# Official Journal C 156/12 J

| | ISSN 1725-2423 |
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| Official Journal
  of the European Union | C 156 |
| | |
| English edition | Information and Notices | Volume 4712 June 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 156

English edition

Information and Notices

Volume 4712 June 2004

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 156/1 | Taking of the oath by new Members of the Court | 1 |
| 2004/C 156/2 | Election of Presidents of Chambers | 1 |
| 2004/C 156/3 | Assignment of Judges to Chambers | 1 |
| 2004/C 156/4 | Lists to be used for determining the composition of the formations of the Court | 2 |
| 2004/C 156/5 | Case C-125/04: Reference for a preliminary ruling by the Commission litiges voyages by order of that court of 4 December 2003 in the case of Guy Denuit and Betty Cordenier against Transorient – Mosaïque Voyages and Culture SA | 3 |
| 2004/C 156/6 | Case C-166/04: Action brought on 2 April 2004 by the Commission of the European Communities against the Hellenic Republic | 3 |
| 2004/C 156/7 | Case C-167/04 P: Appeal brought on 5 April 2004 by JCB Service against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 between JCB Service and the Commission of the European Communities. | 3 |
| 2004/C 156/8 | Case C-170/04: Reference for a preliminary ruling by the Högsta Domstolen (Sweden) by order of that court of 30 March 2004 in case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against Riksåklagaren | 4 |
| 2004/C 156/9 | Case C-173/04 P: Appeal brought on 8 April 2004 (Fax: 6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG against the judgment delivered on 28 January 2004 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-146/02 to T-153/02 between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 5 |
| 2004/C 156/0 | Case C-174/04: Action brought on 13 April 2004 by the Commission of the European Communities against the Italian Republic | 5 |
| 2004/C 156/1 | Case C-178/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht (Germany), by order of that court of 28 January 2004 in the case of Prof. Dr. Franz Marhold v Land Baden-Württemberg | 6 |
| 2004/C 156/2 | Case C-180/04: Reference for a preliminary ruling by the Tribunale di Genova (Italy) by order of that court of 15 March 2004 in the case of Andrea Vassallo against Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate | 6 |
| 2004/C 156/3 | Case C-184/04: Reference for a preliminary ruling by the Korkein hallinto-oikeus by order of that court of 16 April 2004 in the case of Uudenkaupungin kaupunki | 6 |
| 2004/C 156/4 | Case C-186/04: Reference for a preliminary ruling brought on 1 April 2004 by judgment of the administrative section of the Conseil d'Etat (Belgium) in the case of P. Housieaux against the Délégués du Conseil de la Région de Bruxelles-Capitale, supported by the Société de développement régional de Bruxelles (SDRB), SA Batipont Immobilier (BPI) and SA Immomills L. de Waele Development (ILDWD) | 7 |
| 2004/C 156/5 | Case C-190/04 P: Appeal brought on 23 April 2004 by Graham French, John Neiger and Michael Leighton against the order made on 20 February 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-319/03 between Graham French, John Steven Neiger, Michael Leighton, John Frederick Richard Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait and the Council of the European Union and the Commission of the European Communities | 7 |
| 2004/C 156/6 | Case C-191/04: Action brought on 26 April 2004 against the French Republic by the Commission of the European Communities | 8 |
| 2004/C 156/7 | Case C-192/04: Reference for a preliminary ruling by the Cour de cassation (France), 1ère chambre civile, by order of that court of 17 February 2004, in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT) | 8 |
| 2004/C 156/8 | Case C-193/04: Reference for a preliminary ruling by the Supremo Tribunal Administrativo (Portugal) Second Chamber, by order of that court of 17 March 2004 in the case of Fazenda Pública e Organon Portuguesa – Produtos Químicos e Farmacêuticos, Lda | 9 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 156/1

Taking of the oath by new Members of the Court

1

2004/C 156/2

Election of Presidents of Chambers

1

2004/C 156/3

Assignment of Judges to Chambers

1

2004/C 156/4

Lists to be used for determining the composition of the formations of the Court

2

2004/C 156/5

Case C-125/04: Reference for a preliminary ruling by the Commission litiges voyages by order of that court of 4 December 2003 in the case of Guy Denuit and Betty Cordenier against Transorient – Mosaïque Voyages and Culture SA

3

2004/C 156/6

Case C-166/04: Action brought on 2 April 2004 by the Commission of the European Communities against the Hellenic Republic

3

2004/C 156/7

Case C-167/04 P: Appeal brought on 5 April 2004 by JCB Service against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 between JCB Service and the Commission of the European Communities.

3

2004/C 156/8

Case C-170/04: Reference for a preliminary ruling by the Högsta Domstolen (Sweden) by order of that court of 30 March 2004 in case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against Riksåklagaren

4

2004/C 156/9

Case C-173/04 P: Appeal brought on 8 April 2004 (Fax: 6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG against the judgment delivered on 28 January 2004 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-146/02 to T-153/02 between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

5

2004/C 156/0

Case C-174/04: Action brought on 13 April 2004 by the Commission of the European Communities against the Italian Republic

5

2004/C 156/1

Case C-178/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht (Germany), by order of that court of 28 January 2004 in the case of Prof. Dr. Franz Marhold v Land Baden-Württemberg

6

2004/C 156/2

Case C-180/04: Reference for a preliminary ruling by the Tribunale di Genova (Italy) by order of that court of 15 March 2004 in the case of Andrea Vassallo against Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate

6

2004/C 156/3

Case C-184/04: Reference for a preliminary ruling by the Korkein hallinto-oikeus by order of that court of 16 April 2004 in the case of Uudenkaupungin kaupunki

6

2004/C 156/4

Case C-186/04: Reference for a preliminary ruling brought on 1 April 2004 by judgment of the administrative section of the Conseil d'Etat (Belgium) in the case of P. Housieaux against the Délégués du Conseil de la Région de Bruxelles-Capitale, supported by the Société de développement régional de Bruxelles (SDRB), SA Batipont Immobilier (BPI) and SA Immomills L. de Waele Development (ILDWD)

