# Official Journal C 31/5 Fe

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 31 |
| | |
| English edition | Information and Notices | Volume 485 February 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 31

English edition

Information and Notices

Volume 485 February 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 031/1 | Election of the Presidents of Chambers | 1 |
| 2005/C 031/2 | Lists for the purposes of determining the composition of the formations of the Fourth, Fifth and Sixth Chambers as from 12 October 2004 | 1 |
| 2005/C 031/3 | A new member of the Court takes the oath | 2 |
| 2005/C 031/4 | Assignment of a new Judge to the Chambers | 2 |
| 2005/C 031/5 | Lists for the purposes of determining the composition of the formations of the Grand Chamber and the Third and Sixth Chambers as from 19 October 2004 | 2 |
| 2005/C 031/6 | Judgment of the Court (Second Chamber) of 12 October 2004 in Case C-87/00 (reference for a preliminary ruling from the Giudice di pace di Genova): Roberto Nicoli v Eridania SpA (Sugar — Price system — Regionalisation — Deficit areas — Classification of Italy — Marketing year 1998/99 — Regulations (EEC) No 1785/81 and (EC) No 1361/98 — Validity of Regulation No 1361/98) | 3 |
| 2005/C 031/7 | Judgment of the Court (Sixth Chamber) of 9 December 2004 in Case C-219/03: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Tax on capital gains) | 3 |
| 2005/C 031/8 | Judgment of the Court (Sixth Chamber) of 9 December 2004 in Case C-56/04: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Failure to transpose within the period prescribed) | 3 |
| 2005/C 031/9 | Judgment of the Court (Sixth Chamber) of 9 December 2004 in Case C-333/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 1999/92/EC — Protection of workers — Exposure to risk of explosive atmospheres — Failure to transpose) | 4 |
| 2005/C 031/0 | Case C-465/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione by decision of that court of 11 June 2004 in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti | 4 |
| 2005/C 031/1 | Case C-470/04: Reference for a preliminary ruling by the Gerechtshof Arnhem, by decision of that court of 27 October 2004 in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo | 5 |
| 2005/C 031/2 | Case C-477/04: Action brought on 16 November 2004 by the Commission of the European Communities against the Italian Republic | 5 |
| 2005/C 031/3 | Case C-478/04: Action brought on 16 November 2004 by the Commission of the European Communities against the Italian Republic | 6 |
| 2005/C 031/4 | Case C-479/04: Reference for a preliminary ruling by the Østre Landsret by decision of that court of 16 November 2004 in the case of Laserdisken ApS against Kulturministeriet | 6 |
| 2005/C 031/5 | Case C-480/04: Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 2 November 2004, received at the Court Registry on 17 November 2004, in the criminal proceedings pending before it against Antonello D'Antonio | 7 |
| 2005/C 031/6 | Case C-484/04: Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom | 7 |
| 2005/C 031/7 | Case C-485/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic | 8 |
| 2005/C 031/8 | Case C-486/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic | 9 |
| 2005/C 031/9 | Case C-487/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic | 9 |
| 2005/C 031/0 | Case C-488/04: Reference for a preliminary ruling by the Cour de cassation (France), chambre commerciale, financière et économique – by judgment of that court of 16 November 2004 in the case of Galeries de Lisieux SA against Organic Recouvrement | 10 |
| 2005/C 031/1 | Case C-492/04: Reference for a preliminary ruling by the Finanzgericht Baden-Württemberg by decision of that court of 14 October 2004 in the case of Lasertec Gesellschaft für Stanzformen mbH (formerly Riess Laser Bandstahlschnitte GmbH) against Finanzamt Emmendingen | 11 |
| 2005/C 031/2 | Case C-493/04: Reference for a preliminary ruling by the Gerechtshof te 's-Hertogenbosch by decision of that court of 9 June 2004 in the case of L.H. Piatkowski against Belastingsdienst Grote ondernemingen Eindhoven | 11 |
| 2005/C 031/3 | Case C-495/04: Reference for a preliminary ruling of 26 November 2004, from the Hoge Raad der Nederlanden in the case of A.C. Smits-Koolhoven against Staatssecretaris van Financiën | 12 |
| 2005/C 031/4 | Case C-496/04: Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven by decision of that court of 26 November 2004 in the case of J. Slob against het Productschap Zuivel | 12 |
| 2005/C 031/5 | Case C-497/04: Action brought on 1 December 2004 by the Commission of the European Communities against the Hellenic Republic | 12 |
| 2005/C 031/6 | Case C-498/04: Action brought on 1 December 2004 by the Commission of the European Communities against the Hellenic Republic | 13 |
| 2005/C 031/7 | Case C-499/04: Reference for a preliminary ruling by the Landesarbeitsgericht Düsseldorf by order of that court of 8 October 2004 in the case of Hans Werhof against Freeway Traffic Systems GmbH & Co. KG | 13 |
| 2005/C 031/8 | Case C-502/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 3 August 2004 in the case of Ergün Torun against Stadt Augsburg, interested parties: 1. the representative of the national interest before the Bundesverwaltungsgericht 2. Landesanwaltschaft Bayern | 14 |
| 2005/C 031/9 | Case C-505/04: Action brought on 8 December 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland | 14 |
| 2005/C 031/0 | Case C-506/04: Reference for a preliminary ruling by the Cour administrative (Grand Duchy of Luxembourg) by judgment of that court of 7 December 2004, in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg | 15 |
| 2005/C 031/1 | Case C-509/04: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by decision of that court of 10 December 2004 in the case of Magpar VI BV of Naarden against Staatssecretaris van Financiën | 15 |
| 2005/C 031/2 | Case C-510/04: Action brought on 13 December 2004 by Commission of the European Communities against Kingdom of Belgium | 16 |
| 2005/C 031/3 | Case C-515/04: Action brought on 15 December 2004 by the Commission of the European Communities against the Kingdom of Belgium | 16 |
| 2005/C 031/4 | Case C-516/04: Action brought on 15 December 2004 by the Commission of the European Communities against the Kingdom of Belgium | 17 |
| | COURT OF FIRST INSTANCE |
| 2005/C 031/5 | Judgment of the Court of First Instance of 23 November 2004 in Case T-166/98: Cantina sociale di Dolianova Soc. coop. rl and Others v Commission of the European Communities (Common organisation of the market in wine — Regulation (EEC) No 2499/82 — Community aid — Action for annulment — Action for declaration of failure to act — Action for compensation) | 18 |
| 2005/C 031/6 | Judgment of the Court of First Instance of 1 December 2004 in Case T-27/02: Kronofrance SA v Commission of the European Communities (State aid — Commission decision not to raise objections — Action for annulment — Admissibility — Multisectoral framework on regional aid for large investment projects) | 18 |
| 2005/C 031/7 | Judgment of the Court of First Instance of 30 November 2004 in Case T-168/02: IFAW Internationaler Tierschutz-Fonds gGmbH v Commission of the European Communities (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — Article 4(5) — No disclosure of a document from a Member State without the prior agreement of that State) | 19 |
| 2005/C 031/8 | Judgment of the Court of First Instance of 24 November 2004 in Case T-393/02: Henkel KGaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Three-dimensional mark — Shape of a white and transparent bottle — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94) | 19 |
| 2005/C 031/9 | Judgment of the Court of First Instance of 23 November 2004 in Case T-84/03: Maurizio Turco v Council of the European Union (Openness — Public access to Council documents — Partial refusal of access — Regulation (EC) No 1049/2001 — Exceptions) | 20 |
| 2005/C 031/0 | Judgment of the Court of First Instance of 30 November 2004 in Case T-173/03: Anne Geddes v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark ‘NURSERYROOM’ — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94) | 20 |
| 2005/C 031/1 | Judgment of the Court of First Instance of 23 November 2004 in Case T-360/03: Frischpack GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Three-dimensional mark — Shape of a cheese box — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character) | 21 |
| 2005/C 031/2 | Order of the Court of First Instance of 6 September 2004 in Case T- 213/02: SNF SA v Commission of the European Communities (Action for annulment — Directive 2002/34/EC — Restrictions on the use of polyacrylamides in the composition of cosmetic products — Person individually concerned — Admissibility) | 21 |
| 2005/C 031/3 | Order of the Court of First Instance of 9 November 2004 in Case T-252/03: Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the Euoropean Communities (Competition — Decision finding an infringement of Article 81 EC — Market in beef and veal — Action for annulment — Unlimited jurisdiction — Time-limit for bringing application — Introduction out of time — Inadmissibility) | 21 |
| 2005/C 031/4 | Order of the President of the Court of First Instance of 10 November 2004 in Case T-316/04: R Wam SpA v Commission of the European Communities (State aid — Loans at reduced rates intended to enable an undertaking to become established in certain non-member countries — Obligation to recover — Application for interim measures — Suspension of operation — Urgency — None) | 22 |
| 2005/C 031/5 | Case T-366/04: Action brought on 8 September 2004 by Hensotherm AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 22 |
| 2005/C 031/6 | Case T-416/04: Action brought on 18 October 2004 by Anna Kontouli against the Council of the European Union | 23 |
| 2005/C 031/7 | Case T-429/04: Action brought on 25 October 2004 by Trubowest Handel GmbH and Mr Viktor Makarov against the Council of the European Union and the Commission of the European Communities | 24 |
| 2005/C 031/8 | Case T-430/04: Action brought on 25 October 2004 by Nomura Principal Investment plc and Nomura International plc against the Commission of the European Communities | 25 |
| 2005/C 031/9 | Case T-444/04: Action brought on 5 November 2004 by France Télécom against Commission of the European Communities | 26 |
| 2005/C 031/0 | Case T-445/04: Action brought on 10 November 2004 by Energy Technologies ET S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 26 |
| 2005/C 031/1 | Case T-450/04: Action brought on 9 November 2004 by Bouygues SA and Bouygues Télécom against Commission of the European Communities | 27 |
| 2005/C 031/2 | Case T-456/04: Action brought on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom against Commission of the European Communities | 27 |
| 2005/C 031/3 | Case T-457/04: Action brought on 9 November 2004 by Camar S.r.l. against the Commission of the European Communities | 28 |
| 2005/C 031/4 | Case T-490/04: Action brought on 21 December 2004 by the Federal Republic of Germany against the Commission of the European Communities | 29 |
| 2005/C 031/5 | Case T-493/04: Action brought on 22 December 2004 by Deutsche Post AG against the Commission of the European Communities | 29 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 031/1

Election of the Presidents of Chambers

1

2005/C 031/2

Lists for the purposes of determining the composition of the formations of the Fourth, Fifth and Sixth Chambers as from 12 October 2004

1

2005/C 031/3

A new member of the Court takes the oath

2

2005/C 031/4

Assignment of a new Judge to the Chambers

2

2005/C 031/5

Lists for the purposes of determining the composition of the formations of the Grand Chamber and the Third and Sixth Chambers as from 19 October 2004

2

2005/C 031/6

Judgment of the Court (Second Chamber) of 12 October 2004 in Case C-87/00 (reference for a preliminary ruling from the Giudice di pace di Genova): Roberto Nicoli v Eridania SpA (Sugar — Price system — Regionalisation — Deficit areas — Classification of Italy — Marketing year 1998/99 — Regulations (EEC) No 1785/81 and (EC) No 1361/98 — Validity of Regulation No 1361/98)

3

2005/C 031/7

Judgment of the Court (Sixth Chamber) of 9 December 2004 in Case C-219/03: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Tax on capital gains)

3

2005/C 031/8

Judgment of the Court (Sixth Chamber) of 9 December 2004 in Case C-56/04: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Failure to transpose within the period prescribed)

3

2005/C 031/9

Judgment of the Court (Sixth Chamber) of 9 December 2004 in Case C-333/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 1999/92/EC — Protection of workers — Exposure to risk of explosive atmospheres — Failure to transpose)

4

2005/C 031/0

Case C-465/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione by decision of that court of 11 June 2004 in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti

4

2005/C 031/1

Case C-470/04: Reference for a preliminary ruling by the Gerechtshof Arnhem, by decision of that court of 27 October 2004 in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo

5

2005/C 031/2

Case C-477/04: Action brought on 16 November 2004 by the Commission of the European Communities against the Italian Republic

5

2005/C 031/3

Case C-478/04: Action brought on 16 November 2004 by the Commission of the European Communities against the Italian Republic

6

2005/C 031/4

Case C-479/04: Reference for a preliminary ruling by the Østre Landsret by decision of that court of 16 November 2004 in the case of Laserdisken ApS against Kulturministeriet

6

2005/C 031/5

Case C-480/04: Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 2 November 2004, received at the Court Registry on 17 November 2004, in the criminal proceedings pending before it against Antonello D'Antonio

7

2005/C 031/6

Case C-484/04: Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom

7

2005/C 031/7

Case C-485/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

8

2005/C 031/8

Case C-486/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

9

2005/C 031/9

Case C-487/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

9

2005/C 031/0

Case C-488/04: Reference for a preliminary ruling by the Cour de cassation (France), chambre commerciale, financière et économique – by judgment of that court of 16 November 2004 in the case of Galeries de Lisieux SA against Organic Recouvrement

10

2005/C 031/1

Case C-492/04: Reference for a preliminary ruling by the Finanzgericht Baden-Württemberg by decision of that court of 14 October 2004 in the case of Lasertec Gesellschaft für Stanzformen mbH (formerly Riess Laser Bandstahlschnitte GmbH) against Finanzamt Emmendingen

11

2005/C 031/2

Case C-493/04: Reference for a preliminary ruling by the Gerechtshof te 's-Hertogenbosch by decision of that court of 9 June 2004 in the case of L.H. Piatkowski against Belastingsdienst Grote ondernemingen Eindhoven

11

2005/C 031/3

Case C-495/04: Reference for a preliminary ruling of 26 November 2004, from the Hoge Raad der Nederlanden in the case of A.C. Smits-Koolhoven against Staatssecretaris van Financiën

12

2005/C 031/4

Case C-496/04: Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven by decision of that court of 26 November 2004 in the case of J. Slob against het Productschap Zuivel

12

2005/C 031/5

Case C-497/04: Action brought on 1 December 2004 by the Commission of the European Communities against the Hellenic Republic

12

2005/C 031/6

Case C-498/04: Action brought on 1 December 2004 by the Commission of the European Communities against the Hellenic Republic

13

2005/C 031/7

Case C-499/04: Reference for a preliminary ruling by the Landesarbeitsgericht Düsseldorf by order of that court of 8 October 2004 in the case of Hans Werhof against Freeway Traffic Systems GmbH & Co. KG

13

2005/C 031/8

Case C-502/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 3 August 2004 in the case of Ergün Torun against Stadt Augsburg, interested parties: 1. the representative of the national interest before the Bundesverwaltungsgericht 2. Landesanwaltschaft Bayern

14

2005/C 031/9

Case C-505/04: Action brought on 8 December 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

14

2005/C 031/0

Case C-506/04: Reference for a preliminary ruling by the Cour administrative (Grand Duchy of Luxembourg) by judgment of that court of 7 December 2004, in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg

15

2005/C 031/1

Case C-509/04: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by decision of that court of 10 December 2004 in the case of Magpar VI BV of Naarden against Staatssecretaris van Financiën

15

2005/C 031/2

Case C-510/04: Action brought on 13 December 2004 by Commission of the European Communities against Kingdom of Belgium

16

2005/C 031/3

Case C-515/04: Action brought on 15 December 2004 by the Commission of the European Communities against the Kingdom of Belgium

