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I Information

Court of Justice

COURT OF JUSTICE

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JUDGMENT OF THE COURT

(Third Chamber)

of 6 October 2005

in Case C-204/03: Commission of the European Communities v Kingdom of Spain (1)

(Failure of a Member State to fulfil its obligations - Articles 17 and 19 of the Sixth VAT Directive - Subsidies - Limitation of the right to deduct)

(2005/C 296/01)

Language of the case: Spanish

In Case C-204/03: Commission of the European Communities (Agents: E. Traversa and L. Lozano Palacios) v Kingdom of Spain (Agent: N. Díaz Abad) — action under Article 226 EC for failure to fulfil obligations, brought on 14 May 2003 — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 6 October 2005, in which it:

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(1)OJ C 226 of 20.09.2003.

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JUDGMENT OF THE COURT

(Third Chamber)

of 22 September 2005

in Case C-221/03: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations - Directive 91/676/EEC - Incomplete transposition - Protection of water against pollution by nitrates from agricultural sources - Failure to identify waters that are or could be affected by pollution - Incorrect and inadequate designation of vulnerable zones - Code of good agricultural practice - Inadequacies - Action programme - Inadequacies and incomplete application)

(2005/C 296/02)

Language of the case: French

In Case C-221/03, Commission of the European Communities (Agents: G. Valero Jordana, assisted by M. van der Woude and T. Chellingsworth) v Kingdom of Belgium (Agent: A. Snoecx, and subsequently by E. Dominkovits,) — action under Article 226 EC for failure to fulfil obligations, brought on 22 May 2003 — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg Barthet, S. von Bahr, J. Malenovský and A. Ó Caoimh (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 22 September 2005, in which it:

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(1)OJ C 171, 19.07.2003.

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JUDGMENT OF THE COURT

(Third Chamber)

of 6 October 2005

in Case C-243/03: Commission of the European Communities v French Republic (1)

(VAT - Deduction of input tax paid - Capital goods financed by subsidies)

(2005/C 296/03)

Language of the case: French

In Case C-243/03: Commission of the European Communities (Agent: E. Traversa, assisted by N. Coutrelis, avocat) v French Republic (Agents: G. de Bergues and C. Jurgensen-Mercier), supported by: Kingdom of Spain (Agent: N. Díaz Abad) — action under Article 226 EC for failure to fulfil obligations, brought on 6 June 2003 — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 6 October 2005, in which it:

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(1)OJ C 171, of 19.07.2003.

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JUDGMENT OF THE COURT

(Third Chamber)

of 29 September 2005

in Case C-251/03: Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations - Failure to satisfy the requirements of Annex I to Directive 80/778/EEC - Article 7(6) - Water intended for human consumption)

(2005/C 296/04)

Language of the case: Portuguese

In Case C-251/03: Commission of the European Communities (Agents: A. Caeiros and G. Valero Jordana) v Portuguese Republic (Agents: L. Fernandes and M. Lois) — action brought on 11 June 2003 under Article 226 EC for failure to fulfil Treaty obligations — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. La Pergola, J.-P. Puissochet (Rapporteur), U. Lõhmus and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 29 September 2005, in which it:

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(1)OJ C 184 of 02.08.2003.

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JUDGMENT OF THE COURT

(First Chamber)

of 6 October 2005

in Case C-276/03 P: Scott SA v Commission of the European Communities and French Republic (1)

(Appeal - Unlawful State aid - Temporal application of Regulation (EC) No 659/1999 - Decision on incompatibility and recovery of aid - Limitation period - Interruption - Need to inform the beneficiary of the aid of an interrupting action)

(2005/C 296/05)

Language of the case: English

In Case C-276/03 P: appeal under Article 56 of the Statute of the Court of Justice, brought on 24 June 2003 by Scott SA, established in Saint-Cloud (France) (represented by J. Lever QC, G. Peretz, Barrister, A. Nourry, R. Griffith and M. Papadakis, Solicitors), the other parties to the proceedings being: Commission of the European Communities (Agent: J. Flett), and the French Republic — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, N. Colneric, K. Schiemann, E. Juhász and E. Levits, Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 6 October 2005, in which it:

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(1)OJ C 200 of 23. 08.2003.

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JUDGMENT OF THE COURT

(Third Chamber)

of 6 October 2005

in Case C-291/03: Reference for a preliminary ruling from the VAT and Duties Tribunal, Manchester, MyTravel plc v Commissioners of Customs & Excise (1)

(Sixth VAT Directive - Scheme for travel agents - Package tours - Services bought in from third parties and in-house services - Method of calculating the tax)

(2005/C 296/06)

Language of the case: English

In Case C-291/03: reference for a preliminary ruling under Article 234 EC from the VAT and Duties Tribunal, Manchester (United Kingdom), made by decision of 30 June 2003, received at the Court on 4 July 2003, in the proceedings between MyTravel plc and Commissioners of Customs & Excise — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg Barthet (Rapporteur), J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; P. Léger, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 6 October 2005, the operative part of which is as follows:

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(1)OJ C 213 of 06.09.2003.

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JUDGMENT OF THE COURT

(First Chamber)

of 13 October 2005

in Case C-458/03: Reference for a preliminary ruling from the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen, Parking Brixen GmbH v Gemeinde Brixen, Stadtwerke Brixen AG (1)

(Public procurement - Procedures for the award of public contracts - Service concession - Management of public pay car parks)

(2005/C 296/07)

Language of the case: German

In Case C-458/03: Reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen (Italy), made by decision of 23 July 2003, received at the Court on 30 October 2003, in the proceedings between Parking Brixen GmbH and Gemeinde Brixen and Stadtwerke Brixen AG — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur) and E. Juhász, Judges; J. Kokott, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 13 October 2005, the operative part of which is as follows:

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(1)OJ C 7 of 10.01.2004.

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 6 October 2005

in Case C-502/03: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Environment - Management of waste - Directive 75/442/EEC, as amended by Directive 91/156/EEC - Articles 4, 8 and 9)

(2005/C 296/08)

Language of the case: Greek

In Case C-502/03 Commission of the European Communities (Agent: M. Konstantinidis) v Hellenic Republic (Agent: E. Skandalou) — action under Article 226 EC for failure to fulfil obligations, brought on 26 November 2003 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen and J. Klučka (Rapporteur), Judges; L. A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 6 October 2005, in which it:

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(1)OJ C 47, 21.02.2004

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JUDGMENT OF THE COURT

(First Chamber)

of 13 October 2005

in Case C-522/03: reference for a preliminary ruling from the Oberlandesgericht München Scania Finance France SA v Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co. (1)

(Brussels Convention - Recognition and enforcement - Grounds for refusal - Meaning of ‘duly served’)

(2005/C 296/09)

Language of the case: German

In Case C-522/03: reference for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, from the Oberlandesgericht München (Germany), made by decision of 31 October 2003, registered at the Court on 15 December 2003 in the proceedings pending before that court between Scania Finance France SA and Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co., — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, K. Schiemann, K. Lenaerts, E. Juhász and M. Ilešič, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 13 October 2005, the operative part of which is as follows:

Article 27 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, and the first paragraph of Article IV of the Protocol annexed to that convention, must be interpreted as meaning that, where a relevant international convention is applicable between the State in which the judgment is given and the State in which recognition is sought, the question whether the document instituting the proceedings was duly served must be determined in the light of the provisions of that convention, without prejudice to the use of direct transmission between public officers, where the State in which recognition is sought has not officially objected, in accordance with the second paragraph of Article IV of the Protocol.

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(1)OJ C 47, 21.02.2004.

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JUDGMENT OF THE COURT

(First Chamber)

of 6 October 2005

in Case C-9/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in criminal proceedings against Geharo BV (1)

(Directive 88/378/EEC - Toys - Directive 91/338/EEC - Maximum cadmium content permitted)

(2005/C 296/10)

Language of the case: Dutch

In Case C-9/04: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 23 December 2003, received at the Court on 12 January 2004, in criminal proceedings against Geharo BV — the Court (First Chamber) composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), N. Colneric, K. Schiemann and E. Levits, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 6 October 2005, in which it:

Declares that, the second sentence of Article 1 of Council Directive 91/338/EEC of 18 June 1991 amending for the 10th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations is to be interpreted as meaning that it does not preclude the prohibition in that Directive of the marketing of products with a cadmium content in excess of an authorised maximum amount from applying to toys covered by Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys.

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(1)OJ C 59, 06.03.2004.

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JUDGMENT OF THE COURT

(Second Chamber)

of 6 October 2005

in Case C-120/04: reference for a preliminary ruling from the Oberlandesgericht Düsseldorf in Medion AG v Thomson multimedia Sales Germany & Austria GmbH (1)

(Trade marks - Directive 89/104/EEC - Article 5(1)(b) - Likelihood of confusion - Use of the trade mark by a third party - Composite sign including the name of another party followed by the trade mark)

(2005/C 296/11)

Language of the case: German

In Case C-120/04: reference for a preliminary ruling under Article 234 EC from the Oberlandesgericht Düsseldorf (Germany), made by decision of 17 February 2004, received at the Court on 5 March 2004, in the proceedings between Medion AG and Thomson multimedia Sales Germany & Austria GmbH — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; F.G. Jacobs, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 6 October 2005, the operative part of which is as follows:

Article 5(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be interpreted as meaning that where the goods or services are identical there may be a likelihood of confusion on the part of the public where the contested sign is composed by juxtaposing the company name of another party and a registered mark which has normal distinctiveness and which, without alone determining the overall impression conveyed by the composite sign, still has an independent distinctive role therein.

