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I Information

Court of Justice

COURT OF JUSTICE

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JUDGMENT OF THE COURT

(Grand Chamber)

of 8 November 2005

in Case C-293/02: Reference for a preliminary ruling from the Royal Court of Jersey Jersey Produce Marketing Organisation Ltd v States of Jersey and Others (1)

(Legislation on the export of potatoes from Jersey to the United Kingdom - 1972 Act of Accession - Protocol No 3 on the Channel Islands and the Isle of Man - Regulation No 706/73 - Articles 23 EC, 25 EC and 29 EC - Charges having an effect equivalent to customs duties - Measures having an effect equivalent to quantitative restrictions)

(2006/C 10/01)

Language of the case: English

In Case C-293/02: Reference for a preliminary ruling under Article 234 EC from the Royal Court of Jersey (Channel Islands), made by decision of 5 August 2002, received at the Court on 13 August 2002, in the proceedings between Jersey Produce Marketing Organisation Ltd and States of Jersey, Jersey Potato Export Marketing Board, and Top Produce Ltd, Fairview Farm Ltd, interveners — the Court (Grand Chamber), composed of V. Skouris, President, C.W.A. Timmermans, A. Rosas, J. Malenovský, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric (Rapporteur), S. von Bahr, G. Arestis, A. Borg Barthet, M. Ilešič, J. Klučka and U. Lõhmus, Judges; P. Léger, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 8 November 2005, the operative part of which is as follows:

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(1)OJ C 247, 12.10.2002.

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JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-307/03: Italian Republic v Commission of the European Communities (1)

(EAGGF - Clearance of accounts - Decision 2003/364/EC - Arable crops - Spot checks - Repayment of aid in respect of non-eligible areas - False declarations)

(2006/C 10/02)

Language of the case: Italian

In Case C-307/03 Italian Republic (Agents: I.M. Braguglia and M. Fiorilli) v Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio) — action for annulment under Article 230 EC, brought on 18 July 2003 — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, J.N. Cunha Rodrigues, K. Lenaerts, E. Juhász and M. Ilešič, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 10 November 2005, in which it:

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(1)OJ C 226 of 20.9.2003.

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JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-432/03: Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations - Articles 28 EC and 30 EC - Directive 89/106/EEC - Decision 3052/95/EC - National approval procedure - Failure to take account of approval certificates drawn up in other Member States - Construction products)

(2006/C 10/03)

Language of the case: Portuguese

In Case C-432/03, Commission of the European Communities (Agent: A. Caeiros) v Portuguese Republic (Agents: L. Fernandes and N. Ruiz, advogado) — Action under Article 226 EC for failure to fulfil obligations, brought on 10 October 2003 — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, K. Lenaerts (Rapporteur) and E. Juhász, Judges; L.A. Geelhoed, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 10 November 2005, in which it:

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(1)OJ C 304, 13.12.2003.

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JUDGMENT OF THE COURT

(Grand Chamber)

of 8 November 2005

in Case C-443/03, Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) Götz Leffler v Berlin Chemie AG (1)

(Judicial cooperation in civil matters - Service of judicial and extrajudicial documents - No translation of the document - Consequences)

(2006/C 10/04)

Language of the case: Dutch

In Case C-443/03: reference for a preliminary ruling under Articles 68 EC and 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 17 October 2003, received at the Court on 20 October 2003, in the proceedings between Götz Leffler and Berlin Chemie AG — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas (Rapporteur) and J. Malenovský, Presidents of Chambers, S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, E. Juhász, G. Arestis, A. Borg Barthet and M. Ilešič, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 8 November 2005, the operative part of which is as follows:

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(1)OJ C 304, 13.12.2003.

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JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-29/04: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Articles 8, 11(1) and 15(2) of Directive 92/50/EEC - Procedure for the award of public service contracts - Contract relating to waste disposal - Absence of call for tenders)

(2006/C 10/05)

Language of the case: German

In Case C-29/04: Commission of the European Communities (Agent: K. Wiedner) v Republic of Austria (Agent: M. Fruhmann) — action under Article 226 EC for failure to fulfil obligations, brought on 28 January 2004 — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), J.N. Cunha Rodrigues, K. Lenaerts and M. Ilešič, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 10 November 2005, in which it:

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(1)OJ C 71 of 20.3.2004.

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JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-197/04: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations - Tax on the consumption of manufactured tobacco - Separate taxation of cigarettes and rolls of tobacco ‘West Single Packs’)

(2006/C 10/06)

Language of the case: German

In Case C-197/04, Commission of the European Communities (Agent: K. Gross) v Federal Republic of Germany (Agents: C.-D. Quassowski, A. Tiemann and U. Forsthoff) — Action under Article 226 EC for failure to fulfil obligations, brought on 30 April 2004, — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, E. Juhász, M. Ilešič and E. Levits (Rapporteur), Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the, Registrar, gave a judgment on 10 November 2005, in which it:

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(1)OJ C 168, 26.6.2004.

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JUDGMENT OF THE COURT

(Second Chamber)

of 10 November 2005

in Case C-316/04, Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) Stichting Zuid-Hollandse Milieufederatie v College voor de toelating van bestrijdingsmiddelen (1)

(Authorisation for the placing of plant protection and biocidal products on the market - Directive 91/414/EEC - Article 8 - Directive 98/8/EC - Article 16 - Power of Member States during the transitional period)

(2006/C 10/07)

Language of the case: Dutch

In Case C-316/04: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 22 July 2004, received at the Court on 26 July 2004, in the proceedings between Stichting Zuid-Hollandse Milieufederatie and College voor de toelating van bestrijdingsmiddelen, in the presence of 3M Nederland BV and Others — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J. Makarczyk, R. Schintgen, G. Arestis and J. Klučka (Rapporteur), Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 10 November 2005, in which it ruled:

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(1)OJ C 239 of 25.09.2004.

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 10 November 2005

in Case C-385/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

(Failure of a Member State to fulfil obligations - Directive 2001/16/EC - Trans-European Networks - Interoperability of the trans-European conventional rail system - Failure to transpose within the period prescribed)

(2006/C 10/08)

Language of the case: English

In Case C-385/04, Commission of the European Communities (Agent: W. Wils) v United Kingdom of Great Britain and Northern Ireland (Agent: C. White) — action under Article 226 EC for failure to fulfil obligations, brought on 7 September 2004 — the Court (Fourth Chamber), composed of K. Schiemann, President of the Chamber, K. Lenaerts and E. Levits (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 10 November 2005, in which it:

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(1)OJ C 262, 23.10.2004.

