection Products Directive? |
| --- | --- |

2.

Must Article 16 of the Biocidal Product Directive (2) be interpreted as having the same meaning as Article 8(2) of the Plant Protection Products Directive?

| 3. | Must Article 8(2) of the Plant Protection Products Directive be interpreted as a standstill obligation in the sense that a Member State has the power to alter the existing system or practice only in so far as this results in an assessment in connection with the authorisation of plant protection products which is consistent with this directive? |
| --- | --- |

3.

Must Article 8(2) of the Plant Protection Products Directive be interpreted as a standstill obligation in the sense that a Member State has the power to alter the existing system or practice only in so far as this results in an assessment in connection with the authorisation of plant protection products which is consistent with this directive?

| 4. | If the answer to Question 3 is in the negative:
  Does Article 8(2) of the Plant Protection Products Directive impose limits on amendments to national rules concerning the placing on the market of biocidal products, and if so what limits? |
| --- | --- |

4.

If the answer to Question 3 is in the negative:

Does Article 8(2) of the Plant Protection Products Directive impose limits on amendments to national rules concerning the placing on the market of biocidal products, and if so what limits?

| 5. | If the answer to Question 4 is in the negative:
  By what criteria is it necessary to assess whether there are measures liable seriously to compromise achievement of the result prescribed by the directive? |
| --- | --- |

5.

If the answer to Question 4 is in the negative:

By what criteria is it necessary to assess whether there are measures liable seriously to compromise achievement of the result prescribed by the directive?

| 6. | If the answer to Question 2 is in the negative:






  (a) | Must Article 8(2) of the Plant Protection Products Directive be interpreted as meaning that, where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive, regard must also be had to the provisions of Article 4 thereof? |
| --- | --- | --- |

6.

If the answer to Question 2 is in the negative:

(a)

Must Article 8(2) of the Plant Protection Products Directive be interpreted as meaning that, where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive, regard must also be had to the provisions of Article 4 thereof?

| (b) | Must Article 8(2) of the Plant Protection Products Directive also be interpreted as meaning that, where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive, regard must also be had to the provisions of Article 8(3) thereof? |
| --- | --- |

(b)

Must Article 8(2) of the Plant Protection Products Directive also be interpreted as meaning that, where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive, regard must also be had to the provisions of Article 8(3) thereof?

| 7. | Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that an examination of an new application of a plant protection product already on the market, whereby it is considered whether there are unacceptable risks to the operator/worker, human health and the environment in connection with a temporary measure as referred to in Article 16aa of the Law on Pesticides, is to be regarded as a review within the meaning of Article 8(3) thereof? |
| --- | --- |

7.

Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that an examination of an new application of a plant protection product already on the market, whereby it is considered whether there are unacceptable risks to the operator/worker, human health and the environment in connection with a temporary measure as referred to in Article 16aa of the Law on Pesticides, is to be regarded as a review within the meaning of Article 8(3) thereof?

| 8. | Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that it contains only rules relating to the provision of data before a review or must it be construed as meaning that the requirements set out therein are also relevant to the way in which a review must be organised and carried out? |
| --- | --- |

8.

Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that it contains only rules relating to the provision of data before a review or must it be construed as meaning that the requirements set out therein are also relevant to the way in which a review must be organised and carried out?

---

(1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, 19/08/1991 p. 1)

(2)  Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ L 123, 24/04/1998 p. 1)

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/23 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/23

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Reference for a preliminary ruling from the Unabhängiger Finanzsenat by order of that court of 17 March 2005 in the proceedings between Amalia Valesko and Zollamt Klagenfurt

(Case C-140/05)

(2005/C 143/32)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Unabhängiger Finanzsenat (Austria) of 17 March 2005, received at the Court Registry on 29 March 2005, for a preliminary ruling in the proceedings between Amalia Valesko and Zollamt Klagenfurt on the following questions:

Question 1:

| | On a proper construction of the provisions contained in the Documents concerning the accession of ... the Republic of Slovenia ... to the European Union, Annex XIII: List referred to in Article 24 of the Act of Accession: Slovenia; Heading 6. Taxation, paragraph 2 (Official Journal of the European Union of 23.9.2003, L 236), which state that, without prejudice to Article 8 of Council Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, and having informed the Commission, Member States may, as long as the derogation from Article 2(1) of Directive 92/79/EEC — as last amended — applies, ‘maintain’ the same quantitative limits for cigarettes which may be brought into their territories from Slovenia without further excise duty payment as those applied with regard to cigarette imports from third countries, do they — in the light of the technical term ‘maintain’ — permit quantitative limits which applied in a Member State in respect of imports from inter alia the Republic of Slovenia as a third country until the accession of that country? |
| --- | --- |

On a proper construction of the provisions contained in the Documents concerning the accession of ... the Republic of Slovenia ... to the European Union, Annex XIII: List referred to in Article 24 of the Act of Accession: Slovenia; Heading 6. Taxation, paragraph 2 (Official Journal of the European Union of 23.9.2003, L 236), which state that, without prejudice to Article 8 of Council Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, and having informed the Commission, Member States may, as long as the derogation from Article 2(1) of Directive 92/79/EEC — as last amended — applies, ‘maintain’ the same quantitative limits for cigarettes which may be brought into their territories from Slovenia without further excise duty payment as those applied with regard to cigarette imports from third countries, do they — in the light of the technical term ‘maintain’ — permit quantitative limits which applied in a Member State in respect of imports from inter alia the Republic of Slovenia as a third country until the accession of that country?

Question 2:

| | If the Court of Justice concludes that the Treaty provisions in question are not in fact to be construed as permitting quantitative limits which applied in a Member State in respect of imports from inter alia the Republic of Slovenia as a third country until the accession of that country: | On a proper construction of Articles 23, 25 and 26 of the EC Treaty, do the rules of a Member State, under which the exemption from excise duty applicable to tobacco products imported in the personal luggage of travellers who are normally resident in the tax territory of that Member State and enter that territory directly via a land border or inland waters is limited to 25 cigarettes on entry from certain other Member States, comply with the principles of the free movement of goods where a quantitative limit of that kind exists only in respect of a customs exclave in a single third country (Switzerland) whilst from any other third country importation of 200 cigarettes free of excise duty into that Member State is allowed? |
| --- | --- | --- |

If the Court of Justice concludes that the Treaty provisions in question are not in fact to be construed as permitting quantitative limits which applied in a Member State in respect of imports from inter alia the Republic of Slovenia as a third country until the accession of that country:

On a proper construction of Articles 23, 25 and 26 of the EC Treaty, do the rules of a Member State, under which the exemption from excise duty applicable to tobacco products imported in the personal luggage of travellers who are normally resident in the tax territory of that Member State and enter that territory directly via a land border or inland waters is limited to 25 cigarettes on entry from certain other Member States, comply with the principles of the free movement of goods where a quantitative limit of that kind exists only in respect of a customs exclave in a single third country (Switzerland) whilst from any other third country importation of 200 cigarettes free of excise duty into that Member State is allowed?

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/23 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/23

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Reference for a preliminary ruling from the Luleå tingsrätt by order of that court of 21 March 2005 in Åklagaren v Percy Mickelsson and Joakim Roos

(Case C-142/05)

(2005/C 143/33)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by decision of the Luleå tingsrätt (Sweden) of 21 March 2005, received at the Court Registry on 24 March 2005, for a preliminary ruling in the proceedings between Åklagaren and Percy Mickelsson and Joakim Roos on the following questions:

| 1. | a) | Do Articles 28 to 30 EC preclude national provisions, such as those in the Swedish jet-ski regulations, prohibiting the use of personal watercraft other than on a general navigable waterway or waters in respect of which the local authority has issued rules permitting their use? |
| --- | --- | --- |

1.

a)

Do Articles 28 to 30 EC preclude national provisions, such as those in the Swedish jet-ski regulations, prohibiting the use of personal watercraft other than on a general navigable waterway or waters in respect of which the local authority has issued rules permitting their use?

| b) | In the alternative, do Articles 28 to 30 EC prevent a Member State from applying provisions of that kind in such a way as to prohibit the use of personal watercraft also on waters which have not yet been the subject of an investigation by the local authority of whether or not rules permitting their use in the area are to be issued? |
| --- | --- |

b)

In the alternative, do Articles 28 to 30 EC prevent a Member State from applying provisions of that kind in such a way as to prohibit the use of personal watercraft also on waters which have not yet been the subject of an investigation by the local authority of whether or not rules permitting their use in the area are to be issued?

| 2. | Does Directive 2003/44/EC (1) of the European Parliament and of the Council amending Directive 94/25/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft preclude such national provisions prohibiting the use of personal watercraft as set out above? |
| --- | --- |

2.