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(1)OJ C 106 of 30.04.2004.

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JUDGMENT OF THE COURT

(Second Chamber)

of 13 October 2005

in Case C-200/04: Reference for a preliminary ruling from the Bundesfinanzhof, Finanzamt Heidelberg v ISt internationale Sprach- und Studienreisen GmbH (1)

(Sixth VAT Directive - Special scheme for travel agents and tour operators - Article 26(1) - Scope - Package comprising travel to the host State and/or the stay in that State and language tuition - Principal service and ancillary service - Definition - Directive 90/314/EEC on package travel, package holidays and package tours)

(2005/C 296/12)

Language of the case: German

In Case C-200/04: reference for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 18 March 2004, received at the Court on 5 May 2004, in the proceedings between Finanzamt Heidelberg and ISt internationale Sprach- und Studienreisen GmbH — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, R. Silva de Lapuerta, P. Kūris and G. Arestis (Rapporteur), Judges; M. Poiares Maduro, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 13 October 2005, the operative part of which is as follows:

Article 26 of 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, should be interpreted as meaning that it applies to a trader who offers services such as the ‘High School’ and ‘College’ programmes involving the organisation of language and study trips abroad and which, in consideration of the payment of an all-inclusive sum, provides in its own name to its customers a stay abroad of three to 10 months and buys in services from other taxable persons for that purpose.

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(1)OJ C 190 of 24.07.2004.

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JUDGMENT OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-379/04: reference for a preliminary ruling from the Landgericht Würzburg, Richard Dahms GmbH v Fränkischer Weinbauverband eV (1)

(Wine sector products - Regulation (EC) No 753/2002 - Article 21 - Direct effect - Wine and sparkling wine competitions - Competition entry fee)

(2005/C 296/13)

Language of the case: German

In Case C-379/04: reference for a preliminary ruling under Article 234 EC from the Landgericht Würzburg (Germany), made by decision of 23 August 2004, received at the Court on 3 September 2004, in the proceedings between Richard Dahms GmbH and Fränkischer Weinbauverband eV, — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. La Pergola, A. Borg Barthet, U. Lõhmus (Rapporteur) and A. Ó Caoimh, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 13 October 2005, the operative part of which is as follows:

Article 21 of Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products must be interpreted as meaning that entrants or potential entrants to a wine competition cannot rely on that provision to contest the conditions for the organisation of that competition and, in particular, the rules determining the entry fees.

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(1)OJ C 262 of 23.10.2004.

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 6 October 2005

in Case C-429/04: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations - Directive 2001/96/EC - Harmonised requirements and procedures for the safe loading and unloading of bulk carriers - Failure to transpose within the prescribed period)

(2005/C 296/14)

Language of the case: Dutch

In Case C-429/04: action for failure to fulfil obligations under Article 226 EC brought on the 6 October 2004, Commission of the European Communities (Agents: K. Simonsson and W. Wils) v Kingdom of Belgium (Agents: D. Haven and M. Wimmer), the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, C Gulmann and G. Arestis (Rapporteur), Judges, Advocate General: C. Stix-Hackl, Registrar: R. Grass, has given a judgment on the 6 October 2005 in which it:

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(1)OJ C 284, 20.11.2004

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ORDER OF THE COURT

(Second Chamber)

of 14 July 2005

in Case C-70/04: Swiss Confederation v Commission of the European Communities (1)

(External relations - EC-Switzerland Agreement on air transport - Action for annulment brought by a non-member State - Swiss Confederation - Commission Decision 2004/12/EC - German measures relating to the approaches to Zurich airport - Council Regulation (EEC) No 2408/92 - Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice - Referral to the Court of First Instance)

(2005/C 296/15)

Language of the case: German

In Case C-70/04: Swiss Confederation, (lawyers: S. Hirsbrunner and U. Soltész) against Commission of the European Communities (Agents: F. Benyon, M. Huttunen and M. Niejahr), supported by: Federal Republic of Germany (Agents: C.-D. Quassowski and A. Tiemann, and by T. Masing, lawyer) — action for annulment under Article 230 EC, read in conjunction with Article 20 of the Agreement between the European Community and the Swiss Confederation on air transport, brought on 13 February 2004 — the Court (Second Chamber), composed of C. W. A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, J. Makarczyk, P. Kūris and G. Arestis, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 14 July 2005, the operative part of which is as follows:

Case C-70/04 is referred to the Court of First Instance of the European Communities.

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(1)OJ C 94, 17.04.2004

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ORDER OF THE COURT

(Sixth Chamber)

of 22 June 2005

in Case C-190/04 P: Graham French, John Steven Neiger, Michael Leighton v Council of the European Union, Commission of the European Communities, John Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait (1)

(Appeal - Action for damages - Unsubstantiated refusal of a United Kingdom court of last resort to refer a question to the Court of Justice for a preliminary ruling - Failure to adopt measures on the part of the Council and the Commission - Non-contractual liability of the Community - Clear inadmissibility)

(2005/C 296/16)

Language of the case: English

In Case C-190/04 P: Graham French, John Steven Neiger, Michael Leighton, (lawyer: J. Barnett) the other parties to the proceedings being: Council of the European Union, (Agents: M. Sims and M. Bauer), Commission of the European Communities (Agents: C. Docksey and M. Shotter) John Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait — appeal under Article 56 of the Statute of the Court of Justice lodged on 23 April 2004, the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and U. Lõhmus (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, made an order on 22 June 2005, the operative part of which is as follows

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(1)OJ C 156 of 12.06.2004

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ORDER OF THE COURT

(Sixth Chamber)

of 22 June 2005

in Case C-281/04 P: Michael Leighton, Graham French, John Steven Neiger v Council of the European Union, Commission of the European Communities, John Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait (1)

(Appeal - Action for failure to act - Failure to commence proceedings for failure to fulfil obligations - Non-contractual liability of the Community - Clear inadmissibility)

(2005/C 296/17)

Language of the case: English

In Case C-281/04 P: Michael Leighton, Graham French, John Steven Neiger, (lawyer: J. Barnett) the other parties to the proceedings being Council of the European Union, Commission of the European Communities, (Agents: E. Traversa and M. Shotter), John Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait — appeal under Article 56 of the Statute of the Court of Justice lodged on 25 June 2004, the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and U. Lõhmus (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, made an order on 22 June 2005, the operative part of which is as follows

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(1)OJ C 288 of 11.09.2004.

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Reference for a preliminary ruling from the Centrale Raad van Beroep by order of that court of 15 July 2005 in D.P.W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen

(Case C-287/05)

(2005/C 296/18)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Centrale Raad van Beroep (Higher Social Security Court) of 15 July 2005, received at the Court Registry on 18 July 2005, for a preliminary ruling in the proceedings between D.P.W. Hendrix and Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen on the following questions:

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(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition, 1971 (II), p. 416).

(2)  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475).

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Reference for a preliminary ruling from the Hajdú-Bihar Megyei Bíróság by order of that court of 3 March 2005 in Ákos Nádasdi v Vám- és Pénzügyőrség Észak-Alföldi Regionális Parancsnoksága

(Case C-290/05)

(2005/C 296/19)

Language of the case: Hungarian

Reference has been made to the Court of Justice of the European Communities by order of the Hajdú-Bihar Megyei Bíróság (Hungary) of 3 March 2005, received at the Court Registry on 19 July 2005, for a preliminary ruling in the proceedings between Ákos Nádasdi and Vám- és Pénzügyőrség Észak-Alföldi Regionális Parancsnoksága on the following questions:

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Reference for a preliminary ruling from the Raad van State by order of that court of 13 July 2005 in the proceedings between Minister voor Vreemdelingenzaken en Integratie and R.N.G. Eind

(Case C-291/05)

(2005/C 296/20)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Raad van State (Council of State) of 13 July 2005, received at the Court Registry on 20 July 2005, for a preliminary ruling in the proceedings between Minister voor Vreemdelingenzaken en Integratie (Minister for Alien Affairs and Integration) and R.N.G. Eind on the following questions:

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(1)  OJ, English Special Edition 1968(II), p. 475.

(2)  OJ 1990 L 180, p. 26.

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Reference for a preliminary ruling from the Raad van State (Council of State) by order of that court of 19 July 2005 in Minister for immigration and integration v Mr I. Günes

(Case C-296/05)

(2005/C 296/21)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Raad van State (Council of State) of 19 July 2005, received at the Court Registry on 22 July 2005, for a preliminary ruling in the proceedings between the Minister for immigration and integration and Mr I. Günes on the following questions:

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Action brought on 22 July 2005 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-297/05)

(2005/C 296/22)

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 22 July 2005 by the Commission of the European Communities, represented by Michel van Beek and Désirée Zijlstra, acting as Agents.

The applicant claims that the Court should:

Pleas in law and main arguments

The technical examinations which the Netherlands require motor vehicles previously registered in another Member State to undergo as a precondition of entry in the national vehicle licence plate register cannot be justified in the light of the objectives mentioned in Article 30 EC or for the purpose of meeting any mandatory requirement as recognised in the Court's case-law.