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ORDER OF THE COURT

(Sixth Chamber)

of 15 September 2005

in Case C-112/04 P: Marlines SA v Commission of the European Communities (1)

(Appeal - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Proof of an undertaking's participation in business meetings with an anti-competitive purpose)

(2006/C 10/09)

Language of the case: Greek

In Case C-112/04 P: Marlines SA (lawyers: D. Papatheofanous and A. Anagnostou) against the Commission of the European Communities (Agents: R. Lyal and T. Christoforou) — an appeal under Article 56 of the Statute of the Court of Justice brought on 3 March 2004, the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, A. La Pergola and J.-P Puissochet (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 15 September 2005, the operative part of which is as follows:

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(1)OJ C 106, 30.04.2004

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ORDER OF THE COURT

(Fourth Chamber)

of 6 October 2005

in Case C-328/04: reference for a preliminary ruling from the Fővárosi Bíróság in the criminal proceedings against Attila Vajnai (1)

(Reference for a preliminary ruling - Interpretation of the principle of non-discrimination - National provision prohibiting, on pain of criminal prosecution, the use in public of a symbol consisting of a five-point red star - Lack of jurisdiction of the Court)

(2006/C 10/10)

Language of the case: Hungarian

In Case C-328/04: reference for a preliminary ruling under Article 234 EC from the Fővárosi Bíróság (Hungary), made by decision of 24 June 2004, received at the Court on 28 July 2004, in the criminal proceedings against Attila Vajnai — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, K. Schiemann (Rapporteur) and E. Juhász, Judges; C. Stix Hackl, Advocate General; R. Grass, Registrar, made an order on 6 October 2005, the operative part of which is as follows:

The Court of Justice of the European Communities clearly has no jurisdiction to answer the question referred by the Fővárosi Bíróság (Hungary) by decision of 24 June 2004.

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(1)OJ C 262, 23.10.2004.

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ORDER OF THE COURT

(Fifth Chamber)

of 16 September 2005

in Case C-342/04 P: Jürgen Schmoldt and Others v Commission of the European Communities (1)

(Appeal - Construction products - Harmonised standards and technical regulations - Thermal insulation standards)

(2006/C 10/11)

Language of the case: German

In Case C-342/04 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 10 August 2004 by Jürgen Schmoldt, residing in Dallgow-Döberitz (Germany), Hauptverband der Deutschen Bauindustrie e.V., established in Berlin (Germany), Kaefer Isoliertechnik GmbH & Co. KG, established in Bremen (Germany) (lawyer: H.-P. Schneider), the other party to the proceedings being the Commission of the European Communities (Agent: B. Schima assisted by A. Böhlke, lawyer) — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk (Rapporteur) and P. Kūris, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, made an order on 16 September 2005, the operative part of which is as follows

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(1)OJ C 262 of 23.10.2004

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ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-2/05 SA: Names BV v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 10/12)

Language of the case: French

In Case C-2/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 28 January 2005 by Names BV, established in Hazerswoude-Rijndijk (Netherlands) (lawyer: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

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(1)OJ C 82 of 02.04.2005

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ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-3/05 SA: Statistical Agency of the Republic of Kazakhstan v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 10/13)

Language of the case: French

In Case C-3/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 28 January 2005 by Statistical Agency of the Republic of Kazakhstan, established in Almaty (Kazakhstan) (lawyer: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

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(1)OJ C 82 of 02.04.2005

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ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-4/05 SA: Alt Ylmy – Ömümcilik Paydarlar Jemgyyeti v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 10/14)

Language of the case: French

In Case C-4/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 9 March 2005 by Alt Ylmy — Ömümcilik Paydarlar Jemgyyeti, established in Ashgabat (Turkmenistan) (lawyer: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

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(1)OJ C 106 of 30.04.2005

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ORDER OF THE COURT

(Fifth Chamber)

of 6 October 2005

in Case C-256/05: reference for a preliminary ruling from the Telekom-Control-Kommission in Telekom Austria AG, formerly Post & Telekom Austria AG (1)

(Questions referred for a preliminary ruling - Jurisdiction of the Court - Reference to the Court - Electronic communications - Networks and services - Common regulatory framework - Market for transit services)

(2006/C 10/15)

Language of the case: German

In Case C-256/05: reference for a preliminary ruling under Article 234 EC from the Telekom-Control-Kommission (Austria), made by decision of 13 June 2005, received at the Court on 17 June 2005, in the proceedings concerning Telekom Austria AG, formerly Post & Telekom Austria AG — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, P. Kūris (Rapporteur) and G. Arestis, Judges; J. Kokott, Advocate General; R. Grass, Registrar, made an order on 6 October 2005, the operative part of which is as follows:

The Court of Justice of the European Communities clearly has no jurisdiction to answer the question referred by the Telekom-Control-Kommission in its decision of 13 June 2005.

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(1)OJ C 205 of 20.08.2005

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Appeal brought on 5 October 2005 by Polyelectrolyte Producers Group against the order made on 22 July 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-376/04 between Polyelectrolyte Producers Group and Council of the European Union and Commission of the European Communities

(Case C-368/05 P)

(2006/C 10/16)

Language of the case: English

An appeal against the order made on 22 July 2005 by the Second Chamber of the Court of First Instance of the European Communities in case T-376/04 between Polyelectrolyte Producers Group and Council of the European Union and Commission of the European Communities was brought before the Court of Justice of the European Communities on 5 October 2005 by Polyelectrolyte Producers Group, established in Brussels (Belgium), represented by Messrs Koen Van Maldegem and Claudio Mereu, avocats.

The Appellant claims that the Court should:

Pleas in law and main arguments:

The Appellant submits that the Order of the Court of First Instance dismissing its application as inadmissible should be set aside on the following grounds:

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

(Case C-371/05)

(2006/C 10/17)

Language of the case: Italian

An action against the Italian 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 X. Lewis and L. Visaggio, acting as Agents.

The applicant claims that the Court should:

Pleas in law and main arguments

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(1)  OJ L 209, p. 1.