Does Directive 2003/44/EC (1) of the European Parliament and of the Council amending Directive 94/25/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft preclude such national provisions prohibiting the use of personal watercraft as set out above?

---

(1)  of 16 June 2003, OJ L 214, 26.8.2003, p. 18.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/24 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/24

---

Action brought on 29 March 2005 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-143/05)

(2005/C 143/34)

Language of the case: Dutch

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 29 March 2005 by the Commission of the European Communities, represented by K. Simonsson and W. Wils, of its Legal Service.

The Commission claims that the Court should:

| 1. | declare that by not taking all necessary legal and administrative measures to comply with Directive 2002/84/EC (1)of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships, or by not notifying the Commission of such measures, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by not taking all necessary legal and administrative measures to comply with Directive 2002/84/EC (1)of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships, or by not notifying the Commission of such measures, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

| 2. | order the Kingdom of Belgium to pay the costs. |
| --- | --- |

2.

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for implementing the directive in national law expired on 23 November 2003.

---

(1)  OJ 2002 L 324, p. 53.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/24 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/24

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Action brought on 30 March 2005 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-144/05)

(2005/C 143/35)

Language of the case: Dutch

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 30 March 2005 by the Commission of the European Communities, represented by K. Simonsson and W. Wils, of its Legal Service.

The Commission claims that the Court should:

| 1. | declare that by not taking all necessary legal and administrative measures to comply with Directive 2002/59/EC (1)of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, or by not notifying the Commission of such measures, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by not taking all necessary legal and administrative measures to comply with Directive 2002/59/EC (1)of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, or by not notifying the Commission of such measures, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

| 2. | order the Kingdom of Belgium to pay the costs. |
| --- | --- |

2.

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for implementing the directive in national law expired on 5 February 2004.

---

(1)  OJ 2002 L 208, p. 10

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/25 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/25

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Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 10 February 2005 in the case of Albert Collée, as full legal successor to Collée KG v Finanzamt Limburg a.d. Lahn

(Case C-146/05)

(2005/C 143/36)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) (Germany) of 10 February 2005, received at the Court Registry on 1 April 2005, for a preliminary ruling in the proceedings between Albert Collée, as full legal successor to Collée KG, and Finanzamt Limburg a.d. Lahn on the following questions:

| 1. | Is a tax authority entitled to refuse to allow an intra-Community supply, which undoubtedly occurred, to be exempt from tax solely on the ground that the taxable person did not produce the prescribed accounting evidence in good time? |
| --- | --- |

1.

Is a tax authority entitled to refuse to allow an intra-Community supply, which undoubtedly occurred, to be exempt from tax solely on the ground that the taxable person did not produce the prescribed accounting evidence in good time?

| 2. | Does the answer to the question depend on whether the taxable person initially knowingly concealed the fact that an intra-Community supply had occurred? |
| --- | --- |

2.

Does the answer to the question depend on whether the taxable person initially knowingly concealed the fact that an intra-Community supply had occurred?

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/25 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/25

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Action brought on 1 April 2005 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-147/05)

(2005/C 143/37)

Language of the case: Dutch

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 1 April 2005 by the Commission of the European Communities, represented by M. van Beek and S.P. Quintillan, of its Legal Service.

The Commission claims that the Court should:

| 1. | declare that by not taking all necessary legal and administrative measures to comply with Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, or by not notifying the Commission of such measures, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by not taking all necessary legal and administrative measures to comply with Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, or by not notifying the Commission of such measures, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

| 2. | order the Kingdom of the Netherlands to pay the costs. |
| --- | --- |

2.

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The period for implementing the directive in national law expired on 22 December 2003.

---

(1)  OJ 2000 L 327, p. 1

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/25 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/25

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Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 13 January 2005 in F. Weissheimer Malzfabrik v Hauptzollamt Hamburg-Jonas

(Case C-151/05)

(2005/C 143/38)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) (Germany) of 13 January 2005, received at the Court Registry on 4 April 2005, for a preliminary ruling in the proceedings between F. Weissheimer Malzfabrik and Hauptzollamt Hamburg-Jonas on the following questions:

| 1. | Does Article 70 of Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code apply where it is necessary to establish whether a product in respect of which recovery of export duty is sought is of marketable quality? |
| --- | --- |

1.

Does Article 70 of Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code apply where it is necessary to establish whether a product in respect of which recovery of export duty is sought is of marketable quality?

| 2. | Is confirmation of sound and fair marketable quality within the meaning of the first sentence of Article 13 of Commission Regulation (EEC) No 3665/87 (2) of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, given in a national application for payment, information for the purposes of the second subparagraph of Article 11(1) of Regulation (EC) No 3665/97 in conjunction with Article 3 of Regulation (EC) No 3665/97? |
| --- | --- |

2.

Is confirmation of sound and fair marketable quality within the meaning of the first sentence of Article 13 of Commission Regulation (EEC) No 3665/87 (2) of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, given in a national application for payment, information for the purposes of the second subparagraph of Article 11(1) of Regulation (EC) No 3665/97 in conjunction with Article 3 of Regulation (EC) No 3665/97?

---

(1)  OJ L 302, p. 1

(2)  OJ L 351, p. 1.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/26 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/26

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Action brought on 5 April 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-153/05)

(2005/C 143/39)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 5 April 2005 by the Commission of the European Communities, represented by Gerald Braun, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (1) and, in any event, by failing to communicate them to the Commission, the Republic of Austria has failed to fulfil its obligations under the EC Treaty and that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (1) and, in any event, by failing to communicate them to the Commission, the Republic of Austria has failed to fulfil its obligations under the EC Treaty and that directive;

| 2. | order the Republic of Austria to pay the costs. |
| --- | --- |

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 28 September 2003.

---

(1)  OJ L 85, 28.03.2002, p. 40.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/26 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/26

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) by order of that court of 28 January 2005 in Winfried L. Holböck v Finanzamt Salzburg-Land

(Case C-157/05)

(2005/C 143/40)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Austria) of 28 January 2005, received at the Court Registry on 7 April 2005, for a preliminary ruling in the proceedings between Winfried L. Holböck and Finanzamt Salzburg-Land on the following question:

Do the provisions relating to the free movement of capital (Article 56 et seq. EC) preclude national legislation in force on 31 December 1993 (and remaining in force after Austria's accession to the EU on 1 January 1995), according to which dividends from inland shares are taxed at a rate of half the average tax rate applicable to the aggregate income, whereas dividends from a public limited company established in a third country (in the main proceedings, Switzerland), in which the taxable person holds two-thirds of the shares, are invariably taxed at the standard rate of income tax?

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/26 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/26

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Action brought on 6 April 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-158/05)

(2005/C 143/41)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 6 April 2005 by the Commission of the European Communities, represented by G. Braun and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by failing the adopt the laws, regulations and administrative provisions necessary to transpose Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (1) and, in any event, by failing to communicate them to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and that directive. |
| --- | --- |

1.

declare that, by failing the adopt the laws, regulations and administrative provisions necessary to transpose Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (1) and, in any event, by failing to communicate them to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and that directive.

| 2. | order the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 28 September 2003.

---

(1)  OJ L 85, 28.03.2002, p. 40

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/27 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/27

---

Appeal brought on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities

(Case C-162/05 P)

(2005/C 143/42)

Language of the case: Spanish

An appeal against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities was brought before the Court of Justice of the European Communities on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis.

The appellant claims that the Court should:

| 1. | Uphold the pleas in law put forward by the appellant in its appeal and annul in its entirety the judgment of the Court of First Instance of 18 January 2005 (Case T-141/01) dismissing its action for the annulment of Decision C(1999) 534 of the European Commission of 4 March 1999, and |
| --- | --- |

1.

Uphold the pleas in law put forward by the appellant in its appeal and annul in its entirety the judgment of the Court of First Instance of 18 January 2005 (Case T-141/01) dismissing its action for the annulment of Decision C(1999) 534 of the European Commission of 4 March 1999, and

| 2. | Order the Commission to pay the costs. |
| --- | --- |

2.

Order the Commission to pay the costs.

Pleas and main arguments

The appellant puts forward three pleas in law:

| 1. | Impropriety of the proceedings before the Court of First Instance, in that that court refused to accept certain evidence from the applicant — which, in the circumstances of the case, the applicant considered to be decisive — and the applicant was not given any opportunity to request in the proceedings before the Court of First Instance that that impropriety be rectified, with the result that its interests were severely impaired and it was prevented from fully exercising its rights of defence — paragraphs 132 to 138 of the judgment. |
| --- | --- |

1.