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Appeal brought on 10 August 2005 by Creative Technology Ltd against the judgment delivered on 25 May 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-352/02 between Creative Technology Ltd and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being José Vila Ortiz

(Case C-314/05 P)

(2005/C 296/23)

Language of the case: English

An appeal against the judgment delivered on 25 May 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-352/02 (1) between Creative Technology Ltd and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being José Vila Ortiz, was brought before the Court of Justice of the European Communities on 10 August 2005 by Creative Technology Ltd, established in Singapore (Singapore), represented by Stephen Jones and Paul Rawlinson, Solicitors.

The Appellant claims that the Court should:

Pleas in law and main arguments:

The Appellant submits that the Community Trade Mark Application for the word PC WORKS is not confusingly similar to the earlier Spanish trade mark for the figurative mark that includes the words W WORK PRO. It is submitted that the Opposition Division, the Fourth Board of Appeal and the Court of First Instance erred in their respective analysis of the global appreciation of the marks in question and in particular the undue weight given to the WORK element present in both marks.

It is further submitted that the Opposition Division, the Fourth Board of Appeal and the Court of First Instance failed to recognise that the goods in question are not casual purchases but bought by consumers after careful consideration and in particular that they failed to appreciate the proper characteristics of the reasonably well-informed and observant and circumspect member of the relevant public in that such a member of the relevant public in this case would not buy those goods without close examination.

Accordingly, it was wrong of the Court of First Instance to uphold the decisions of the Opposition Division and the Fourth Board of Appeal and reject the application in its entirety.

Hence, it is submitted that this appeal against the decision of the Opposition Division, the Fourth Board of Appeal and the Court of First Instance ought to be allowed, and the decisions of the Opposition Division, the Fourth Board of Appeal and the Court of First Instance ought to be annulled in their entirety. The Applicant/Appellant also seeks costs in these appeal proceedings and the proceedings before the Opposition Division, the Fourth Board of Appeal and the Court of First Instance.

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(1)  OJ C182, 23.07.05, p. 35

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Appeal brought on 28 July 2005 (received by fax on 27 July 2005) by Plus Warenhandelsgesellschaft mbH against the judgment of the Court of First Instance (Fourth Chamber) of 22 June 2005 in Case T-34/04 Plus Warenhandelsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-324/05 P)

(2005/C 296/24)

Language of the case: German

On 28 July 2005 (received by fax on 27 July 2005), Plus Warenhandelsgesellschaft mbH, represented by P.H. Kort, M.W. Husemann and B. Piepenbrink, of Kort Rechtsanwälte (GBR), Ellerstraße 123/125, D-40227 Düsseldorf, Germany, brought an appeal before the Court of Justice of the European Communities against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 22 June 2005 in Case T-34/04 Plus Warenhandelsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

The appellant claims that the Court should:

Grounds of appeal and main arguments (Case C-324/05 P)

By its appeal the appellant is seeking to prevent the use of the word mark ‘POWER’ in the trade mark applied for (‘TURKISH POWER’) from leading to a taking over of the rights associated with the earlier mark. It substantiates its appeal against the abovementioned judgment by alleging legal error in the application of current Community law on Community trade marks and that, by the judgment under appeal, the Court of First Instance changed its decision-making practice and infringed the principle of equal treatment:

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(1)  OJ 2005 C 205, p. 21.

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----

Appeal brought on 15 September 2005 (fax 9 September 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 15 June 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market, the other party to the proceedings being Limiñana y Botella, SL

(Case C-334/05 P)

(2005/C 296/25)

Language of the case: Italian

An appeal against the judgment of the Third Chamber of the Court of First Instance of the European Communities of 15 June 2005 in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market was brought before the Court of Justice of the European Communities on 15 September 2005 by the Office for Harmonisation in the Internal Market, represented by O. Montalto and M. Capostagno, acting as Agents, the other party to the proceedings being Limiñana y Botella, SL.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant considers that the judgment of the Court of First Instance under appeal in this case is vitiated by misinterpretation and misapplication of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

It is settled principle that the assessment of likelihood of confusion between trade marks under Article 8(1)(b) of the regulation on the Community trade mark is based on two distinct elements: first, an analytical comparison between both the signs and the goods, and then a concise evaluation of the results obtained in order to determine whether the average consumer of the goods in question might believe that those goods come from the same undertaking or from economically-linked undertakings. In particular, as regards the comparison between the signs, the analysis directed at establishing whether the signs are similar must take into consideration the visual, phonetic and conceptual aspects to arrive at a global assessment based on the general impression given by the marks themselves, taking particular account of their distinctive and dominant components.

The applicant claims that the Court of First Instance failed to give effect to the principle cited above and, in particular, it dismissed the possibility of confusion, basing its assessment exclusively on the visual perception of the contested mark, without taking any account of the further elements which may not be ignored in the overall assessment the likelihood of confusion.

The applicant also submits that the judgment under appeal is vitiated by manifest inconsistency and illogicality.

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Reference for a preliminary ruling from the Tribunal Départemental des Pensions Militaires du Morbihan by order of that court of 7 September 2005 in Ameur Echouikh v Secrétaire d'État aux Anciens Combatants

(Case C-0336/05)

(2005/C 296/26)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Départemental Des Pensions Militaires de Morbihan (Armed Services Pensions Tribunal for the Department of Morbihan) of 7 September 2005, received at the Court Registry on 15 September 2005, for a preliminary ruling in the proceedings between Ameur Echouikh and the Secrétaire D' Etat aux Anciens Combatants on the following questions:

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Reference for a preliminary ruling from the Oberlandesgericht München by order of that court of 9 September 2005 in the criminal proceedings against Stefan Kremer

(Case C-340/05)

(2005/C 296/27)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Oberlandesgericht München (Germany) of 9 September 2005, received at the Court Registry on 19 September 2005, for a preliminary ruling in the criminal proceedings against Stefan Kremer.

The reference concerns the case where the driving licence of a person in a Member State (host State) has been withdrawn by the administrative authorities due to unfitness to drive or the acquisition of such a licence has been refused, the acquisition of a new driving licence in that host State is dependant on the applicant obtaining a medical/psychological certificate proving his fitness to drive in accordance with the provisions of that host State, the applicant fails to obtain this, and subsequently — before expiration of the driving ban in the host Member State — he acquires a driving licence in another Member State (issuing State).

The following questions are referred for a preliminary ruling:

Does Article 8(4) of Council Directive 91/439/EEC (1) permit, in such a case, the host State to adopt a legal rule under which a driving licence from an issuing State may be used in the host State only on application and after examination as to whether the conditions for the measure under Article 8(2) of the directive have ceased to apply,

or, does it follow from the principle of mutual recognition of driving licenses laid down in Article 1(2) of the directive and from the requirement that Article 8(4) of the directive should be narrowly construed, that the host State must recognise the validity of the driving licence without a prior control procedure and that that host State merely has the authority to deny the right to use the driving licence in the host State if reasons (still) exist which justify the application of measures under Article 8(2) of the directive?

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(1)  OJ L 237, p. 1.

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Action brought on 22 September 2005 by the Commission of the European Communities against Ireland

(Case C-355/05)

(2005/C 296/28)

Language of the case: English

An action against Ireland was brought before the Court of Justice of the European Communities on 22 September 2005 by the Commission of the European Communities, represented by Mr. Bernhard Schima and Ms. Doyin Lawumni, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 1 July 2004.

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(1)OJ L 176, 15.7. 2003

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Action brought on 23 September 2005 by the Commission of the European Communities against the Kingdom of Spain

(Case C-358/05)

(2005/C 296/29)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 23 September 2005 by the Commission of the European Communities, represented by B. Schima and S. Pardo Qunitillán, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court of Justice should:

Pleas in law and main arguments

The period within which the directive should have been transposed into national law expired on 1 July 2004.

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(1)OJ L 176, 15.7.2002, p. 37.

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Action brought on 26 September 2005 by the Commission of the European Communities against the Kingdom of Spain

(Case C-361/05)

(2005/C 296/30)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 26 September 2005 by the Commission of the European Communities, represented by I. Martínez del Peral and M. Konstantinidis, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

Pleas in law and main arguments

The persistence of the problem with those landfill sites has led to significant degradation of the environment over a prolonged period of time, and without any intervention by the competent authorities, in spite of requests by the Commission.

The waste in the illegal landfill sites releases into the soil, air and water chemical substances which endanger human health, contaminates surface and ground waters and the atmosphere, as well as plants and animals. Moreover, the illegal incineration and the fires which ignite spontaneously because of the inflammable nature of the waste in the unsupervised landfill sites give rise to many fires with disastrous consequences for the environment.

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(1)  of 15 July 1975 on waste, OJ L 194 of 25.7.75, p. 39.

(2)  of 18 March 1991OJ L 78 of 26.3.1991, p. 32.

(3)  of 26 April 1999, on the landfill of waste, OJ l 182 of 16.7.1999, p. 1.