7

2004/C 156/5

Case C-190/04 P: Appeal brought on 23 April 2004 by Graham French, John Neiger and Michael Leighton against the order made on 20 February 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-319/03 between Graham French, John Steven Neiger, Michael Leighton, John Frederick Richard Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait and the Council of the European Union and the Commission of the European Communities

7

2004/C 156/6

Case C-191/04: Action brought on 26 April 2004 against the French Republic by the Commission of the European Communities

8

2004/C 156/7

Case C-192/04: Reference for a preliminary ruling by the Cour de cassation (France), 1ère chambre civile, by order of that court of 17 February 2004, in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT)

8

2004/C 156/8

Case C-193/04: Reference for a preliminary ruling by the Supremo Tribunal Administrativo (Portugal) Second Chamber, by order of that court of 17 March 2004 in the case of Fazenda Pública e Organon Portuguesa – Produtos Químicos e Farmacêuticos, Lda

9

| | III   Notices |
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| 2004/C 156/9 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 146, 29.5.2004 | 10 |

III   Notices

2004/C 156/9

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 146, 29.5.2004

Official Journal of the European Union

10

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 12.6.2004 | EN | Official Journal of the European Union | C 156/1 |
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12.6.2004

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Official Journal of the European Union

C 156/1

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Taking of the oath by new Members of the Court

(2004/C 156/01)

Following their appointment as Judges of the Court of Justice of the European Communities by decision of the Governments of the Member States of the European Communities of 1 May 2004, (1)

| — | Mr Kūris, Mr Arestis, Mr Borg-Barthet, Mr Malenovský and Mr Levits
  (for the period from 1 May 2004 to 6 October 2006) and |
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—

Mr Kūris, Mr Arestis, Mr Borg-Barthet, Mr Malenovský and Mr Levits

(for the period from 1 May 2004 to 6 October 2006) and

| — | Mr Makarczyk, Mr Juhász, Mr Ilešič, Mr Klučka and Mr Lõhmus,
  (for the period from 1 May 2004 to 6 October 2009) |
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—

Mr Makarczyk, Mr Juhász, Mr Ilešič, Mr Klučka and Mr Lõhmus,

(for the period from 1 May 2004 to 6 October 2009)

took the oath before the Court on 11 May 2004.

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(1)  OJ L 169 of 1.5.2004, p. 22.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/1 |
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Election of Presidents of Chambers

(2004/C 156/02)

At their meeting on 13 May 2004, the Judges of the Court of Justice elected, in accordance with the first subparagraph of Article 10(1) of the Rules of Procedure, Mr Rosas as President of the Third Chamber of five judges, for a period expiring on 6 October 2006, and, in accordance with the second subparagraph of Article 10(1) of the Rules of Procedure, elected Mr Puissochet as President of the new Sixth Chamber, for a period expiring on 6 October 2004.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/1 |
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12.6.2004

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Official Journal of the European Union

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Assignment of Judges to Chambers

(2004/C 156/03)

At its meeting on 13 May 2004, the Court decided to assign the Judges to Chambers as follows:

First Chamber

Mr Jann, President of the Chamber

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

Second Chamber

Mr Timmermans, President of the Chamber

Mr Gulmann, Mr Schintgen, Ms Silva de Lapuerta, Mr Makarczyk, Mr Kūris, Mr Arestis and Mr Klučka, Judges.

Third Chamber

Mr Rosas, President of the Chamber

Mr La Pergola, Mr Puissochet, Ms Macken, Mr von Bahr, Mr Borg-Barthet, Mr Malenovský and Mr Lõhmus, Judges.

Fourth Chamber

Mr Cunha Rodrigues, President of the Chamber

Ms Colneric, Mr Lenaerts, Mr Schiemann, Mr Juhász, Mr Ilešič and Mr Levits, Judges.

Fifth Chamber

Mr Gulmann, President of the Chamber

Mr Schintgen, Ms Silva de Lapuerta, Mr Makarczyk, Mr Kūris, Mr Arestis and Mr Klučka, Judges.

Sixth Chamber

Mr Puissochet, President of the Chamber

Mr La Pergola, Ms Macken, Mr von Bahr, Mr Borg-Barthet, Mr Malenovský and Mr Lõhmus, Judges.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/2 |
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12.6.2004

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Official Journal of the European Union

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Lists to be used for determining the composition of the formations of the Court

(2004/C 156/04)

At its meeting on 14 May 2004, the Court drew up the list referred to in Article 11b(2) of the Rules of Procedure for the purpose of determining the composition of the Grand Chamber, as follows:

| | Mr Gulmann |
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Mr Gulmann

| | Mr Levits |
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Mr Levits

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

Mr La Pergola

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

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

Mr Puissochet

| | Mr Klučka |
| --- | --- |

Mr Klučka

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

Mr Schintgen

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Ms Macken |
| --- | --- |

Ms Macken

| | Mr Ilešič |
| --- | --- |

Mr Ilešič

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

Ms Colneric

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

Mr Borg-Barthet

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

Mr von Bahr

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

Mr Arestis

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

Mr Cunha Rodrigues

| | Mr Juhász |
| --- | --- |

Mr Juhász

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

Ms Silva de Lapuerta

| | Mr Kūris |
| --- | --- |

Mr Kūris

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

Mr Lenaerts

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

Mr Makarczyk

| | Mr Schiemann |
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Mr Schiemann

At its meeting on 14 May 2004, the Court drew up the lists referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure for the purpose of determining the composition of the Chambers of five Judges, as follows:

For the First Chamber:

Ms Colneric

Mr Levits

Mr Cunha Rodrigues

Mr Ilešič

Mr Lenaerts

Mr Juhász

Mr Schiemann

For the Second Chamber:

Mr Gulmann

Mr Klučka

Mr Schintgen

Mr Arestis

Ms Silva de Lapuerta

Mr Kūris

Mr Makarczyk

For the Third Chamber:

Mr La Pergola

Mr Lõhmus

Mr Puissochet

Mr Malenovský

Ms Macken

Mr Borg-Barthet

Mr von Bahr

At its meeting on 14 May 2004, the Court drew up the lists referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for the purpose of determining the composition of the Chambers of three Judges, as follows:

For the Fourth Chamber:

Ms Colneric

Mr Lenaerts

Mr Schiemann

Mr Juhász

Mr Ilešič

Mr Levits

For the Fifth Chamber:

Mr Schintgen

Ms Silva de Lapuerta

Mr Makarczyk

Mr Kūris

Mr Arestis

Mr Klučka

For the Sixth Chamber:

Mr La Pergola

Ms Macken

Mr von Bahr

Mr Borg-Barthet

Mr Malenovský

Mr Lõhmus

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/3 |
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12.6.2004

EN

Official Journal of the European Union

C 156/3

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Reference for a preliminary ruling by the Commission litiges voyages by order of that court of 4 December 2003 in the case of Guy Denuit and Betty Cordenier against Transorient – Mosaïque Voyages and Culture SA

(Case C-125/04)

(2004/C 156/05)

Reference has been made to the Court of Justice of the European Communities by order of the Commission litiges voyages (Belgium), of 4 December 2003, received at the Court Registry on 8 March 2004, for a preliminary ruling in the case of Guy Denuit and Betty Cordenier against Transorient – Mosaïque Voyages and Culture SA on the following question:

| 1. | Where a clause in a contract between a consumer and a [travel] organiser and/or retailer provides only for the possibility of an upward price revision and states precisely how the calculations is to be made, solely in order to take account of variations set down in an exhaustive list by Article 4(4) of Directive 90/314/EEC, must that article be interpreted as implicitly requiring downward price revision according to the same method of calculation? |
| --- | --- |

1.

Where a clause in a contract between a consumer and a [travel] organiser and/or retailer provides only for the possibility of an upward price revision and states precisely how the calculations is to be made, solely in order to take account of variations set down in an exhaustive list by Article 4(4) of Directive 90/314/EEC, must that article be interpreted as implicitly requiring downward price revision according to the same method of calculation?

| 2. | Where a clause in a contract between a consumer and an organiser and/or retailer provides for the possibility of both upward and downward price revision without stating precisely how the calculation is to be made, and solely in order to take account of variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as invalidating the entire clause or as limiting that invalidity to upward price revision? |
| --- | --- |

2.

Where a clause in a contract between a consumer and an organiser and/or retailer provides for the possibility of both upward and downward price revision without stating precisely how the calculation is to be made, and solely in order to take account of variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as invalidating the entire clause or as limiting that invalidity to upward price revision?

| 3. | Where a clause in a contract between a consumer and an organiser and/or retailer gives only the organiser and/or retailer the possibility of revising prices upwards or downwards states precisely how the calculation is to be made, solely to take account of variations set down in an exhaustive list down by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as rendering the whole clause void, or is its invalidity limited to upward price revision? |
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3.

Where a clause in a contract between a consumer and an organiser and/or retailer gives only the organiser and/or retailer the possibility of revising prices upwards or downwards states precisely how the calculation is to be made, solely to take account of variations set down in an exhaustive list down by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as rendering the whole clause void, or is its invalidity limited to upward price revision?

| 4. | Where a clause in the contract between a consumer and an organiser and/or retailer gives, both the travel organiser and/or retailer and the consumer the possibility of benefiting from upward and downward price revision, and states precisely how the calculation is to be made, solely to take account of the variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as requiring the travel organiser and/or retailer revise the price downwards if the consumer has not asked it to do so? |
| --- | --- |

4.

Where a clause in the contract between a consumer and an organiser and/or retailer gives, both the travel organiser and/or retailer and the consumer the possibility of benefiting from upward and downward price revision, and states precisely how the calculation is to be made, solely to take account of the variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as requiring the travel organiser and/or retailer revise the price downwards if the consumer has not asked it to do so?

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/3 |
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12.6.2004

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Official Journal of the European Union

C 156/3

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Action brought on 2 April 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-166/04)

(2004/C 156/06)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 2 April 2004 by the Commission of the European Communities, represented by Maria Patakia and Michel Van Beek, Legal Advisers in its Legal Service.

The Commission claims that the Court should:

| — | declare that, by failing to take all the measures necessary for laying down and implementing a cohesive, specific and integrated legal regime capable of ensuring sustainable management and effective protection of Special Protection Area GR2310001 ‘Acheloos Delta, Messolonghi/Aitolikon Lagoon and the estuary of the River Evinos and Echinades Islands’, in the light of the conservation objectives of Directive 79/409/EEC on the conservation of wild birds, (1) the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of that directive; |
| --- | --- |

—

declare that, by failing to take all the measures necessary for laying down and implementing a cohesive, specific and integrated legal regime capable of ensuring sustainable management and effective protection of Special Protection Area GR2310001 ‘Acheloos Delta, Messolonghi/Aitolikon Lagoon and the estuary of the River Evinos and Echinades Islands’, in the light of the conservation objectives of Directive 79/409/EEC on the conservation of wild birds, (1) the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In accordance with settled case-law of the Court of Justice of the European Communities, a Member State cannot plead internal circumstances or difficulties to justify its failure to comply with obligations and time-limits flowing from Community law.

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(1)  OJ L 103, 25.4.1979, p. 1.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/3 |
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12.6.2004

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Official Journal of the European Union

C 156/3

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Appeal brought on 5 April 2004 by JCB Service against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 between JCB Service and the Commission of the European Communities.

(Case C-167/04 P)

(2004/C 156/07)

An appeal against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 (1) between JCB Service and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 5 April 2004 by JCB Service, established in Rocester, Staffordshire (United Kingdom), represented by E. Morgon de Rivery, lawyer.