16

2005/C 031/4

Case C-516/04: Action brought on 15 December 2004 by the Commission of the European Communities against the Kingdom of Belgium

17

COURT OF FIRST INSTANCE

2005/C 031/5

Judgment of the Court of First Instance of 23 November 2004 in Case T-166/98: Cantina sociale di Dolianova Soc. coop. rl and Others v Commission of the European Communities (Common organisation of the market in wine — Regulation (EEC) No 2499/82 — Community aid — Action for annulment — Action for declaration of failure to act — Action for compensation)

18

2005/C 031/6

Judgment of the Court of First Instance of 1 December 2004 in Case T-27/02: Kronofrance SA v Commission of the European Communities (State aid — Commission decision not to raise objections — Action for annulment — Admissibility — Multisectoral framework on regional aid for large investment projects)

18

2005/C 031/7

Judgment of the Court of First Instance of 30 November 2004 in Case T-168/02: IFAW Internationaler Tierschutz-Fonds gGmbH v Commission of the European Communities (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — Article 4(5) — No disclosure of a document from a Member State without the prior agreement of that State)

19

2005/C 031/8

Judgment of the Court of First Instance of 24 November 2004 in Case T-393/02: Henkel KGaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Three-dimensional mark — Shape of a white and transparent bottle — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

19

2005/C 031/9

Judgment of the Court of First Instance of 23 November 2004 in Case T-84/03: Maurizio Turco v Council of the European Union (Openness — Public access to Council documents — Partial refusal of access — Regulation (EC) No 1049/2001 — Exceptions)

20

2005/C 031/0

Judgment of the Court of First Instance of 30 November 2004 in Case T-173/03: Anne Geddes v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark ‘NURSERYROOM’ — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94)

20

2005/C 031/1

Judgment of the Court of First Instance of 23 November 2004 in Case T-360/03: Frischpack GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Three-dimensional mark — Shape of a cheese box — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character)

21

2005/C 031/2

Order of the Court of First Instance of 6 September 2004 in Case T- 213/02: SNF SA v Commission of the European Communities (Action for annulment — Directive 2002/34/EC — Restrictions on the use of polyacrylamides in the composition of cosmetic products — Person individually concerned — Admissibility)

21

2005/C 031/3

Order of the Court of First Instance of 9 November 2004 in Case T-252/03: Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the Euoropean Communities (Competition — Decision finding an infringement of Article 81 EC — Market in beef and veal — Action for annulment — Unlimited jurisdiction — Time-limit for bringing application — Introduction out of time — Inadmissibility)

21

2005/C 031/4

Order of the President of the Court of First Instance of 10 November 2004 in Case T-316/04: R Wam SpA v Commission of the European Communities (State aid — Loans at reduced rates intended to enable an undertaking to become established in certain non-member countries — Obligation to recover — Application for interim measures — Suspension of operation — Urgency — None)

22

2005/C 031/5

Case T-366/04: Action brought on 8 September 2004 by Hensotherm AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

22

2005/C 031/6

Case T-416/04: Action brought on 18 October 2004 by Anna Kontouli against the Council of the European Union

23

2005/C 031/7

Case T-429/04: Action brought on 25 October 2004 by Trubowest Handel GmbH and Mr Viktor Makarov against the Council of the European Union and the Commission of the European Communities

24

2005/C 031/8

Case T-430/04: Action brought on 25 October 2004 by Nomura Principal Investment plc and Nomura International plc against the Commission of the European Communities

25

2005/C 031/9

Case T-444/04: Action brought on 5 November 2004 by France Télécom against Commission of the European Communities

26

2005/C 031/0

Case T-445/04: Action brought on 10 November 2004 by Energy Technologies ET S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

26

2005/C 031/1

Case T-450/04: Action brought on 9 November 2004 by Bouygues SA and Bouygues Télécom against Commission of the European Communities

27

2005/C 031/2

Case T-456/04: Action brought on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom against Commission of the European Communities

27

2005/C 031/3

Case T-457/04: Action brought on 9 November 2004 by Camar S.r.l. against the Commission of the European Communities

28

2005/C 031/4

Case T-490/04: Action brought on 21 December 2004 by the Federal Republic of Germany against the Commission of the European Communities

29

2005/C 031/5

Case T-493/04: Action brought on 22 December 2004 by Deutsche Post AG against the Commission of the European Communities

29

| | III   Notices |
| --- | --- |
| 2005/C 031/6 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 19, 22.1.2005 | 30 |

III   Notices

2005/C 031/6

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 19, 22.1.2005

Official Journal of the European Union

30

| EN | |
| --- | --- |

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 5.2.2005 | EN | Official Journal of the European Union | C 31/1 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/1

---

Election of the Presidents of Chambers

(2005/C 31/01)

At their meeting on 6 October 2004, the Judges of the Court of Justice elected, under the second subparagraph of Article 10(1) of the Rules of Procedure, Mr Lenaerts as President of the Fourth Chamber, Ms Silva de Lapuerta as President of the Fifth Chamber and Mr Borg Barthet as President of the Sixth Chamber for a period of one year expiring on 6 October 2005.

The composition of the Fourth, Fifth and Sixth Chambers is established as follows:

Fourth Chamber

Mr Lenaerts, President,

Ms Colneric, Mr Cunha Rodrigues, Mr Schiemann, Mr Juhász, Mr Ilešič and Mr Levits, Judges

Fifth Chamber

Ms Silva de Lapuerta, President,

Mr Gulmann, Mr Schintgen, Mr Makarczyk, Mr Kūris, Mr Arestis and Mr Klučka, Judges

Sixth Chamber

Mr Borg Barthet, President,

Mr La Pergola, Mr Puissochet, Mrs Macken, Mr von Bahr, Mr Malenovský and M. Lõhmus, Judges

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/1 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/1

---

Lists for the purposes of determining the composition of the formations of the Fourth, Fifth and Sixth Chambers as from 12 October 2004

(2005/C 31/02)

At its meeting on 12 October 2004, the Court drew up the lists, referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure, for the purposes of determining the composition of the Chambers of three Judges as follows:

Fourth Chamber

Ms Colneric

Mr Cunha Rodrigues

Mr Schiemann

Mr Juhász

Mr Ilešič

Mr Levits

Fifth Chamber

Mr Gulmann

Mr Schintgen

Mr Makarczyk

Mr Kūris

Mr Arestis

Mr Klučka

Sixth Chamber

Mr La Pergola

Mr Puissochet

Mrs Macken

Mr von Bahr

Mr Malenovský

Mr Lõhmus

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/2 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/2

---

A new member of the Court takes the oath

(2005/C 31/03)

Mr Ó Caoimh, appointed Judge at the Court of Justice of the European Communities by decision of the Representatives of the Governments of the Member States of the European Communities of 22 September 2004, (1) took the oath before the Court on 13 October 2004.

---

(1)  OJ L 300 of 25.9.2004, p. 42.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/2 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/2

---

Assignment of a new Judge to the Chambers

(2005/C 31/04)

At its meeting on 19 October 2004, the Court of Justice of the European Communities decided to assign Mr Ó Caoimh to the Third and Sixth Chambers.

The Third and Sixth Chambers are as a result composed as indicated below.

Third Chamber

Mr Rosas, President,

Mr Borg Barthet, Mr La Pergola, Mr Puissochet, Mr von Bahr, Mr Malenovský, Mr Lõhmus and Mr Ó Caoimh, Judges

Sixth Chamber

Mr Borg Barthet, President,

Mr La Pergola, Mr Puissochet, Mr von Bahr, Mr Malenovský, Mr Lõhmus and Mr Ó Caoimh, Judges

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/2 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/2

---

Lists for the purposes of determining the composition of the formations of the Grand Chamber and the Third and Sixth Chambers as from 19 October 2004

(2005/C 31/05)

At its meeting on 19 October 2004, the Court drew up the list, referred to in Article 11b(2) of the Rules of Procedure, for the purposes of determining the composition of the Grand Chamber as follows:

| | Mr Gulmann |
| --- | --- |

Mr Gulmann

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

| | Mr La Pergola |
| --- | --- |

Mr La Pergola

| | Mr Levits |
| --- | --- |

Mr Levits

| | Mr Puissochet |
| --- | --- |

Mr Puissochet

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr Schintgen |
| --- | --- |

Mr Schintgen

| | Mr Klučka |
| --- | --- |

Mr Klučka

| | Ms Colneric |
| --- | --- |

Ms Colneric

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Mr von Bahr |
| --- | --- |

Mr von Bahr

| | Mr Ilešič |
| --- | --- |

Mr Ilešič

| | Mr Cunha Rodrigues |
| --- | --- |

Mr Cunha Rodrigues

| | Mr Borg Barthet |
| --- | --- |

Mr Borg Barthet

| | Ms Silva de Lapuerta |
| --- | --- |

Ms Silva de Lapuerta

| | Mr Arestis |
| --- | --- |

Mr Arestis

| | Mr Lenaerts |
| --- | --- |

Mr Lenaerts

| | Mr Juhász |
| --- | --- |

Mr Juhász

| | Mr Schiemann |
| --- | --- |

Mr Schiemann

| | Mr Kūris |
| --- | --- |

Mr Kūris

| | Mr Makarczyk |
| --- | --- |

Mr Makarczyk

At its meeting on 19 October 2004, the Court drew up the list, referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure, for the purposes of determining the composition of the Third Chamber as follows:

| | Mr La Pergola |
| --- | --- |

Mr La Pergola

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

| | Mr Puissochet |
| --- | --- |

Mr Puissochet

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr von Bahr |
| --- | --- |

Mr von Bahr

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Mr Borg Barthet |
| --- | --- |

Mr Borg Barthet

At its meeting on 19 October 2004, the Court drew up the list, referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure, for the purposes of determining the composition of the Sixth Chamber as follows:

| | Mr La Pergola |
| --- | --- |

Mr La Pergola

| | Mr Puissochet |
| --- | --- |

Mr Puissochet

| | Mr von Bahr |
| --- | --- |

Mr von Bahr

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/3 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/3

---

JUDGMENT OF THE COURT

(Second Chamber)

of 12 October 2004

in Case C-87/00 (reference for a preliminary ruling from the Giudice di pace di Genova): Roberto Nicoli v Eridania SpA (1)

(Sugar - Price system - Regionalisation - Deficit areas - Classification of Italy - Marketing year 1998/99 - Regulations (EEC) No 1785/81 and (EC) No 1361/98 - Validity of Regulation No 1361/98)

(2005/C 31/06)

Language of the case: Italian

In Case C-87/00: reference for a preliminary ruling under Article 234 EC from the Giudice di pace di Genova (Italy), made by decision of 28 February 2000, received at the Court on 7 March 2000, in the proceedings between Roberto Nicoli and Eridania SpA – the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen, F. Macken and N. Colneric (Rapporteur), Judges; M. Poiares Maduro, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 12 October 2004, in which it has ruled:

Consideration of the questions raised has disclosed nothing to affect the validity of Council Regulation (EC) No 1361/98 of 26 June 1998 fixing, for the 1998/99 marketing year, the derived intervention prices for white sugar, the intervention price for raw sugar, the minimum prices for A and B beet, and the amount of compensation for storage costs.

---

(1)   OJ C 149 of 27.5.2000.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/3 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/3

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 9 December 2004

in Case C-219/03: Commission of the European Communities v Kingdom of Spain (1)

(Failure by a Member State to fulfil its obligations - Tax on capital gains)

(2005/C 31/07)

Language of the case: Spanish

In Case C-219/03 the Commission of the European Communities (Agents: M. Diaz-Llanos La Roche and L. Escobar Guerrero) v Kingdom of Spain (Agents: L. Fraguas Gadea) –action under Article 226 EC for failure to fulfil obligations, brought on 19 May 2003 – the Court (Sixth Chamber), composed of: A. Borg Barthet, President of the Chamber, J.-P. Puissochet, (Rapporteur) and S. von Bahr, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 9 December 2004, in which it:

| 1. | Declares that, with regard to the tax on capital gains made since 1 January 1997 on transfers of shares purchased prior to 31 December 1994, by maintaining in force a tax regime which is less favourable to shares quoted on markets other than Spanish regulated markets than to shares quoted on the latter markets, the Kingdom of Spain has failed to fulfil its obligations under Articles 49 EC and 56 EC and the corresponding Articles 36 and 40 of the Agreement on the European Economic Area. |
| --- | --- |

1.

Declares that, with regard to the tax on capital gains made since 1 January 1997 on transfers of shares purchased prior to 31 December 1994, by maintaining in force a tax regime which is less favourable to shares quoted on markets other than Spanish regulated markets than to shares quoted on the latter markets, the Kingdom of Spain has failed to fulfil its obligations under Articles 49 EC and 56 EC and the corresponding Articles 36 and 40 of the Agreement on the European Economic Area.

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 184 of 2.8.2003.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/3 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/3

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 9 December 2004

in Case C-56/04: Commission of the European Communities v Republic of Finland (1)

(Failure of a Member State to fulfil obligations - Directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights in the information society - Failure to transpose within the period prescribed)

(2005/C 31/08)

Language of the case: Finnish

In Case C-56/04: Commission of the European Communities (Agents: K. Banks and H. Huttunen) v Republic of Finland (Agent: A. Guimaraes-Purokoski) – ACTION under Article 226 EC for failure to fulfil obligations, brought on 10 February 2004 – the Court (Sixth Chamber), composed of: A. Borg Barthet, President of Chamber, J.-P. Puissochet and J. Malenovský (Judge Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 9 December 2004, in which it:

| 1. | Declares that, by failing to adopt the necessary laws, regulations and administrative provisions to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the Republic of Finland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the necessary laws, regulations and administrative provisions to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the Republic of Finland has failed to fulfil its obligations under that directive;

| 2. | Orders the Republic of Finland to pay the costs. |
| --- | --- |

2.

Orders the Republic of Finland to pay the costs.

---

(1)  OJ C 85, 3.4.2004.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/4 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/4

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 9 December 2004

in Case C-333/04: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 1999/92/EC - Protection of workers - Exposure to risk of explosive atmospheres - Failure to transpose)

(2005/C 31/09)

Language of the case: French

In Case C-333/04: Commission of the European Communities (Agents: D. Martin and H. Kreppel) v Grand Duchy of Luxembourg (Agent: S. Schreiner) – ACTION under Article 226 EC for failure to fulfil obligations, brought on 2 August 2004 – the Court (Sixth Chamber), composed of: A. Borg Barthet, President of Chamber (Judge Rapporteur), J. Malenovský and U. Lõhmus, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 9 December 2004, in which it:

| 1. | Declares that, by failing to adopt the necessary laws, regulations and administrative provisions to comply with Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (15th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the necessary laws, regulations and administrative provisions to comply with Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (15th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 228, 11.9.2004.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/4 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/4

---

Reference for a preliminary ruling by the Corte Suprema di Cassazione by decision of that court of 11 June 2004 in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti

(Case C-465/04)

(2005/C 31/10)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Corte Suprema di Cassazione (Court of Appeal, Milan) (Italy) of 11 June 2004 received at the Court Registry on 3 November 2004, for a preliminary ruling in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti on the following questions:

Given the tenor and purpose of Article 17 of the directive and, where applicable, of the criteria it offers for calculating the indemnity for which it provides, can Article 19 be interpreted as meaning that the national legislation implementing the directive can permit that a collective agreement (or contract) that is binding on the parties to certain contracts provides not for an indemnity owed to the agent in the set of circumstances set out in the second paragraph of Article 17 and payable in accordance with criteria that can be deduced therefrom but for an indemnity which is owed to the agent without regard to the conditions set out in the two indents of paragraph 2 a) (and for part of the indemnity whatever the reason for termination of the contract) and is calculated not in accordance with the criteria to be found in the directive (and, where applicable, at the maximum amount specified therein) but in accordance with the criteria set in the collective economic agreement. That is to say an indemnity determined (without any specific reference to the increase in business generated by the agent) on the basis of predetermined percentages of the remuneration received by the agent in the course of the relationship, with the result that, even if the requirements of the directive for entitlement to the indemnity are met fully or to a high degree, in many cases the level of the indemnity to be paid would have to be lower (sometimes much lower) than the ceiling provided for in the directive and in any event lower than could have been decided in specific terms by the court if it were not bound by the calculation parameters laid down in the collective economic agreement rather than the principles and criteria of the directive.