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Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of 26 July 2005 in A Brünsteiner GmbH v Bayerische Motorenwerke AG

(Case C-376/05)

(2006/C 10/18)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof, Germany, of 26 July 2005, received at the Court Registry on 12 October 2005, for a preliminary ruling in the proceedings between A Brünsteiner GmbH and Bayerische Motorenwerke AG on the following questions:

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

(2)OJ L 203, 1.8.2002, p. 30

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Reference for a preliminary ruling from the Consiglio di Stato by order of that court of 19 April 2005 in Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni

(Case C-380/05)

(2006/C 10/19)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato of 19 April 2005, received at the Court Registry on 18 October 2005, for a preliminary ruling in the proceedings between Centro Europa 7 Srl and Ministero delle Comunicazioni (Ministry of Communications) e Autorità per le Garanzie nelle Comunicazioni, (Authority for Security of Communications) Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni (Directorate General for Authorisations and Concessions in the Ministry for Communications) on the following questions:

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(1)OJ L 108, de 24.4.2002, p. 21.

(2)OJ L 108, de 24.4.2002, p. 33.

(3)OJ L 249, de 17.9.2002, p. 21.

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Reference for a preliminary ruling from the Cour d'appel de Bruxelles by judgment of that court of 13 October 2005 in De Lantsheer Emmanuel v Comite Interprofessionnel du vin de Champagne (‘CIVC’) and Veuve Clicquot Ponsardin

(Case C-381/05)

(2006/C 10/20)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour d'appel de Bruxelles (Brussels Court of Appeal) of 13 October 2005, received at the Court Registry on 19 October 2005, for a preliminary ruling in the proceedings between De Lantsheer Emmanuel and Comite Interprofessionnel du vin de Champagne (‘CIVC’) and Veuve Clicquot Ponsardin on the following questions:

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(1)  Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17), as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 290, p. 18)

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Reference for a preliminary ruling from the Cour de cassation de Belgique by judgment of that court of 7 October 2005 in Raffaele Talotta v État belge

(Case C-383/05)

(2006/C 10/21)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour de cassation de Belgique (Belgian Court of Cassation) of 7 October 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Raffaele Talotta and the État belge on the following question:

Is Article 43 (formerly Article 52) of the EC Treaty to be interpreted as prohibiting a provision of national law, such as Article 182 of the [Belgian] Royal Decree of 27 August 1993 implementing Article 342(2) of the Income Tax Code 1992, whereby minimum tax bases are applied only in the case of non-residents?

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Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 28 September 2005 in Color Drack GmbH v Lexx International Vertriebs GmbH

(Case C-386/05)

(2006/C 10/22)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Oberster Gerichtshof (Austria) of 28 September 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Color Drack GmbH and Lexx International Vertriebs GmbH on the following question:

Is Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) to be interpreted as meaning that a seller of goods domiciled in one Member State who, as agreed, has delivered the goods to the purchaser, domiciled in another Member State, at various places within that other Member State, can be sued by the purchaser regarding a claim under the contract relating to all the (part) deliveries — if need be, at the plaintiff's choice — before the court of one of those places (of performance)?

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Action brought on 27 October 2005 by the Commission of the European Communities against the French Republic

(Case C-389/05)

(2006/C 10/23)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2005 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

Pleas in law and main arguments

Articles 43 and 49 EC respectively lay down the right of establishment and freedom to provide services. Article 46 also provides that the provisions of those Articles and the measures taken in pursuance thereof shall not prejudice the applicability of the domestic provisions of a Member State providing for special treatment for foreign nationals on grounds of public policy, public security, or public health. However, that latter provision is not at issue here, as the Commission's challenge does not concern special treatment for foreign nationals who wish to provide artificial insemination services in France, but the impossibility, in law and in fact, of Community nationals performing that activity because of the monopoly granted in France to ‘insemination centres’ by means of, inter alia, two provisions of French legislation.

Artificial insemination services in France, in fact and in law, are subject to a monopoly in favour of ‘centres de mise en place’, which prevents providers of those services from other Member States from performing those activities, either by means of the right of establishment or by that of freedom to provide services. The French authorities put forward health considerations which, they submit, may justify adopting or retaining domestic measures so restrictive as to nullify those two Treaty freedoms for practical purposes. The Commission disputes the validity of those justifications, however, considering that, by their very nature, those restrictions are in any event disproportionate to the health and safety objectives put forward as the main grounds for them.

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Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 30 August 2005 in Jan de Nul N.V. v Hauptzollamt Oldenburg

(Case C-391/05)

(2006/C 10/24)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg of 30 August 2005, received at the Court Registry on 21 October 2005, for a preliminary ruling in the proceedings between Jan de Nul N.V. and Hauptzollamt Oldenburg on the following questions:

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(1)OJ 1992 L 316, p. 12.

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Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) by judgment of that court of 30 June 2005 in proceedings between Georgios Alevizos and the Minister for Economic Affairs

(Case C-392/05)

(2006/C 10/25)

Language of the case: Greek

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias of 30 June 2005, received at the Court Registry on 31 October 2005, for a preliminary ruling in the proceedings between Georgios Alevizos and Minister for Economic Affairs on the following question:

Are civil servants and officers, non-commissioned officers and other ranks of the armed forces, the public security forces and the harbour police corps covered, like other workers, by Article 6 of Council Directive 83/183/EEC and capable of acquiring ‘normal residence’ in another country where they live for at least 185 days in each calendar year in order to carry out an official task of a definite duration, or do they continue, even during the period of their assignment in the other country, to have their normal residence in Greece, irrespective of whether they have transferred their personal and occupational ties to the other country?

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Action brought on 4 November 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-393/05)

(2006/C 10/26)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 4 November 2005 by the Commission of the European Communities, represented by Enrico Traversa and Gerald Braun, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The Austrian authorities require of every inspection body in the field of organic production of agricultural products having a registered office in and approved in another Member State that it must also maintain a registered office or place of business in Austria in order to be allowed to carry out business activities in Austria. This requirement is contrary to the principle of freedom to provide services as it renders impossible the supply of services in Austria by companies with an establishment in other Member States.

Under Article 49 freedom to provide services is to be understood as the right, without hindrance, from a base in one Member State, to provide individual services in another Member State without maintaining a permanent establishment there. According to the settled case-law of the Court, the guarantee of freedom to provide services requires not only the removal of all discrimination on the basis of nationality but also the abolition of all restrictions which lend themselves to prohibiting, hindering or rendering less attractive the activities of a services provider who has an establishment in another Member State and regularly renders similar services there. Article 49 therefore precludes the application of a national regulation or administrative practice which, without objective justification, restricts the opportunity for a services provider to actually make use of the freedom to provide services.