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Action brought on 27 September 2005 by Commission of the European Communities against the Kingdom of the Netherlands

(Case C-364/05)

(2005/C 296/31)

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 27 September 2005 by the Commission of the European Communities, represented by Michel van Beek, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The first paragraph of Article 22 of Directive 2001/20 provides that Member States are to bring the necessary legislative and administrative measures for complying with the directive into force by 1 May 2003 and inform the Commission accordingly. In the case of Directive 2003/94, Article 17 sets the deadline at 30 April 2004.

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(1)  OJ 2001 L 121, p. 34.

(2)  OJ 2003 L 262, p. 22.

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Action brought on 7 October 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-369/05)

(2005/C 296/32)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 7 October 2005 by the Commission of the European Communities, represented by M. Patakia, Legal Adviser in the Legal Service, and N. Yerrell, a member of the Legal Service, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

Pleas in law and main arguments

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(1)OJ L 302, 1.12.2000, p. 57.

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Action brought on 7 October 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-372/05)

(2005/C 296/33)

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 7 October 2005 by the Commission of the European Communities, represented by Dr. Günter Wilms, acting as Agent, with an address for service in Luxembourg.

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

Pleas in law and main arguments

The Federal Republic of Germany granted exemptions from duty on the import of military goods as from 1 January 1998 and therefore paid no own resources. The defendant did not, despite the request made of it, calculate the amount of own resources which had not, on account of that exemption from duty, been paid and made available to the Commission in due time. Furthermore, the defendant refused to provide the detailed information relating to the actual imports which was needed in order to calculate the default interest and also refused to pay the default interest.

That exemption from duty constitutes a breach of Article 26 of the EC Treaty as well as of Article 20 of the Community Customs Code which cannot be justified by relying on Article 296 EC. Article 296 EC must, as an exception to the general principle of levying duty, be interpreted strictly and, in accordance with that strict interpretation, the Member State which wishes to rely on that provision must establish the existence of all the conditions for it to be applicable.

In the present case it means that it is for the German authorities to establish the extent to which the levying of duties jeopardises the essential security interests of the Federal Republic of Germany. The Member State must also establish that under the particular circumstances there was a concrete threat to state security. The German authorities, however, provided no concrete information or arguments as to how and why defence capabilities are impaired by the levy of certain duties. Other Member States levy duties on such imports without making the objection that this is a threat to their national security. In regard to those Member States, the acceptance of that exemption would be unjust and irresponsible as they would have to bear the financial consequences.

Nor can the taking into account of military secrecy, which has been argued by the German authorities, justify such a breach of Community law as the safeguarding of the confidentiality of sensitive data on the part of the Community institutions is only a procedural issue which cannot exempt the defendant from its substantive duty to pay the appropriate own resources to the Community.

The fact that Council Regulation No 150/2003 renders possible, subject to certain conditions, the suspension of import duties in respect of the specified goods after its coming into force on 1 January 2003 provides no basis for justifying a prior infringement of Community customs law: before the coming into force of that Regulation there had been no suspension of the Common Customs Tariff, the duties had to be levied and the appropriate own resources paid to the Community by 31 December 2002.

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(1)  OJ 1989 L 155, p. 1

(2)  OJ 2000 L 130, p. 1

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Removal from the register of Case C-333/02 (1)

(2005/C 296/34)

(Language of the case: Italian)

By order of 4 April 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-333/02: Italian Republic v Commission of the European Communities.

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(1)OJ C 274, 9.11.2002.

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Removal from the register of Case C-101/03 (1)

(2005/C 296/35)

(Language of the case: Italian)

By order of 24 June 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-101/03 (reference for a preliminary ruling Tribunale di Milano, Sezione Prima Penale): in criminal proceedings against Alfonso Galeazzo, Marco Banatti.

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(1)OJ C 101, 26.4.2003.

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Removal from the register of Case C-338/03 (1)

(2005/C 296/36)

(Language of the case: Italian)

By order of 14 July 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-338/03 (reference for a preliminary ruling from the Tribunale Civile e Penale di Perugia): in criminal proceedings against Rosario Alessandrello, Vicenzo Biccari, Daniel Buaron.

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(1)OJ C 264, 1.11.2003.

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Removal from the register of Case C-510/03 (1)

(2005/C 296/37)

(Language of the case: German)

By order of 21 July 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-510/03 Commission of the European Communities v Federal Republic of Germany.

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(1)OJ C 21, 24.1.2004.

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Removal from the register of Case C-330/04 (1)

(2005/C 296/38)

(Language of the case: Italian)

By order of 22 June 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-330/04: Commission of the European Communities v Italian Republic.

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(1)OJ C 262, 23.10.2004.

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Removal from the register of Case C-478/04 (1)

(2005/C 296/39)

(Language of the case: Italian)

By order of 24 June 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-478/04 Commission of the European Communities v Italian Republic.

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(1)OJ C 31, 5.2.2005.

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Removal from the register of Case C-481/04 (1)

(2005/C 296/40)

(Language of the case: German)

By order of 6 June 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-481/04, in the case of Engin Torun against Stadt Augsburg, interested parties: the representative of the national interest before the Bundesverwaltungsgericht, and Landesanwaltschaft Bayern.

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(1)OJ C 19, 22.1.2005.

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Removal from the register of Case C-74/05 (1)

(2005/C 296/41)

(Language of the case: French)

By order of 27 April 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-74/05 Commission of the European Communities v Grand Duchy of Luxembourg.

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(1)OJ C 82, 2.4.2005.

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COURT OF FIRST INSTANCE

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Judgment of the Court of First Instance of 15 September 2005 — DaimlerChrysler v Commission

(Case T-325/01) (1)

(Competition - Article 81 EC - Agreements, decisions and concerted practices - Agency agreement - Distribution of motor vehicles - Economic unit - Measures designed to hinder parallel trade in motor vehicles - Price-fixing - Regulation (EC) No 1475/95 - Fine)

(2005/C 296/42)

Language of the case: German

Parties

Applicant(s): Daimler Chrysler AG (Stuttgart, Germany) (represented by: R. Bechtold and W. Bosch, lawyers)

Defendant(s): Commission of the European Communities (represented by: W. Mölls, Agent, assisted by H.-J. Freund, lawyer)

Application for

Primarly, annulment of Commission Decision 2002/58/EC of 10 October 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/36.264 — Mercedes-Benz) (OJ 2002 L 257, p. 1) and, in the alternative, reduction in the fine imposed by that decision

Operative part of the judgment

The Court:

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(1)OJ C 68 of 16.3.2002.

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Judgment of the Court of First Instance of 6 October 2005 — Sumitomo Chemical and Sumika Fine Chemicals v Commission

(Joined Cases T-22/02 and T-23/02) (1)

(Competition - Cartels in the vitamin sector - Commission Decision finding infringements that have ceased and not imposing fines - Regulation (EEC) No 2988/74 - Time-limit on the power of the Commission to impose fines or penalties - Principle of legal certainty - Presumption of innocence - Legitimate interest in finding that infringements have been committed)

(2005/C 296/43)

Language of the case: English

Parties

Applicant(s): Sumitomo Chemical Co. Ltd (Tokyo, Japan) and Sumika Fine Chemicals Co. Ltd (Osaka, Japan)) (represented by M. Klusmann, lawyer, and V. Turner, Solicitor)

Defendant(s): Commission of the European Communities (represented by L. Pignataro-Nolin and A. Whelan, agents)

Application for

annulment of Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 — Vitamins) (OJ 2003 L 6, p. 1) in so far as it concerns the applicants

Operative part of the judgment

The Court:

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(1)OJ C 109 of 4.5.2002.

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Judgment of the Court of First Instance of 27 September 2005 — Common Market Fertilizers v Commission of the European Communities

(Joined Cases T-134/03 and T-135/03) (1)

(Remission of import duties - Article 1(3) of Regulation (EC) No 3319/94 - Invoicing direct to importer - ‘Group of experts’ within the meaning of Article 907 of Regulation (EEC) No 2454/93 - Rights of the defence - ‘Obvious negligence’ within the meaning of Article 239 of Regulation (EEC) No 2913/92 - Obligation to state reasons)

(2005/C 296/44)

Language of the case: French

Parties

Applicant(s): Common Market Fertilizers (Brussels, Belgium) (represented by A. Sutton and N. Flandin, lawyers)

Defendant(s): Commission of the European Communities (represented by X. Lewis, Agent)

Application for

annulment of Commission Decisions C (2002) 5217 final and C (2002) 5218 final of 20 December 2002 finding that the remission of import duties was not justified in a particular case.

Operative part of the judgment

The Court:

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(1)OJ C 158, 5.7.2003.

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Judgment of the Court of First Instance of 5 October 2005 — Rasmussen v Commission

(Case T-203/03) (1)

(Officials - False statements concerning mission expenses - Disciplinary proceedings - Reprimand - Rules on languages - Medical confidentiality)

(2005/C 296/45)

Language of the case: French

Parties

Applicant(s): Lars Bo Rasmussen (Hellerup, Denmark) (represented by: G. Bouneou and F. Frabetti, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall and V. Joris and subsequently by V. Joris and M. Patkova, Agents)

Application for

(i) annulment of the Commission's decision of 1 July 2002 imposing on the applicant the disciplinary measure of a reprimand for false statements concerning mission expenses, (ii) restitution of amounts recovered pursuant to Article 85 of the Staff Regulations of Officials of the European Communities and (iii) compensation for the non-material damage allegedly sustained

Operative part of the judgment

The Court:

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(1)OJ C 200, 23.8.2003.