Impropriety of the proceedings before the Court of First Instance, in that that court refused to accept certain evidence from the applicant — which, in the circumstances of the case, the applicant considered to be decisive — and the applicant was not given any opportunity to request in the proceedings before the Court of First Instance that that impropriety be rectified, with the result that its interests were severely impaired and it was prevented from fully exercising its rights of defence — paragraphs 132 to 138 of the judgment.

| 2. | Breach of the general legal principle of the presumption of innocence. The examination, evaluation and interpretation of the facts by the Court of First Instance, which was manifestly incorrect and sometimes without foundation, prompted it to base its judgment on reasons which manifestly ran counter to the general legal principle as to the presumption of innocence, which is enjoyed by all persons until such time as a final judgment is delivered against them in criminal proceedings. |
| --- | --- |

2.

Breach of the general legal principle of the presumption of innocence. The examination, evaluation and interpretation of the facts by the Court of First Instance, which was manifestly incorrect and sometimes without foundation, prompted it to base its judgment on reasons which manifestly ran counter to the general legal principle as to the presumption of innocence, which is enjoyed by all persons until such time as a final judgment is delivered against them in criminal proceedings.

| 3. | Incorrect legal classification by the Court of First Instance of the applicant as the entity responsible for repaying the aid granted to the Zumaque project, under Article 24 of Regulation (EEC) 4253/88 and the decision as to withdrawal. The appellant considers that the Court of First Instance erred in law by stating that Entorn, Societat Limitada Enginyeria I Seveis — the appellant — was the entity required to repay the aid received under Commission Decision C (1999) 534 of 4 March 1999. |
| --- | --- |

3.

Incorrect legal classification by the Court of First Instance of the applicant as the entity responsible for repaying the aid granted to the Zumaque project, under Article 24 of Regulation (EEC) 4253/88 and the decision as to withdrawal. The appellant considers that the Court of First Instance erred in law by stating that Entorn, Societat Limitada Enginyeria I Seveis — the appellant — was the entity required to repay the aid received under Commission Decision C (1999) 534 of 4 March 1999.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/28 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/28

---

Reference for a preliminary ruling from the Verwaltungsgerichtshof by judgment of that court of 31 March 2005 in Heger Rudi GmbH v Finanzamt Graz-Stadt

(Case C-166/05)

(2005/C 143/43)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by judgment of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria) of 31 March 2005, received at the Court Registry on 13 April 2005, for a preliminary ruling in the proceedings between Heger Rudi GmbH and Finanzamt Graz-Stadt on the following question:

Does the grant of the right to fish by means of a transfer of fishing permits for valuable consideration constitute a ‘supply of services connected with immovable property’ within the meaning of Article 9(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment?

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/28 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/28

---

Reference for a preliminary ruling from the Cour de Cassation de Belgique by judgment of that court of 4 April 2005, in URADEX SCRL v Union Professionelle de la Radio et de la Télédistribution, abbreviated as RTD and Société Intercommunale pour la Diffusion de la Télévision, abbreviated as BRUTELE

(Case C-169/05)

(2005/C 143/44)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour de Cassation de Belgique (Belgium) of 4 April 2005, received at the Court Registry on 15 April 2005, for a preliminary ruling in the proceedings between URADEX SCRL v Union Professionelle de la Radio et de la Télédistribution, abbreviated as RTD and Société Intercommunale pour la Diffusion de la Télévision, abbreviated as BRUTELE, on the following question:

Must Article 9(2) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (1) be interpreted as meaning that, where a collecting society is deemed to be mandated to manage the rights of a copyright owner or holder of related rights who has not transferred the management of his rights to a collecting society, that society does not have the power to exercise that rightholder's right to grant or refuse authorisation to a cable operator for cable retransmission, since it is mandated only to manage the pecuniary aspects of that rightholder's rights?

---

(1)  OJ L 248 of 6.10.1993, p. 15.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/28 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/28

---

Reference for a preliminary ruling from the Landesgericht für ZRS Wien by order of that court of 8 April 2005 in KVZ retec GmbH v Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management)

(Case C-176/05)

(2005/C 143/45)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht für ZRS Wien (Vienna Regional Civil Court) (Austria) of 8 April 2005, received at the Court Registry on 20 April 2005, for a preliminary ruling in the proceedings between KVZ retec GmbH and Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management) on the following questions:

| 1. | Is the shipment (transit or return) of meat-and-bone meal, whether or not free of special risk material, subject, in so far as it involves waste, to the notification obligation in Council Regulation (EEC) No 259/93 (‘the Waste Shipment Regulation’)?
  If so, |
| --- | --- |

1.

Is the shipment (transit or return) of meat-and-bone meal, whether or not free of special risk material, subject, in so far as it involves waste, to the notification obligation in Council Regulation (EEC) No 259/93 (‘the Waste Shipment Regulation’)?

If so,

| 2. | Is the shipment of meat-and-bone meal, whether or not free of special risk material, excluded from the application of the Waste Shipment Regulation in accordance with Article 1(2)(d) of that regulation?
  If the answer to Question 2 is in the negative, |
| --- | --- |

2.

Is the shipment of meat-and-bone meal, whether or not free of special risk material, excluded from the application of the Waste Shipment Regulation in accordance with Article 1(2)(d) of that regulation?

If the answer to Question 2 is in the negative,

| 3. | Is the shipment (transit or return) of meat-and-bone meal






  (a) | which is free of special risk material; or |
| --- | --- | --- |

3.

Is the shipment (transit or return) of meat-and-bone meal

(a)

which is free of special risk material; or

| (b) | which contains special risk material (classified as ‘Category 1’ material under the EC By-products Regulation (Regulation (EC) No 1774/2002) |
| --- | --- |

(b)

which contains special risk material (classified as ‘Category 1’ material under the EC By-products Regulation (Regulation (EC) No 1774/2002)

illegal under Article 26(1)(a) and (b) of the Waste Shipment Regulation, in the absence of notification to and the consent of the authorities concerned, waste on the ground that it involves within the meaning of the Waste Shipment Regulation?

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/29

---

Removal from the register of Case C-273/02 (1)

(2005/C 143/46)

(Language of the case: French)

By order of 16 December 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-273/02: European Parliament v Council of the European Union, supported by Ireland, United Kingdom of Great Britain and Northern Ireland and Grand Duchy of Luxembourg.

---

(1)  OJ C 219 of 14.09.2002.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/29

---

Removal from the register of Case C-458/02 (1)

(2005/C 143/47)

(Language of the case: English)

By order of 22 March 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-458/02 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 55 of 08.03.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/29

---

Removal from the register of Case C-395/03 (1)

(2005/C 143/48)

(Language of the case: Dutch)

By order of 25 February 2005, the President of the Sixth Chamber of the Court of Justice of the European Communities has ordered the removal from the register of Case C-395/03 Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 264 of 01.11.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/29

---

Removal from the register of Case C-504/03 (1)

(2005/C 143/49)

(Language of the case: French)

By order of 4 April 2005, the President of the Second Chamber of the Court of Justice of the European Communities has ordered the removal from the register of Case C-504/03 Commission of the European Communities v French Republic.

---

(1)  OJ C 21 of 24.01.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/29

---

Removal from the register of Case C-49/04 (1)

(2005/C 143/50)

(Language of the case: Dutch)

By order of 23 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-49/04 Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 94 of 17.04.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-57/04 (1)

(2005/C 143/51)

(Language of the case: German)

By order of 10 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-57/04 Commission of the European Communities v Federal Republic of Germany.

---

(1)  OJ C 85 of 03.04.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-165/04 (1)

(2005/C 143/52)

(Language of the case: English)

By order of 2 March 2005, the President of the Second Chamber of the Court of Justice of the European Communities has ordered the removal from the register of Case C-165/04 Commission of the European Communities v Ireland.

---

(1)  OJ C 106 of 30.04.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-179/04 (1)

(2005/C 143/53)

(Language of the case: Greek)

By order of 10 March 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-179/04 Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 168 of 26.06.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-261/04 (1)

(2005/C 143/54)

(Language of the case: German)

By order of 31 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-261/04 (Reference for a preliminary ruling Arbeitsgericht Regensburg): Gerhard Schmidt v Sennebogen Maschinenfabrik GmbH.

---

(1)  OJ C 228 of 11.09.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-262/04 (1)

(2005/C 143/55)

(Language of the case: German)

By order of 10 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-262/04 Commission of the European Communities v Federal Republic of Germany.

---

(1)  OJ C 201 of 07.08.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-277/04 (1)

(2005/C 143/56)

(Language of the case: German)

By order of 10 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-277/04 Commission of the European Communities v Federal Republic of Germany.