The Appellant claims that the Court should:

| 1. | annul in its entirety the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities in so far as it infringes EU law by violating the Appellant's rights of defence; or |
| --- | --- |

1.

annul in its entirety the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities in so far as it infringes EU law by violating the Appellant's rights of defence; or

| 2. | annul the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities, in so far as (i) it condemns an alleged general restriction on passive sales by authorised distributors in the United Kingdom, Ireland, France and Italy, and an alleged restriction on the sources of supply of distributors located in France and Italy, which prevented cross-supplies between distributors, and in so far as (ii) it imposes a fine on JCB Service for these alleged infringements; and |
| --- | --- |

2.

annul the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities, in so far as (i) it condemns an alleged general restriction on passive sales by authorised distributors in the United Kingdom, Ireland, France and Italy, and an alleged restriction on the sources of supply of distributors located in France and Italy, which prevented cross-supplies between distributors, and in so far as (ii) it imposes a fine on JCB Service for these alleged infringements; and

| 3. | itself give final judgment on case T-67/01 pursuant to Article 61 of the Statute (EC) of the Court and accordingly annul, wholly or in part, the decision of the Commission dated 21 December 2000 in case COMP.F.1/35.918 (2) and, using its full jurisdiction, annul or reduce the fine of EUR 30 million imposed on JCB Service by the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities; and |
| --- | --- |

3.

itself give final judgment on case T-67/01 pursuant to Article 61 of the Statute (EC) of the Court and accordingly annul, wholly or in part, the decision of the Commission dated 21 December 2000 in case COMP.F.1/35.918 (2) and, using its full jurisdiction, annul or reduce the fine of EUR 30 million imposed on JCB Service by the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities; and

| 4. | in all cases, order, in accordance with Article 69 of the Court's Rules of Procedure, the Commission to pay the Appellant's costs incurred both before the Court of First Instance and before this Court; |
| --- | --- |

4.

in all cases, order, in accordance with Article 69 of the Court's Rules of Procedure, the Commission to pay the Appellant's costs incurred both before the Court of First Instance and before this Court;

| 5. | alternatively to 3., in the event that the Court does not itself decide on the case, reserve the costs and remand the case to the Court of First Instance for reconsideration in accordance with the Court's judgment. |
| --- | --- |

5.

alternatively to 3., in the event that the Court does not itself decide on the case, reserve the costs and remand the case to the Court of First Instance for reconsideration in accordance with the Court's judgment.

Pleas in law and main arguments:

First plea in law

The Appellant submits that the Court of First Instance (‘CFI’) infringed Community law by refusing to address the claim that the Appellant's rights of defence had been abused. First, the Appellant contends that its rights of defence were breached due to the excessive duration of the procedure before the Commission, which lasted for 27 years (from the date of the notification to the date of the Commission Decision), preventing it from exercising its rights as a notifying party. The CFI erred in law by ignoring the consequences of such violation on the Appellant's ability to effectively defend itself. Second, the Appellant contends that its right to a presumption of innocence was also violated due to the CFI's failure to take into consideration certain exculpatory pieces of evidence, to apply the method of faisceau d'indices (bundle of indicators) in order to assess the relevant pieces of evidence, and to provide adequate and impartial reasoning.

Second plea in law

The Appeallant contends that the CFI infringed Article 81 EC by condemning the Appellant (i) for imposing a general prohibition on passive sales on its distributors in the United Kingdom, Ireland, France and Italy, and (ii) for restricting the sources of supply of its distributors in France and Italy, on the basis of an erroneous legal characterisation of the facts, distortion of evidence and erroneous application of applicable EC competition rules. This in turn engendered an application of the prohibition laid down in Article 81 EC that is clearly inconsistent with the letter and the purpose of said provision.

Third plea in law

This concerns the computation of the fine. Here, the Appellant contends that the CFI infringed Article 15 of Regulation No 17 by violating major fundamental principles applicable to the ordering of the fine, i.e., the principle of sound administration, the legitimate expectations of private parties and the principle of equal punishment, as well as by incorrectly assessing the gravity and the duration of the alleged infringements and both the attenuating and aggravating circumstances.

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(1)  OJ C 186, 30.06.2001, p. 9.

(2)  OJ L 69, 12.03.2002, p. 1.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/4 |
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12.6.2004

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Official Journal of the European Union

C 156/4

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Reference for a preliminary ruling by the Högsta Domstolen (Sweden) by order of that court of 30 March 2004 in case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against Riksåklagaren

(Case C-170/04)

(2004/C 156/08)

Reference has been made to the Court of Justice of the European Communities by order of the Högsta Domstolen (Court of Appeal for Western Sweden) of 30 March 2004 received at the Court Registry on 6 April 2004, for a preliminary ruling in the case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against Riksåklagaren the following questions concerning the interpretation of Articles 28, 30 and 31 of the EC Treaty:

| 1. | Can it be held that the above mentioned ban on imports constitutes part of the retail monopoly's manner of operation and that on that basis it is not precluded by Article 28 and is to be examined only in the light of Article 31? |
| --- | --- |

1.

Can it be held that the above mentioned ban on imports constitutes part of the retail monopoly's manner of operation and that on that basis it is not precluded by Article 28 and is to be examined only in the light of Article 31?

| 2. | If the answer to Question 1 is yes, is the ban on imports in such a case compatible with the conditions laid down for State monopolies in Article 31? |
| --- | --- |

2.

If the answer to Question 1 is yes, is the ban on imports in such a case compatible with the conditions laid down for State monopolies in Article 31?

| 3. | If the answer to Question 1 is no, is Article 28 of the EC Treaty to be interpreted as meaning that it in principle precludes the current ban on imports despite the obligation of the Systembolaget to obtain, upon request, alcoholic beverages which it does not hold in stock? |
| --- | --- |

3.

If the answer to Question 1 is no, is Article 28 of the EC Treaty to be interpreted as meaning that it in principle precludes the current ban on imports despite the obligation of the Systembolaget to obtain, upon request, alcoholic beverages which it does not hold in stock?

| 4. | If the answer to Question 3 is yes, can such a ban on imports be considered justified and proportional in order to protect health and life of humans?on the following question: |
| --- | --- |

4.

If the answer to Question 3 is yes, can such a ban on imports be considered justified and proportional in order to protect health and life of humans?on the following question:

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/5 |
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12.6.2004

EN

Official Journal of the European Union

C 156/5

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Appeal brought on 8 April 2004 (Fax: 6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG against the judgment delivered on 28 January 2004 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-146/02 to T-153/02 between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-173/04 P)

(2004/C 156/09)

An appeal against the judgment delivered on 28 January 2004 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-146/02 to T-153/02 between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of Justice of the European Communities on 8 April 2004 (Fax: 6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG, represented by its lawyer, Anja Franke, Grünecker Kinkeldey Stockmair & Schwanhäusser, Maximilianstr. 58, D-80538, Münich, and by Martin Augenanger, patent attorney, Maximilianstr. 58, D-80538, Münich.