The reasons given by the Republic of Austria — the alleged exercise of official authority by the inspection bodies and the public interest — are not such as to justify that restriction on the freedom to provide services. Reference to the exercise of official authority as a justification for the present restriction on the freedom to provide services would only be lawful and acceptable if the activity in question were one which constitutes direct and specific participation in the exercise of official authority. However, the inspection bodies are not public authorities: they cannot compulsorily enforce sanctions, they issue no public documents and the legal relationship between an inspection body and a producer is governed purely by private law.

The fact that an inspection body has no place of business in Austria does not jeopardise the public interest as the real control according to Community law criteria takes place when the inspection body in question is approved and examined by the public authorities of the approving Member State. In the present case Community coordination measures and harmonisation provisions also exist, which ensure that the interest which the Republic of Austria is putting forward is also pursued according to the same standards in other Member States.

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Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 25 October 2005 in criminal proceedings against Antonello D'Antonio and Others

(Case C-395/05)

(2006/C 10/27)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Viterbo (Italy) of 25 October 2005, received at the Court Registry on 10 November 2005, for a preliminary ruling in the criminal proccedings against Antonello D'Antonio and Others on the following question:

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Reference for a preliminary ruling from the Tribunale di Palermo by order of that court of 19 October 2005 in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola

(Case C-397/05)

(2006/C 10/28)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Palermo (Palermo District Court) of 19 October 2005, received at the Court Registry on 14 November 2005, for a preliminary ruling in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola on the following questions:

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Action brought on 17 November 2005 by the European Parliament against the Commission of the European Communities

(Case C-403/05)

(2006/C 10/29)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 17 November 2005 by the European Parliament, represented by R. Passos, E. Waldherr, and K. Lindahl, acting as Agents.

The European Parliament claims that the Court should:

Pleas in law and main arguments

The European Parliament requests the annulment of the Commission's decision on the grounds that the Commission has exceeded its powers.

The main aim of the contested decision is to combat terrorism by implementing United Nations Security Council Resolution 1373 (2001) on the fight against terrorism. By contrast, the aim of Regulation No 443/92 is to aid development by means of financial, technical and economic cooperation. The powers of execution delegated by that basic act give the Commission responsibility for ensuring the management of the financial and technical assistance, and for economic cooperation. A measure intended to help the government of the Philippines make its borders more secure, with the aim of combating terrorism, exceeds the powers of execution provided for in the basic act and is therefore illegal.

The contested decision has not been published in the Official Journal. The European Parliament did not receive notice of its full text until 9 September 2005.

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(1)OJ L 52, 27.02.1992, p. 1

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Action brought on 17 November 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-404/05)

(2006/C 10/30)

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 17 November 2005 by the Commission of the European Communities, represented by Enrico Traversa and Gerald Braun, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The German authorities require of every inspection body in the field of organic production of agricultural products having a registered office in and approved in another Member State that it must also maintain a registered office or place of business in Germany in order to be allowed to carry out business activities in Germany. This requirement is contrary to the principle of freedom to provide services as it renders impossible the supply of services in Germany by companies with an establishment in other Member States.

Under Article 49 freedom to provide services is to be understood as the right, without hindrance, from a base in one Member State, to provide individual services in another Member State without maintaining a permanent establishment there. According to the settled case-law of the Court, the guarantee of freedom to provide services requires not only the removal of all discrimination on the basis of nationality but also the abolition of all restrictions which lend themselves to prohibiting, hindering or rendering less attractive the activities of a services provider who has an establishment in another Member State and regularly renders similar services there. Article 49 therefore precludes the application of a national regulation or administrative practice which, without objective justification, restricts the opportunity for a services provider to actually make use of the freedom to provide services.

The reasons given by the Federal Government — the alleged exercise of official authority by the inspection bodies and the public interest — are not such as to justify that restriction on the freedom to provide services. Reference to the exercise of official authority as a justification for the present restriction on the freedom to provide services would only be lawful and acceptable if the activity in question were one which constitutes direct and specific participation in the exercise of official authority. It is true that the inspection bodies of the Länder are also entrusted with official tasks and would furthermore have the opportunity to compulsorily enforce the sanctions provided for in the Regulation, but that is irrelevant as regards Community law and does not alter the fact that the activities of an inspection body governed by Community law can also be carried out in Germany, in the context of freedom to provide services, by any inspection body approved in another Member State on that legal basis.

The fact that an inspection body has no place of business in Germany does not jeopardise the public interest as the real control according to Community law criteria takes place when the inspection body in question is approved and examined by the public authorities of the approving Member State. In the present case Community coordination measures and harmonisation provisions also exist, which ensure that the interest which the Federal Government is putting forward is also pursued according to the same standards in other Member States.

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Action brought on 21 November 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-409/05)

(2006/C 10/31)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 21 November 2005 by the Commission of the European Communities, represented by D. Triandafilou. Legal adviser, and G. Wilms, of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

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(1)OJ 1989 L 155, p. 1

(2)OJ 2000 L 130, p. 1

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Action brought on 23 November 2005 by the Commission of the European Communities against the French Republic

(Case C-414/05)

(2006/C 10/32)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 23 November 2005 by the Commission of the European Communities, represented by B. Stromsky, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

Pleas in law and main arguments

The Commission points out that the period for transposing that directive expired on 30 April 2004.

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(1)OJ L 262, 14.10.2003, p. 22

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Action brought on 24 November 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-416/05)

(2006/C 10/33)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 24 November 2005 by the Commission of the European Communities, represented by C.F. Durand and F.Simonetti, acting as Agents, with an address for service in Luxembourg.

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

Pleas in law and main arguments:

In its judgment of 2 October in Case C-89/03 Commission of the European Communities v Grand Duchy of Luxembourg, the Court declared that: 'By failing to bring into force the laws, regulations and administrative provisions necessary to comply with Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.'

By letter of 7 November 2003, the Commission drew the attention of the Luxembourg authorities to the judgment of 2 October 2003 and requested that the measures adopted in order to comply with this judgment be communicated to it.

The Luxembourg authorities indicated, in reply, that a draft Grand Ducal regulation could be finalised at the latest by November 2004.

On 14 December 2004, the Commission delivered a reasoned opinion calling on the Grand Duchy of Luxembourg to take the measures necessary to comply with it within a period of two months.