Should the indemnity be calculated individually by estimating the further commissions that the agent could presumably have earned in the years following termination of the contract on the basis of the new customers he has brought or the substantial growth in business with existing customers that he has generated, and only then applying any adjustments to the amount, having in mind the criterion of equity and the ceiling laid down in the directive; or are other methods of calculation permitted, in particular composite methods that evaluate the criterion of equity more broadly and take the ceiling specified in the directive as their point of departure.

In conclusion, pursuant to Article 234 EC, the questions indicated above regarding the interpretation of Articles 17 and 19 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be referred to the Court of Justice.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/5 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/5

---

Reference for a preliminary ruling by the Gerechtshof Arnhem, by decision of that court of 27 October 2004 in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo

(Case C-470/04)

(2005/C 31/11)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Gerechtshof Arnhem, (Court of Appeal, Arnhem) (Netherlands) of 27 October 2004 received at the Court Registry on 2 November 2004, for a preliminary ruling in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo on the following questions:

| 1.1.1 | Can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 18 EC, solely on the ground that the serving of a tax assessment linked with his departure entails, or may entail, an obstacle to that departure? |
| --- | --- |

1.1.1

Can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 18 EC, solely on the ground that the serving of a tax assessment linked with his departure entails, or may entail, an obstacle to that departure?

| 1.1.2 | If the answer to question 1.1.1 is negative, can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 43 EC if it is not clear or plausible from the outset that he will be pursuing in the other Member State an economic activity as referred to in that article? Is it relevant to the answer to the previous question that that activity will be pursued within a foreseeable period? If so, how long may that period be? |
| --- | --- |

1.1.2

If the answer to question 1.1.1 is negative, can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 43 EC if it is not clear or plausible from the outset that he will be pursuing in the other Member State an economic activity as referred to in that article? Is it relevant to the answer to the previous question that that activity will be pursued within a foreseeable period? If so, how long may that period be?

| 1.1.3 | If the answer to question 1.1.1 or 1.1.2 is affirmative, do Articles 18 or 43 EC preclude the relevant Dutch legislation by virtue of which an assessment to income tax and social insurance contributions is served in respect of the deemed enjoyment of profit from a substantial shareholding, solely on the ground that a resident of the Netherlands who ceases to be a domestic taxpayer because he has moved his place of residence to another Member State is deemed to have disposed of those of his shares which form part of a substantial holding? |
| --- | --- |

1.1.3

If the answer to question 1.1.1 or 1.1.2 is affirmative, do Articles 18 or 43 EC preclude the relevant Dutch legislation by virtue of which an assessment to income tax and social insurance contributions is served in respect of the deemed enjoyment of profit from a substantial shareholding, solely on the ground that a resident of the Netherlands who ceases to be a domestic taxpayer because he has moved his place of residence to another Member State is deemed to have disposed of those of his shares which form part of a substantial holding?

| 1.1.4 | If the answer to question 1.1.3 is affirmative because of the fact that security has to be provided to enable a deferment of payment of the tax assessed, can the existing obstacle then be removed with retroactive effect through the release of the security provided? Does the answer to this question depend on whether the security is released on the basis of legislation or a rule of policy, whether or not adopted in the context of enforcement? Does the answer to this question depend on whether compensation is provided for any loss incurred as a result of the provision of security? |
| --- | --- |

1.1.4

If the answer to question 1.1.3 is affirmative because of the fact that security has to be provided to enable a deferment of payment of the tax assessed, can the existing obstacle then be removed with retroactive effect through the release of the security provided? Does the answer to this question depend on whether the security is released on the basis of legislation or a rule of policy, whether or not adopted in the context of enforcement? Does the answer to this question depend on whether compensation is provided for any loss incurred as a result of the provision of security?

| 1.1.5 | If the answer to question 1.1.3 is affirmative and the answer to the first question in 1.1.4 is negative, can the obstacle which then exists be justified? |
| --- | --- |

1.1.5

If the answer to question 1.1.3 is affirmative and the answer to the first question in 1.1.4 is negative, can the obstacle which then exists be justified?

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/5 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/5

---

Action brought on 16 November 2004 by the Commission of the European Communities against the Italian Republic

(Case C-477/04)

(2005/C 31/12)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 16 November 2004 by the Commission of the European Communities, represented by Chiara Cattabriga and Barry Doherty, acting as Agents.

The Commission claims that the Court should:

| — | declare that, by having failed to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/11/EC (1) of 14 February 2002 amending Directive 68/193/EEC (2) on the marketing of material for the vegetative propagation of the vine and repealing Directive 74/649/EEC or, in any case, by having failed to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive; |
| --- | --- |

—

declare that, by having failed to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/11/EC (1) of 14 February 2002 amending Directive 68/193/EEC (2) on the marketing of material for the vegetative propagation of the vine and repealing Directive 74/649/EEC or, in any case, by having failed to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directive into national law expired on 3 February 2003.

---

(1)  OJ L 53 of 23 February 2002, p. 20.

(2)  OJ, English Special Edition: 1968(I), p. 93

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/6 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/6

---

Action brought on 16 November 2004 by the Commission of the European Communities against the Italian Republic

(Case C-478/04)

(2005/C 31/13)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 16 November 2004 by the Commission of the European Communities, represented by Minas Konstantinidis and Giuseppe Bambara, acting as Agents.

| — | The applicant claims that the Court should declare that:






  a) | by not adopting the necessary measures to ensure that dangerous waste deposited in the dump of Ca di Capri (Verona) are recovered or disposed of without endangering human health and without using procedures or methods which might be prejudicial to the environment; and |
| --- | --- | --- |

—

The applicant claims that the Court should declare that:

a)

by not adopting the necessary measures to ensure that dangerous waste deposited in the dump of Ca di Capri (Verona) are recovered or disposed of without endangering human health and without using procedures or methods which might be prejudicial to the environment; and

| b) | by not adopting the necessary measures to ensure that the owner of dangerous waste deposited in that dump consigns such waste to a private or public disposal contractor, or to an undertaking carrying out the operations referred to in Annexes IIA or IIB to the directive, or himself carries out its recovery or disposal in compliance with Community provisions; and |
| --- | --- |

b)

by not adopting the necessary measures to ensure that the owner of dangerous waste deposited in that dump consigns such waste to a private or public disposal contractor, or to an undertaking carrying out the operations referred to in Annexes IIA or IIB to the directive, or himself carries out its recovery or disposal in compliance with Community provisions; and

| c) | by not adopting the necesssary measures to ensure, in relation to such dumping, that, at the place where dangerous waste is deposited, it is catalogued and identified, that various categories of dangerous waste are not mixed together, and that dangerous waste is not mixed with non-dangerous waste, |
| --- | --- |

c)

by not adopting the necesssary measures to ensure, in relation to such dumping, that, at the place where dangerous waste is deposited, it is catalogued and identified, that various categories of dangerous waste are not mixed together, and that dangerous waste is not mixed with non-dangerous waste,

the Italian Republic has failed to fulfil its obligations under Articles 4 and 8 of Directive 75/442/EEC (1) on waste, as amended by Council Directive 91/156/EEC (2) and under Article 2(1) and (2) of Council Directive 91/689/EEC (3) on hazardous waste.

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

—

order the Italian Republic to pay the costs

Pleas in law and main arguments

The Commission maintains that, on the grounds set out in its application, the Italian Republic has, in relation to the dump of Ca di Capri (Verona) failed to fulfil its obligations under Directive 75/442/EEC as amended by Directive 91/156/EC, and under Directive 91/689/EEC.

---

(1)  OJ 1975 L 194, p. 39

(2)  OJ 1991 L 78, p. 32

(3)  OJ 1991 L 377, p. 20

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/6 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/6

---

Reference for a preliminary ruling by the Østre Landsret by decision of that court of 16 November 2004 in the case of Laserdisken ApS against Kulturministeriet

(Case C-479/04)

(2005/C 31/14)

Language of the case: Danish

By order of 16 November 2004 of the Østre Landsret (Eastern Regional Court), Denmark, received at the Court Registry on 19 November 2004, reference has been made to the Court of Justice of the European Communities for a preliminary ruling in the case of Laserdisken ApS against Kulturministeriet on the following questions:

| 1. | Is Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) invalid? |
| --- | --- |

1.

Is Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) invalid?

| 2. | Does Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society preclude a Member State from retaining international exhaustion in its legislation? |
| --- | --- |

2.

Does Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society preclude a Member State from retaining international exhaustion in its legislation?

The second question is aimed at clarifying whether a Member State wishing to accord greater weight to freedom of expression and citizens' access to cultural goods than to the wish to protect national rightholders against competition may derogate from Article 4(2).

---

(1)  OJ L 167, 22.6.2001, p. 10.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/7 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/7

---

Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 2 November 2004, received at the Court Registry on 17 November 2004, in the criminal proceedings pending before it against Antonello D'Antonio

(Case C-480/04)

(2005/C 31/15)

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 2 November 2004, received at the Court Registry on 17 November 2004, for a preliminary ruling in the criminal proceedings pending before it against Antonello D'Antonio on the following question:

‘Are Articles 4(1) and 4a of Law 401/89, as subsequently amended, which at present reserve to Italian public-service agents alone, and not also to the intermediaries of foreign bookmakers, the activity in question in these proceedings, compatible with Articles 31, 86, 43 and 49 of the EC Treaty?’

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/7 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/7

---

Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom

(Case C-484/04)

(2005/C 31/16)

Language of procedure: English

An action against the United Kingdom was brought before the Court of Justice of the European Communities on 23 November 2004 by the Commission of the European Communities, represented by Gérard Rozet and Nicola Yerrell, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should declare that:

| 1) | in applying the derogation to workers whose working time is partially not measured or predetermined or can be determined by the worker himself; and |
| --- | --- |

1)

in applying the derogation to workers whose working time is partially not measured or predetermined or can be determined by the worker himself; and

| 2) | in failing to adopt adequate measures for the implementation of the rights to daily and weekly rest, the United Kingdom has failed to fulfil its obligations under Article 17, paragraph 1 of Council Directive 93/104/EC of 23rd November 1993 concerning certain aspects of the organisation of working time (1) and Article 249 EC. order the United Kingdom to pay the costs. |
| --- | --- |

2)

in failing to adopt adequate measures for the implementation of the rights to daily and weekly rest, the United Kingdom has failed to fulfil its obligations under Article 17, paragraph 1 of Council Directive 93/104/EC of 23rd November 1993 concerning certain aspects of the organisation of working time (1) and Article 249 EC. order the United Kingdom to pay the costs.

Pleas in law and main arguments:

Application of the Derogation in Article 17(1)

Article 17(1) of the Directive provides for the possibility for Member States to derogate from certain articles of the Directive when, on account of the specific characteristics of the activity concerned, the duration of working time is not measured or predetermined or can be determined by the workers themselves.

The UK implemented the Directive into national law via the Working Time Regulations 1998 (SI 1998/1833) (‘the 1998 Regulations’). These Regulations initially included in regulation 20 a derogation to the provisions relating to maximum weekly working time, length of night work, daily and weekly rest and rest breaks which broadly mirrored the terms of Article 17(1) of the Directive.

However, regulation 4 of the Working Time Regulations 1999 (SI 1999/3372) subsequently introduced a new sub-paragraph into regulation 20 of the 1998 Regulations, in the following terms:

| ‘(2) | Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself’. |
| --- | --- |

‘(2)

Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself’.

(Regulations 4 and 6 govern maximum weekly working time and the length of night work respectively).

This amendment added an additional exemption in cases where a worker's working time is partly measured, predetermined or determined by the worker and partly not. In such cases, the provisions relating to weekly working time and night work only apply in relation to that part of the worker's work which is measured, predetermined or cannot be determined by the worker himself.

In the Commission's view, regulation 20(2) goes beyond the permitted boundaries of the derogation in Article 17(1), which applies only to workers whose working time as a whole is not measured or predetermined or can be determined by workers themselves.

Implementation of the provisions relating to workers' rest periods

Articles 3 and 5 of the Directive lay down minimum periods of daily and weekly rest for every worker. The corresponding provisions in the UK's national law measures are found in regulations 10 and 11 of the 1998 Regulations. However, the official Guidelines produced by the Department of Trade and Industry regarding the implementation of the 1998 Regulations state in their section 5 (entitled ‘Time Off’) that:

‘Employers must make sure that workers can take their rest, but are not required to make sure that they do take their rest’.

In other words, employers are instructed that they are not required to ensure that workers are actually invoking and benefiting from the rest periods to which they are entitled, but merely that there is no obstacle impeding the worker who decides that he wishes to do so.

In the Commission's view, the Guidelines thus clearly endorse and encourage a practice of non-compliance with the requirements of the Directive.

---

(1)  OJ L 307, 13.12.1993, p. 18.

1

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/8 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/8

---

Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

(Case C-485/04)

(2005/C 31/17)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 November 2004 by the Commission of the European Communities, represented by G. Valero Jordana and D. Recchia, acting as Agents.

The applicant claims that the Court should:

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2003/17/EC (1) of the European Parliament and of the Council of 3 March 2003 amending Directive 98/70/EC (2) relating to the quality of petrol and diesel fuels and, in any event, by not notifying the Commission of those provisions, the Italian Republic has failed to fulfil its obligations under Article 2 of that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2003/17/EC (1) of the European Parliament and of the Council of 3 March 2003 amending Directive 98/70/EC (2) relating to the quality of petrol and diesel fuels and, in any event, by not notifying the Commission of those provisions, the Italian Republic has failed to fulfil its obligations under Article 2 of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period prescribed for the implementation of the directive expired on 30 June 2003.

---

(1)  OJ L 76 of 22.03.2003, p. 10.

(2)  OJ L 350 of 28.12.1998, p. 58.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/9 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/9

---

Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

(Case C-486/04)

(2005/C 31/18)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 November 2004 by the Commission of the European Communities, represented by M. Van Beek, F. Louis and A. Capobianco, acting as Agents.