The appellant claims that the Court should:

| 1. | set aside the judgment of the Court of First Instance of 28 January 2004 in Joined Cases T-146/02 to T-153/02; (1) |
| --- | --- |

1.

set aside the judgment of the Court of First Instance of 28 January 2004 in Joined Cases T-146/02 to T-153/02; (1)

| 2. | order OHIM to pay the costs both at first instance and on appeal. |
| --- | --- |

2.

order OHIM to pay the costs both at first instance and on appeal.

Pleas in law and main arguments

The appeal alleges that the Court of First Instance infringed Community law.

| — | The Court was mistaken as to the relevant sector and consequently the shapes of the packaging, which under Article 7(1)(b) of Regulation No 40/94 are to be taken into account as a point of comparison for the purpose of assessing the distinctive character of the trade marks for which registration is sought. The Court's assessment was not based on the shapes of packaging available on the market for the products specifically applied for (‘fruit drinks and fruit juices’) but on the market for ‘liquids for human consumption’ in general. No consideration was given to the question of the extent to which the marks applied for are different from the usual packaging for drinks. The Court's examination was conducted solely by reference to an assumed basic shape of the marks applied for and to the possible future use of stand-up pouches for ‘fruit drinks and fruit juices’. |
| --- | --- |

—

The Court was mistaken as to the relevant sector and consequently the shapes of the packaging, which under Article 7(1)(b) of Regulation No 40/94 are to be taken into account as a point of comparison for the purpose of assessing the distinctive character of the trade marks for which registration is sought. The Court's assessment was not based on the shapes of packaging available on the market for the products specifically applied for (‘fruit drinks and fruit juices’) but on the market for ‘liquids for human consumption’ in general. No consideration was given to the question of the extent to which the marks applied for are different from the usual packaging for drinks. The Court's examination was conducted solely by reference to an assumed basic shape of the marks applied for and to the possible future use of stand-up pouches for ‘fruit drinks and fruit juices’.

| — | By applying that test, the Court of First Instance imposed requirements in relation to the shape of the marks applied for, which were too stringent in view of the low degree of distinctiveness required. |
| --- | --- |

—

By applying that test, the Court of First Instance imposed requirements in relation to the shape of the marks applied for, which were too stringent in view of the low degree of distinctiveness required.

| — | In its consideration of the general interest for the purposes of Article 7(1)(b) of Regulation No 40/94, the Court focused solely on the general interest of potential competitors and thereby failed to take account of the actual situation, namely that the appellant has been using stand-up pouches for decades without being imitated. The general interest of consumers was not taken into account at all. |
| --- | --- |

—

In its consideration of the general interest for the purposes of Article 7(1)(b) of Regulation No 40/94, the Court focused solely on the general interest of potential competitors and thereby failed to take account of the actual situation, namely that the appellant has been using stand-up pouches for decades without being imitated. The general interest of consumers was not taken into account at all.

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(1)  Not yet published in the Official Journal of the European Communities.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/5 |
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12.6.2004

EN

Official Journal of the European Union

C 156/5

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Action brought on 13 April 2004 by the Commission of the European Communities against the Italian Republic

(Case C-174/04)

(2004/C 156/10)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 13 April 2004 by the Commission of the European Communities, represented by Enrico Traversa and Claudio Loggi, acting as Agents.

The applicant claims that the Court should:

| — | Declare that Decree-Law No 192 of 25 May 2001, converted to Law No 301 of 20 July 2001, entitled ‘Urgent provisions to ensure the liberalisation and privatisation of particular public service sectors’ is incompatible with Article 56 of the EC Treaty in so far as it automatically suspends the voting rights attached to shareholdings exceeding 2 % of the share capital of companies in the electricity and gas sectors; |
| --- | --- |

—

Declare that Decree-Law No 192 of 25 May 2001, converted to Law No 301 of 20 July 2001, entitled ‘Urgent provisions to ensure the liberalisation and privatisation of particular public service sectors’ is incompatible with Article 56 of the EC Treaty in so far as it automatically suspends the voting rights attached to shareholdings exceeding 2 % of the share capital of companies in the electricity and gas sectors;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

Decree-Law 192/2001 conflicts with Article 56 of the EC Treaty because it automatically suspends the voting rights attached to shareholdings exceeding 2 % of the share capital of companies in the electricity and gas sectors. That threshold engenders a separate and restrictive treatment of investments on the part of a particular category of investors and therefore obstructs the free movement of capital within the European Community. In particular, that restriction is a disincentive to any public undertakings which might wish to acquire shares in the companies in question since such undertakings will be unable to take any active role in the decision-making of the company and exercise any influence over its management.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/6 |
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12.6.2004

EN

Official Journal of the European Union

C 156/6

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Reference for a preliminary ruling by the Bundesverwaltungsgericht (Germany), by order of that court of 28 January 2004 in the case of Prof. Dr. Franz Marhold v Land Baden-Württemberg

(Case C-178/04)

(2004/C 156/11)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesverwaltungsgericht (Federal Administrative Court) (Germany), received at the Court Registry on 15 April 2004, for a preliminary ruling in the case of Prof Dr Franz Marhold against Land Baden-Württemberg on the following question:

In the case of an EU national who, as a professor at a German university, had civil servant status in a German Land and on that account was in receipt of a special allowance under the Gesetz über die Gewährung einer jährlichen Sonderzuwendung (Law on the grant of an annual special allowance, ‘SZuwG’) but before 31 March of the following year accepted an appointment with a university in another Member State and entered into a public law employment relationship with that other Member State, is Paragraph 3(5)(1) of the SZuwG, under which a person leaving before 31 March may retain the allowance only if the new employment relationship is an employment relationship under German law, inapplicable?