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Judgment of the Court of First Instance of 5 October 2005 — Land Oberösterreich and Austria v Commission

(Joined Cases T-366/03 and T-235/04) (1)

(Approximation of laws - National provisions derogating from a harmonisation measure - Ban on the use of genetically modified organisms in Upper Austria - Conditions for application of Article 95(5) EC)

(2005/C 296/46)

Language of the case: German

Parties

Applicant(s): Land Oberösterreich (represented by: F. Mittendorfer, lawyer) and Republic of Austria (represented by: H. Hauer and H. Dossi, Agents)

Defendant(s): Commission of the European Communities (represented by: M. Patakia and U. Wölker, Agents)

Application for

annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty (OJ 2003 L 230, p. 34)

Operative part of the judgment

The Court:

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(1)OJ C 35, 7.2.2004.

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Judgment of the Court of First Instance of 6 October 2005 — Fischer v Court of Justice

(Case T-404/03) (1)

(Officials - Action for annulment - Invalidity - Half-time on medical grounds - Statement of reasons - Invalidity committee - Action for damages)

(2005/C 296/47)

Language of the case: French

Parties

Applicant(s): Pia Fischer (Konz-Roscheid, Germany) (represented by: C Marhuenda, lawyer)

Defendant(s): Court of Justice of the European Communities (represented by: M. Schauss, Agent)

Subject-matter of the case

Firstly, an application for annulment of the decisions of the appointing authority of 10 April and 6 June 2003 declaring that the applicant was not affected by complete and permanent invalidity making it impossible for her to carry out duties involved in a post in her career bracket and requesting her to return to work on a half-time basis on medical grounds for a total period of 13 weeks. Secondly, an application for the payment of 1 EUR as token damages for the non-material loss allegedly suffered.

Operative part of the judgment

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(1)OJ C 47, 21.2.2004

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Judgment of the Court of First Instance of 5 October 2005 — Bunker & BKR v OHIM

(Case T-423/04) (1)

(Community trade mark - Opposition - Application for a Community figurative mark containing the verbal element ‘B.K.R.’ - Earlier national word mark BK RODS - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 296/48)

Language of the case: Spanish

Parties

Applicant(s): Bunker & BKR, SL (Almansa, Spain) (represented by: J. Astiz Suárez, lawyer)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. García Murillo, Agent,)

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Marine Stock Ltd (Tortola, British Virgin Islands, United Kingdom) (represented by: M. de Justo Bailey, lawyer)

Application for

annulment of the decision of the Fourth Board of Appeal of OHIM of 30 June 2004 (Case R 0458/2002-4) concerning opposition proceedings between Bunker & BKR, SL and Marine Stock Ltd

Operative part of the judgment

The Court:

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(1)OJ C 314, 18.12.2004.

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Order of the Court of First Instance of 7 September 2005 — Krahl v Commission

(Case T-358/03) (1)

(Officials - Service in a non-member country - Accommodation expenses - Actions - Time-limits - Mandatory - Late action - Inadmissible)

(2005/C 296/49)

Language of the case: French

Parties

Applicant(s): Sigfried Krahl (Zagreb, Croatia) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchel, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)

Application for

annulment of the Commission's decision refusing to reimburse all the accommodation expenses incurred by the applicant following his posting to Zagreb

Operative part of the Order

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(1)OJ C 7, 10.1.2004.

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Order of the Court of First Instance of 14 September 2005 — Ehcon v Commission

(Case T-140/04) (1)

(Public service contracts - Call for tenders - Rejection of tenderer's offer - Non-contractual liability - Limitation period - Inadmissibility - Action clearly unfounded)

(2005/C 296/50)

Language of the case: Dutch

Parties

Applicant(s): Adviesbureau Ehcon BV (Reeuwijk, Netherlands) (represented by: M. Goedkoop, lawyer)

Defendant(s): Commission of the European Communities (represented by: L. Parpala and E. Manhaeve, Agents)

Application for

compensation for the damage allegedly suffered by the applicant because of the rejection of its tender under a call for tenders, published on 10 April 1996 (OJ 1996 C 232, p. 35), for services in relation to Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11).

Operative part of the Order

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(1)OJ C 146, 29.5.2004.

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Order of the Court of First Instance of 19 September 2005 — Aseprofar and Edifa v Commission

(Case T-247/04) (1)

(Action for annulment - Admissibility - Challengeable act - Failure to bring an action for failure to fulfil obligations - Notification 2002/C 244/03)

(2005/C 296/51)

Language of the case: Spanish

Parties

Applicant(s): Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) and Española de desarrollo e impulso farmacéutico, SA (Edifa) (Madrid, Spain) (represented by: L. Ortiz Blanco, lawyer).

Defendant(s): Commission of the European Communities (represented by: G. Valero Jordana, Agent).

Application for

Annulment of the Commission's decision of 30 March 2004 to take no further action in respect of complaint P/2002/4609 and of the Commission's decision of 30 March 2004 to take no further action in respect of complaint P/2003/5119, as regards Article 29 EC.

Operative part of the Order

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(1)OJ C 217 of 28.08.2004.

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Order of the Court of First Instance of 8 September 2005 — Lorte and Others v Council

(Case T-287/04) (1)

(Action for annulment - Regulations (EC) No 864/2004 and No 865/2004 - Support scheme in the olive oil sector - Natural and legal persons - Not of individual concern - Inadmissibility)

(2005/C 296/52)

Language of the case: Spanish.

Parties

Applicant(s): Lorte, SL (Seville, Spain), Oleo Unión, Federación empresarial de organizaciones de productores de aceite de oliva (Seville, Spain), Unión de organizaciones de productores de aceite de oliva (Unaproliva) (Jaén, Spain), (represented by: R. Illescas Ortiz, lawyer)

Defendant(s): Council of the European Union (represented by: M. Balta and F. Florindo Gijón, Agents)

Application for

Annulment of Council Regulation (EC) No 864/2004 of 29 April 2004 amending Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, and adapting it by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (OJ 2004 L 161, p. 48), and of Council Regulation (EC) No 865/2004 of 29 April 2004 on the common organisation of the market in olive oil and table olives and amending Regulation (EEC) No 827/68 (OJ 2004 L 161, p. 97).

Operative part of the Order

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(1)OJ C 284 of 20.11.2004.

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Order of the Court of First Instance of 8 September 2005 — ASAJA and Others v Council

(Joined Cases T-295/04 to T-297/04) (1)

(Action for annulment - Regulation (EC) No 864/2004 - Support scheme in the olive oil sector - Natural and legal persons - Lack of individual concern - Inadmissibility)

(2005/C 296/53)

Language of the case: Spanish

Parties

Applicant(s): Centro Provincial de Jóvenes Agricultores de Jaén (ASAJA), Salvador Contreras Gila, José Ramiro López, Antonio Ramiro López, Cristóbal Gallego Martínez, Benito García Burgos and Antonio Rarras Rosa (Jaén, Spain) (represented by: J. Vásquez Medina, lawyer)

Defendant(s): Council of the European Union (represented by: M. Balta and F. Florindo Gijón, Agents)

Application for

annulment of Article 1(7) of Council Regulation (EC) No 864/2004 of 29 April 2004 amending Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, and adapting it by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union.

Operative part of the Order

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(1)OJ C 251, 9.10.2004.

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Order of the President of the Court of First Instance of 20 September 2005 — Deloitte Business Advisory v Commission

(Case T-195/05 R)

(Interim measures - Community tendering procedure - Loss of an opportunity - Urgency - Balance of interests)

(2005/C 296/54)

Language of the case: Dutch

Parties

Applicant(s): Deloitte Business Advisory (Brussels, Belgium) (represented by: D. Van Heuven, S. Ronse and S. Logie, lawyers)

Defendant(s): Commission of the European Communities (represented by: L. Pignataro-Nolin and E. Manhaeve, Agents)

Application for

interim measures seeking, first, an order suspending the operation of (1) the Commission decision rejecting the tender submitted, inter alia, by the applicant under a call for tenders bearing reference SANCO/2004/01/041 and (2) the decision to award the contract in question to a third party and, secondly, an order prohibiting the Commission (1) from informing the successful tenderer of the decision awarding the contract in question and (2) from proceeding with signature of the relevant contract, on pain of a periodic penalty payment.

Operative part of the Order

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Action brought on 12 July 2005 — Deutsche Telekom v OHIM

(Case T-257/05)

(2005/C 296/55)

Language in which the application was lodged: German

Parties

Applicant(s): Deutsche Telekom AG (Bonn, Germany) (represented by: J.-C. Gaedertz, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Forms of order sought

Pleas in law and main arguments

Community trade mark sought: The word mark ‘t’ for goods and services in Classes 9, 16, 35, 36, 38, 39 and 41 — Registration No 2 893 865.

Decision of the examiner: Refusal to register.

Decision of the Board of Appeal: Dismissal of the application to re-establish the applicant's rights and dismissal of its appeal.