---

(1)  OJ C 228 of 11.09.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/30

---

Removal from the register of Case C-399/04 (1)

(2005/C 143/57)

(Language of the case: French)

By order of 4 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-399/04 Commission of the European Communities v French Republic.

---

(1)  OJ C 273 of 06.11.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/31 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/31

---

Removal from the register of Case C-460/04 (1)

(2005/C 143/58)

(Language of the case: Dutch)

By order of 23 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-460/04 Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 314 of 18.12.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/31 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/31

---

Removal from the register of Case C-516/04 (1)

(2005/C 143/59)

(Language of the case: French)

By order of 8 April 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-516/04 Commission of the European Communities v Kingdom of Belgium.

---

(1)  OJ C 31 of 05.02.2005.

---

COURT OF FIRST INSTANCE

| 11.6.2005 | EN | Official Journal of the European Union | C 143/32 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/32

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 5 April 2005

in Case T-336/02 Susan Christensen v Commission of the European Communities (1)

(Staff case - Selection procedure for temporary staff - Composition of the Selection Committee and conduct of the procedure)

(2005/C 143/60)

Language of the case: French

In Case T-336/02: Susan Christensen, residing in Ispra (Italy), represented by G. Vandersanden and L. Levi, lawyers, against Commission of the European Communities (Agents: E. Tserepa-Lacombe and F. Clotuche-Duvieusart, with an address for service in Luxembourg) — application for annulment of the decision of Selection Committee COM/R/A/01/2000, for the constitution of a reserve list for recruitment of temporary staff in category A, not to include the applicant on the reserve list, and for compensation — the Court of First Instance (A.W. Meij, Single Judge) D. Christensen, administrator, for the Registrar, gave a judgment on 5 April 2005, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | Orders the parties to bear their own costs. |
| --- | --- |

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 7 of 11.1.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/32 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/32

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 17 March 2005

in Case T-187/03 Isabella Scippacercola v Commission of the European Communities (1)

(Access to documents of the institutions - Article 4(5) of Regulation (EC) No 1049/2001)

(2005/C 143/61)

Language of the case: English

In Case T-187/03: Isabella Scippacercola, residing in Brussels (Belgium), represented initially by K. Adamantopoulos and D. Papakrivopoulos, lawyers, and subsequently by K. Adamantopoulos and B. Keane, Solicitor, with an address for service in Luxembourg, against Commission of the European Communities (Agents: L. Flynn and P. Aalto, with an address for service in Luxembourg) - application for annulment of the Commission's decision of 19 March 2003 rejecting the application made by the applicant for access to a document relating to the project for the new Athens International Airport at Spata (Greece) Ä the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and O. Czúcz, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 17 March 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 200 of 23.8.2003.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/33 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/33

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 5 April 2005

in Case T-376/03 Michel Hendrickx v Council of the European Union (1)

(Officials - Internal competition - Non-admission to oral tests - Requirement of specific knowledge of languages - Principle of equal treatment - Access to Council documents - Obligation to state grounds)

(2005/C 143/62)

Language of the case: French

In Case T-376/03: Michel Hendrickx, official of the Council of the European Union, residing in Brussels (Belgium), represented by J.-N. Louis, S. Orlandi, A. Coolen and E. Marchal, lawyers, with an address for service in Luxembourg, against Council of the European Union (Agents: M. Sims and F. Anton) — application, first, for annulment of the decision of the Selection Board in competition Council/A/270 to award the applicant a disqualifying mark for written test A.3 and not to admit him to the oral tests and, second, for an order requiring the Council to pay token compensation of EUR 1 for non-material damage suffered — the Court of First Instance (First Chamber), composed of J.D. Cooke, President, R. Garcia-Valdecasas and I. Labucka, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 5 April 2005, in which it:

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

1.

Dismisses the action;

| 2. | Orders the parties to bear their own costs. |
| --- | --- |

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 21 of 24.1.2004.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/33 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/33

---

ORDER OF THE COURT OF FIRST INSTANCE

of 6 December 2004

in Case T-55/02 Peter Finch v Commission of the European Communities (1)

(Officials - Complaint - Implied rejection - Express rejection within the time-limit for appeals - Late notification of rejection - Admissibility - Pensions - Transfer of national pension rights - Calculation of years of service to be taken into account in the Community scheme - Salary taken as basis - Action manifestly unfounded in law)

(2005/C 143/63)

Language of the case: French

In Case T-55/02: Peter Finch, an official of the Commission of the European Communities,residing in Luxembourg (Luxembourg), represented by J.-N. Louis, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: F. Clotuche-Duvieusart and H. Tserepa-Lacombe, with an address for service in Luxembourg) — application for annulment of the Commission's decision concerning the crediting of years of pensionable service to be taken into account in the Community scheme in consequence of the transfer of all the pension rights acquired by the applicant prior to his entry into service with the Commission — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, M.E. Martins Ribeiro and K. Jürimäe, Judges; H. Jung, Registrar, made an order on 6 December 2004, the operative part of which is as follows:

| 1. | The action is dismissed as manifestly unfounded in law. |
| --- | --- |

1.

The action is dismissed as manifestly unfounded in law.

| 2. | The parties shall bear their own costs. |
| --- | --- |

2.

The parties shall bear their own costs.

---

(1)  OJ C 97 of 20.4.2002.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/34 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/34

---

ORDER OF THE COURT OF FIRST INSTANCE

of 15 February 2005

in Case T-206/02 Kurdistan National Congress (KNK) v Council of the European Union (1)

(Action for annulment - Specific restrictive measures directed against certain persons and entities with a view to combating terrorism - Locus standi - Association - Admissibility)

(2005/C 143/64)

Language of the case: French

In Case T-206/02: Kurdistan National Congress (KNK), established in Brussels (Belgium), represented by J. Boisseau, lawyer, against Council of the European Union (Agents: M. Vitsentzatos and S. Marquardt) supported by Commission of the European Communities, (Agents: initially G. zur Hausen and G. Boudot, and subsequently J. Enegren and G. Boudot, with an address for service in Luxembourg) and by United Kingdom of Great Britain and Northern Ireland (Agents: initially J. Collins, and subsequently R. Caudwell, with an address for service in Luxembourg) — application for annulment of Council Decision 2002/334/CE of 2 May 2002, implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2001/927/EC (OJ 2002 L 116, p. 33) — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; H. Jung, Registrar, made an order on 15 February 2005, the operative part of which is as follows:

| 1. | The application is dismissed. |
| --- | --- |

1.

The application is dismissed.

| 2. | The applicant shall bear its own costs and pay those incurred by the Council. |
| --- | --- |

2.

The applicant shall bear its own costs and pay those incurred by the Council.

| 3. | The United Kingdom of Great Britain and Northern Ireland and the Commission shall bear their own costs. |
| --- | --- |

3.

The United Kingdom of Great Britain and Northern Ireland and the Commission shall bear their own costs.

---

(1)  OJ C 247 of 12.10.2002.

---

| 11.6.2005 | EN | Official Journal of the European Union | C 143/34 |
| --- | --- | --- | --- |

11.6.2005

EN

Official Journal of the European Union

C 143/34

---

ORDER OF THE COURT OF FIRST INSTANCE

of 15 February 2005

in Case T-229/02 Kurdistan Workers' Party (PKK) and Kurdistan National Congress (KNK) v Council of the European Union (1)

(Action for annulment - Specific restrictive measures directed against certain persons and entities with a view to combating terrorism - Capacity to bring proceedings - Locus standi - Association - Admissibility)

(2005/C 143/65)

Language of the case: English

In Case T-229/02: Kurdistan Workers' Party (PKK) and Kurdistan National Congress (KNK), established in Brussels, represented by M. Muller and E. Grieves, barristers, instructed by J.G. Peirce, solicitor, against Council of the European Union (Agents: M. Vitsentzatos and M. Bishop) supported by United Kingdom of Great Britain and Northern Ireland (Agents: initially J. Collins and subsequently R. Caudwell, with an address for service in Luxembourg) and by Commission of the European Communities (Agents: C. Brown and P. Kuijper, with an address for service in Luxembourg) — application for annulment of Council Decision 2002/334/EC of 2 May 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2001/927/EC (OJ 2002 L 116, p. 33), and of Council Decision 2002/460/EC of 17 June 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/334 (OJ 2002 L 160, p. 26), the Court of First Instance (Second Chamber), composed of J. Pirrung, President of the Chamber, N.J. Forwood and S. Papasavvas, Judges; H. Jung, Registrar, made an order on 15 February 2005, the operative part of which is as follows:

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

1.

The action is dismissed.

| 2. | The applicants are to bear their own costs and pay those of the Council. |
| --- | --- |

2.