In a letter of 19 September 2005, the Luxembourg authorities referred to the fact that the Conseil d'État (Council of State), in an opinion of 12 October 2004, considered that the scope of the draft regulation was, in accordance with the Constitution, a matter for loi (legislative provision).

According to the information available to the Commission, the Grand Duchy of Luxembourg has still not transposed the directive at issue.

In accordance with the second sentence of the second subparagraph of Article 228(2) EC, the Commission is to specify in its application the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty payment of EUR 9 000 a day fits the seriousness and duration of the infringement and takes into consideration the need to give this penalty payment the required deterrent effect.

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(1)  Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses (OJ L 121, 15.5.1993, p. 20).

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Appeal brought on 24 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03 M.D. Fernández Gómez v Commission of the European Communities

(Case C-417/05 P)

(2006/C 10/34)

Language of the case: French

An appeal against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03 M.D. Fernández Gómez v Commission of the European Communities was brought before the Court of Justice of the European Communities on 24 November 2005 by the Commission of the European Communities, represented by D. Martin and L. Lozano Palacios, acting as Agents.

The appellant claims that the Court should:

Pleas in law and main arguments:

In its appeal, the Commission relies on three pleas:

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Appeal brought on 29 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-72/04 between S. Hosman-Chevalier and the Commission of the European Communities

(Case C-424/05 P)

(2006/C 10/35)

Language of the case: French

An appeal against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-72/04 between S. Hosman-Chevalier and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 29 November 2005 by the Commission of the European Communities, represented by H. Kraemer and M. Velardo, acting as Agents.

The appellant claims that the Court should:

Pleas in law and main arguments

The Commission submits a single plea against the judgment under appeal alleging breach of Community law in paragraphs 31 to 36 and 42 of that judgment. More precisely, it considers that the Court of First Instance misinterpreted the condition relating to ‘work done for another State’ laid down at the end of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations.

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COURT OF FIRST INSTANCE

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Appeal chamber

(2006/C 10/36)

On 6 December 2005 the Court of First Instance decided, in accordance with Article 12 of its Rules of Procedure, that for the period from 12 December 2005 to 31 August 2007 appeals brought against decisions of the Civil Service Tribunal are to be assigned, as soon as the application initiating proceedings has been lodged and without prejudice to subsequent application of Articles 14 and 51 of the Rules of Procedure, to an appeal chamber.

The appeal chamber is to be composed of the President of the Court of First Instance and of the Presidents of the Second, Third, Fourth and Fifth Chambers (all Extended Composition).

For the period from 12 December 2005 to 31 August 2007 the following are in consequence attached to the appeal chamber sitting with five Judges:

Mr Vesterdorf, President, and Messrs Jaeger, Pirrung, Vilaras and Legal, Judges.

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Judgment of the Court of First Instance of 17 November 2005 — Biofarma v OHIM

(Case T-154/03) (1)

(Community trade mark - Opposition proceedings - Earlier national word marks ARTEX - Application for Community word mark ALREX - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 10/37)

Language of the case: Dutch

Parties

Applicant(s): Biofarma SA (Neuilly-sur-Seine, France) (represented by V. Gil Vega, A. Ruiz López and D. Gonzalez Maroto, lawyers)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by W. Verburg and A. Folliard-Monguiral, Agents)

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Bausch & Lomb Pharmaceuticals, Inc. (Tampa, Florida, United States) (represented by S. Klos, lawyer)

Action

brought against the decision of the Third Board of Appeal of OHIM of 5 February 2003 (Case R 370/2002 3), concerning opposition proceedings between Biofarma SA and Bausch & Lomb Pharmaceuticals, Inc.

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 9 November 2005 — Focus Magazin Verlag GmbH v OHIM

(Case T-275/03) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Hi-FOCuS - Earlier national word mark FOCUS - Scope of the examination conducted by the Board of Appeal - Assessment of evidence produced before the Board of Appeal)

(2006/C 10/38)

Language of the case: German

Parties

Applicant(s): Focus Magazin Verlag GmbH (Munich, Germany) (represented by: U. Gürtler, lawyer)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. von Mühlendahl, B. Müller and G. Schneider, acting as Agents)

Other party or parties to the proceedings before the Board of Appeal of OHIM: ECI Telecom Ltd (Petah Tikva, Israel)

Application for

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 30 April 2003 (Case R 913/2001-4) concerning opposition proceedings between Focus Magazin Verlag GmbH and ECI Telecom Ltd,

Operative part of the judgment

The Court:

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(1)OJ C 251, 18.10.2003.

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Judgment of the Court of First Instance of 15 November 2005 — Righini v Commission

(Case T-145/04) (1)

(Officials - Temporary staff - Classification in grade and in step - Classification in the higher career grade)

(2006/C 10/39)

Language of the case: French

Parties

Applicant: Elisabetta Righini (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Defendant: Commission of the European Communities (represented by: V. Joris and C. Berardis-Kayser, Agents, assisted by D. Waelbroeck, lawyer)

Application for

annulment of the Commission's decisions to classify the applicant on her entry into service in Grade A7, step 3, whether as a member of the temporary staff or as a probationary official, and, in so far as is necessary, annulment of the decision of 21 January 2004 rejecting the applicant's complaint

Operative part of the judgment

The Court:

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(1)OJ C 179 of 10.7.2004.

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Order of the Court of First Instance of 17 October 2005 — First Data Corp. and Others v Commission of the European Communities

(Case T-28/02) (1)

(Competition - Article 81 EC - Visa payment card scheme - The ‘no-acquiring-without-issuing’ rule - Negative clearance - Rule abolished during the proceedings - Legal interest in bringing proceedings - No need to adjudicate)

(2006/C 10/40)

Language of the case: English

Parties

Applicants: First Data Corp. (Wilmington, Delaware, USA), FDR Ltd (Dover, Delaware, United States), and First Data Merchant Services Corp. (Sunrise, Florida, USA) (represented by: initially, P. Bos and M. Nissen, then P. Bos, lawyers)

Defendant: Commission of the European Communities (represented by: initially, R. Wainwright, W. Wils and V. Superti, then R. Wainwright and T. Christoforou, Agents)

Application for

annulment of the fifth indent of Article 1 of Commission Decision 2001/782/EC of 9 August 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No COMP/29.373 — Visa International) (OJ 2001 L 293, p. 24)

Operative part of the Order

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(1)OJ C 109, 4.5.2002.