Pleas in law: The refusal to re-establish the applicant's rights in the appeal proceedings is unlawful since it is incorrect that the office organisation of the applicant's lawyers does not satisfy the requirements of Article 78(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

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Action brought on 2 September 2005 — Aqua-Terra Bioprodukt v OHIM

(Case T-330/05)

(2005/C 296/56)

Language in which the application was lodged: German

Parties

Applicant(s): Aqua-Terra Bioprodukt GmbH (Griesheim, Germany) (represented by: P.A. Müller, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party or parties to the proceedings before the Board of Appeal of OHIM: De Ceuster Meststoffen NV (Sint-Katelijne-Waver, Belgium)

Forms of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘aqua terra’ for goods in Classes 1 and 3 — Registration No 1 480 243

Proprietor of the mark or sign cited in the opposition proceedings: De Ceuster Meststoffen NV

Mark or sign cited in opposition: The national word mark ‘AQUATERRA’ for goods in Classes 1, 5 and 31

Decision of the Opposition Division: Upholds the opposition which was restricted in relation to the goods in Class 1 and refusal to register all the goods in Class 1

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: The contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 due to an erroneous assessment of the likelihood of confusion of the two marks in opposition. Consideration was not taken of the individual goods and their similarity as required and a general evaluation was carried out instead.

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Action brought on 5 September 2005 by Susanne Sorensen v Commission of the European Communities

(Case T-335/05)

(2005/C 296/57)

Language of the case: French

Parties:

Applicant(s): Susanne Sorensen (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

The applicant, an official of the Commission, had initially been classified in grade C2. she was successful in open competition COM/B/1/02 (at level B5/B4) and was appointed, by the contested decision of 5 August 2004, in grade B*3, step 2. In support of her action, the applicant claims that there has been a breach of the competition notice and also of the vacancy notice, in so far as both notices provided for classification in grade B5 or B4. She claims, in the same context, that there has been a breach of Articles 4, 5, 29 and 31 of the Staff Regulations. Relying on the fact that some successful candidates in the competition were appointed before 1 May 2004 (the date of the entry into force of the amendments to the Staff Regulations) in grade B5 or B4, which correspond to grade B*5 or B*6 under the new denomination, the applicant also claims that there has been a breach of the principle of equal treatment and non-discrimination. She also contends that the principle that an official should have reasonable career prospects and the principle of protection of legitimate expectations have been breached, since she had a legitimate expectation of being appointed in grade B*5 or B*4. In that context, she claims that Article 12 of Annex XIII to the Staff Regulations, which also breaches the principle of legal certainty, is unlawful.

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Action brought on 5 September 2005 — De Soeten v Council

(Case T-336/05)

(2005/C 296/58)

Language of the case: French

Parties

Applicant(s): Henders De Soeten (The Hague, Netherlands) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant(s): Council of the European Union

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

The applicant is a former official of the Council, who has been in retirement since 1 July 2004. She submitted an application for entitlement to the measure referred to in Article 9(2) of Annex VIII to the Staff Regulations, which enables the Appointing Authority, in the interests of the service and on the basis of objective criteria and transparent procedures introduced by means of general implementing provisions, not to apply the reduction in pension provided for in Article 9(1)(b) to officials leaving the service before the age of 63.

By her action, the applicant contests the decision refusing to grant her that benefit. She submits that one of the candidates who qualified for that measure was assigned to the same department. The applicant therefore takes the view that the requirements of the service were the same in both cases and asserts that the above mentioned article and the general implementing provisions adopted by the Council have been infringed, since both her length of service and her merits were greater than those of the other candidate.

In addition, the applicant alleges that the Council committed a manifest error of assessment in so far as it held that the assessment of the criterion of the requirements of the service meant that regard should be had to the individual qualities of officials.

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Action brought on 9 September 2005 — Raymond Claudel v Court of Auditors

(Case T-338/05)

(2005/C 296/59)

Language of the case: French

Parties

Applicant(s): Raymond Claudel (Merl, Luxembourg) (represented by: E. Boigelot, lawyer)

Defendant(s): Court of Auditors

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

The applicant is an official at the Court of Auditors in charge of the external relations service. By his action, he disputes the decision of the Court of Auditors, in so far as it does not recognise that he exercises the duties of Head of Unit and, accordingly, does not recognise that he is entitled to the bonus provided for in Article 44 of the Staff Regulations, as amended after 1 May 2004.

In support of his action, the applicant claims that there has been a breach of Article 44 of the Staff Regulations and of Article 7 of Annex XIII thereto, and also a manifest error of assessment in the description of his post. He also claims that there has been a breach of the duty to state reasons, of the principle of equal t4eatment, of the duty to have regard for the welfare of officials and also of the principle of sound administration. The applicant also claims damages for the harm which he alleges to have been sustained.

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Action brought on 9 September 2005 — MacLean-Fogg/OHIM

(Case T-339/05)

(2005/C 296/60)

Language of the case: English

Parties

Applicant(s): MacLean-Fogg Company (Mundelein, USA) [represented by: H. Eichmann, G. Barth, U. Blumenröder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke, U. Stephani, B. Allekotte, E. Bertram, K. Lochner, B. Ertle, C. Neuhierl, S. Prückner, C. Schmitt, B. Mehnert, P. Lübbe, S. Brötje, lawyers]

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘LOKTHREAD’ for goods in class 6 (bolts, bolts of metal, nuts, nuts of metal) — application No 3 440 666

Decision of the examiner: Refusal of the application for all goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the trade mark has to be considered as a whole and not as composed of two English words and thus possesses a minimum degree of distinctiveness.

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Action brought on 13 September 2005 — Adler Modemärkte/OHIM

(Case T-340/05)

(2005/C 296/61)

Language in which the application was lodged: English

Parties

Applicant(s): Adler Modemärkte GmbH (Haibach, Germany) [represented by: R. Kaase, lawyer]

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party/parties to the proceedings before the Board of Appeal: BVM S.p.A. (Bologna, Italy)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Eagle’ for goods in classes 3, 18 and 25 — application No 1 595 909

Proprietor of the mark or sign cited in the opposition proceedings: BVM S.p.A.

Mark or sign cited: The national and international figurative mark and word mark ‘Blue Eagle’ for goods in classes 3, 18 and 25

Decision of the Opposition Division: Opposition upheld for all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as there is no likelihood of confusion between the conflicting trade marks. The overall impression of the two trade marks is substantially different and the component ‘eagle’ is not the dominating element of the opposition trade mark.

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Action brought on 14 September 2005 — Henkel v OHIM

(Case T -342/05)

(2005/C 296/62)

Language in which the application was lodged: German

Parties

Applicant(s): Henkel KGaA (Düsseldorf, Germany) (represented by: C. Osterrieth, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party or parties to the proceedings before the Board of Appeal of OHIM: Serra Y Roca S.A. (Barcelona, Spain)

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

Applicant for a Community trade mark: SERRA Y ROCA, S.A.

Community trade mark concerned: The word mark ‘COR’ for goods in Class 3 — application No 1 284 470

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: The national mark ‘Dor’ for goods in Classes 3, 5 and 21

Decision of the Opposition Division: Rejection of the opposition in respect of the goods ‘scouring and abrasive preparations; soaps’ in Class 3

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 because of likelihood of confusion of the marks in question due to visual and aural similarity. In addition the applicant's mark has above average distinctive character due to intensive use.

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Action brought on 5 September 2005 — V/Parliament

(Case T-345/05)

(2005/C 296/63)

Language of the case: English

Parties

Applicant(s): V. (Binsted, United Kingdom) [represented by: J. Lofthouse, barrister, M. Monan, C. Hayes, solicitors]

Defendant(s): European Parliament

Form of order sought

Pleas in law and main arguments

The applicant is a Member of the European Parliament. Criminal proceedings were instituted against him following which the Parliament was requested to confirm that the applicant's prosecution might proceed in accordance with the 1965 Protocol on privileges and immunities of the European Communities and, in any event, waive any privilege or immunity so that the prosecution could proceed. By the contested Decision the Parliament decided to waive the applicant's immunity.

The applicant seeks the annulment of this Decision. He submits that the Decision was wrong in law in that it considers that Article 8 of the 1965 Protocol does not grant protection against judicial prosecution. He argues that the Parliament's reasoning is inconsistent, waiving something that it holds not to exist.

The applicant further contends that the Parliament did not carry out a fair and complete consideration of the facts and arguments of both sides. In this context the applicant also invokes a violation of Rule 7(7) of the Parliament's Rules of Procedure, to the extent that the Committee expressed an opinion on the merits of the prosecution whilst forbidden from doing so.

The applicant finally invokes the absence of full and adequate reasons for the contested Decision and submits that it was not reasonable or proportionate.

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Action brought on 12 September 2005 — Procter & Gamble/OHIM

(Case T-346/05)

(2005/C 296/64)

Language of the case: English

Parties

Applicant(s): The Procter & Gamble Company (Cincinnati, USA) [represented by: G. Kuipers, lawyer]

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Pleas in law and main arguments

Community trade mark concerned: Three dimensional mark in form of a square white tablet showing a blue six-petalled floral design for goods in class 3 (washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps) — application No 1 683 119

Decision of the examiner: Refusal of the application in respect of all the designated goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) of Council Regulation No 40/94.