The applicants are to bear their own costs and pay those of the Council.

| 3. | The United Kingdom of Great Britain and Northern Ireland and the Commission are to bear their own costs. |
| --- | --- |

3.

The United Kingdom of Great Britain and Northern Ireland and the Commission are to bear their own costs.

---

(1)  OJ C 233 of 28.9.2002.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/35 |
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ORDER OF THE COURT OF FIRST INSTANCE

of 14 February 2005

in Case T-406/03 Nicolas Ravailhe v Committee of the Regions of the European Union (1)

(Officials - Prior administrative procedure - Inadmissibility)

(2005/C 143/66)

Language of the case: French

In Case T-406/03: Nicolas Ravailhe, a former member of the temporary staff of the Committee of the Regions of the European Union, residing in Amiens (France), represented by J.-P. Brodsky, against Committee of the Regions of the European Union (Agent: P. Cervilla, assisted by B. Wägenbaur, lawyer) — application, primarily, against the refusal of the authority empowered to conclude contracts of employment to reinstate the applicant in his post and restore his rights under the Staff Regulations as a member of the temporary staff of the Committee of the Regions of the European Union or, in the alternative, for payment of compensation — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; H. Jung, Registrar, made an order on 14 February 2005, the operative part of which is as follows:

| 1. | The application is dismissed as inadmissible. |
| --- | --- |

1.

The application is dismissed as inadmissible.

| 2. | The parties shall bear their own costs. |
| --- | --- |

2.

The parties shall bear their own costs.

---

(1)  OJ C 47 of 21.2.2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/35 |
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ORDER OF THE COURT OF FIRST INSTANCE

of 12 January 2005

in Case T-268/04 Spa Monopole, Compagnie fermière de Spa v the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

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

(2005/C 143/67)

Language of the case: French

In Case T-268/04: Spa Monopole, Compagnie fermière de Spa, established in Spa (Belgium), represented by L. de Brouwer, E. Cornu, E. De Gryse and D. Moreau, lawyers, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: O. Montalto), the other party to the proceedings before the Board of Appeal of OHIM having been Cottee Dairy Products Pty Limited, established in New South Wales (Australia) — action against the decision of the First Board of Appeal of OHIM of 19 April 2004 (Case R 148/2002-1) — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N. J. Forwood and S. Papasavvas, Judges; H. Jung, Registrar, made an order on 12 January 2005, the operative part of which is as follows:

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

1.

There is no need to adjudicate on the application.

| 2. | The parties shall each bear their own costs. |
| --- | --- |

2.

The parties shall each bear their own costs.

---

(1)  OJ C 217 of 28.8.2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/35 |
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Action brought on 21 January 2005 by Elisabeth Agne-Dapper against the Commission of the European Communities

(Case T-35/05)

(2005/C 143/68)

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 21 January 2005 by Elisabeth Agne-Dapper, Schoorl (Netherlands), and 172 others, represented by Georges Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.

The applicants claim that the Court should:

| 1. | declare the application, including the plea of illegality contained in it, admissible and well-founded; |
| --- | --- |

1.

declare the application, including the plea of illegality contained in it, admissible and well-founded;

| 2. | accordingly, annul the applicants' pension statements for May 2004, which will entail the application of the weighting set according to the capital of their country of residence or, at the very least, of a weighting which correctly reflects the differences in the cost of living in the places where the applicants are deemed to incur expenditure and thus observes the principle of equivalence; |
| --- | --- |

2.

accordingly, annul the applicants' pension statements for May 2004, which will entail the application of the weighting set according to the capital of their country of residence or, at the very least, of a weighting which correctly reflects the differences in the cost of living in the places where the applicants are deemed to incur expenditure and thus observes the principle of equivalence;

| 3. | order the Commission to pay the costs. |
| --- | --- |

3.

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants in this case are all officials who retired before 1 May 2004. They contest the transitional scheme set up pending the abolition of weightings by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1) in so far as that scheme is based on a new calculation of the ‘pension’ weightings which are no longer calculated according to the cost of living in the capital, but according to the average cost of living in the Member State where the recipient of the pension provides evidence of having established his main residence.

In support of their claims the applicants first submit that the regulation cited is based on erroneous grounds in so far as neither the further integration of the Community nor the freedom of movement and residence, nor the difficulty of verifying the actual place of residence of pensioners can serve as a basis for the transitional scheme at issue.

The applicants also submit that the principles of equality, legal certainty, retroactivity of acquired rights and the protection of legitimate expectations have been infringed in this case.

---

(1)  OJ L 124, 27.04.2004, p. 1.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/36 |
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Action brought on 17 February 2005 by Hinrich Bavendam and others against the Commission of the European Communities

(Case T-80/05)

(2005/C 143/69)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2005 by Hinrich Bavendam, Bremen (Germany), Günther Früchtnicht, Bremen (Germany), Hinrich Geerken, Bremen (Germany), Hans-Jürgen Weyhausen-Brinkmann, Bremen (Germany), Curt-Hildebrand v. Einsiedel, Leipzig (Germany), Christina Gräfin von Schall-Riaucour, Ahlen-Vorhelm (Germany), Franz-Albrecht Metternich-Sandor, Prinz von Ratibor and Corvey, Höxter (Germany), Christoph Prinz zu Schleswig-Holstein, Thumby (Germany) and the town of Schloß Holte-Stukenbrock (Germany), represented by T. Giesen, lawyer.

The applicants claim that the Court should:

| — | annul the Commission's Decision of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC (1), the list of sites of Community importance for:






  1. | the Continental biogeographical region |
| --- | --- | --- |

—

annul the Commission's Decision of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC (1), the list of sites of Community importance for:

1.

the Continental biogeographical region

| 2. | the Atlantic biogeographical region |
| --- | --- |

2.

the Atlantic biogeographical region

(notified under documents numbers C(2004) 4031 and C(2004) 4032) insofar as it concerns the property or territorial sovereignty of the applicants;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are either proprietors of entire sites or of large parts of sites declared by the contested decision to be sites of Community importance, which, the applicants submit, restricts their property rights.

The applicants submit that the selection criteria used for adding to the list of sites of Community importance were not met since the habitat types and species decisive to the selection are either not to be found at all or are not sufficiently representative.

The applicants contend further that:

| — | essential procedural requirements under Article 6(2), (3) and (4) or under Article 4 of Directive 92/43/EEC were infringed, |
| --- | --- |

—

essential procedural requirements under Article 6(2), (3) and (4) or under Article 4 of Directive 92/43/EEC were infringed,

| — | the Treaty was infringed as the selection decision which formed the basis of the listing at national level was already erroneous, |
| --- | --- |

—

the Treaty was infringed as the selection decision which formed the basis of the listing at national level was already erroneous,

| — | the Commission abused its discretion in adding all of the sites put forward by the Federal Republic of Germany to the list without exception. |
| --- | --- |

—

the Commission abused its discretion in adding all of the sites put forward by the Federal Republic of Germany to the list without exception.

---

(1)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/37 |
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C 143/37

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Action brought on 2 March 2005 by Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV against the Commission of the European Communities

(Case T-112/05)

(2005/C 143/70)

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 2 March 2005 by Akzo Nobel NV, established in Arnhem (The Netherlands), Akzo Nobel Nederland BV, established in Arnhem (The Netherlands), Akzo Nobel Chemicals International BV, established in Amersfoort (The Netherlands), Akzo Nobel Chemicals BV, established in Amersfoort (The Netherlands) and Akzo Nobel Functional Chemicals BV, established in Amersfoort (The Netherlands), represented by C. R. A. Swaak and J. de Gou, lawyers.

The applicants claim that the Court should:

| — | to review the legality of the contested decision under Article 230 EC; |
| --- | --- |

—

to review the legality of the contested decision under Article 230 EC;

| — | to annul the contested decision under Article 231 EC; |
| --- | --- |

—

to annul the contested decision under Article 231 EC;

| — | to order the Commission to pay its own costs and those of the applicants. |
| --- | --- |

—

to order the Commission to pay its own costs and those of the applicants.

Pleas in law and main arguments

The applicants contest the Commission's Decision of 9 December 2004 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/E-2/37.533-Choline Chloride), finding that the applicants were involved in a complex of agreements and concerted practices consisting of price fixing, market sharing and agreed actions against competitors in the choline chloride sector in the EEA and imposing a fine on the applicants.

In support of their application, the applicants submit a violation of Article 23(2) of Regulation 1/2003 (1) in that the Commission attributed the responsibility for the infringement also to Akzo Nobel NV, the holding company of the Akzo Nobel group. According to the applicants, Akzo Nobel NV did not have a decisive influence over the commercial policy of its subsidiaries.