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Order of the Court of First Instance of 26 October 2005 — Ouariachi v Commission

(Case T-124/04) (1)

(Action for damages - Non-contractual liability of the Community - Damage caused by a member of staff in the exercise of his functions - Absence of causal link)

(2006/C 10/41)

Language of the case: French

Parties

Applicant: Jamal Ouariachi (Rabat, Morocco) (represented by: F. Blanmailland and C. Verbrouck, lawyers)

Defendant: Commission of the European Communities (represented by: F. Dintilhac and G. Boudot, Agents)

Application for

damages to compensate for the loss allegedly suffered by the applicant following the alleged illegal conduct of a member of staff of the Commission delegation in Khartoum (Sudan)

Operative part of the Order

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(1)OJ C 118 of 30.4.2004.

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Order of the Court of First Instance of 27 October 2005 — GAEC Salat v Commission

(Case T-89/05) (1)

(Action for failure to act - Complaint concerning the protected designation of origin ‘Salers’ - Regulation (EC) No 828/2003 - Definition of position by the Commission - Manifest inadmissibility)

(2006/C 10/42)

Language of the case: French

Parties

Applicant: GAEC Salat (Farges, France) (represented by: F. Delpeuch, lawyer)

Defendant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart, Agent)

Application for

declaration of failure to act in that the Commission failed to adopt a decision on the applicant's complaint against the French Republic

Operative part of the Order

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(1)OJ C 106 of 30.4.2005

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Action brought on 6 October 2005 — Schierhorst v Commission

(Case T-374/05)

(2006/C 10/43)

Language of the case: French

Parties

Applicant: Rainer Johannes Schierhorst (Georgetown, Guyana) (represented by: S. Rodrigues, A. Jaume, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, who was successful in Open Competition COM/A/1/02 for administrators of grade A7/A6 in the agricultural sector, was appointed an official by the contested decision of 5 January 2005. By application of Article 12 of Annex XIII to the Staff Regulations, he was graded at the new grade A*6, lower than the former grades A7/A6 which correspond to grades A*8/A*10 under the new system.

In support of his claims, the applicant relies on the pleas in law which are identical to those relied on by the applicant in Case T-207/05 (1).

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(1)OJ C 193, 6.8.2005, p. 36.

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Action brought on 5 October 2005 — Seegmuller v Commission

(Case T-377/05)

(2006/C 10/44)

Language of the case: French

Parties

Applicant: Magali Seegmuller (Uccle, Belgium) (represented by: K.H. Hagenaar, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, a member of temporary staff at the Commission, applied for the post of head of administration in Congo Brazzaville (Vacancy notice COM/2004/2982/F). On 5 January 2005, she was informed that she had passed the selection board. Asked by Commission DG RELEX whether she would accept another delegation, the applicant also agreed to be posted to Guinea Conakry.

As is the practice, the applicant underwent a medical examination with a view to her departure for the delegation in Guinea Conakry. By note of 17 March 2005, the Commission's medical officer stated that the applicant did not have the required physical aptitudes to carry out her functions in that delegation. Following that note, DG RELEX informed the applicant that she could not take up the post in Guinea Conakry. The applicant therefore submitted a complaint against that decision, which was rejected by the contested decision of 5 July 2005.

In support of her action, the applicant claims that it was not within the competence of the Director of DG RELEX to make the decision of 15 April 2005 and that there was a misuse of powers. Furthermore, she submits that there were alleged errors of assessment on the part of the Commission's medical officer, whose report of 17 March 2005 fails to establish, she alleges, any comprehensible link between the medical findings which it contains and the conclusions which he draws from them.

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Action brought on 7 October 2005 — Marenco v Commission

(Case T-378/05)

(2006/C 10/45)

Language of the case: French

Parties

Applicant: Giuliano Marenco (Brussels, Belgium) (represented by: A. Pappalardo, M. Merola, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, former Deputy Director-General of the Commission's Legal Service, who retired in February 2005, was classified, before leaving the service, at grade A*16 and benefited, until the end of 2004, from the increase in salary provided for in Article 7(4) of Annex XIII to the Staff Regulations. In accordance with the amendments to the Staff Regulations which entered into force on 1 May 2004, a multiplication factor of 0.9580274 was applicable to his basic salary, reflecting the difference between the basic salary laid down for his grade and step under the old and new Staff Regulations.

On 1 January 2005, the applicant reached the sixth step in his grade. Since the basic salaries laid down for that step under the old and new Staff Regulations are the same, the applicant takes the view that the applicable multiplication factor should from then on be ‘1’. However, a multiplication factor of 0.9982852 appeared, from that month onwards, both on his last salary slip and in the decision awarding and calculating his pension rights. In addition, the increase in salary provided for in Article 7(4) of Annex XIII to the Staff Regulations was not included in his salary for the month of January 2005 and, consequently, was not taken into account when determining his pension rights, which were calculated on the basis of his salary for that month. Finally, the decision determining the pension rights classified the applicant at step 3, instead of step 6, in his grade.

In support of his action, the applicant claims infringement of Article 2(2), of Article 7(4), and of Article 8(2) of Annex XIII to the Staff Regulations. He also pleads infringement of his legitimate expectations, allegedly arising from the result of an indicative calculation of his pension rights which he carried out with the assistance of an IT tool (‘calculette’), which the Commission provided to staff. According to the applicant, the ‘calculette’ envisaged that the increase in question would be taken into account when determining the pension.

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Action brought on 14 October 2005 — Zuffa/OHIM

(Case T-379/05)

(2006/C 10/46)

Language of the case: English

Parties

Applicant(s): Zuffa, LLC (Las Vegas, USA) [represented by: S. Malynicz, Barrister, M. Blair, Solicitor]

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 ‘ULTIMATE FIGHTING’ for goods and services in classes 9, 16, 25, 28 and 41 — application No 2 766 590

Decision of the examiner: Refusal of the application in respect of all goods and services applied for

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The term ULTIMATE FIGHTING, taken as a whole, is not a generic or usual name in relation to all the claimed goods and services. The Board of Appeal failed to adequately analyse the whole mark in relation to all the goods and services applied for.

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Action brought on 10 October 2005 — Buendía Sierra v Commission

(Case T-380/05)

(2006/C 10/47)

Language of the case: French

Parties

Applicant: José Buendía Sierra (Brussels, Belgium) (represented by: M. van der Woude, V. Landes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

In support of his action, the applicant advances pleas similar to those he advanced previously in Case T-311/04 (1), an action also brought by him.