The applicant claims that the Court should:

| — | declare that the Italian Republic has failed to fulfil its obligations under Article 2(1) and Article 4(1), (2) and (3) of Directive 85/337/EEC (1) as amended by Directive 97/11/EEC (2):






  1. | by not subjecting the Massafra WDF and biomass incineration plant project, which is a plant included in Annex I to the Directive 85/337/EEC as amended by Directive 97/11/EEC, to an environmental impact assessment in accordance with Articles 5 to 10 of Directive 85/337/EEC as amended; |
| --- | --- | --- |

—

declare that the Italian Republic has failed to fulfil its obligations under Article 2(1) and Article 4(1), (2) and (3) of Directive 85/337/EEC (1) as amended by Directive 97/11/EEC (2):

1.

by not subjecting the Massafra WDF and biomass incineration plant project, which is a plant included in Annex I to the Directive 85/337/EEC as amended by Directive 97/11/EEC, to an environmental impact assessment in accordance with Articles 5 to 10 of Directive 85/337/EEC as amended;

| 2. | by not adopting legislation (Article 3(1)(i) and (l) of the DPCM (Decree of the President of the Council of Ministers) of 3 September 1999 amending Annex A to the DPR (Decree of the President of the Republic) of 12 April 1996) which excludes from the environmental impact assessment procedure any projects falling within Annex I to Directive 85/337/EEC as amended (projects for installations for the recovery of hazardous waste and non-hazardous waste with a capacity exceeding 100 tonnes per day) if subject to the simplified authorisation procedure within the meaning of Article 11 of Directive 75/442/EEC, and |
| --- | --- |

2.

by not adopting legislation (Article 3(1)(i) and (l) of the DPCM (Decree of the President of the Council of Ministers) of 3 September 1999 amending Annex A to the DPR (Decree of the President of the Republic) of 12 April 1996) which excludes from the environmental impact assessment procedure any projects falling within Annex I to Directive 85/337/EEC as amended (projects for installations for the recovery of hazardous waste and non-hazardous waste with a capacity exceeding 100 tonnes per day) if subject to the simplified authorisation procedure within the meaning of Article 11 of Directive 75/442/EEC, and

| 3. | by adopting legislation (Article 3(1)(i) and (l) of the DPCM of 3 September 1999 amending Annex A to the DPR of 12 April 1996) which, for the purposes of establishing whether or not a project falling within Annex II of Directive 85/337/EEC as amended must be the subject of an environmental impact assessment (EIA), sets an inadequate test in that projects which have a significant impact on the environment can be excluded from an EIA; |
| --- | --- |

3.

by adopting legislation (Article 3(1)(i) and (l) of the DPCM of 3 September 1999 amending Annex A to the DPR of 12 April 1996) which, for the purposes of establishing whether or not a project falling within Annex II of Directive 85/337/EEC as amended must be the subject of an environmental impact assessment (EIA), sets an inadequate test in that projects which have a significant impact on the environment can be excluded from an EIA;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The Commission submits that the Italian Republic has failed to fulfil its obligations under Directive 85/337/EEC as amended by Directive 97/11/EEC for the reasons set out in its application.

---

(1)  OJ L 175 of 5.7.1985, p. 40.

(2)  OJ L 73 of 14.3.1997, p. 5.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/9 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/9

---

Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

(Case C-487/04)

(2005/C 31/19)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 November 2004 by the Commission of the European Communities, represented by C. Cattabriga and A. Bordes, acting as Agents.

The applicant claims that the Court should:

| — | Declare that, by unilaterally instituting a system of traceability of powder milk for certain uses, not provided for by fully harmonised provisions of Community law applicable to the sector, the Italian Republic has failed to fulfil its obligations under Council Regulation (EC) No 1255/1999 of 17 May 1999 (1) on the common organisation of the market in milk and milk products and Commission Regulation (EC) No 2799/1999 of 17 December 1999 (2) laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder. |
| --- | --- |

—

Declare that, by unilaterally instituting a system of traceability of powder milk for certain uses, not provided for by fully harmonised provisions of Community law applicable to the sector, the Italian Republic has failed to fulfil its obligations under Council Regulation (EC) No 1255/1999 of 17 May 1999 (1) on the common organisation of the market in milk and milk products and Commission Regulation (EC) No 2799/1999 of 17 December 1999 (2) laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder.

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

—

Order the Italian Republic to pay the costs.

Pleas and main arguments

| 1. | In order to prevent abuses in the receipt of aid for skimmed-milk powder intended for animal feed, Regulations (EC) No 1255/1999 and (EC) No 2799/1999 lay down detailed machinery for monitoring undertakings using that product. Although that machinery leaves to the Member States the power to adopt supplementary supervisory measures in order to ensure observance of the provisions concerning the grant of the aid, it none the less does not allow them to impose on operators in the sector additional obligations of a different nature from those which Regulation No 2799/1999 imposes on the undertakings in receipt of the aid. |
| --- | --- |

1.

In order to prevent abuses in the receipt of aid for skimmed-milk powder intended for animal feed, Regulations (EC) No 1255/1999 and (EC) No 2799/1999 lay down detailed machinery for monitoring undertakings using that product. Although that machinery leaves to the Member States the power to adopt supplementary supervisory measures in order to ensure observance of the provisions concerning the grant of the aid, it none the less does not allow them to impose on operators in the sector additional obligations of a different nature from those which Regulation No 2799/1999 imposes on the undertakings in receipt of the aid.

| 2. | In particular, it must be regarded as not open to the Member States unilaterally to impose conditions affecting the composition of the powder milk which forms the subject matter of Regulation No 2799/1999, such as the admixture of colour tracers intended to make it plain that the product is intended for animal feed. |
| --- | --- |

2.

In particular, it must be regarded as not open to the Member States unilaterally to impose conditions affecting the composition of the powder milk which forms the subject matter of Regulation No 2799/1999, such as the admixture of colour tracers intended to make it plain that the product is intended for animal feed.

| 3. | Such condition cannot but impede trade in skimmed-milk powder between the Member States. In fact, since the intended use of the product is not normally known at the time of production, the requirement to add tracers imposed by Italian legislation requires undertakings which are engaged in trade in skimmed-milk powder on the Italian market to conduct complicated operations in regard to consignments intended for that market. However, as has been consistently held, common organisations of the market are based, as regards intracommunity trade, on freedom of commerce and preclude any national legislation which, as in the present case, impedes trade between the Member States. |
| --- | --- |

3.

Such condition cannot but impede trade in skimmed-milk powder between the Member States. In fact, since the intended use of the product is not normally known at the time of production, the requirement to add tracers imposed by Italian legislation requires undertakings which are engaged in trade in skimmed-milk powder on the Italian market to conduct complicated operations in regard to consignments intended for that market. However, as has been consistently held, common organisations of the market are based, as regards intracommunity trade, on freedom of commerce and preclude any national legislation which, as in the present case, impedes trade between the Member States.

| 4. | Furthermore, the Italian legislation at issue is damaging to the functioning of the common organisation of the markets in the milk sector which, as regards the aid schemes introduced by it, is based on uniform requirements applicable erga omnes. Indeed it is plain that if all the Member States considered themselves, in the same way as Italy, authorised unilaterally to introduce ad hoc tracing rules for skimmed milk-powder intended for animal feed, that would involve insuperable difficulties for the operators in the sector who would be subject to different sets of rules and would have to differentiate their products depending on the rules applied in 25 different national markets. |
| --- | --- |

4.

Furthermore, the Italian legislation at issue is damaging to the functioning of the common organisation of the markets in the milk sector which, as regards the aid schemes introduced by it, is based on uniform requirements applicable erga omnes. Indeed it is plain that if all the Member States considered themselves, in the same way as Italy, authorised unilaterally to introduce ad hoc tracing rules for skimmed milk-powder intended for animal feed, that would involve insuperable difficulties for the operators in the sector who would be subject to different sets of rules and would have to differentiate their products depending on the rules applied in 25 different national markets.

| 5. | Nor, moreover, can the Italian Government rely on the case-law according to which introduction of a common organisation of markets does not prevent the Member States from applying national provisions pursuing a public-interest objective which differs from the objectives pursued by the common organisation of the markets. In fact it is clear from a reading of the preparatory documents to Law No 250/2000 that the aim of the provisions contained therein is to prevent the unlawful diversion of skimmed-milk powder away from its stated use. Accordingly, that law seeks to achieve the same aims as those underlying Articles 9 et seq. of Regulation No 2799/1999. |
| --- | --- |

5.

Nor, moreover, can the Italian Government rely on the case-law according to which introduction of a common organisation of markets does not prevent the Member States from applying national provisions pursuing a public-interest objective which differs from the objectives pursued by the common organisation of the markets. In fact it is clear from a reading of the preparatory documents to Law No 250/2000 that the aim of the provisions contained therein is to prevent the unlawful diversion of skimmed-milk powder away from its stated use. Accordingly, that law seeks to achieve the same aims as those underlying Articles 9 et seq. of Regulation No 2799/1999.

| 6. | It is also stated in those preparatory documents that the decision by the Italian authorities to depart from the supervisory regime provided for in Regulation No 2799/1999 is justified owing to the ineffectiveness in the Italian context of the monitoring machinery provided for by the regulation. |
| --- | --- |

6.

It is also stated in those preparatory documents that the decision by the Italian authorities to depart from the supervisory regime provided for in Regulation No 2799/1999 is justified owing to the ineffectiveness in the Italian context of the monitoring machinery provided for by the regulation.

| 7. | That justification runs counter to settled case-law according to which, whenever the Community has established a common organisation of the market in a given sector, the Member States must refrain from any unilateral measure, even if it serves to support the common policy. Secondly, practical difficulties coming to light in the implementation of a Community act do not permit the Member State unilaterally to dispense with observance of its own obligations. |
| --- | --- |

7.

That justification runs counter to settled case-law according to which, whenever the Community has established a common organisation of the market in a given sector, the Member States must refrain from any unilateral measure, even if it serves to support the common policy. Secondly, practical difficulties coming to light in the implementation of a Community act do not permit the Member State unilaterally to dispense with observance of its own obligations.

| 8. | Finally, the Italian authorities cannot rely on the fact that Law No 250/2000 has never in fact been applied owing to the fact that the Ministerial decree which was to specify the tracers and to determine detailed rules concerning their use was never adopted. As the Court has consistently held, the fact that legislation contrary to Community law is scarcely or indeed never applied cannot have the effect of nullifying the infringement in that connection. |
| --- | --- |

8.

Finally, the Italian authorities cannot rely on the fact that Law No 250/2000 has never in fact been applied owing to the fact that the Ministerial decree which was to specify the tracers and to determine detailed rules concerning their use was never adopted. As the Court has consistently held, the fact that legislation contrary to Community law is scarcely or indeed never applied cannot have the effect of nullifying the infringement in that connection.

---

(1)  OJ 1999 L 160, p. 48

(2)  OJ 1999 L 340, p. 3

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/10 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/10

---

Reference for a preliminary ruling by the Cour de cassation (France), chambre commerciale, financière et économique – by judgment of that court of 16 November 2004 in the case of Galeries de Lisieux SA against Organic Recouvrement

(Case C-488/04)

(2005/C 31/20)

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 (France), chambre commerciale, financière et économique (the Court of Cassation (France), Commercial, Financial and Economic Chamber) of 16 November 2004, received at the Court Registry on 29 November 2004, for a preliminary ruling in the case of Galeries de Lisieux SA against Organic Recouvrement on the following question:

Is Community law to be interpreted as meaning that a tax, such as the tax to support the trade and craft sectors introduced by the Law of 13 July 1972, which is assessed on the basis of the sales area of retail stores in excess of 400 square metres and the proceeds of which are paid into special accounts of the old-age insurance funds of those in trade and crafts for the purpose of paying special compensation aid, which became cessation payments under Law No 81-1160 of 30 December 1981, must be classified as State aid, since it is borne only by establishments with a sales area exceeding 400 square metres or a turnover in excess of EUR 460 000, and it secures for the prospective recipient of the payment a reduction in charges as a result of the possibility of reducing any payments he might make to a supplementary retirement scheme?

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/11 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/11

---

Reference for a preliminary ruling by the Finanzgericht Baden-Württemberg by decision of that court of 14 October 2004 in the case of Lasertec Gesellschaft für Stanzformen mbH (formerly Riess Laser Bandstahlschnitte GmbH) against Finanzamt Emmendingen

(Case C-492/04)

(2005/C 31/21)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Baden-Württemberg (Baden-Württemberg Finance Court) (Germany) of 14 October 2004, received at the Court Registry on 1 December 2004, for a preliminary ruling in the case of Lasertec Gesellschaft für Stanzformen mbH (formerly Riess Laser Bandstahlschnitte GmbH) against Finanzamt Emmendingen on the following questions:

| 1. | Is Article 57(1) EC to be interpreted as meaning that the restrictions of the movement of capital to or from third countries which ‘exist’ on 31 December 1993 are those for which the legislative process has already been completed by the national legislature on that date, or those which under the national legislation are already applicable on that date to existing factual situations? |
| --- | --- |

1.

Is Article 57(1) EC to be interpreted as meaning that the restrictions of the movement of capital to or from third countries which ‘exist’ on 31 December 1993 are those for which the legislative process has already been completed by the national legislature on that date, or those which under the national legislation are already applicable on that date to existing factual situations?

| 2. | Is Article 56(1) EC in conjunction with Article 58 EC to be interpreted as meaning that the – partial – taxation as a distribution of profits of payments of interest by a capital company resident in a Member State to a loan provider in a third country who is at the same time a shareholder in the capital company is thereby prohibited because this is arbitrary discrimination or a disguised restriction of the free movement of capital between a Member State and a third country? |
| --- | --- |

2.

Is Article 56(1) EC in conjunction with Article 58 EC to be interpreted as meaning that the – partial – taxation as a distribution of profits of payments of interest by a capital company resident in a Member State to a loan provider in a third country who is at the same time a shareholder in the capital company is thereby prohibited because this is arbitrary discrimination or a disguised restriction of the free movement of capital between a Member State and a third country?

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/11 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/11

---

Reference for a preliminary ruling by the Gerechtshof te 's-Hertogenbosch by decision of that court of 9 June 2004 in the case of L.H. Piatkowski against Belastingsdienst Grote ondernemingen Eindhoven

(Case C-493/04)

(2005/C 31/22)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Gerechtshof 's-Hertogenbosch (Regional Court of Appeal, 'S-Hertogenbosch) (Netherlands) of 9 June 2004, received at the Court Registry on 1 December 2004, for a preliminary ruling in the case of L.H. Piatkowski against Belastingsdienst Grote ondernemingen Eindhoven on the following question:

Does Community law, in particular the right to freedom of movement and Article 14c(b) of Regulation No 1408/71 (1) (version applicable in 1998), preclude the Netherlands from levying national insurance contributions on interest income paid by a company established in the Netherlands to a Belgian resident to whom under Article 14c(b), in conjunction with Annex VII to Regulation No 1408/71, both Netherlands and Belgian social security legislation are applicable?

---

(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/12 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/12

---

Reference for a preliminary ruling of 26 November 2004, from the Hoge Raad der Nederlanden in the case of A.C. Smits-Koolhoven against Staatssecretaris van Financiën

(Case C-495/04)

(2005/C 31/23)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) of 26 November 2004, received at the Court Registry on 1 December 2004, for a preliminary ruling in the case of A.C. Smits-Koolhoven against Staatssecretaris van Financiën on the following question:

Do herbal cigarettes of the type in issue in the present case, which it is established do not contain any substances having a medicinal effect, but which, with the approval of the Netherlands Council for the Monitoring of Medicinal Product Advertising/Council for the Monitoring of Health Product Advertising, are sold as ‘Medicinal herbal cigarettes’ as an aid in giving up smoking, come under the exemption which Article 7(2) of Council Directive 95/59/EC (1) of 27 November 1995 provides for products which are used exclusively for medical purposes?