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/6 |
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12.6.2004

EN

Official Journal of the European Union

C 156/6

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Reference for a preliminary ruling by the Tribunale di Genova (Italy) by order of that court of 15 March 2004 in the case of Andrea Vassallo against Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate

(Case C-180/04)

(2004/C 156/12)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Genova (Italy) of 15 March 2004, received at the Court Registry on 16 April 2004, for a preliminary ruling in the case of Andrea Vassallo against Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate on the following questions:

| 1. | In view of the principles of non-discrimination and effectiveness, having regard in particular to the measures taken by Italy in relation to employment relationships with non-public-sector employers, must Council Directive 1999/70/EC of 28 June 1999 (Article 1, and Clauses 1(b) and 5 of the ETUC-UNICE-CEEP framework agreement on fixed-term work set out in the directive) be interpreted as meaning that it precludes national provisions such as those in Article 36 of Legislative Decree No 165 of 30 March 2001 which do not determine ‘under what conditions fixed-term employment contracts or relationships shall be deemed to be contracts or relationships of indefinite duration’, and in fact contain an absolute prohibition from the outset on the establishment of employment relationships of indefinite duration resulting from abuse relating to the use of fixed-term contracts and relationships? |
| --- | --- |

1.

In view of the principles of non-discrimination and effectiveness, having regard in particular to the measures taken by Italy in relation to employment relationships with non-public-sector employers, must Council Directive 1999/70/EC of 28 June 1999 (Article 1, and Clauses 1(b) and 5 of the ETUC-UNICE-CEEP framework agreement on fixed-term work set out in the directive) be interpreted as meaning that it precludes national provisions such as those in Article 36 of Legislative Decree No 165 of 30 March 2001 which do not determine ‘under what conditions fixed-term employment contracts or relationships shall be deemed to be contracts or relationships of indefinite duration’, and in fact contain an absolute prohibition from the outset on the establishment of employment relationships of indefinite duration resulting from abuse relating to the use of fixed-term contracts and relationships?

| 2. | If the answer to the first question is in the affirmative, in view of the expiry of the time-limit for its implementation, must Council Directive 1999/70/EC of 28 June 1999 (and in particular Clause 5 of the Annex thereto) and the applicable principles of Community law be considered, also in the light of Legislative Decree No 368/2001 and particularly Article 5 thereof, which provides as a usual consequence of abuse of fixed-term contracts or relationships for conversion to a relationship of indefinite duration, to confer on individuals an actual right, which may be exercised immediately, in accordance with the national law most relevant to the present case (Legislative Decree No 368/2001) to recognition of the existence of an employment relationship of indefinite duration? |
| --- | --- |

2.

If the answer to the first question is in the affirmative, in view of the expiry of the time-limit for its implementation, must Council Directive 1999/70/EC of 28 June 1999 (and in particular Clause 5 of the Annex thereto) and the applicable principles of Community law be considered, also in the light of Legislative Decree No 368/2001 and particularly Article 5 thereof, which provides as a usual consequence of abuse of fixed-term contracts or relationships for conversion to a relationship of indefinite duration, to confer on individuals an actual right, which may be exercised immediately, in accordance with the national law most relevant to the present case (Legislative Decree No 368/2001) to recognition of the existence of an employment relationship of indefinite duration?

| 3. | If the answer to the first question is in the affirmative and the second question in the negative, in view of the expiry of the time-limit for its implementation, must Council Directive 1999/70/EC of 28 June 1999 (and in particular Clause 5 of the Annex thereto) and the applicable principles of Community law be considered to confer on individuals a right to reparation for any loss or damage caused by the failure of the Italian Republic to adopt appropriate measures to prevent abuse relating to the use of fixed-term contracts and/or relationships with employers in the public sector? |
| --- | --- |

3.

If the answer to the first question is in the affirmative and the second question in the negative, in view of the expiry of the time-limit for its implementation, must Council Directive 1999/70/EC of 28 June 1999 (and in particular Clause 5 of the Annex thereto) and the applicable principles of Community law be considered to confer on individuals a right to reparation for any loss or damage caused by the failure of the Italian Republic to adopt appropriate measures to prevent abuse relating to the use of fixed-term contracts and/or relationships with employers in the public sector?

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/6 |
| --- | --- | --- | --- |

12.6.2004

EN

Official Journal of the European Union

C 156/6

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Reference for a preliminary ruling by the Korkein hallinto-oikeus by order of that court of 16 April 2004 in the case of Uudenkaupungin kaupunki

(Case C-184/04)

(2004/C 156/13)

Reference has been made to the Court of Justice of the European Communities by order of the Korkein hallinto-oikeus (Supreme Administrative Court) of 16 April 2004, received at the Court Registry on 19 April 2004, for a preliminary ruling in the case of Uudenkaupungin kaupunki on the following questions:

| 1. | Is Article 20 of Directive 77/388/EEC (1) to be interpreted as meaning that the adjustment of deductions in accordance with that article is mandatory for Member States in the case of capital goods unless it follows otherwise from Article 20(5)? |
| --- | --- |

1.

Is Article 20 of Directive 77/388/EEC (1) to be interpreted as meaning that the adjustment of deductions in accordance with that article is mandatory for Member States in the case of capital goods unless it follows otherwise from Article 20(5)?

| 2. | Is Article 20 of the Directive to be interpreted as meaning that the adjustment of deductions in accordance with that article is applicable even where the capital goods, in this case real property, were first used in non-taxable activity, in which case an initial deduction could not have been made at all, and only later in taxable activity during the adjustment period ? |
| --- | --- |

2.

Is Article 20 of the Directive to be interpreted as meaning that the adjustment of deductions in accordance with that article is applicable even where the capital goods, in this case real property, were first used in non-taxable activity, in which case an initial deduction could not have been made at all, and only later in taxable activity during the adjustment period ?

| 3. | May the second subparagraph of Article 13(C) of the Directive be interpreted as meaning that a Member State may restrict the right to deduct for acquisitions relating to real property investments in the manner laid down in the Finnish Arvonlisäverolaki, where the right to deduct is excluded altogether in situations such as the present one ? |
| --- | --- |

3.

May the second subparagraph of Article 13(C) of the Directive be interpreted as meaning that a Member State may restrict the right to deduct for acquisitions relating to real property investments in the manner laid down in the Finnish Arvonlisäverolaki, where the right to deduct is excluded altogether in situations such as the present one ?

| 4. | May the second subparagraph of Article 17(6) of the Directive be interpreted as meaning that a Member State may restrict the right to deduct for acquisitions relating to real property investments in the manner laid down in the Finnish Arvonlisäverolaki, where the right to deduct is excluded altogether in situations such as the present one ? |
| --- | --- |

4.