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(1)OJ C 262, 23.10.2004, p. 44

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Action brought on 10 October 2005 — Di Bucci v Commission

(Case T-381/05)

(2006/C 10/48)

Language of the case: French

Parties

Applicant: Vittorio Di Bucci (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

In support of his action, the applicant advances pleas similar to those advanced in Case T-311/04 (1).

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(1)OJ C 262, 23.10.2004, p. 44

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Action brought on 10 October 2005 — Wilms v Commission

(Case T-386/05)

(2006/C 10/49)

Language of the case: French

Parties

Applicant: Günter Wilms (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

In support of his action, the applicant advances similar pleas to those advanced in Case T-311/04 (1).

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(1)OJ C 262, 23.10.2004, p. 44

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Action brought on 13 October 2005 — Chatziioannidou v Commission

(Case T-387/05)

(2006/C 10/50)

Language of the case: French

Parties

Applicant: Eleni Chatziioannidou (Auderghem, Belgium) (represented by: S.A. Pappas, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, an official of the Commission, applied for the transfer of her pension rights, acquired in Greece before she took up her post at the Commission, to the Community scheme. By her action, she criticises the method of calculation of the number of annuities to be taken into account according to the Community pension scheme, on the basis of the capital sum transferred. Specifically, the applicant submits that, before the introduction of the euro, the Commission converted the capital sum transferred in a currency other than the Belgian Franc not on the basis of the rate applicable on the date of calculation but at an average exchange rate which was intended to reflect the currency fluctuations over the period of payment of the contributions. However, following the transitional period for the definitive introduction of the euro, that is to say from 1 January 2002, the Commission no longer uses that method of calculation but takes into account the amount in euro transferred by the national funds.

The applicant states that the discontinuation of the average exchange rate method leads, in her case, to a considerable reduction in the number of annuities with which she was credited. On that basis, she claims breach of Council Regulation No 1103/97, which provides that the introduction of the euro is not to have the effect of altering any term of a legal instrument. She also claims breach of the principle of non-discrimination, since, depending on whether the transfer request was made before or after the introduction of the euro, officials in exactly the same position are not awarded the same number of annuities under the Community scheme.

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Action brought on 20 October 2005 — Grünheid v Commission

(Case T-388/05)

(2006/C 10/51)

Language of the case: French

Parties

Applicant: Sabine Grünheid (Overijse, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

By this action, the applicant, recruited as an official by the Commission in 2003, disputes her definitive classification at former grade A7, now grade A*8. She takes the view that, in the light of her professional experience acquired before her recruitment, allegedly of more than 12 years, she should have been classified at grade A6, now grade A*10.

In support of her action, the applicant alleges breach of Article 31(2) of the Staff Regulations, in the version in force before 1 May 2004, of the decisions of the Commission concerning the criteria applicable to appointment to a grade, of the administrative guide relating to the classification of new officials, and a manifest error of assessment. In addition, she alleges breach of the principle of equal treatment, since in the past the Commission has classified at the higher grade officials having qualities inferior or equal to those of the applicant. Finally, the applicant alleges breach of the principle of legitimate expectations and the duty to have regard to the welfare of officials.

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Action brought on 20 October 2005 — Ole Eistrup v European Parliament

(Case T-389/05)

(2006/C 10/52)

Language of the case: Danish

Parties

Applicant(s): Ole Eistrup (Knebel, Denmark) (represented by: S. E. Hjelmborg, advokat)

Defendant(s): European Parliament

Form of order sought

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

Pleas in law and main arguments

The applicant, who is employed in the Parliament's Danish language translation division, wished to be reinstated in his post after taking leave on personal grounds from 1 August 1992 to 31 July 1996. This only became possible however from 1 October 2002, since the Parliament was not able to identify an available post corresponding to the applicant's category and qualifications before that date.

In support of his application the applicant states that he has fulfilled his obligation to mitigate his loss in connection with his claim for reimbursement of lost earnings.

The applicant also claims that the defendant's alleged unlawful handling of the matter put the applicant in a state of uncertainty and anxiety, and that the defendant's conduct constitutes a clear breach of the applicant's rights and the confidence which every citizen must have in the Community's legal system.

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Action brought on 17 October 2005 — Pickering v Commission

(Case T-393/05)

(2006/C 10/53)

Language of the case: French

Parties

Applicant(s): Stephen Pickering (La Hulpe, Belgium) (represented by: N. Lhoëst, 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 applicant, a Commission official, is a national of the United Kingdom. Before the entry into force of Regulation No 723/2004 (1) amending the Staff Regulations, the applicant regularly made use of the possibility of transferring part of his remuneration to his country of origin. In accordance with the rules in force, the part transferred was increased by an amount resulting from the application of a ‘correction coefficient’, which was supposed to reflect the difference between the cost of living in the country of employment and in that of origin.

The new Staff Regulations lay down strict conditions for such transfers, in contrast to what was formerly the case. Moreover, the ‘correction coefficient’ applicable is no longer equal to that applicable to the remuneration of officials employed in the country to which the transfer is made. The latter benefit from a coefficient calculated on the basis of the cost of living in the country's capital, while the coefficient applicable to the transfers is calculated on the basis of the average cost of living in the country to which the transfer is made. Lastly, the new provisions abolish the application of the ‘correction coefficient’ to pensions.

In support of his action, the applicant submits a plea of the illegality of Regulation No 723/2004 to the extent that it concerns the transfer of remuneration to the country of origin, alleging, firstly, that the grounds on which that regulation is based are misconceived. Next, he alleges a breach of the principle of equal treatment, to the extent that the new system provides for the application of a different coefficient to officials carrying out their activities in the country to which the transfer is made. The applicant also alleges a breach of the principles of legitimate expectations, acquired rights and legal certainty, and of the duty to have regard for the interests of officials.

As regards the pensions scheme, in addition to the three pleas above, the applicant pleads that it infringes the former officials' freedom of establishment, to the extent that it favours their establishment, after their employment has ceased, in a country with a lower cost of living.

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(1)  Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004, amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ L 124 of 27.4.2002, p. 1.

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Action brought on 17 October 2005 — Valero Jordana v Commission

(Case T-394/05)

(2006/C 10/54)

Language of the case: French

Parties

Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. Merola and I. van Schendel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should

Pleas in law and main arguments

In support of his action, the applicant advances similar pleas to those advanced in Case T-385/04 (1).