---

(1)  OJ L 291, 6.12.1995, p. 40.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/12 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/12

---

Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven by decision of that court of 26 November 2004 in the case of J. Slob against het Productschap Zuivel

(Case C-496/04)

(2005/C 31/24)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative court for trade and industry) Netherlands of 26 November 2004 received at the Court Registry on 1 December 2004, for a preliminary ruling in the case of J. Slob against het Productschap Zuivel on the following questions:

| — | Is Article 7(1) and (3) of Regulation (EEC) No 536/93 (1) to be interpreted as giving a Member State a discretion as to whether to lay down a rule imposing on producers of milk products established in its territory an obligation to keep records which is more extensive than the obligation under Article 7(1)(f)? |
| --- | --- |

—

Is Article 7(1) and (3) of Regulation (EEC) No 536/93 (1) to be interpreted as giving a Member State a discretion as to whether to lay down a rule imposing on producers of milk products established in its territory an obligation to keep records which is more extensive than the obligation under Article 7(1)(f)?

| — | If the answer to this question is affirmative, must it then be held that a rule requiring the producer to account to the administration for the quantity of butter produced and for its use, even where the butter has been destroyed or used as feeding stuff, is within the Member State's discretion? |
| --- | --- |

—

If the answer to this question is affirmative, must it then be held that a rule requiring the producer to account to the administration for the quantity of butter produced and for its use, even where the butter has been destroyed or used as feeding stuff, is within the Member State's discretion?

---

(1)  OJ L 57, 10.3.1993, p 12.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/12 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/12

---

Action brought on 1 December 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-497/04)

(2005/C 31/25)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 1 December 2004 by the Commission of the European Communities, represented by Enrico Traversa and Yiorgos Zabbo, of its Legal service.

The applicant claims that the Court should:

| — | Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2002/13/EC (1) of the European Parliament and of the Council of 5 March 2002 amending Council Directive 73/239/EEC as regards the solvency margin requirements for non-life insurance undertakings, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

—

Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2002/13/EC (1) of the European Parliament and of the Council of 5 March 2002 amending Council Directive 73/239/EEC as regards the solvency margin requirements for non-life insurance undertakings, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive.

| — | Order the Hellenic Republic to pay the costs. |
| --- | --- |

—

Order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 20 September 2003.

---

(1)  OJ 2002 L 77, p. 17.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/13 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/13

---

Action brought on 1 December 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-498/04)

(2005/C 31/26)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 1 December 2004 by the Commission of the European Communities, represented by Enrico Traversa and Yiorgos Zabbo, of its Legal service.

The applicant claims that the Court should:

| — | Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2002/83/EC (1) of the European Parliament and of the Council of 5 November 2002 concerning life assurance which, under Article 72 thereof, repealed Directive 2002/12/EC of the European Parliament and of the Council of 5 March 2002 amending Council Directive 79/267/EEC as regards the solvency margin requirements for life assurance undertakings and, in any event, by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

—

Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2002/83/EC (1) of the European Parliament and of the Council of 5 November 2002 concerning life assurance which, under Article 72 thereof, repealed Directive 2002/12/EC of the European Parliament and of the Council of 5 March 2002 amending Council Directive 79/267/EEC as regards the solvency margin requirements for life assurance undertakings and, in any event, by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive.

| — | Order the Hellenic Republic to pay the costs. |
| --- | --- |

—

Order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 20 September 2003.

---

(1)  OJ 2002 L 345, p. 1.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/13 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/13

---

Reference for a preliminary ruling by the Landesarbeitsgericht Düsseldorf by order of that court of 8 October 2004 in the case of Hans Werhof against Freeway Traffic Systems GmbH & Co. KG

(Case C-499/04)

(2005/C 31/27)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landesarbeitsgericht (Higher Labour Court) Düsseldorf (Germany) of 8 October 2004 received at the Court Registry on 2 December 2004, for a preliminary ruling in the case of Hans Werhof against Freeway Traffic Systems GmbH & Co. KG on the following questions:

| 1. | Is it compatible with Article 3(1) of Council Directive 98/50/EC (1) of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses if a transferee of a business – who is not subject to a collective agreement – is bound by an agreement between the transferor of the business – who is subject to a collective agreement – and the employee, under which the collective wage agreements in force binding the transferor of the business are to apply, in such a way that the collective wage agreement in force at the time of the transfer of the business applies but collective wage agreements entering into force subsequently do not? |
| --- | --- |

1.

Is it compatible with Article 3(1) of Council Directive 98/50/EC (1) of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses if a transferee of a business – who is not subject to a collective agreement – is bound by an agreement between the transferor of the business – who is subject to a collective agreement – and the employee, under which the collective wage agreements in force binding the transferor of the business are to apply, in such a way that the collective wage agreement in force at the time of the transfer of the business applies but collective wage agreements entering into force subsequently do not?

| 2. | If that is to be answered in the negative:
  Is it compatible with Article 3(1) of Directive 98/50/EC if the transferee of the business – who is not subject to a collective agreement – is bound by collective wage agreements which have entered into force after the transfer of the business only so long as the transferor of the business is so bound? |
| --- | --- |

2.

If that is to be answered in the negative:

Is it compatible with Article 3(1) of Directive 98/50/EC if the transferee of the business – who is not subject to a collective agreement – is bound by collective wage agreements which have entered into force after the transfer of the business only so long as the transferor of the business is so bound?

---

(1)  OJ L 201, p. 88.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/14 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/14

---

Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 3 August 2004 in the case of Ergün Torun against Stadt Augsburg, interested parties: 1. the representative of the national interest before the Bundesverwaltungsgericht 2. Landesanwaltschaft Bayern

(Case C-502/04)

(2005/C 31/28)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesverwaltungsgericht of 3 August 2004, received at the Court Registry on 7 December 2004, for a preliminary ruling in the case of Ergün Torun against Stadt Augsburg, interested parties: 1. the representative of the national interest before the Bundesverwaltungsgericht 2. Landesanwaltschaft Bayern received at the Court Registry on 7 December 2004 for a preliminary ruling on the following questions:

| 1. | Where a Turkish worker has been legally employed in the Federal Republic of Germany for more than three years, does his child who has reached the age of majority and has completed a course of vocational training as an industrial mechanic by passing the final apprenticeship examination also forfeit his right of residence that is the corollary of the right under the second sentence of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council ('Decision No 1/80') to respond to any offer of employment – apart from cases under Article 14 of Decision No 1/80 or where the host Member State is left without legitimate reason for a significant period of time – where






  (a) | the child has been sentenced to a term of imprisonment totalling three years for aggravated robbery and drug offences, the sentence has not been suspended (even at a later date) and the whole of the sentence has been served by offsetting the period spent on remand pending trial? |
| --- | --- | --- |

1.

Where a Turkish worker has been legally employed in the Federal Republic of Germany for more than three years, does his child who has reached the age of majority and has completed a course of vocational training as an industrial mechanic by passing the final apprenticeship examination also forfeit his right of residence that is the corollary of the right under the second sentence of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council ('Decision No 1/80') to respond to any offer of employment – apart from cases under Article 14 of Decision No 1/80 or where the host Member State is left without legitimate reason for a significant period of time – where

(a)

the child has been sentenced to a term of imprisonment totalling three years for aggravated robbery and drug offences, the sentence has not been suspended (even at a later date) and the whole of the sentence has been served by offsetting the period spent on remand pending trial?

| (b) | the child has himself pursued employment as a worker within the legitimate labour force of the Federal Republic of Germany and has thereby acquired in his own right a right of residence that is the corollary of the right of free access to employment under the second or third indents of Article 6(1) of Decision No 1/80, and has subsequently forfeited that right?
  Is such forfeiture caused by






  (aa) | the fact that he left his last place of employment as a result of drug addiction-induced summary termination of his employment by his employer? |
| --- | --- | --- |

(b)

the child has himself pursued employment as a worker within the legitimate labour force of the Federal Republic of Germany and has thereby acquired in his own right a right of residence that is the corollary of the right of free access to employment under the second or third indents of Article 6(1) of Decision No 1/80, and has subsequently forfeited that right?

Is such forfeiture caused by

(aa)

the fact that he left his last place of employment as a result of drug addiction-induced summary termination of his employment by his employer?

| (bb) | the fact that, following a period of ill health of more than three months, he did not register with the competent authority as unemployed for a period of one month between the end of his incapacity for work and his arrest for the commission of a criminal offence? |
| --- | --- |

(bb)

the fact that, following a period of ill health of more than three months, he did not register with the competent authority as unemployed for a period of one month between the end of his incapacity for work and his arrest for the commission of a criminal offence?

| (cc) | the fact that he was sentenced to a term of imprisonment totalling three years for aggravated robbery and drug offences, that the sentence was not suspended (even at a later date), that the whole of the sentence was served by offsetting the period spent on remand pending trial and that during that time he was not available to the legitimate labour force but, approximately three months after his release, did find employment again with a firm on a temporary basis, without then having any national right of residence? |
| --- | --- |

(cc)

the fact that he was sentenced to a term of imprisonment totalling three years for aggravated robbery and drug offences, that the sentence was not suspended (even at a later date), that the whole of the sentence was served by offsetting the period spent on remand pending trial and that during that time he was not available to the legitimate labour force but, approximately three months after his release, did find employment again with a firm on a temporary basis, without then having any national right of residence?

| 2. | If the answer to the first question is in the affirmative: Does a Turkish national forfeit his right of residence that is the corollary of the right of free access to employment under the second or third indents of Article 6(1) of Decision No 1/80 in the circumstances described above in Question 1b)? |
| --- | --- |

2.

If the answer to the first question is in the affirmative: Does a Turkish national forfeit his right of residence that is the corollary of the right of free access to employment under the second or third indents of Article 6(1) of Decision No 1/80 in the circumstances described above in Question 1b)?

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/14 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/14

---

Action brought on 8 December 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

(Case C-505/04)

(2005/C 31/29)

Language of procedure: English

An action against the United Kingdom was brought before the Court of Justice of the European Communities on 8 December 2004 by the Commission of the European Communities, represented by Hans Støvlbæk, acting as agent, with an address for service in Luxembourg.

The Applicant requests the Court to:

| — | declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (1) with regard to Gibraltar or, in any event, by failing to notify such provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 16 of this Directive; |
| --- | --- |

—

declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (1) with regard to Gibraltar or, in any event, by failing to notify such provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 16 of this Directive;

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

—

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

Pleas in law and main arguments:

The period within which the directive had to be transposed expired on 1 January 2003.

---

(1)  OJ L 206, 31.7.2001, p. 1

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/15 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/15

---

Reference for a preliminary ruling by the Cour administrative (Grand Duchy of Luxembourg) by judgment of that court of 7 December 2004, in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg

(Case C-506/04)

(2005/C 31/30)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour administrative (Higher Administrative Court) Grand Duchy of Luxembourg, of 7 December 2004 received at the Court Registry on 9 December 2004, for a preliminary ruling in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg on the following questions:

| 1. | Should Article 9 of Directive 98/5 (1) to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained be interpreted as precluding appeal proceedings as provided for under the Law of 10 August 1991, as amended by the Law of 13 November 2002? |
| --- | --- |

1.

Should Article 9 of Directive 98/5 (1) to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained be interpreted as precluding appeal proceedings as provided for under the Law of 10 August 1991, as amended by the Law of 13 November 2002?

| 2. | More particularly, do appeal bodies such as the Conseil disciplinaire et administratif and the Conseil disciplinaire et administratif d'appel constitute ‘a remedy before a court or tribunal in accordance with domestic law’ within the meaning of Article 9 of Directive 98/5 and should Article 9 be interpreted as precluding a remedy which requires referral to one or more bodies of this nature before it becomes possible to refer a matter on a question of law to a ‘court or tribunal’ within the meaning of Article 9? |
| --- | --- |

2.

More particularly, do appeal bodies such as the Conseil disciplinaire et administratif and the Conseil disciplinaire et administratif d'appel constitute ‘a remedy before a court or tribunal in accordance with domestic law’ within the meaning of Article 9 of Directive 98/5 and should Article 9 be interpreted as precluding a remedy which requires referral to one or more bodies of this nature before it becomes possible to refer a matter on a question of law to a ‘court or tribunal’ within the meaning of Article 9?

and subject to a later ruling on the jurisdiction of the administrative courts and the admissibility of the action, the procedural and substantive pleas of the parties remaining the same, on the following questions:

| 3. | Are the competent authorities of a Member State authorised to subject the right of a lawyer of a Member State to practise on a permanent basis the profession of lawyer under his home-country professional title in the areas of activity specified in Article 5 of Directive 98/5/EC to a requirement of proficiency in the languages of that Member State? |
| --- | --- |

3.

Are the competent authorities of a Member State authorised to subject the right of a lawyer of a Member State to practise on a permanent basis the profession of lawyer under his home-country professional title in the areas of activity specified in Article 5 of Directive 98/5/EC to a requirement of proficiency in the languages of that Member State?

| 4. | In particular, may the competent authorities make the right to practise the profession subject to the condition that the lawyer sit an oral examination in all (or more than one) of the three main languages of the host Member State for the purpose of allowing the competent authorities to verify whether the lawyer is proficient in the three languages, and if so, what procedural guarantees, if any, are required? |
| --- | --- |

4.

In particular, may the competent authorities make the right to practise the profession subject to the condition that the lawyer sit an oral examination in all (or more than one) of the three main languages of the host Member State for the purpose of allowing the competent authorities to verify whether the lawyer is proficient in the three languages, and if so, what procedural guarantees, if any, are required?

---

(1)  Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ L 77, 14.3.1998, p. 36).

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/15 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/15

---

Reference for a preliminary ruling by the Hoge Raad der Nederlanden by decision of that court of 10 December 2004 in the case of Magpar VI BV of Naarden against Staatssecretaris van Financiën

(Case C-509/04)

(2005/C 31/31)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Netherlands, of 10 December 2004, received at the Court Registry on 13 December 2004, for a preliminary ruling in the case of Magpar VI BV of Naarden against Staatssecretaris van Financiën on the following questions:

| 1. | Is Article 7(1)(bb) of Directive 69/335/EEC, (1) as amended by Directive 73/79/EEC (2), to be interpreted as meaning that if a company, within five years after the acquisition of shares in the course of a share merger that is exempt from capital duty, ceases to hold those shares because the company in which the shares were held has been the subject of a merger, the requirements referred to in the above-mentioned provision of the Directive are to apply to the shares in the acquiring company? |
| --- | --- |

1.

Is Article 7(1)(bb) of Directive 69/335/EEC, (1) as amended by Directive 73/79/EEC (2), to be interpreted as meaning that if a company, within five years after the acquisition of shares in the course of a share merger that is exempt from capital duty, ceases to hold those shares because the company in which the shares were held has been the subject of a merger, the requirements referred to in the above-mentioned provision of the Directive are to apply to the shares in the acquiring company?

| 2. | Is it relevant to question 4.1 that the company in which the shares were held ceased to exist as result of the coming into force of a legal merger with another company (Article 2:311(1) BW), so that it is not possible to speak of a disposal of shares in a literal sense? |
| --- | --- |

2.

Is it relevant to question 4.1 that the company in which the shares were held ceased to exist as result of the coming into force of a legal merger with another company (Article 2:311(1) BW), so that it is not possible to speak of a disposal of shares in a literal sense?

---

(1)  Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English special edition: Series I 1969(II) p. 412)

(2)  Council Directive 73/79/EEC of 9 April 1973 varying the field of application of the reduced rate of capital duty provided for in respect of certain company reconstruction operations by Article 7(1)(b) of the Directive concerning indirect taxes on the raising of capital (OJ 1973 L 103, p. 13).

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/16 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/16

---

Action brought on 13 December 2004 by Commission of the European Communities against Kingdom of Belgium

(Case C-510/04)

(2005/C 31/32)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 13 December 2004 by the Commission of the European Communities, represented by K. Simonsson and W. Wils, acting as Agents, with an address for service in Luxembourg.