The applicants furthermore submit that the amount of the fine imposed jointly and severally to the applicants exceeded for one of the applicants the limit of 10 % of the turnover. According to the applicants, the Commission should have limited the individual liability of each company.

The applicants finally submit a violation of the obligation to state reasons. According to the applicants, the Commission based its finding of joint and several liability of Akzo Nobel NV on an erroneous reasoning and has not indicated why it has established joint and several liability for one of the applicants beyond the limit of 10 % of the turnover.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, p. 1)

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/37 |
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Action brought on 9 March 2005 by Andreas Rodenbröker and Others against the Commission of the European Communities

(Case T-117/05)

(2005/C 143/71)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 March 2005 by Andreas Rodenbröker, Hövelhof (Germany), and Others, represented by H. Glatzel, lawyer.

The applicants claim that the Court should:

| — | annul the decision of the Commission of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, (1) the list of sites of Community importance for the Atlantic biogeographical region as regards the listing of sites:






  — | DE 4117-301 ‘Sennebäche’ |
| --- | --- | --- |

—

annul the decision of the Commission of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, (1) the list of sites of Community importance for the Atlantic biogeographical region as regards the listing of sites:

—

DE 4117-301 ‘Sennebäche’

| — | DE 4118-301 ‘Senne mit Stapellager Senne’ |
| --- | --- |

—

DE 4118-301 ‘Senne mit Stapellager Senne’

| — | DE 4118-401 ‘Vogelschutzgebiet Senne mit Teutoburger Wald’ and |
| --- | --- |

—

DE 4118-401 ‘Vogelschutzgebiet Senne mit Teutoburger Wald’ and

| — | DE 4118-302 ‘Holter Wald’ |
| --- | --- |

—

DE 4118-302 ‘Holter Wald’

insofar as areas belonging to the applicants, areas leased (leasehold) by them or areas subject to their planning authority are affected;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are proprietors of sites which, under the contested decision, have been included on the Community list of sites of Community importance on the basis of the presence of the habitat types and species deemed worthy of protection under the Flora-Fauna-Habitat Directive.

The applicants submit:

| — | that their property rights freely to exploit their land as they wish have been significantly restricted by the contested decision, and |
| --- | --- |

—

that their property rights freely to exploit their land as they wish have been significantly restricted by the contested decision, and

| — | that this intervention is unlawful as it infringes procedural requirements and involves misuse of power since the purported habitat types and animal species deemed worthy of protection are not to be found at all or, in any case, not to the required degree of representativity or population size as required under the criteria in Annex III to the Flora-Fauna-Habitat Directive. |
| --- | --- |

—

that this intervention is unlawful as it infringes procedural requirements and involves misuse of power since the purported habitat types and animal species deemed worthy of protection are not to be found at all or, in any case, not to the required degree of representativity or population size as required under the criteria in Annex III to the Flora-Fauna-Habitat Directive.

---

(1)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/38 |
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C 143/38

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Action brought on 15 March 2005 by Borax Europe Ltd against the Commission of the European Communities

(Case T-121/05)

(2005/C 143/72)

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 15 March 2005 by Borax Europe Ltd., established in Guildford (United Kingdom), represented by D. Vandermeersch and K. Nordlander, lawyers.

The applicant claims that the Court should:

| — | annul the decision; |
| --- | --- |

—

annul the decision;

| — | order the Commission to bear the costs of the procedure. |
| --- | --- |

—

order the Commission to bear the costs of the procedure.

Pleas in law and main arguments

The applicant contests the decision of the Commission to refuse the applicant access to certain documents and tape recordings related to the preparation of the 30th 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 (1). More in particular, the applicant's requested access to the audio recordings or transcripts of the meeting of the specialised experts in the field of reproductive toxicity on the classification of boric acid and borates.

In support of its application, the applicant submits that the defendant made a manifest error of assessment and infringed Articles 4(1)(b) and 4(3) of Regulation 1049/2001 (2). According to the applicant, the defendant erred in stating that access to the documents would undermine the integrity of the specialised experts consulted and would expose them to external pressure. The applicant claims furthermore that the defendant erred in applying the exception relating to the protection of the Commission's decision making process and in deciding that there was no overriding public interest in disclosure.

The applicant finally invokes a violation of the principle of proportionality in failing to grant partial access to the audio recordings.

---

(1)  OJ English special edition: Series I Chapter 1967 p. 234

(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 (OJ L 145, p. 43)

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/38 |
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Action brought on 16 March 2005 by Nicola Falcione against the Commission of the European Communities

(Case T-132/05)

(2005/C 143/73)

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 16 March 2005 by Nicola Falcione, residing in Brussels, represented by Sébastien Orlandi, Xavier Martin, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of 24 March 2004 fixing the definitive recruitment grade at Grade A5/4; |
| --- | --- |

—

annul the decision of 24 March 2004 fixing the definitive recruitment grade at Grade A5/4;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant was appointed an official at Grade A5/4 by decision of 24 March 2004. In his application he challenges his definitive recruitment classification. In support of his application, the applicant alleges infringement of Article 31 of the Staff Regulations and a manifest error of assessment. The applicant claims that the Commission ought also to have taken into account his relevant work and university level experience between 16 July 1974 and 28 February 1982. The Commission omitted to take that experience into account because the applicant did not obtain his university economics degree until 1 March 1982.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/39 |
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11.6.2005

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Official Journal of the European Union

C 143/39

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Action brought on 17 March 2005 by Gérard Meric against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-133/05)

(2005/C 143/74)

Language in which the application was submitted: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 17 March 2005 by Gérard Meric, residing in Paris (France), represented by Pascal Murzeau, lawyer.

ARBORA & AUSONIA, S.L. was also a party to the proceedings before the First Board of Appeal.

The applicant claims that the Court should:

| — | alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2005 and, accordingly; |
| --- | --- |

—

alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2005 and, accordingly;

| — | reject the opposition entered by the company ARBORA & AUSONIA, S.L. to registration of the trade mark ‘PAM-PIM'S BABY-PROP’; |
| --- | --- |

—

reject the opposition entered by the company ARBORA & AUSONIA, S.L. to registration of the trade mark ‘PAM-PIM'S BABY-PROP’;

| — | order the latter to pay all the costs incurred by the applicant. |
| --- | --- |

—

order the latter to pay all the costs incurred by the applicant.

Pleas in law and main arguments

| Applicant for Community trade mark: | The applicant. |
| --- | --- |
| Community trade mark concerned: | Word mark ‘PAM-PIM'S BABY-PROP’ in respect of goods in Class 16 (Babies' napkin-pants of paper and cellulose (disposable)). |
| Proprietor of mark or sign cited in the opposition proceedings: | ARBORA & AUSONIA, S.L. |
| Mark or sign cited in opposition: | National word and figurative marks 'PAM-PAM' in respect of goods in Classes 5, 16 and 25 (any ready-made clothing, in particular disposable napkin-pants, footwear, sanitary napkin-pants, sanitary towels ... — Spanish mark Nos 855 391, 1 146 300 and 1 153 492). |
| Decision of the Opposition Division: | The opposition is allowed on the basis of the national figurative mark 'PAM-PAM' in respect of goods in Class 16 (pants and napkin-pants of paper and cellulose — Spanish mark No 1 146 300). |
| Decision of the Board of Appeal: | Dismissal of the applicant's appeal |
| Pleas in law: | For the average Spanish consumer, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation No 40/94 between the conflicting marks because there is no similarity either between the mark applied for and the earlier marks, or between the goods designated by the mark applied for and the earlier marks. |

Applicant for Community trade mark:

The applicant.

Community trade mark concerned:

Word mark ‘PAM-PIM'S BABY-PROP’ in respect of goods in Class 16 (Babies' napkin-pants of paper and cellulose (disposable)).

Proprietor of mark or sign cited in the opposition proceedings:

ARBORA & AUSONIA, S.L.

Mark or sign cited in opposition:

National word and figurative marks 'PAM-PAM' in respect of goods in Classes 5, 16 and 25 (any ready-made clothing, in particular disposable napkin-pants, footwear, sanitary napkin-pants, sanitary towels ... — Spanish mark Nos 855 391, 1 146 300 and 1 153 492).

Decision of the Opposition Division:

The opposition is allowed on the basis of the national figurative mark 'PAM-PAM' in respect of goods in Class 16 (pants and napkin-pants of paper and cellulose — Spanish mark No 1 146 300).