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Action brought on 12 September 2005 — Procter & Gamble/OHIM

(Case T-347/05)

(2005/C 296/65)

Language of the case: English

Parties

Applicant(s): The Procter & Gamble Company (Cincinnati, USA) [represented by: G. Kuipers, lawyers]

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Pleas in law and main arguments

Community trade mark concerned: Three dimensional mark in form of a square white tablet showing a green five-petalled floral design for goods in class 3 (washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps) — application No 1 683 473

Decision of the examiner: Refusal of the application in respect of all the designated goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) of Council Regulation No 40/94.

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Action brought on 7 September 2005 — Provincia di Imperia v Commission

(Case T-351/05)

(2005/C 296/66)

Language of the case: French

Parties

Applicant(s): Provincia di Imperia (Imperia, Italy) (represented by: S. Rostagno, lawyer, K. Platteau, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

The present action seeks annulment of the Commission's decision of 30 June 2005 not to accept the proposal presented by the applicant in response to the call for proposals launched by the Commission in the context of Community co-financing in the sphere of innovative measures under Article 6 of the Regulation on the European Social Fund (1) for the planning period 2000-2006.

By the contested decision, the Commission informed the applicant that its proposal did not satisfy the evaluation criteria in the call for proposals. It based its decision on the fact that the applicant's proposal did not succeed in explaining the way in which it elaborates and takes into consideration the experience previously acquired in that sphere in Liguria and claimed that there are serious inconsistencies between the budget information supplied in Annex 6 and that supplied in Annex 7.

The applicant challenges the decision on two main points:

The applicant further alleges that by the contested decision the Commission infringes the principle of legal certainty in that it does not follow the rules it has itself established on the manner of establishing the innovative nature of the project. More specifically, in the applicant's submission, in assessing the innovative nature of its project, the confined itself to one of the evaluation criteria, namely its method of constructing and developing the new project on the basis of previous experience, whereas its project was innovative from the aspect of a different evaluation criterion, namely a departure from the ordinary activities of the organisations concerned, a criterion also accepted in the Applicant's Guide.

In support of its claims, the applicant also alleges that the contested decision infringes Article 53 of the EC Treaty, Article 6 of Regulation No 1784/1999, the rules laid down in Notice No COM (2000) 894 final (2) and also the rules established by the Commission in the context of its call for proposals (3). Last, the applicant maintains that the Commission has made a manifest error of assessment of the facts, has misused its powers and has infringed the principle of legal certainty.

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(1)  Regulation (EC) No 1784/1999 of the European Parliament and of the Council of 12 July 1999 on the European Social Fund OJ L 213, 13/08/1999, p. 5.

(2)  Commission Notice of 12 January 2000 on the implementation of innovation measures under Article 6 of the European Social Fund Regulation for the planning period 2000-2006.

(3)  Notice entitled ‘Budget heading 04.021000.00.11 – Innovative measures under Article 6 of the European Social Fund Regulation: “Innovative Approaches to the Management of Change” – Call for proposals VP/2003/021’, OJ 2004 C 255, p. 11, and the ruler fixed in the Applicant's Guide forming an integral part of that notice.

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Action brought on 16 September 2005 — Hellenic Republic v Commission

(Case T-352/05)

(2005/C 296/67)

Language of the case: Greek

Parties

Applicant(s): Hellenic Republic (represented by: G. Kanellopoulos and S. Kharitaki)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

By the contested decision the Commission, in clearing the accounts under Regulation (EEC) No 729/70 (2), disallowed from Community financing various expenditure incurred by the Hellenic Republic in the public storage, fruit and vegetables, tobacco and livestock premiums sectors.

The applicant seeks annulment of that decision, maintaining in principle that the entire clearance of accounts procedure is invalid because Article 7 of Regulation No 1258/1999 (3), in conjunction with Article 8 of Regulation No 1663/1995 (4), was infringed by reason of the fact that the consultation and bilateral contacts between the applicant and the Commission did not include the specific evaluation of the expenditure to be refused, while in addition the expenditure excluded was effected prior to the 24 months preceding the Commission's written communication. According to the applicant, the period of 24 months commences much later than the Commission considers.

As regards the correction in the public storage sector, the applicant considers that the Commission's corrections are based on a misinterpretation and misapplication of Regulations Nos 1258/1999, 296/1996 (5) and 2040/2000 (6), misconstruing the guidelines in Commission document VI/5330/97/23.12.97, and were made on the basis of a mistaken assessment of the facts, with vague or insufficient reasoning, going beyond the bounds of the Commission's discretion and contravening the principle of proportionality.

As regards the correction in the potato-growing and vineyard sectors, the applicant disputes the Commission's assessment as regards the facts, citing insufficient and contradictory reasoning, and infringement of the principle of proportionality. It considers, moreover, that the correction imposed should be limited to 2 % and that the correction should not in any event include the Department of the Dodecanese, where there is a land registry and consequently in that department especially it cannot be considered that there is any difficulty as regards on-the-spot checks.

In the fruit and vegetables sector, the applicant considers that the Commission was wrong not to regard as justified the late payment in a case in which the Greek authorities investigated the compatibility of the payment in question under national and Community law. The applicant relies additionally on the same pleas as were set out above concerning the storage sector.

With regard to tobacco, the applicant alleges misinterpretation and misapplication of the Community provisions, error as to the facts, insufficient statement of reasons and infringement of the guidance in documents VI 5330/97 and AGRI 17933/2000 concerning the requirement to carry out cross-checks with the data of a fully-functioning integrated administration and control system provided for by Regulation No 2848/98 (7), the carrying out of on-the-spot checks, of payments by cheque and supplementary and other checks.

Lastly, as regards the correction in the livestock sector (goat and sheepmeat), the applicant disputes the Commission's assessment of the facts and considers that the reasons given are mistaken. It also claims that the imposition of a flat-rate correction of 10 % is unlawful, constitutes a misinterpretation and misapplication of the guidance in document AGRI/6145/2000 and is disproportionate to the gravity of the deficiencies.

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(1)OJ L 199 of 29.07.2005, p. 84.

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

(3)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy, OJ L 160 of 26.06.1999, p. 103.

(4)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section, OJ L 158 of 08.07.1995, p. 6.

(5)  Commission Regulation (EC) No 296/96 of 16 February 1996 on data to be forwarded by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the Agricultural Guidance and Guarantee Fund (EAGGF) and repealing Regulation (EEC) No 2776/88, OJ 1996 L 39, p. 5.

(6)  Council Regulation (EC) No 2040/2000 of 26 September 2000 on budgetary discipline, OJ 2000 L 244, p. 27.

(7)  Commission Regulation (EC) No 2848/98 of 22 December 1998 laying down detailed rules for the application of Council Regulation (EEC) No 2075/92 as regards the premium scheme, production quotas and the specific aid to be granted to producer groups in the raw tobacco sector, OJ 1998 L 358, p. 17.

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Action brought on 19 September 2005 — Zelenkovà/Parliament

(Case T-356/05)

(2005/C 296/68)

Language of the case: English

Parties

Applicant(s): Martina Zelenkovà (Brussels, Belgium) [represented by: G. Vandersanden, L. Levi, C. Ronzi, lawyers]

Defendant(s): European Parliament

Form of order sought

Pleas in law and main arguments

The applicant, an official appointed after the entry into force of the new Staff Regulations on 1 May 2004, but from a reserve list drawn up on the basis of a competition organised before that date, contests her appointment grade, fixed by the Parliament in accordance with the new regulations at A*5. She invokes the same pleas and arguments invoked by the applicants in Case T-58/05 (1).

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(1)OJ C 93, 16/04/05, p. 38

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Action brought on 21 September 2005 — Nuovo Agricast v Commission of the European Communities

(Case T-362/05)

(2005/C 296/69)

Language of the case: Italian

Parties

Applicant(s): Nuovo Agricast s.r.l. (Cerignola, Italy) (represented by Michele Arcangelo Calabrese)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims, subject to all procedural reservations, that the Court should declare that, by having acted unlawfully as set out in the application, the Commission has seriously and manifestly infringed Community law, and has caused the applicant financial damage, and must therefore be ordered to pay to the applicant:

Pleas in law and main arguments

The applicant in this case, as in Cases T-139/03 (1), T-151/03 (2) and T-98/04 (3), charges the Commission with having acted unlawfully in the preliminary investigation in respect of State aid N 715/99, the result of which was a decision to grant authorisation without objections. That authorisation extended, for the six-year period 2000-2006, the State aid scheme referred to by Law No 488/92, which had previously in 1997 been authorised until 31 December 1999.

It is in this regard to be borne in mind that in accordance with the special administrative procedure for the obtaining of aid the Italian Government ought every six months to have issued invitations to tender, in which the undertakings concerned might have taken part. The financial resources used to fund the tender procedure would have been allocated to the undertakings in order of classification until exhausted. Having taken part in the third tender procedure, the applicant could not obtain aid because the resources intended for funding of its classification level had been exhausted.

The Italian Government, in proposing the investigation into aid No 715/99, asked the Commission to agree, in the first tender procedure under the new scheme, to the reformulation of applications submitted under the third and fourth notices to tender. The Commission, however, restricted its authorisation to the fourth invitation to tender.

In support of its claims, the applicant argues that the Commission:

According to the applicant, by making the compatibility with the common market of the proposal to allow undertakings taking part in the third tender procedure to reformulate their tender and by concluding, without the least discussion with the parties concerned, that the proposal was incompatible, the Commission has altered its decision to approve the 1997 scheme, which presupposed a previous investigation under Article 87 of the Treaty.