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

| 1) | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/6/EC of the European Parliament and of the Council of 18 February 2002 on reporting formalities for ships arriving in and/or departing from ports of the Member States of the Community (1), and in any event by failing to notify them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1)

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/6/EC of the European Parliament and of the Council of 18 February 2002 on reporting formalities for ships arriving in and/or departing from ports of the Member States of the Community (1), and in any event by failing to notify them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2)

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 9 September 2003.

---

(1)  OJ L 67 of 9.3.2002, p. 31

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/16 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/16

---

Action brought on 15 December 2004 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-515/04)

(2005/C 31/33)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 15 December 2004 by the Commission of the European Communities, represented by C. O'Reilly and R. Troosters, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

order the Kingdom of Belgium to pay the costs

Pleas in law and main arguments

The period for transposition of the Directive into national law expired on 31 December 2002.

---

(1)  OJ L 212, 7.8.2001, p. 12.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/17 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/17

---

Action brought on 15 December 2004 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-516/04)

(2005/C 31/34)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 15 December 2004 by the Commission of the European Communities, represented by C. O'Reilly and R. Troosters, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

order the Kingdom of Belgium to pay the costs

Pleas in law and main arguments

The period for transposition of the Directive into national law expired on 11 February 2003.

---

(1)  OJ L 187, 10.7.2001, p. 45.

---

COURT OF FIRST INSTANCE

| 5.2.2005 | EN | Official Journal of the European Union | C 31/18 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/18

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 23 November 2004

in Case T-166/98: Cantina sociale di Dolianova Soc. coop. rl and Others v Commission of the European Communities (1)

(Common organisation of the market in wine - Regulation (EEC) No 2499/82 - Community aid - Action for annulment - Action for declaration of failure to act - Action for compensation)

(2005/C 31/35)

Language of the case: Italian

In Case T-166/98: Cantina sociale di Dolianova Soc. coop. rl, established in Dolianova (Italy), Cantina Trexenta Soc. coop. rl, established in Senorbì (Italy), Cantina sociale Marmilla – Unione viticoltori associati Soc. coop. rl, established in Sanluri (Italy), Cantina sociale S. Maria La Palma Soc. coop. rl, established in Santa Maria La Palma (Italy), Cantina sociale del Vermentino Soc. coop. rl Monti-Sassari, established in Monti (Italy), represented by C. Dore and G. Dore, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: initially, F. Ruggeri Laderchi and A. Alves Vieira, then A. Alves Vieira and L. Visaggio, with an address for service in Luxembourg) – action under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) for annulment of the Commission's letter of 31 July 1998 refusing to pay directly to the applicants aid for preventive distillation for the wine year 1982/1983 or, under Article 175 of the EC Treaty (now Article 232 EC) for a declaration that the Commission unlawfully failed to act or, in the further alternative, under Article 178 of the EC Treaty (now Article 253 EC) for compensation for the loss allegedly suffered by the applicants as a result of the Commission's conduct – the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; J. Palacio Gonzàlez, Principal Administrator, for the Registrar, gave a judgment on 23 November 2004, in which it:

| 1. | Orders the Commission to pay compensation for the loss suffered by the applicants, following the insolvency of Distilleria Agricola Industriale de Terralba, as a result of the lack of a scheme guaranteeing, under the rules laid down in Article 9 of Commission Regulation (EEC) No 2499/82 laying down provisions concerning preventive distillation for the 1982/83 wine year, payment of the Community aid provided for in that regulation to the producers concerned; |
| --- | --- |

1.

Orders the Commission to pay compensation for the loss suffered by the applicants, following the insolvency of Distilleria Agricola Industriale de Terralba, as a result of the lack of a scheme guaranteeing, under the rules laid down in Article 9 of Commission Regulation (EEC) No 2499/82 laying down provisions concerning preventive distillation for the 1982/83 wine year, payment of the Community aid provided for in that regulation to the producers concerned;

| 2. | Orders the parties to notify the Court, within four months of delivery of this judgment, of the amount of compensation fixed by mutual agreement; |
| --- | --- |

2.

Orders the parties to notify the Court, within four months of delivery of this judgment, of the amount of compensation fixed by mutual agreement;

| 3. | In the event that no agreement is reached, orders the parties to inform the Court, within the same period, of the figures they propose. |
| --- | --- |

3.

In the event that no agreement is reached, orders the parties to inform the Court, within the same period, of the figures they propose.

---

(1)  OJ C 378 of 5.12.1998.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/18 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/18

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 December 2004

in Case T-27/02: Kronofrance SA v Commission of the European Communities (1)

(State aid - Commission decision not to raise objections - Action for annulment - Admissibility - Multisectoral framework on regional aid for large investment projects)

(2005/C 31/36)

Language of the case: German

In Case T-27/02: Kronofrance SA, established in Sully-sur-Loire (France), represented by R. Nierer, lawyer, against Commission of the European Communities (Agents: V. Kreuschitz and J. Flett, with an address for service in Luxembourg), supported by Glunz AG and OSB Deutschland GmbH, established in Meppen (Germany), represented by H.-J. Niemeyer and K. Ziegler, lawyers, with an address for service in Luxembourg – application for annulment of Commission Decision SG (2001) D of 25 July 2001 not to object to the aid granted by the German authorities to Glunz AG – the Court of First Instance (Fourth Chamber, Extended Composition), composed of: H. Legal, President, V. Tiili, M. Vilaras, I. Wiszniewska-Białecka and V. Vadapalas, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 1 December 2004, in which it:

| 1. | Annuls Commission Decision SG (2001) D of 25 July 2001 not to object to the aid granted by the German authorities to Glunz AG; |
| --- | --- |

1.

Annuls Commission Decision SG (2001) D of 25 July 2001 not to object to the aid granted by the German authorities to Glunz AG;

| 2. | Orders the Commission, in addition to bearing its own costs, to pay those incurred by the applicant; |
| --- | --- |

2.

Orders the Commission, in addition to bearing its own costs, to pay those incurred by the applicant;

| 3. | Orders Glunz AG and OSB Deutschland GmbH to bear the costs which they incurred in connection with their intervention. |
| --- | --- |

3.

Orders Glunz AG and OSB Deutschland GmbH to bear the costs which they incurred in connection with their intervention.

---

(1)  OJ C 118 of 18.5.2002.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/19 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/19

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 30 November 2004

in Case T-168/02: IFAW Internationaler Tierschutz-Fonds gGmbH v Commission of the European Communities (1)

(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Article 4(5) - No disclosure of a document from a Member State without the prior agreement of that State)

(2005/C 31/37)

Language of the case: English

In Case T-168/02: IFAW Internationaler Tierschutz-Fonds gGmbH, formerly Internationaler Tierschutz-Fonds (IFAW) GmbH, established in Hamburg (Germany), represented by S. Crosby, Solicitor, supported by the Kingdom of the Netherlands (Agents: H. Sevenster, S. Terstal, N. Bel and C. Wissels, with an address for service in Luxembourg), the Kingdom of Sweden (Agents: A. Kruse and K. Wistrand, with an address for service in Luxembourg) and the Kingdom of Denmark (Agents: initially J. Bering Liisberg, and subsequently J. Molde, with an address for service in Luxembourg), against the Commission of the European Communities (Agents: C. Docksey and P. Aalto, with an address for service in Luxembourg), supported by the United Kingdom of Great Britain and Northern Ireland (represented by R. Caudwell, acting as Agent, and M. Hoskins, Barrister, with an address for service in Luxembourg) – application for annulment of the Commission's decision of 26 March 2002 refusing to grant the applicant access to certain documents, relating to the declassification of a protected site, in accordance with Article 4(5) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) – the Court of First Instance (Fifth Chamber, Extended Composition), composed of: P. Lindh, President, R. García-Valdecasas, J.D. Cooke, P. Mengozzi and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 30 November 2004, in which it:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders the applicant to bear its own costs and to pay those incurred by the Commission; |
| --- | --- |

2.

Orders the applicant to bear its own costs and to pay those incurred by the Commission;

| 3. | Orders the Kingdom of the Netherlands, the Kingdom of Sweden, the Kingdom of Denmark and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of the Netherlands, the Kingdom of Sweden, the Kingdom of Denmark and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 202 of 24.8.2002.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/19 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/19

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 24 November 2004

in Case T-393/02: Henkel KGaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Three-dimensional mark - Shape of a white and transparent bottle - Absolute ground for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2005/C 31/38)

Language of the case: German

In Case T-393/02: Henkel KGaA, established in Düsseldorf (Germany), represented by C. Osterrieth, lawyer, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: U. Pfleghar and G. Schneider) – action brought against the decision of the Fourth Board of Appeal of OHIM of 3 October 2002 (Case R 313/2001-4), concerning the registration of a three-dimensional sign constituted by the shape of a white and transparent bottle – the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 24 November 2004, in which it:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 October 2002 (Case R 313/2001-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 October 2002 (Case R 313/2001-4);

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

2.

Orders the defendant to pay the costs.

---

(1)  OJ C 55 of 8.3.2003.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/20 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/20

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 23 November 2004

in Case T-84/03: Maurizio Turco v Council of the European Union (1)

(Openness - Public access to Council documents - Partial refusal of access - Regulation (EC) No 1049/2001 - Exceptions)

(2005/C 31/39)

Language of the case: English

In Case T-84/03: Maurizio Turco, residing in Pulsano (Italy), represented by O.W. Brouwer, T. Janssens and C. Schillemans, lawyers, supported by Republic of Finland (Agents: T. Pynnä and A. Guimaraes-Purokoski, with an address for service in Luxembourg), Kingdom of Denmark (Agents: J. Liisberg initially and subsequently J. Molde, with an address for service in Luxembourg), and Kingdom of Sweden (Agents: A. Kruse and K. Wistrand, with an address for service in Luxembourg) against Council of the European Union (Agents: J.-C. Piris and M. Bauer), supported by United Kingdom of Great Britain and Northern Ireland (Agent: C. Jackson, instructing P. Sales and J. Stratford, Barristers, with an address for service in Luxembourg) and Commission of the European Communities (Agents: M. Petite, C. Docksey and P. Aalto, with an address for service in Luxembourg) – application for annulment of the Council's decision of 19 December 2002 partially refusing the applicant access to certain documents appearing on the agenda of the Justice and Home Affairs Council meeting of 14 and 15 October 2002 – the Court of First Instance (Fifth Chamber), composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 23 November 2004, in which it:

| 1. | Dismisses the action in so far as it concerns the refusal of access to the Council's legal opinion; |
| --- | --- |

1.

Dismisses the action in so far as it concerns the refusal of access to the Council's legal opinion;

| 2. | Declares that there is no need to adjudicate as to the remainder; |
| --- | --- |

2.

Declares that there is no need to adjudicate as to the remainder;

| 3. | Orders the applicant and the Council each to bear half of the costs of the proceedings; |
| --- | --- |

3.

Orders the applicant and the Council each to bear half of the costs of the proceedings;

| 4. | Orders the interveners to bear their own costs. |
| --- | --- |

4.

Orders the interveners to bear their own costs.

---

(1)  OJ C 112 of 10.5.2003.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/20 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/20

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 30 November 2004

in Case T-173/03: Anne Geddes v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark ‘NURSERYROOM’ - Absolute grounds for refusal - Article 7(1)(c) of Regulation (EC) No 40/94)

(2005/C 31/40)

Language of the case: English

In Case T-173/03: Anne Geddes, residing at Auckland (New Zealand), represented by G. Farrington, Solicitor, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: E. Dijkema and A. Folliard-Monguiral) – action brought against the decision of the Fourth Board of Appeal of OHIM of 13 February 2003 (Case R 839/2001-4) regarding an application for registration of the Community word mark ‘NURSERYROOM’ – the Court of First Instance (Second Chamber), composed of: J Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 30 November 2004, in which it:

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

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 171 of 19.7.2003.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/21 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/21

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 23 November 2004

in Case T-360/03: Frischpack GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Three-dimensional mark - Shape of a cheese box - Absolute ground for refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Distinctive character)

(2005/C 31/41)

Language of the case: German

In Case T-360/03: Frischpack GmbH & Co. KG, established in Mailling bei Schönau (Germany), represented by P. Bornemann, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: U. Pfleghar and G. Schneider) – appeal against Decision R 236/2003-2 of the Second Board of Appeal of OHIM of 8 September 2003 concerning the registration of a three-dimensional mark (cheese box) – the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and D. Šváby, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 23 November 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 304 of 13.12.2003.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/21 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/21

---

ORDER OF THE COURT OF FIRST INSTANCE

of 6 September 2004

in Case T- 213/02: SNF SA v Commission of the European Communities (1)

(Action for annulment - Directive 2002/34/EC - Restrictions on the use of polyacrylamides in the composition of cosmetic products - Person individually concerned - Admissibility)

(2005/C 31/42)

Language of the case: English

In Case T-213/02: SNF SA, established in Saint-Étienne (France), represented by K. Van Maldegem and C. Mereu, lawyers, against the Commission of the European Communities, (Agent: X. Lewis, with an address for service in Luxembourg) – application for the partial annulment of Twenty-sixth Commission Directive 2002/34/EC of 15 April 2002 adapting to technical progress Annexes II, III and VII to Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ 2002 L 102, p. 19) in so far as it restricts the use of polyacrylamides in the composition of cosmetic products – the Court of First Instance (Fifth Chamber), composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has made an order on 6 September 2004, the operative part of which is as follows:

| 1. | The action is dismissed as inadmissible; |
| --- | --- |

1.

The action is dismissed as inadmissible;

| 2. | The applicant is to bear its own costs and those of the defendant. |
| --- | --- |

2.

The applicant is to bear its own costs and those of the defendant.

---

(1)  OJ C 233 of 28.9.2002.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/21 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/21

---

ORDER OF THE COURT OF FIRST INSTANCE

of 9 November 2004

in Case T-252/03: Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the Euoropean Communities (1)

(Competition - Decision finding an infringement of Article 81 EC - Market in beef and veal - Action for annulment - Unlimited jurisdiction - Time-limit for bringing application - Introduction out of time - Inadmissibility)

(2005/C 31/43)

Language of the case: French

In Case T-252/03: Fédération nationale de l'industrie et des cinnerces en gros des viands (FNICGV), established in Paris (France), represented by P. Abegg and E. Prigent, lawyers, with an address for service in Luxembourg, supported by French Republic (Agents: R. Abraham, G. de Bergues and F. Million, with an address for service in Luxembourg), against Commission of the European Communities (Agents: P. Oliver and F. Lelièvre, with an address for service in Luxembourg) – action for annulment of the fine imposed on the applicant by Article 3 of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p. 12) and, in the alternative, for a reduction of the amount of that fine – the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has made an order on 9 November 2004, the operative part of which is as follows:

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

1.

The action is dismissed as inadmissible.

| 2. | The applicant and the Commission shall bear their own costs relating to the main action. |
| --- | --- |

2.

The applicant and the Commission shall bear their own costs relating to the main action.

| 3. | The applicant shall bear its own costs and pay those of the Commission relating to the proceedings for interim measures. |
| --- | --- |

3.

The applicant shall bear its own costs and pay those of the Commission relating to the proceedings for interim measures.

| 4. | The French Republic shall bear its own costs. |
| --- | --- |

4.

The French Republic shall bear its own costs.