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

For the average Spanish consumer, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation No 40/94 between the conflicting marks because there is no similarity either between the mark applied for and the earlier marks, or between the goods designated by the mark applied for and the earlier marks.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/40 |
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Official Journal of the European Union

C 143/40

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Action brought on 11 April 2005 by the Internationaler Hilfsfonds e.V. against the Commission of the European Communities

(Case T-141/05)

(2005/C 143/75)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 April 2005 by Internationaler Hilfsfonds e.V., Rosbach v.d.H. (Germany), represented by H. Kaltenecker, lawyer.

The applicant claims that the Court of First Instance should:

| — | annul the decision of the Commission of 14 February 2005 by which it denied the applicant unrestricted access to the Commission's file in relation to Contract LIEN 97-2011; |
| --- | --- |

—

annul the decision of the Commission of 14 February 2005 by which it denied the applicant unrestricted access to the Commission's file in relation to Contract LIEN 97-2011;

| — | order the defendant to pay the costs of the proceedings and those of the applicant. |
| --- | --- |

—

order the defendant to pay the costs of the proceedings and those of the applicant.

Pleas in law and main arguments

In the contested document the Commission denied the applicant unrestricted access to the European Commission's file relating to Contract LIEN 97-2011 by reference to Article 4(1)(b) and the second subparagraph of Article 4(3) of the Transparency Regulation (1) and to the Data Protection Regulation (2).

The applicant claims that the contested decision infringes Article 4(3) of the Transparency Regulation. The applicant is of the opinion that the reasons given by the European Commission for its refusal to grant unrestricted access to the file concerning Contract LIEN 97-2011, namely that unrestricted access to the file would impair the decision-making process, are invalid. The applicant further contends that there is public interest in the disclosure of the documents in question. The applicant also questions the applicability of Article 4(1)(b) of the Transparency Regulation.

The applicant complains furthermore of the refusal to grant unrestricted access to the file by reference to the Data Protection Regulation.

In addition, the applicant submits that the European Commission's action is arbitrary.

---

(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 (OJ 2001 L 145, p. 43).

(2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and on the free movement of such data (OJ 2001 L 8, p. 1).

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/40 |
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Action brought on 14 April 2005 by Flex Equipos de Descanso, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-146/05)

(2005/C 143/76)

Language in which the application was lodged: English

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 by Flex Equipos de Descanso, established in Alcobendas, Madrid (Spain), represented by I. Valdelomar Serrano, lawyer.

Recticel N.V. established in Sint-Lambrechts-Woluwe (Belguim) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 8 February 2005 in case R 469/2004-2; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 8 February 2005 in case R 469/2004-2;

| — | remit the case to the Office for Harmonisation in the Internal Market and order it to deny from registration the Community Trade Mark Application No. 1.278.175 RENOFLEX for all the goods in classes 17 and 20; |
| --- | --- |

—

remit the case to the Office for Harmonisation in the Internal Market and order it to deny from registration the Community Trade Mark Application No. 1.278.175 RENOFLEX for all the goods in classes 17 and 20;

| — | declare that the Office for Harmonisation in the Internal Market is infringing the principle of legal certainty; |
| --- | --- |

—

declare that the Office for Harmonisation in the Internal Market is infringing the principle of legal certainty;

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

—

order the defendant to bear the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Recticel N.V. |
| --- | --- |
| Community trade mark concerned: | The word mark ‘RENOFLEX’ for goods inter alia in classes 17 and 20 (filling materials for seats, benches for vehicles, furniture ...) — application No 1 278 175 |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Trade mark or sign cited in opposition: | The national figurative marks ‘FLEX’ for goods in classes 17 and 20 respectively (rubber, beds, mattresses, convertible furniture, desks ...) |
| Decision of the Opposition Division: | Opposition upheld for all the contested goods |
| Decision of the Board of Appeal: | Annulment of the Opposition Division's decision |
| Pleas in law: | The likelihood of confusion between the Community trade mark and the earlier trade marks is evident because of the similarity of the signs and the fact that the goods covered by the trade marks are partly identical, partly similar.
  The Community trade mark bears a close resemblance with the earlier trade marks, due to the fact that the word element and dominant part of the earlier trade marks, FLEX, is included in the contested Community trade mark, RENOFLEX. The addition of the word RENO does not alter the overall impression.
  The contested decision therefore entails an infringement of Article 8(1)b of Council Regulation No 40/94.
  The Office for Harmonisation in the Internal Market has further more infringed the principal of legal certainty. |

Applicant for Community trade mark:

Recticel N.V.

Community trade mark concerned:

The word mark ‘RENOFLEX’ for goods inter alia in classes 17 and 20 (filling materials for seats, benches for vehicles, furniture ...) — application No 1 278 175

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Trade mark or sign cited in opposition:

The national figurative marks ‘FLEX’ for goods in classes 17 and 20 respectively (rubber, beds, mattresses, convertible furniture, desks ...)

Decision of the Opposition Division:

Opposition upheld for all the contested goods

Decision of the Board of Appeal:

Annulment of the Opposition Division's decision

Pleas in law:

The likelihood of confusion between the Community trade mark and the earlier trade marks is evident because of the similarity of the signs and the fact that the goods covered by the trade marks are partly identical, partly similar.

The Community trade mark bears a close resemblance with the earlier trade marks, due to the fact that the word element and dominant part of the earlier trade marks, FLEX, is included in the contested Community trade mark, RENOFLEX. The addition of the word RENO does not alter the overall impression.

The contested decision therefore entails an infringement of Article 8(1)b of Council Regulation No 40/94.

The Office for Harmonisation in the Internal Market has further more infringed the principal of legal certainty.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/41 |
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C 143/41

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Action brought on 11 April 2005 by the Comunidad Autónoma de Madrid and Madrid, Infraestructuras del Transporte (MINTRA) against Commission of the European Communities

(Case T-148/05)

(2005/C 143/77)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 April 2005 by the Comunidad Autónoma de Madrid and Madrid, Infraestructuras del Transporte (MINTRA), having its principal place of business in Madrid, represented by C. Fernández Vicién, D. Ortega Peciña and J. Sabater Marotias, lawyers.

The applicant claims that the Court should:

| — | annul the Commission's decision; and |
| --- | --- |

—

annul the Commission's decision; and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the defendant's decision classifying MINTRA in the general sector ‘public administrations’, in accordance with the ‘European system of accounts — ESA 1995’ provided for in Annex A to Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community. (1) The ESA 1995 consists of a series of definitions, nomenclatures and rules of accounting methodology which the Member States apply when drawing up their national accounts and economic statistics. That accounting system is also used for the application of the excessive deficit procedure.

MINTRA is a public-law entity of the Comunidad de Madrid attached to the Consejería de Transportes e Infraestructuras. It has legal personality and its own assets and also full capacity to act. It also has the capacity to incur autonomous debts with regard to the Comunidad de Madrid.

In support of its claims, the applicant alleges:

| — | breach of various rules of the ESA 1995 on the classification of institutional units as ‘market’ or ‘non-market’ entities; |
| --- | --- |

—

breach of various rules of the ESA 1995 on the classification of institutional units as ‘market’ or ‘non-market’ entities;

| — | breach of the principle of legitimate expectations, in so far as the contested decision presumes a radical change in the position of Eurostat concerning the classification adopted by that body vis-à-vis MINTRA by letter of 14 February 2003, a reclassification which resulted from a declaration of Eurostat to the same effect in a very similar case, that of the Austrian public entity Bundesimmobiliengesellschaft. Significant, in that regard, is the fact that the decision has extremely serious financial consequences for the applicant and for MINTRA, since the debt of that public entity will be incorporated in the accounts of the Comunidad de Madrid. Furthermore, MINTRA could be obliged to rescind the contracts already entered into in connection with the plan to expand the metropolitan railway network, which the Comunidad de Madrid undertook on the basis of the classification of February 2003; |
| --- | --- |

—

breach of the principle of legitimate expectations, in so far as the contested decision presumes a radical change in the position of Eurostat concerning the classification adopted by that body vis-à-vis MINTRA by letter of 14 February 2003, a reclassification which resulted from a declaration of Eurostat to the same effect in a very similar case, that of the Austrian public entity Bundesimmobiliengesellschaft. Significant, in that regard, is the fact that the decision has extremely serious financial consequences for the applicant and for MINTRA, since the debt of that public entity will be incorporated in the accounts of the Comunidad de Madrid. Furthermore, MINTRA could be obliged to rescind the contracts already entered into in connection with the plan to expand the metropolitan railway network, which the Comunidad de Madrid undertook on the basis of the classification of February 2003;

| — | breach of the obligation to state reasons, in that, among other reasons, the contested decision lacks any reference to its legal basis and to the specific factual elements on which it is based. |
| --- | --- |

—

breach of the obligation to state reasons, in that, among other reasons, the contested decision lacks any reference to its legal basis and to the specific factual elements on which it is based.