May the second subparagraph of Article 17(6) of the Directive be interpreted as meaning that a Member State may restrict the right to deduct for acquisitions relating to real property investments in the manner laid down in the Finnish Arvonlisäverolaki, where the right to deduct is excluded altogether in situations such as the present one ?

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(1)  Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145 of 13.6.77, p. 1).

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/7 |
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12.6.2004

EN

Official Journal of the European Union

C 156/7

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Reference for a preliminary ruling brought on 1 April 2004 by judgment of the administrative section of the Conseil d'Etat (Belgium) in the case of P. Housieaux against the Délégués du Conseil de la Région de Bruxelles-Capitale, supported by the Société de développement régional de Bruxelles (SDRB), SA Batipont Immobilier (BPI) and SA Immomills L. de Waele Development (ILDWD)

(Case C-186/04)

(2004/C 156/14)

A reference for a preliminary ruling was brought before the Court of Justice of the European Communities on 1 April 2004 by judgment of the administrative section of the Conseil d'Etat in the case of P. Housieaux against the Délégués du Conseil de la Région de Bruxelles-Capitale, supported by the Société de développement régional de Bruxelles (SDRB), SA Batipont Immobilier (BPI) and SA Immomills L. de Waele Development (ILDWD).

The administrative section of the Conseil d'Etat asks the Court to rule on the following questions:

| 1. | Is the two-month period in Article 3(4) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (1) a non-mandatory time-limit – that is to say, merely indicatory for the authority to which a request for information is addressed, or is it a mandatory time-limit with which that authority must comply ? |
| --- | --- |

1.

Is the two-month period in Article 3(4) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (1) a non-mandatory time-limit – that is to say, merely indicatory for the authority to which a request for information is addressed, or is it a mandatory time-limit with which that authority must comply ?

| 2. | If the two-month time-limit is mandatory and at the expiry of that period the authority to which a request for information was addressed has not taken a decision, what is the ‘decision’ referred to at the end of Article 4 of the Directive against which a judicial or administrative review may be sought ‘in accordance with the relevant national legal system’ ? |
| --- | --- |

2.

If the two-month time-limit is mandatory and at the expiry of that period the authority to which a request for information was addressed has not taken a decision, what is the ‘decision’ referred to at the end of Article 4 of the Directive against which a judicial or administrative review may be sought ‘in accordance with the relevant national legal system’ ?

| 3. | Do Articles 3(4) and 4 of the Directive prohibit a ‘relevant national legal system’ from interpreting a failure to respond on the part of the authority to which a request for information is referred – a failure to respond which continues throughout the two-month period referred to in Article 3(4) of the Directive – as a decision implicitly refusing that request, a decision for which no reasons are thus given but which may be the subject matter of the judicial or administrative review provided for in Article 4 ? |
| --- | --- |

3.

Do Articles 3(4) and 4 of the Directive prohibit a ‘relevant national legal system’ from interpreting a failure to respond on the part of the authority to which a request for information is referred – a failure to respond which continues throughout the two-month period referred to in Article 3(4) of the Directive – as a decision implicitly refusing that request, a decision for which no reasons are thus given but which may be the subject matter of the judicial or administrative review provided for in Article 4 ?

| 4. | If the two-month period referred to in Article 3(4) of the Directive is a non-mandatory time-limit, do Articles 3(4) and 4 of the Directive preclude a ‘national legal system’ from providing that the person requesting information may give the authority notice to respond to his request for information within a certain period, failing which the persistent failure by the authority to respond will be deemed to be an implicit decision to refuse to communicate the information, which can then be the subject matter of an administrative judicial review ? |
| --- | --- |

4.

If the two-month period referred to in Article 3(4) of the Directive is a non-mandatory time-limit, do Articles 3(4) and 4 of the Directive preclude a ‘national legal system’ from providing that the person requesting information may give the authority notice to respond to his request for information within a certain period, failing which the persistent failure by the authority to respond will be deemed to be an implicit decision to refuse to communicate the information, which can then be the subject matter of an administrative judicial review ?

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(1)  OJ L 158 of 23.06.1990, p. 56.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/7 |
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12.6.2004

EN

Official Journal of the European Union

C 156/7

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Appeal brought on 23 April 2004 by Graham French, John Neiger and Michael Leighton against the order made on 20 February 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-319/03 between Graham French, John Steven Neiger, Michael Leighton, John Frederick Richard Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait and the Council of the European Union and the Commission of the European Communities

(Case C-190/04 P)

(2004/C 156/15)

An appeal against the order made on 20 February 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-319/03 between Graham French, John Steven Neiger, Michael Leighton, John Frederick Richard Pascoe, Richard Micklethwait, Ruth Margaret Micklethwait and the Council of the European Union and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 23 April 2004 by Graham French, John Neiger and Michael Leighton, represented by J.S. Barnett, Solicitor-Advocate.

The Appellants claim that the Court should:

| 1) | set aside the order; |
| --- | --- |

1)

set aside the order;

| 2) | grant the relief sought by the Appellants in the form of the draft order annexed to the Application; alternatively |
| --- | --- |

2)

grant the relief sought by the Appellants in the form of the draft order annexed to the Application; alternatively

| 3) | remit the case to the Court of First Instance; and in any event |
| --- | --- |

3)

remit the case to the Court of First Instance; and in any event

| 4) | order the Defendants to pay the Appellants' costs. |
| --- | --- |

4)

order the Defendants to pay the Appellants' costs.

Pleas in law and main arguments:

The Appellants contend that the Court of First Instance erred in law when it found that, as regards the Defendants' allegedly unlawful conduct, they (the Applicants) did not specify the primary rule of law which the Defendants are alleged to have broken or infringed. The Appellants submit that the Defendants' failure was set out clearly in their application.

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/8 |
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12.6.2004

EN

Official Journal of the European Union

C 156/8

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Action brought on 26 April 2004 against the French Republic by the Commission of the European Communities

(Case C-191/04)

(2004/C 156/16)

An action was brought before the Court of Justice of the European Communities on 26 April 2004 by the Commission of the European Communities, represented by A. Bordes and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg, against the French Republic.