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(1)OJ C 284, 20.11.2004, p. 27.

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Action brought on 7 November 2005 — Tesoka v European Foundation for the Improvement of Living and Working Conditions

(Case T-398/05)

(2006/C 10/55)

Language of the case: French

Parties

Applicant: Sabrina Tesoka (Overijse, Belgium) (represented by: J.-L. Fagnart, lawyer)

Defendant: European Foundation for the Improvement of Living and Working Conditions

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, a member of the defendant's staff since 2001, resigned on 2 August 2005 in order to receive the pecuniary benefits set out under Regulation No 1111/2005 for staff members who had resigned before 4 August 2005. In her action, the applicant argues that the defendant rejected her application for indemnities to which she was entitled, and for the documents which she needed to receive social protection in her country of residence, and claims annulment of that decision of refusal and compensation for the damage allegedly suffered.

In support of her action, she alleges infringement of the second subparagraph of Article 17(2) of Regulation No 1860/76 as amended by Article 8 of Regulation (EC) No 1111/2005, infringement of Article 28a of the Conditions of Employment of Other Servants of the European Communities, of the provisions of Commission Regulation 91/88 of 13 January 1988, and of her legitimate expectations.

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Action brought on 21 October 2005 — Wils v European Parliament

(Case T-399/05)

(2006/C 10/56)

Language of the case: French

Parties

Applicant: Dieter Wils (Altrier, Luxembourg) (represented by: G. Vandersanden and C. Ronzi, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, an official of the Parliament, challenges the increase in the rate of contribution to the pension scheme to 9,75 %, introduced by Annex XIII to the Staff Regulations, which came into force on 1 May 2004. In support of his claims, he alleges the illegality of that annex, in the light of Article 83(4) of the Staff Regulations, in the version applicable prior to 1 May 2004. The effect of that latter provision was to allow the contribution at issue to be altered for the sole purpose of ensuring actuarial balance. However, the applicant submits that the increase in question was decided upon for other reasons, namely, to cover a pre-existing deficit in the Community pension scheme.

Furthermore, the applicant claims that the criteria used by Eurostat to calculate the actuarial balance are based on parameters which have led to miscalculations. He also pleads a breach of the principle of proportionality, in that the increase in question goes beyond what is strictly necessary to restore actuarial balance. Lastly, the applicant alleges infringement of his legitimate expectations, since the Parliament clearly let it be understood that it would not allow the rate of contribution to be altered otherwise than in strict compliance with the actuarial balance.

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Action brought on 15 November 2005 — MyTravel/Commission

(Case T-403/05)

(2006/C 10/57)

Language of the case: English

Parties

Applicant(s): MyTravel Group plc (Rochdale, United Kingdom) [represented by: D. Pannick, QC, A. Lewis, Barrister, M. Nicholson, S. Cardell, B. McKenna, Solicitors]

Defendant(s): Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The applicant, then named ‘Airtours plc.’, brought an application requesting the annulment of the Commission's decision regarding the applicant's merger with another company. By its judgment in Case T-342/99, Airtours/Commission, the Court annulled that decision, as requested by the applicant. The applicant then brought another application (Case T-212/03, MyTravel/Commission), for damages allegedly incurred by reason of the Commission's errors and breaches of Community law in its handling of the case leading to the annulment.

In the context of those second proceedings, the applicant, relying on Regulation 1049/2001 (1), requested the Commission to grant it access to the report prepared by the Commission's services following the judgment, as well as a number of drafts, working papers and notes, either relating to the preparation of that report or contained in the case file of the Commission's decision, which had been annulled. By the contested decision, the Commission rejected the applicant's request, considering that the exceptions in Article 4, paragraphs 2 and 3, of Regulation 1049/2001, relating to the protection of court proceedings and legal advice, of the purposes of inspections, investigations and audits or of the Commission's decision making process, should apply.

The applicant requests the annulment of this decision. It challenges in detail the Commission's assertions that certain documents should not be disclosed in order to protect court and legal proceedings, and considers that it should not be open to the Commission to rely on the need to protect historic court proceedings, such as the ones in Case T-342/99, already closed, in order to resist the disclosure of documents which are central to the achieving of a just result in separate, ongoing proceedings.

With regard to the protection of investigations, the applicant contends that the Commission's appraisal of a proposed merger is not an investigation for the purposes of the exception and that the exception does not apply to internal enquiries nor does it in any event apply to enquiries which are closed. Further, the applicant considers that disclosure would not undermine the purpose of investigations in similar merger procedures. The applicant also challenges the Commission's assertion that an internal audit aimed at modernising administrative procedures could not be independent if its recommendations and findings were made public.

Finally, the applicant considers that the Commission has not established that disclosure would seriously undermine its future decision-making process, since the report of which disclosure was requested does not relate to the way decisions will be taken in future but to the way in which they were wrongly taken in the past, transparency could not be equated to undue external pressure and the disclosure requested would have no impact on the stability of the Community legal order.

The applicant finally argues that there is an overriding public interest in the disclosure of the requested documents.

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(1)OJ L 145, 31/05/2001, p. 43

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Action brought on 9 November 2005 — Alessandro Cavallaro v Commission of the European Communities

(Case T-406/05)

(2006/C 10/58)

Language of the case: Italian

Parties

Applicant: Alessandro Cavallaro (Rome, Italy) (represented by: Carlo Forte, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant in the present case appeals against the decision of the appointing authority of 10 August 2005, in which he was refused the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations of the European Communities, and requests payment of the sums relating to such allowance to be allowed from 1 March 2005 and for the entire period of service with the Commission delegation in Rome.

It must be noted in that respect that back in 2002, immediately after being employed by the Commission, that authority refused the expatriation allowance of 16 % on the assumption that during the entire reference period for the calculation of the five years referred to in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, the applicant had exercised his professional activities in Brussels.

The applicant was subsequently transferred to the office of the Commission delegation in Rome, and again asked for the benefit of that allowance. The present action is brought against the adverse decision in respect of that new request.

In support of his claims, the applicant pleads:

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III Notices

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(2006/C 10/59)

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

OJ C 330, 24.12.2005

Past publications

OJ C 315, 10.12.2005

OJ C 296, 26.11.2005

OJ C 281, 12.11.2005

OJ C 271, 29.10.2005

OJ C 257, 15.10.2005

OJ C 243, 1.10.2005

These texts are available on:

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