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(1)  OJEC L 310 of 30.11.1996, p. 1.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/42 |
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Action brought on 18 April 2005 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö against the Commission of the European Communities

(Case T-150/05)

(2005/C 143/78)

Language of the case: Finnish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 April 2005 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö, represented by Kari Marttinen, lawyer.

The applicants claim that the Court should:

| — | annul the contested decision (1) in its entirety; |
| --- | --- |

—

annul the contested decision (1) in its entirety;

| — | in the alternative, if it does not regard that as possible, annul the contested decision in so far as it concerns all the sites in the Republic of Finland included in the decision; |
| --- | --- |

—

in the alternative, if it does not regard that as possible, annul the contested decision in so far as it concerns all the sites in the Republic of Finland included in the decision;

| — | in the further alternative, if it does not regard that as possible either, annul the decision as regards the sites specified in part 6.2.2.7; |
| --- | --- |

—

in the further alternative, if it does not regard that as possible either, annul the decision as regards the sites specified in part 6.2.2.7;

| — | order the Commission to pay the costs in full with statutory interest. |
| --- | --- |

—

order the Commission to pay the costs in full with statutory interest.

Pleas in law and main arguments

According to the applicants, the decision is contrary to Community law, in particular Article 4 of the Nature Directive and Annex III referred to there. The argument that the decision is contrary to Community law rests on three principal pleas in law:

| (a) | Under Article 3 of the nature directive, the Natura 2000 network is a coherent European network of protected sites. The coherence of the network is ensured and the objective of a favourable level of protection attained by the fact that Article 4 of and Annex III to the directive, concerning the choice of sites, are binding on both the Member States and the Commission. Sites may not be chosen without complying with those provisions and not by preliminary decisions or partial decisions. The sites are to be chosen by uniform criteria for all Member States; |
| --- | --- |

(a)

Under Article 3 of the nature directive, the Natura 2000 network is a coherent European network of protected sites. The coherence of the network is ensured and the objective of a favourable level of protection attained by the fact that Article 4 of and Annex III to the directive, concerning the choice of sites, are binding on both the Member States and the Commission. Sites may not be chosen without complying with those provisions and not by preliminary decisions or partial decisions. The sites are to be chosen by uniform criteria for all Member States;

| (b) | Stages 1 (the Member State stage) and 2 (the Commission stage) of Annex III form a whole which consists of measures having legal effect. The procedure in stage 2 and the decision on sites of Community importance are not in accordance with the directive if the proposal in stage 1 does not fulfil the requirements of the directive; |
| --- | --- |

(b)

Stages 1 (the Member State stage) and 2 (the Commission stage) of Annex III form a whole which consists of measures having legal effect. The procedure in stage 2 and the decision on sites of Community importance are not in accordance with the directive if the proposal in stage 1 does not fulfil the requirements of the directive;

| (c) | The Commission must in connection with stage 2, together with the Member States, coordinate the proposals of the Member States and make changes to the boundaries concerning each biogeographical region, as a consequence of a more extensive examination than the Member State's as regards the favourable level of protection. |
| --- | --- |

(c)

The Commission must in connection with stage 2, together with the Member States, coordinate the proposals of the Member States and make changes to the boundaries concerning each biogeographical region, as a consequence of a more extensive examination than the Member State's as regards the favourable level of protection.

Finland's stage 1 proposal of sites, from which the sites of Community importance were chosen by the Commission decision in accordance with the third subparagraph of Article 4(2) of the directive, is contrary to the nature directive's mandatory selection criteria for the choice of sites.

The Commission is obliged to ensure that the sites included in the Member State's proposal satisfy the biogeographical requirements required for the inclusion of sites in the decision to be made after stage 2. The Commission thus may not, without a proper examination of the biogeographical data, approve a proposed site for entry in the list of sites of Community importance.

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(1)  Commission Decision 2005/101/EC of 13 January 2005 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Boreal biogeographical region, OJ L 40, 11.2.2005, p. 1.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/43 |
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Action brought on 18 April 2005 by John Arthur Slater against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-152/05)

(2005/C 143/79)

Language in which the application was lodged: English

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 18 April 2005 by John Arthur Slater, residing in London (United Kingdom), represented by M. J. Gilbert, Solicitor.

Prime Restaurant Holdings, Inc., established in Mississanga, Ontario (Canada) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal dated 13 December 2004 in Case R 582/2003-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal dated 13 December 2004 in Case R 582/2003-4;

| — | dismiss Prime Restaurant Holdings, Inc's request for a declaration of invalidity in respect of Community trade mark registration No 447730; |
| --- | --- |

—

dismiss Prime Restaurant Holdings, Inc's request for a declaration of invalidity in respect of Community trade mark registration No 447730;

| — | order the Office and other parties to bear their own costs and pay those of the applicant in this application, in appeal No R582/2003-4 and in cancellation proceedings No 232C000447730/1. |
| --- | --- |

—

order the Office and other parties to bear their own costs and pay those of the applicant in this application, in appeal No R582/2003-4 and in cancellation proceedings No 232C000447730/1.

Pleas in law and main arguments

| Registered Community trade mark subject of the application for a declaration of invalidity: | The word mark EAST SIDE MARIO'S for goods and services in classes 25, 26 and 42 — Community trade mark No 447730 |
| --- | --- |
| Proprietor of the Community trade mark: | John Arthur Slater |
| Party requesting the declaration of invalidity of the Community trade mark: | Prime Restaurant Holdings, Inc. |
| Rights of the applicant for a declaration of invalidity: | The national word and figurative marks EAST SIDE MARIO'S |
| Decision of the Cancellation Division: | Invalidity of the Community trade mark |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Violation of Article 51(1)(b) of Council Regulation No 40/94. According to the applicant, the Board erred in finding that the applicant acted for a third person who should be considered to be the applicant for the trade mark, that this third person acted in bad faith and that there is unfair practice. |

Registered Community trade mark subject of the application for a declaration of invalidity:

The word mark EAST SIDE MARIO'S for goods and services in classes 25, 26 and 42 — Community trade mark No 447730

Proprietor of the Community trade mark:

John Arthur Slater

Party requesting the declaration of invalidity of the Community trade mark:

Prime Restaurant Holdings, Inc.

Rights of the applicant for a declaration of invalidity:

The national word and figurative marks EAST SIDE MARIO'S

Decision of the Cancellation Division:

Invalidity of the Community trade mark

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Violation of Article 51(1)(b) of Council Regulation No 40/94. According to the applicant, the Board erred in finding that the applicant acted for a third person who should be considered to be the applicant for the trade mark, that this third person acted in bad faith and that there is unfair practice.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/43 |
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Removal from the Register of Case T-176/00 (1)

(2005/C 143/80)

(Language of the case: Dutch)

By order of 11 March 2005, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-176/00, Cargill B.V. v Commission of the European Communities.

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(1)  OJ C 285 of 7.10.2000.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/44 |
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Removal from the Register of Case T-225/01 (1)

(2005/C 143/81)

(Language of the case: Spanish)

By order of 15 March 2005, the President of the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-225/01, Gobierno Foral de Navarra v Commission of the European Communities.

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(1)  OJ C 331 of 24.11.2001.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/44 |
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Removal from the Register of Case T-142/04 (1)

(2005/C 143/82)

(Language of the case: Dutch)

By order of 11 March 2005, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-142/04, Cargill B.V. v Commission of the European Communities.

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(1)  OJ C 168 of 26.6.2004.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/44 |
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Removal from the Register of Case T-228/04 (1)

(2005/C 143/83)

(Language of the case: Dutch)

By order of 11 April 2005, the President of the Third Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-228/04, Kingdom of the Netherlands v Commission of the European Communities.

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(1)  OJ C 247 of 12.10.2002.

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| 11.6.2005 | EN | Official Journal of the European Union | C 143/44 |
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Removal from the Register of Case T-470/04 (1)

(2005/C 143/84)

(Language of the case: French)

By order of 24 February 2005, the President of the First Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-470/04, Thomas Peyker v Commission of the European Communities.

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(1)  OJ C 57 of 5.3.2005.

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III Notices

| 11.6.2005 | EN | Official Journal of the European Union | C 143/45 |
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(2005/C 143/85)

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

OJ C 132, 28.5.2005

Past publications

OJ C 115, 14.5.2005

OJ C 106, 30.4.2005

OJ C 93, 16.4.2005

OJ C 82, 2.4.2005

OJ C 69, 19.3.2005

OJ C 57, 5.3.2005

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 |
| --- | --- |

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

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