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

| 1. | Declare that, by not providing the information to be collected by 31 December 1999 by the competent authorities or the appropriate bodies as part of the monitoring of waste discharges and sludges introduced by Article 15 of Council Directive 91/271/EEC (1), with respect to the agglomerations concerned by the 31 December 1998 time-limit, within six months of the Commission's request of 18 December 2000, the French Republic has failed to fulfil its obligations under Article 15(4) of that directive. |
| --- | --- |

1.

Declare that, by not providing the information to be collected by 31 December 1999 by the competent authorities or the appropriate bodies as part of the monitoring of waste discharges and sludges introduced by Article 15 of Council Directive 91/271/EEC (1), with respect to the agglomerations concerned by the 31 December 1998 time-limit, within six months of the Commission's request of 18 December 2000, the French Republic has failed to fulfil its obligations under Article 15(4) of that directive.

| 2. | Order the French Republic to pay the costs. |
| --- | --- |

2.

Order the French Republic to pay the costs.

Pleas in law and principal arguments:

The French Republic has failed to fulfil its obligation to provide the Commission with the information pertaining to the monitoring situation as at 31 December 1999 for the water of the agglomerations concerned by an initial time-limit laid down in the directive, namely the agglomerations having an ‘EH’ (habitat equivalent) higher than 10 000 units which discharge their water into recipient waters considered to be sensitive areas.

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(1)  Council Directive 91/271/EEC of 21.05.1991 concerning urban waste water treatment (OJ 1991 L 135 of 30.05.1991, p. 40)

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/8 |
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12.6.2004

EN

Official Journal of the European Union

C 156/8

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Reference for a preliminary ruling by the Cour de cassation (France), 1ère chambre civile, by order of that court of 17 February 2004, in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT)

(Case C-192/04)

(2004/C 156/17)

Reference has been made to the Court of Justice of the European Communities by order of the Cour de cassation (France), 1ère chambre civile, of 17 February 2004, received at the Court Registry on 26 April 2004, for a preliminary ruling in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT), on the following questions:

| 1. | Where a broadcasting company transmitting from the territory of one Member State uses, in order to extend the transmission of its programmes to a part of its national audience, a transmitter situated nearby on the territory of another Member State, of which its majority-held subsidiary is the licence holder, does the legislation of the latter State govern the single equitable fee which is required by Article 8(2) of Directive 92/100/EEC of 19 November 1992 (1) and Article 4 of Directive 93/83 of 27 September 1993 (2) and payable in respect of the phonograms published for commercial purposes included in the programmes retransmitted? |
| --- | --- |

1.

Where a broadcasting company transmitting from the territory of one Member State uses, in order to extend the transmission of its programmes to a part of its national audience, a transmitter situated nearby on the territory of another Member State, of which its majority-held subsidiary is the licence holder, does the legislation of the latter State govern the single equitable fee which is required by Article 8(2) of Directive 92/100/EEC of 19 November 1992 (1) and Article 4 of Directive 93/83 of 27 September 1993 (2) and payable in respect of the phonograms published for commercial purposes included in the programmes retransmitted?

| 2. | If so, is the original broadcasting company entitled to deduct the sums paid by its subsidiary from the fee claimed from it in respect of all the transmissions received on the national territory? |
| --- | --- |

2.

If so, is the original broadcasting company entitled to deduct the sums paid by its subsidiary from the fee claimed from it in respect of all the transmissions received on the national territory?

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(1)  Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights relating to copyright in the field of intellectual property (OJ 1992 L 346, p. 61).

(2)  Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).

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| 12.6.2004 | EN | Official Journal of the European Union | C 156/9 |
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12.6.2004

EN

Official Journal of the European Union

C 156/9

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Reference for a preliminary ruling by the Supremo Tribunal Administrativo (Portugal) Second Chamber, by order of that court of 17 March 2004 in the case of Fazenda Pública e Organon Portuguesa – Produtos Químicos e Farmacêuticos, Lda

(Case C-193/04)

(2004/C 156/18)

Reference has been made to the Court of Justice of the European Communities by order of the Supremo Tribunal Administrativo (Supreme Administrative Tribunal) (Portugal) received at the Court Registry on 26 April 2004, for a preliminary ruling in the case of Fazenda Pública e Organon Portuguesa – Produtos Químicos e Farmacêuticos, Lda on the following questions:

| — | Are the fees charged in respect of the drawing-up of a notarial document attesting to the sale of company shares covered by Article 4(3) of Council Directive 69/335/EEC ? (1) |
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Are the fees charged in respect of the drawing-up of a notarial document attesting to the sale of company shares covered by Article 4(3) of Council Directive 69/335/EEC ? (1)

| — | Is Article 5(1), in conjunction with Article 3(c) of the table of notarial charges, approved by Order No 996/98 of 25 November 1998, in the version in force at the material time, compatible with Article 10(c) and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969 inasmuch as it provides for fees in an unlimited amount for documents drawn up in respect of the sale of shares, which are fixed exclusively by reference to the value of the shares being sold, without being subject to any limit whatever and irrespective of the value of the service provided ? |
| --- | --- |

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Is Article 5(1), in conjunction with Article 3(c) of the table of notarial charges, approved by Order No 996/98 of 25 November 1998, in the version in force at the material time, compatible with Article 10(c) and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969 inasmuch as it provides for fees in an unlimited amount for documents drawn up in respect of the sale of shares, which are fixed exclusively by reference to the value of the shares being sold, without being subject to any limit whatever and irrespective of the value of the service provided ?

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

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III Notices

| 12.6.2004 | EN | Official Journal of the European Union | C 156/10 |
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12.6.2004

EN

Official Journal of the European Union

C 156/10

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(2004/C 156/19)

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

OJ C 146, 29.5.2004

Past publications

OJ C 106, 30.4.2004

OJ C 94, 17.4.2004

OJ C 85, 3.4.2004

OJ C 71, 20.3.2004

OJ C 59, 6.3.2004

OJ C 47, 21.2.2004

These texts are available on:

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

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

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