---

(1)  OJ C 213 of 6.9.2003.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/22 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/22

---

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 10 November 2004

in Case T-316/04: R Wam SpA v Commission of the European Communities

(State aid - Loans at reduced rates intended to enable an undertaking to become established in certain non-member countries - Obligation to recover - Application for interim measures - Suspension of operation - Urgency - None)

(2005/C 31/44)

Language of the case: Italian

In Case T-316/04 R: Wam SpA, established in Cavezzo di Modena (Italy), represented by E. Giliani, lawyer, against the Commission of the European Communities (Agents: V. Di Bucci and E. Righini, with an address for service in Luxembourg) – application for suspension of the operation of Commission Decision C(2004) 1812 final of 19 May 2004 on State aid C-4/2003 (ex NN 102/2002) – the President of the Court of First Instance made an order on 10 November 2004, the operative part of which is as follows:

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

1.

The application for interim relief is dismissed.

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

2.

The costs are reserved.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/22 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/22

---

Action brought on 8 September 2004 by Hensotherm AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-366/04)

(2005/C 31/45)

Language of the case: Swedish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 8 September 2004 by Hensotherm AB, Trelleborg (Sweden), represented by Stefan Hallbäck, lawyer.

Rudolf Hensel GmbH, Börnsen (Germany), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | refer the case back to the Board of Appeal of the Office for Harmonisation for examination of the substance of the applicant's appeal against the decision of the Cancellation Division of 11 September 2003 on the ground of breach of essential procedural requirements; |
| --- | --- |

—

refer the case back to the Board of Appeal of the Office for Harmonisation for examination of the substance of the applicant's appeal against the decision of the Cancellation Division of 11 September 2003 on the ground of breach of essential procedural requirements;

| — | in the alternative, examine the appeal against the Cancellation Division's decision of 11 September 2003 and the Board of Appeal's decision of 12 July 2004 and dismiss Rudolf Hensel GmbH's application for a declaration of invalidity of Community trade mark No 357 863; |
| --- | --- |

—

in the alternative, examine the appeal against the Cancellation Division's decision of 11 September 2003 and the Board of Appeal's decision of 12 July 2004 and dismiss Rudolf Hensel GmbH's application for a declaration of invalidity of Community trade mark No 357 863;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Registered Community trade mark subject to an application for declaration of invalidity: | Figurative mark ‘HENSOTHERM’ for goods in Classes 2 and 17 (paints, insulation and sealing material) – Community trade mark No 357 863 |
| --- | --- |
| Proprietor of Community trade mark: | The applicant |
| Party seeking a declaration of invalidity: | Rudolf Hensel GmbH |
| Trade mark held by the party seeking a declaration of invalidity: | National word mark ‘HENSOTHERM’ (No 213 672) for goods in Class 2 |
| Decision of the Cancellation Division: | Declaration of invalidity of Community trade mark 'HENSOTHERM' on the ground of the risk of confusion with the earlier national trade mark ‘HENSOTHERM’ (No 213 672) |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Breach of Articles 52(1)(a) and 78 of Regulation (EC) No 40/94 |

Registered Community trade mark subject to an application for declaration of invalidity:

Figurative mark ‘HENSOTHERM’ for goods in Classes 2 and 17 (paints, insulation and sealing material) – Community trade mark No 357 863

Proprietor of Community trade mark:

The applicant

Party seeking a declaration of invalidity:

Rudolf Hensel GmbH

Trade mark held by the party seeking a declaration of invalidity:

National word mark ‘HENSOTHERM’ (No 213 672) for goods in Class 2

Decision of the Cancellation Division:

Declaration of invalidity of Community trade mark 'HENSOTHERM' on the ground of the risk of confusion with the earlier national trade mark ‘HENSOTHERM’ (No 213 672)

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Breach of Articles 52(1)(a) and 78 of Regulation (EC) No 40/94

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/23 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/23

---

Action brought on 18 October 2004 by Anna Kontouli against the Council of the European Union

(Case T-416/04)

(2005/C 31/46)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 18 October 2004 by Anna Kontouli, London, (United Kingdom), represented by V. Arkitidis, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Council's decision of 16 July 2004 rejecting the applicant's complaint submitted pursuant to Article 90 paragraph 2 of the Staff Regulations, concerning the setting of the appropriate correction coefficient of her pension; |
| --- | --- |

—

annul the Council's decision of 16 July 2004 rejecting the applicant's complaint submitted pursuant to Article 90 paragraph 2 of the Staff Regulations, concerning the setting of the appropriate correction coefficient of her pension;

| — | order the Council to pay the applicant an amount equal to the balance between the amounts of pension paid to the applicant thus far and the amounts of pension that should have been paid to the applicant, should the correction coefficient of the applicant's pension have been set by reference to the United Kingdom since the applicant's right to pension was established on 1 May 2003; this balance to be increased by default interest equal to the interest rate set by the European Central Bank for its refinancing operations, increased by two percentage points; |
| --- | --- |

—

order the Council to pay the applicant an amount equal to the balance between the amounts of pension paid to the applicant thus far and the amounts of pension that should have been paid to the applicant, should the correction coefficient of the applicant's pension have been set by reference to the United Kingdom since the applicant's right to pension was established on 1 May 2003; this balance to be increased by default interest equal to the interest rate set by the European Central Bank for its refinancing operations, increased by two percentage points;

| — | order the Council to pay the applicant compensation equal to 100,000 Euros for substantial non-contractual and moral damage suffered by the applicant throughout the administrative proceedings preceding the application and through the applicant's various oral and written communications with the Council's services; and |
| --- | --- |

—

order the Council to pay the applicant compensation equal to 100,000 Euros for substantial non-contractual and moral damage suffered by the applicant throughout the administrative proceedings preceding the application and through the applicant's various oral and written communications with the Council's services; and

| — | order that the costs of and occasioned by these proceedings be borne by the Council. |
| --- | --- |

—

order that the costs of and occasioned by these proceedings be borne by the Council.

Pleas in law and main arguments

The applicant is a former official of the Council, receiving an invalidity pension as of 1 May 2003. After her retirement the applicant notified the Council that she had fixed her permanent residence in the United Kingdom and, on this information, the Council initially applied the correction coefficient for that country on the applicant's pension. However, considering that the applicant had provided contradictory information on her place of residence, the Council suspended the application of the correction coefficient for the United Kingdom, applying first the one for Belgium and later that of Greece, where the applicant's initial place of origin was situated. The applicant filed a complaint, which was rejected by the contested decision of 16 July 2004.

In support of her application the applicant submits that she permanently and lawfully resides in the United Kingdom from 1 May 2003 onwards. She considers that by finding otherwise the Council violated Article 82 paragraph 1 of the Staff Regulations and committed a manifest error of assessment. She also submits that the Council failed to provide sufficient reasoning for its decision and infringed the general principle of legal certainty by reversing the legitimate expectations of the applicant. She further contends that the Council violated the principle of good administration and its duty of solicitude towards the applicant. Finally, the applicant submits that she was substantially hurt by the overall attitude of the defendant towards her and by the fact that her daughter had to abandon her doctoral studies in Greece in order to move to the United Kingdom and work there to provide the applicant with financial support. The applicant requests the court to grant her compensation for this moral damage.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/24 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/24

---

Action brought on 25 October 2004 by Trubowest Handel GmbH and Mr Viktor Makarov against the Council of the European Union and the Commission of the European Communities

(Case T-429/04)

(2005/C 31/47)

Language of the case: English

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 October 2004 by Trubowest Handel GmbH, Cologne (Germany), and Mr Viktor Makarov, Cologne (Germany), represented by Dr K. Adamantopoulos and E. Petritsi, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | order the European Community, in accordance with the second paragraph of Article 288 of the EC Treaty, to make good the damage suffered as a result of the adoption of the definitive anti-dumping measures prescribed by the anti-dumping Regulation, by awarding the amounts of |
| --- | --- |

—

order the European Community, in accordance with the second paragraph of Article 288 of the EC Treaty, to make good the damage suffered as a result of the adoption of the definitive anti-dumping measures prescribed by the anti-dumping Regulation, by awarding the amounts of

| — | EUR 118 058.46 to Trubowest by way of compensation for damages, together with default interest on this amount in the rate of 8 % annually; |
| --- | --- |

—

EUR 118 058.46 to Trubowest by way of compensation for damages, together with default interest on this amount in the rate of 8 % annually;

| — | EUR 397 916.91 (EUR 277 939.37 + 63 448.54 + 56 529. 00) to Mr Makarov by way of compensation for damages, together with default interest on this amount in the rate of 8 % annually; |
| --- | --- |

—

EUR 397 916.91 (EUR 277 939.37 + 63 448.54 + 56 529. 00) to Mr Makarov by way of compensation for damages, together with default interest on this amount in the rate of 8 % annually;

| — | EUR 128 000.00 to Trubowest loss of profit for the period between 2000 and 2004, together with default interest on this amount at the rate of 8 % annually; in the alternative a sum due to Trubowest by way of compensation for damage for loss of profit for the period between 2000 and 2004, to be assessed during the proceedings, following an interlocutory judgment of the Court, by agreement between the parties; and |
| --- | --- |

—

EUR 128 000.00 to Trubowest loss of profit for the period between 2000 and 2004, together with default interest on this amount at the rate of 8 % annually; in the alternative a sum due to Trubowest by way of compensation for damage for loss of profit for the period between 2000 and 2004, to be assessed during the proceedings, following an interlocutory judgment of the Court, by agreement between the parties; and

| — | EUR 150 000.00 by way of compensation to Mr Makarov for the moral prejudice that he suffered together with default interest in the rate of 8 % annually on this amount; |
| --- | --- |

—

EUR 150 000.00 by way of compensation to Mr Makarov for the moral prejudice that he suffered together with default interest in the rate of 8 % annually on this amount;

| — | order that all the costs occasioned by the applicants in the course of the present proceedings be borne by the Council and the Commission. |
| --- | --- |

—

order that all the costs occasioned by the applicants in the course of the present proceedings be borne by the Council and the Commission.

Pleas in law and main arguments

The first applicant is an importer of seamless pipes and tubes in the European Community and the second applicant is its managing director. By their application they seek to be compensated for the damage they allegedly suffered by reason of the adoption of Regulation 2320/97 (1) imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic.

The applicants argue that in the context of proceedings under Article 81 EC, a fine was imposed on several community producers of seamless pipes and tubes (2). According to the applicants, it is very likely, if not certain, that the anti-competitive conduct of the seamless pipes and tubes producers affected the injury and causality analysis of the anti-dumping proceedings, given the overlap in the product scope, in the companies involved and in the periods of investigation of the competition and anti-dumping proceedings. Nevertheless, the applicants contend, the Commission entirely failed to take into account that anti-competitive conduct when determining the injury caused by the allegedly dumped imports, as required by Regulation 384/1996 (3).

On the above basis the applicants invoke a breach of Regulation 384/1996 as well as of the obligation of good and sound administration, due care and diligence. They further argue that the Council and the Commission later recognised that the impact of the anti-competitive conduct has affected the anti-dumping investigation and, by Regulation 1322/2004 (4) considered it no longer appropriate to apply the measures imposed by Regulation 2320/1997.

The applicants reason that had the Council and the Commission not violated the above rules and obligations, Regulation 2320/1997 might never have been adopted and the applicants might never have incurred the damage they incurred because of it. The applicants therefore seek compensation for that damage which, in the case of the first applicant takes the form of a restitution of duties it actually paid under Regulation 2320/1997 as well as compensation for loss of profit. The second applicant requests compensation for the amounts he paid under Regulation 2320/1997, loss of profit due to non-payment of his director's salary, legal costs allegedly incurred as well as moral prejudice damage.

---

(1)  Council Regulation (EC) No 2320/97 of 17 November 1997, OJ L 322, 25.11.1997, p. 1.

(2)  2003/382/EC, Commission Decision of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (notified under document number C(1999) 4154), OJ L 140, 6.6.2003, p. 1.

(3)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ L 56, 6.3.1996, p. 1

(4)  Council Regulation (EC) No 1322/2004 of 16 July 2004 amending Regulation (EC) No 2320/97 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in, inter alia, Russia and Romania OJ L 246, 20.7.2004, p. 10

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/25 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/25

---

Action brought on 25 October 2004 by Nomura Principal Investment plc and Nomura International plc against the Commission of the European Communities

(Case T-430/04)

(2005/C 31/48)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 October 2004 by Nomura Principal Investment plc and Nomura International plc, London (United Kingdom), represented by C.-D. Ehlermann, F. Louis, A. Vallery, G. A. Gutermuth and C. Duvernoy, lawyers.

The applicant claims that the Court should:

| — | Annul the Commission's decision of 14 July 2004 in State aid case No CZ 46/2003 - Czech Republic (Investiÿní a poštovní banka, a.s.); |
| --- | --- |

—

Annul the Commission's decision of 14 July 2004 in State aid case No CZ 46/2003 - Czech Republic (Investiÿní a poštovní banka, a.s.);

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The contested decision was taken under the procedure established by Section 3 of Annex IV of the Accession Treaty to the European Union, for the review, by the Commission, of State aid measures that the new Member States adopted prior to their accession and that their authorities notified to the Commission before 1 May 2004. The contested decision determines that pre-accession aid measures that the Czech Republic granted to the Czech bank Ceskoslovenska obchodni banka (‘CSOB’) are not ‘applicable after accession’ within the meaning of Section 3 of Annex IV of the Accession Treaty and therefore not subject to the Commission's review for substantive conformity with the EU State aid rules.

The applicant submits that this decision should be annulled on the grounds that the Czech aid measures in question are applicable after accession. According to the applicant, the contested decision violates Section 3, Annex IV of the Accession Treaty, Article 253 EC, Article 88 EC and Regulation 659/1999 (1) by applying an incorrect definition of ‘measures still applicable’ after accession.

The applicant further claims that in adopting the contested decision, the Commission misused its powers in violation of Section 3, Annex IV of the Accession Treaty and Article 88 EC by redefining ‘measures still applicable’ to avoid review of a measure adopted by an accession country that would have fallen under the Commission's prior definition of this legal concept.

The applicant also submits that the Commission erred in law in violation of Section 3, Annex IV of the Treaty of Accession and Article 88 EC by failing to open the formal investigative procedure despite the continuing open and unresolved factual issues and the many doubts concerning the legality of the notified measures. It also erred in law by misapplying its own definition for post-accession applicability of pre-accession aid measures granted by the Czech Republic to guarantees for litigation risks and other claims issued by the Czech National Bank to CSOB. Finally, it erred both in law and in fact by failing to correctly investigate the facts relating to the aid measures granted by the Czech State to CSOB.

---

(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ L 83, 27.3.1999, p. 1.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/26 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/26

---

Action brought on 5 November 2004 by France Télécom against Commission of the European Communities

(Case T-444/04)

(2005/C 31/49)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 November 2004 by France Télécom, established in Paris, represented by NA. Gosset-Grainville and S. Hautbourg, lawyers.

The applicant claims that the Court should:

| — | annul Decision C(2004)3060, delivered by the Commission on 2 August 2004, concerning the State aid paid by France to France Télécom; |
| --- | --- |

—

annul Decision C(2004)3060, delivered by the Commission on 2 August 2004, concerning the State aid paid by France to France Télécom;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The pleas and main arguments put forward by the applicant in the present case are identical to those put forward by the applicant in Case T-425/04.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/26 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/26

---

Action brought on 10 November 2004 by Energy Technologies ET S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-445/04)

(2005/C 31/50)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 November 2004 by Energy Technologies ET S.A., established in Fribourg (Switzerland), represented by A. Boman, lawyer.