Furthermore, the applicant alleges that, by affecting and putting an end to pre-existing legal situations, the defendant has in fact revoked the authorisation decision of 1997, without observing the procedural guarantees provided by Regulation EC No 659/99 for cases of revocation of aid.

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(1)  Order of the Court of First Instance of 8 June 2005, not published.

(2)  Order of the Court of First Instance of 8 June 2005, not yet published in the ECR.

(3)  Order of the Court of First Instance of 15 June 2005, not published.

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Action brought on 21 September 2005 — COFRA s.r.l. v Commission of the European Communities

(Case T-363/05)

(2005/C 296/70)

Language of the case: Italian

Parties

Applicant(s): COFRA s.r.l. (Barletta (Italy)) (represented by Michele Arcangelo Calabrese, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims, subject to all procedural reservations, that the Court should declare that, by having acted unlawfully as set out in the application, the Commission has seriously and manifestly infringed Community law, and has caused the applicant financial damage and must therefore be ordered to pay the applicant compensation:

and that the Court should order the defendant to pay the costs, including those of the party's technical consultancy.

Pleas in law and main arguments

The pleas in law and main arguments are those put forward in Case T-362/05 Nuova Agricast v Commission.

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Action brought on 26 September 2005 — Austria v Commission

(Case T-368/05)

(2005/C 296/71)

Language of the case: German

Parties

Applicant(s): Republic of Austria (represented by: H. Dossi)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

In the contested decision the Commission excluded from Community financing the expenditure itemised in the annex to the Decision because it does not comply with Community rules.

The applicant basis its action on two pleas. First of all, it claims that, in adopting its decision, the Commission infringed the Treaty and the norms applicable when implementing it. In particular, it alleges in this respect, infringement of Article 5(2)(c) of Regulation (EEC) No 729/70 (1) and Article 7(4) of Regulation (EC) No 1258/1999 (2) since a financial correction at the expense of the Republic of Austria would only have been admissible if the Republic of Austria had not complied with its obligations arising from Community law as regards controlling EAGGF expenditure and if this had had financial consequences for the EAGGF. According to the Republic of Austria, such cumulative conditions should not be applied in the present case. Moreover, with the contested decision, the Commission is in breach of its duty to cooperate in good faith with the Member States, as laid down in Article 10 EC.

The second plea alleges infringement of essential procedural requirements. The applicant claims that, with the contested decision, the Commission did not comply on important points with its duty to give reasons and it based the underlying arguments for its decision on statements based on insufficient fact finding.

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(1)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy.

(2)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy.

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Action brought on 23 September 2005 — Kingdom of Spain v Commission of the European Communities

(Case T-369/05)

(2005/C 296/72)

Language of the case: Spanish

Parties

Applicant(s): Kingdom of Spain (represented by: D. Fernando Diez Moreno)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

This action is brought against the Commission Decision of 15 July 2005 (2005/555/EC) excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the EAGGF. Among the exclusions contained in that decision are financial corrections which affect the Kingdom of Spain and apply to the fruit and vegetable sector, the milk sector, public storage, wine and tobacco, animal premiums and the honey sector.

This action refers exclusively to the correction of the amounts paid by way of compensation for loss of income in the wine sector (EUR 4 790 799,61) and the correction made for the inclusion of VAT in the EAGGF financing in the honey sector (EUR 58 315,34). The applicant takes the view that the Commission bases its arguments on a restrictive interpretation of Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (1). The Kingdom of Spain also challenges the VAT rules on the improvement of the production and marketing of honey.

The Spanish authorities take the view that:

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(1)OJ L 179 of 14.7.1999, p. 1.

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Action brought on 28 September 2005 — AIETC — Associazione Italiana Tecnico Economica del Cemento and Others v Commission

(Case T-371/05)

(2005/C 296/73)

Language of the case: Italian

Parties

Applicant(s): AITEC — Associazione Italiana Tecnico Economica del Cemento (Rome, Italy), BUZZI UNICEM S.P.A. (Casale Monferrato, Italy), ITALCEMENTI GROUP (Bergamo, Italy) (represented by: Massimo Merla, Claudio Tesauro, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

Pleas in law and main arguments

The subject of this action is the Decision of 25 May 2005 (1) in which the Commission gave its opinion on the compatibility of the national allocation plan for greenhouse gas emission allowances notified to it by Italy (‘NAP’) with the criteria listed in Annex III to Directive 2003/87 of the European Parliament and of the Council of 5 June 2002 (2).

First, the applicants seek to ascertain whether the Commissioner who was signatory to the contested measure is competent to adopt the Decision. In particular, they call upon the Court of First Instance to establish whether Commissioner Dimas has competence in relation to measures adopted concerning competition policy and, in particular, state aid, and to make a declaration, should there be sufficient grounds, that the contested measure is null and of no effect.

Secondly, the applicants contend that by examining the NAP, a measure that is liable to incorporate elements of state aid, without complying with the procedural provisions in Article 88 (2) and (3) EC, the Commission infringed that provision.

Thirdly, the applicants submit that when the Commission became aware that there were potential state aid aspects to the NAP, it infringed Article 87 EC, criterion (5) of Annex III to Directive 2003/87 EC and the principle of non-discrimination in that, by approving the distribution of allowances set out in the NAP, it gave its approval to the discrimination inherent in that distribution, which was to the detriment of cement producers.

The applicants submit fourthly that the Commission misapplied criterion (10) of Annex III to Directive 2003/87 EC in stating that ‘Italy's intended authorisation of existing installations which are subject to an update of their permits to draw allowances from the new entrants reserve for the part of the modified installation which already existed before the permit update’ was contrary to that criterion. The Commission thereby infringed criterion (5) of Annex III to Directive 2003/87 EC and the principle of non-discrimination in that, by failing to take account of the specific nature of the sectors of industry affected by the implementation of the Directive as far as their capacity to increase production was concerned, it again placed cement producers at a disadvantage compared with other producers.

Lastly, the applicants claim that by approving the NAP notwithstanding the facts that it does not make express provision for undertakings to make appropriate preparations for the transfer of allowances or pooling of installations, that it provides for reference periods for the transfer of residual allowances other than a five-year period and that it imposes unjustifiable restrictions on the pooling of installations and does not make provision for the surrender of cancelled emission allowances, the Commission infringed Articles 11, 12, 13 and 28 of Directive 2003/87 EC.

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(1)  Commission Decision of 25 May 2005 on the national allocation plan for the allocation of greenhouse gas emission allowances notified by Italy in accordance with Directive 2003/87 of the European Parliament and Council [C(2005)1527 fin, OJ C 226 of 15.09.2005, p. 2].

(2)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275 of 25 October 2005, p. 32).

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Action brought on 26 September 2005 — the Italian Republic v the Commission

(Case T-373/05)

(2005/C 296/74)

Language of the case: Italian

Parties

Applicant(s): the Italian Republic (represented by: Paolo Gentili, Avvocato dello Stato)

Defendant(s): the Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

annul Commission decision C(2005)2756 of 20 July 2005 insofar as it imposes an overall adjustment on the tobacco aid scheme operated by the Italian Republic amounting to 5 % of the expenditure declared in 2001 and 2002 for the 2000 harvest and order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The Italian government has brought an action before the Court of First Instance of the European Communities challenging Commission Decision C(2005) 2756 of 20 July 2005, notification of which was given on that date, insofar as it makes an overall financial adjustment to the tobacco aid scheme amounting to 5 % of the expenditure declared in 2001 and 2002 for the marketing year 2000.

In support of its action the Italian government argues:

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(1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ L 160, 26/6/1999, p. 103).

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Action brought on 7 October 2005 — Azienda Agricola le Canne v Commission

(Case T-375/05)

(2005/C 296/75)

Language of the case: Italian

Parties

Applicant(s): Azienda Agricola le Canne (Porto Viro, Italy) (represented by: Giuseppe Carraio and Francesco Mazzonetto, lawyers)

Defendant(s): Commission

Form of order sought

The applicant(s) claim(s) that the Court should:

Pleas in law and main arguments

The application seeks the annulment of Commission Decision C(2005)2939 of 26 July 2005 which reduces aid granted under Regulation (EEC) No 4028/86 for the project entitled: 'Modernisation of the aquaculture production unit in Rosolina (Veneto)'. The applicant relies on four pleas in support of its claims:

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(1)OJ 1995 L 312, 23.12.1995, p. 1.

(2)  Case T-241/00 Azienda Agricola Le Canne v Commission [2002] ECR II-1251.

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CIVIL SERVICE TRIBUNAL

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Communication

(2005/C 296/76)

On 9 November 2005, Waltraud Hakenberg was appointed Registrar of the European Union Civil Service Tribunal for a term of six years, in accordance with Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal, and Articles 20 and 7 of the Rules of Procedure of the Court of First Instance.

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III Notices

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(2005/C 296/77)

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

OJ C 281, 12.11.2005

Past publications

OJ C 271, 29.10.2005

OJ C 257, 15.10.2005

OJ C 243, 1.10.2005

OJ C 229, 17.9.2005

OJ C 217, 3.9.2005

OJ C 205, 20.8.2005

These texts are available on:

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