Aparellaje Elèctrico S.L., established in Hospitalet de Llobregat (Spain), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the contested decision of the Fourth Board of Appeal of 7 July 2004 (Case R 0366/2002-4); |
| --- | --- |

—

annul the contested decision of the Fourth Board of Appeal of 7 July 2004 (Case R 0366/2002-4);

| — | order the OHIM to pay the applicant's costs relating to this matter. |
| --- | --- |

—

order the OHIM to pay the applicant's costs relating to this matter.

Pleas in law and main arguments

| Applicant for Community trade mark: | Energy Technologies ET S.A. |
| --- | --- |
| Community trade mark concerned: | Word mark ‘UNEX’ for goods in classes 7 and 11 (Heat exchangers being part of machines; Heat exchangers as well as parts and fitting therefor) - application No 974881 |
| Proprietor of mark or sign cited in the opposition proceedings: | Aparellaje Eléctrico S.L. |
| Trade mark or sign cited in opposition: | Spanish word mark ‘UNEX’ for goods in the old Spanish class 6, 17 and 61 (pipes, screws, cabling and laying of cables and pipes in electronic and electrical engineering systems;...) |
| Decision of the Opposition Division: | Rejection of the application for Community trade mark |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 8(1)(b) of Regulation No 40/94. |

Applicant for Community trade mark:

Energy Technologies ET S.A.

Community trade mark concerned:

Word mark ‘UNEX’ for goods in classes 7 and 11 (Heat exchangers being part of machines; Heat exchangers as well as parts and fitting therefor) - application No 974881

Proprietor of mark or sign cited in the opposition proceedings:

Aparellaje Eléctrico S.L.

Trade mark or sign cited in opposition:

Spanish word mark ‘UNEX’ for goods in the old Spanish class 6, 17 and 61 (pipes, screws, cabling and laying of cables and pipes in electronic and electrical engineering systems;...)

Decision of the Opposition Division:

Rejection of the application for Community trade mark

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Infringement of Article 8(1)(b) of Regulation No 40/94.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/27 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/27

---

Action brought on 9 November 2004 by Bouygues SA and Bouygues Télécom against Commission of the European Communities

(Case T-450/04)

(2005/C 31/51)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 November 2004 by Bouygues SA and Bouygues Télécom, established in Paris and in Boulogne Billancourt (France) respectively, represented by L. Vogel, J. Vogel, F. Sureau, D. Théophile, B. Amory and A. Verheyden, lawyers.

The applicant claims that the Court should:

| — | annul Article 1 of Decision C(2004)3060 of the Commission of the European Communities of 2 August 2004; |
| --- | --- |

—

annul Article 1 of Decision C(2004)3060 of the Commission of the European Communities of 2 August 2004;

| — | annul Article 2 of that decision; |
| --- | --- |

—

annul Article 2 of that decision;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The present action is directed against Decision C(2004)3060 of 2 August 2004, whereby the European Commission considered that the shareholder's advance granted by France to the Groupe France Télécom in December 2002, in the form of a credit line of EUR 9,000 million, placed in the context of the statements made since 2002, constituted State aid incompatible with the common market. The Commission also decided that that aid should not be recovered.

As regards the finding that the measure in question constituted aid, the applicants further criticise the decision in issue for having refused to classify as State aid the commitments resulting from the statements of the French Government, which had publicly supported France Télécom's credit between July and October 2002, although that undertaking, which was heavily in debt, was making enormous losses.

In support of their claims, the applicants allege that:

| — | by refusing to classify as State aid the statements of the French Government of July, September and October 2002, taken either individually or collectively, the Commission misapplied Article 87 of the Treaty. The defendant should have found in that regard that the statements had conferred on France Télécom an advantage which distorted both competition and trade between Member States; |
| --- | --- |

—

by refusing to classify as State aid the statements of the French Government of July, September and October 2002, taken either individually or collectively, the Commission misapplied Article 87 of the Treaty. The defendant should have found in that regard that the statements had conferred on France Télécom an advantage which distorted both competition and trade between Member States;

| — | the contested decision is based on contradictory and inadequate reasons. The applicants maintain on that point that, after finding that the French Government's statements combined all the characteristics of State aid, it did not draw the logical conclusion and classify the statements as aid; |
| --- | --- |

—

the contested decision is based on contradictory and inadequate reasons. The applicants maintain on that point that, after finding that the French Government's statements combined all the characteristics of State aid, it did not draw the logical conclusion and classify the statements as aid;

| — | as concerns the refusal to order recovery of the aid, there is a breach of Article 14(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 of the Treaty and also a breach of essential procedural requirements in that the reasons are inadequate. The applicants maintain that the Commission was perfectly capable of quantifying the amount of the aid without infringing France's rights of defence and that recovery of the aid in question would not in this case have constituted a breach of the principle of protection of legitimate expectations. |
| --- | --- |

—

as concerns the refusal to order recovery of the aid, there is a breach of Article 14(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 of the Treaty and also a breach of essential procedural requirements in that the reasons are inadequate. The applicants maintain that the Commission was perfectly capable of quantifying the amount of the aid without infringing France's rights of defence and that recovery of the aid in question would not in this case have constituted a breach of the principle of protection of legitimate expectations.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/27 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/27

---

Action brought on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom against Commission of the European Communities

(Case T-456/04)

(2005/C 31/52)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom, established in Paris, represented by O. Fréget, lawyer.

The applicant claims that the Court should:

| — | annul Article 2 of Decision C(2004)3060 of the Commission of the European Communities of 2 August 2004 concerning State aid paid by France to France Télécom; |
| --- | --- |

—

annul Article 2 of Decision C(2004)3060 of the Commission of the European Communities of 2 August 2004 concerning State aid paid by France to France Télécom;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In the context of a scheme designed to restore the balance of the French telecommunications company France Télécom, France, at the time the majority shareholder in that company, granted it a shareholder's advance, in order to shore up its own funds, in the form of a credit line of EUR 9,000 million. By the contested decision, the Commission found that the advance in question constituted State aid. However, by Article 2 of that decision, it decided that no measures to recover the amount concerned should be taken.

The applicant, which claims to represent a large proportion of the alternative telecommunications operators in France, direct competitors of France Télécom, maintains that it is entitled to seek annulment of that article. In support of its action, it claims first of all that the Commission made a manifest error of assessment in taking the view that it would be unable to estimate the advantage received by France Télécom as a result of the conduct and statements of the French State. It further alleges that the Commission breached the principle of proportionality, since it would have been less harmful to the market to take an amount lower than the actual value of the advantage and of its effects on competition than to preclude any recovery. The applicant then argues that, in any event, the Commission is not required to evaluate precisely the amount of the aid.

The applicant also contends that the Commission failed to have regard to the consistent case-law, which allows a derogation from the obligation to recover unlawful aid only where there are exceptional circumstances or where it is absolutely impossible to do so. The applicant also claims that the Commission wrongly considered that recovery of the aid would breach the rights of the defence and also the principle of legitimate expectations.

The applicant further claims that the Commission breached the principle of transparency in failing to submit to interested third parties, including the applicant itself, certain expert reports presented by France, which played a decisive role in the outcome reached by the Commission.

The applicant also maintains that the Commission committed an abuse of process by ignoring the constraints imposed by its own guidelines on aid for restructuring. Furthermore, the mere fact of having declared an aid incompatible and having then not demanded its recovery constitutes in itself a misuse of powers, in the applicant's submission. Last, the applicant claims that there has been a breach of the obligation to State reasons.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/28 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/28

---

Action brought on 9 November 2004 by Camar S.r.l. against the Commission of the European Communities

(Case T-457/04)

(2005/C 31/53)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 November 2004 by Camar S.r.l., represented by Wilma Viscardini, Simonetta Donà and Mario Paolin.

The applicant claims that the Court should:

| — | annul the Commission's refusal communicated by the Director General for Agriculture by letter of 10 September 2004 (ref D (2004) 29695 A/25707) received on 20 September 2004; |
| --- | --- |

—

annul the Commission's refusal communicated by the Director General for Agriculture by letter of 10 September 2004 (ref D (2004) 29695 A/25707) received on 20 September 2004;

| — | order that paragraph 1 of the operative part of the judgment of 8 June 2000 in Joined Cases T-79/96, T-260/97 and T-117/98 be enforced; |
| --- | --- |

—

order that paragraph 1 of the operative part of the judgment of 8 June 2000 in Joined Cases T-79/96, T-260/97 and T-117/98 be enforced;

| — | order the Commission to give effect to paragraph 1 of the operative part of that judgment by the financial equivalent of the value of the entitlements that it should have, but has not delivered, pursuant to the judgment in question, in the sum of EUR 5 065 600, or such other sum as the Court may fix, increased to reflect changes in monetrary values, and interest at a rate to be determined by the Court, with effect from 8 June 2000 until the date of discharge of the judgment debt; |
| --- | --- |

—

order the Commission to give effect to paragraph 1 of the operative part of that judgment by the financial equivalent of the value of the entitlements that it should have, but has not delivered, pursuant to the judgment in question, in the sum of EUR 5 065 600, or such other sum as the Court may fix, increased to reflect changes in monetrary values, and interest at a rate to be determined by the Court, with effect from 8 June 2000 until the date of discharge of the judgment debt;

| — | order the Commission to compensate the applicant for non-pecuniary loss – to be determined equitably by the Court – sustained by the applicant's constituent partners as a result of the failure to enforce the judgment of 8 June 2000; |
| --- | --- |

—

order the Commission to compensate the applicant for non-pecuniary loss – to be determined equitably by the Court – sustained by the applicant's constituent partners as a result of the failure to enforce the judgment of 8 June 2000;

| — | order the Commission to pay the costs of the present action. |
| --- | --- |

—

order the Commission to pay the costs of the present action.

Pleas in law and main arguments:

In support of its pleas in law, the applicant submits that the Commission's failure to act – not only has it not adopted any specific measure, it has not even proposed to Camar appropriate measures to give effect to the judgment delivered in Case T-79/96 (a continuing failure to act since 8 June 2000) – and its express refusal to enforce that judgment, communicated by the letter of 10 September 2000, constitute a serious infringement of Article 233 EC.

To the extent that the Commission is no longer able to deliver the entitlements to the applicant which it should have done to give effect to that judgment – because, in short, imports of third-country bananas will no longer be subject to tariff quota but instead completely liberalised –, Camar seeks equivalent enforcement in the form of compensation for financial loss which, according to settled case-law, is available where it is no longer possible to enforce a judgment in a specific way.

The applicant also seeks equitable damages for the non-pecuniary loss sustained by reason of the failure to enforce the judgment of 8 June 2000. According to settled case-law, that fact alone already constitutes a ground for compensation in that it infringes the principle of legitimate expectations. In this case, that infringement is aggravated by the fact that Camar expected the Commission to enforce the judgment because it said it would do so in a letter of 20 May 2003. That letter has since been withdrawn.

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/29 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/29

---

Action brought on 21 December 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-490/04)

(2005/C 31/54)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 December 2004 by the Federal Republic of Germany, represented by W.-D. Plessing and T. Lübbig, Rechtsanwalt, acting as Agents.

The applicant claims that the Court should:

| — | annul Commission Decision K(2004)4001/3 of 20 October 2004 on the German legislation governing the area of mail pre-sorting services, in particular access for self-delivery intermediaries and mail consolidators to the public postal net work and the associated special rates (BdKEP – restrictions in the area of mail pre-sorting); |
| --- | --- |

—

annul Commission Decision K(2004)4001/3 of 20 October 2004 on the German legislation governing the area of mail pre-sorting services, in particular access for self-delivery intermediaries and mail consolidators to the public postal net work and the associated special rates (BdKEP – restrictions in the area of mail pre-sorting);

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

According to the contested decision, Paragraph 51(1), second sentence, point 5 of the Postgesetz (German Postal Law), under which Deutsche Post AG is granted for a transitional period a privileged legal position (the so-called exclusive licence) for its mail delivery activities, breaches Article 86(1) EC, in conjunction with Article 82 EC, in so far as that provision prevents commercial mail pre-sorting firms, irrespective of whether they are acting as self-delivery intermediaries for a single sender or as mail consolidators for several customers, from securing volume-dependent part-performance discounts for the delivery of mail to Deutsche Post AG sorting centres.

In this action brought under the second paragraph of Article 230 EC, the Federal Republic of Germany submits that the contested decision breaches both Article 82 EC and Directive 97/67/EC on postal services (1) for the following reasons:

| — | the Commission incorrectly assumes that the German provision extends the dominant market position of the universal service provider Deutsche Post AG within the reserved sector to the upstream market in mail pre-sorting, to the detriment of mail pre-sorting firms; |
| --- | --- |

—

the Commission incorrectly assumes that the German provision extends the dominant market position of the universal service provider Deutsche Post AG within the reserved sector to the upstream market in mail pre-sorting, to the detriment of mail pre-sorting firms;

| — | the differing treatment of self-delivery by senders as compared with that of commercial postal service providers does not constitute discrimination within the terms of 82 EC or the fifth indent of Article 12 of the Directive on postal services; and |
| --- | --- |

—

the differing treatment of self-delivery by senders as compared with that of commercial postal service providers does not constitute discrimination within the terms of 82 EC or the fifth indent of Article 12 of the Directive on postal services; and

| — | the contested decision amounts to a premature intrusion into the area covered by the exclusive licence of Deutsche Post AG, which could lawfully be reserved under Article 7(1) of the Directive on postal services. |
| --- | --- |

—

the contested decision amounts to a premature intrusion into the area covered by the exclusive licence of Deutsche Post AG, which could lawfully be reserved under Article 7(1) of the Directive on postal services.

The Federal Republic of Germany submits further that the contested decision is not adequately reasoned, contrary to Article 253 EC.

---

(1)  Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14).

---

| 5.2.2005 | EN | Official Journal of the European Union | C 31/29 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/29

---

Action brought on 22 December 2004 by Deutsche Post AG against the Commission of the European Communities

(Case T-493/04)

(2005/C 31/55)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 December 2004 by Deutsche Post AG, Bonn (Germany), represented by J. Sedemund, lawyer.

The applicant claims that the Court should:

| 1. | annul the Commission's Decision of 20 October 2004 (K(2004)4001/3) on the German legal framework governing the provision of postal services, in particular access by private postal service providers and consolidators to the public postal network and the special tariffs connected therewith (BdKEP – Beschränkungen im Bereich der Postvorbereitung (restrictions on postal services); |
| --- | --- |

1.

annul the Commission's Decision of 20 October 2004 (K(2004)4001/3) on the German legal framework governing the provision of postal services, in particular access by private postal service providers and consolidators to the public postal network and the special tariffs connected therewith (BdKEP – Beschränkungen im Bereich der Postvorbereitung (restrictions on postal services);

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

2.

Order the Commission to pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments of Deutsche Post AG in the proceedings brought under Article 230(4) EC correspond, with regard to Article 82 EC and the Postal Service Directive 97/67/EC (1), to those of Case T-490/04.

---

(1)  Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ L 15, 21.1.1998, p. 14).

---

III Notices

| 5.2.2005 | EN | Official Journal of the European Union | C 31/30 |
| --- | --- | --- | --- |

5.2.2005

EN

Official Journal of the European Union

C 31/30

---

(2005/C 31/56)

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

OJ C 19, 22.1.2005

Past publications

OJ C 6, 8.1.2005

OJ C 314, 18.12.2004

OJ C 300, 4.12.2004

OJ C 273, 6.11.2004

OJ C 262, 23.10.2004

OJ C 251, 9.10.2004

These texts are available on:

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

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

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

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

---