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I Information

Court of Justice

COURT OF JUSTICE

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Reference for a preliminary ruling by the Landesgericht Innsbruck by order of that court of 26 May 2004 in the case of Rosmarie Kapferer against Schlank & Schick GmbH

(Case C-234/04)

(2004/C 251/01)

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht Innsbruck (Regional Court Innsbruck) (Austria) of 26 May 2004 received at the Court Registry on 3 June 2004, for a preliminary ruling in the case of Rosmarie Kapferer against Schlank & Schick GmbH on the following questions:

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(1)  OJ L 12, 2001, p. 1.

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Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II)

(Case C-245/04)

(2004/C 251/02)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria), of 26 May 2004, received at the Court Registry on 10 June 2004, for a preliminary ruling in the case of EMAG Handel Eder OHG against Finanzlandesdirektion für Kärnten (Berufungssenat II) (Second Appeal Chamber of the Carinthia Regional Tax Authority) for a preliminary ruling on the following questions:

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(1)  OJ 1977 L 145, p. 1.

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Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 26 May 2004 in the case Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol

(Case C-246/04)

(2004/C 251/03)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria), of 26 May 2004, which was received at the Court Registry on 10 June 2004, for a preliminary ruling in the case of Turn- und Sportunion Waldburg against Finanzlandesdirektion für Tirol.

The Verwaltungsgerichtshof asks the Court of Justice to give a preliminary ruling on the following questions:

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(1)  OJ L 145, p. 1.

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Reference for a preliminary ruling by the Unabhängiger Finanzsenat by order of that court of 28 June 2004 in the case of AB against Finanzamt für den 6., 7. und 15. Bezirk

(Case C-288/04)

(2004/C 251/04)

Reference has been made to the Court of Justice of the European Communities by order of the Unabhängiger Finanzsenat (Independent Tax Chamber) (Austria), of 28 June 2004, which was received at the Court Registry on 6 July 2004, for a preliminary ruling in the case of AB against Finanzamt für den 6., 7. und 15. Bezirk.

The Unabhängiger Finanzsenat asks the Court of Justice to give a preliminary ruling on the following question:

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Vincenzo Manfredi against Lloyd Italico Assicurazioni

(Case C-295/04)

(2004/C 251/05)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Vincenzo Manfredi against Lloyd Italico Assicurazioni on the following questions:

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Antonio Cannito against Fondiaria SAI SpA

(Case C-296/04)

(2004/C 251/06)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Antonio Cannito against Fondiaria SAI SpA on the following questions:

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Nicolò Tricarico against Assitalia Assicurazioni SpA

(Case C-297/04)

(2004/C 251/07)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Nicolò Tricarico against Assitalia Assicurazioni SpA on the following questions:

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Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA

(Case C-298/04)

(2004/C 251/08)

Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Bitonto (Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at the Court Registry on 13 July 2004, for a preliminary ruling in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA on the following questions:

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Reference for a preliminary ruling by the Szombathelyi Városi Bíróság by order of that court of 10 June 2004 in the case Ynos Kft. against János Varga

(Case C-302/04)

(2004/C 251/09)

Reference has been made to the Court of Justice of the European Communities by order of the Szombathelyi Városi Bíróság (Szombathely City Court, Hungary), of 10 June 2004, which was received at the Court Registry on 19 July 2004, for a preliminary ruling in the case of Ynos Kft. against János Varga.

The Szombathelyi Városi Bíróság asks the Court of Justice to give a preliminary ruling on the following questions:

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(1)  OJ L 95, p. 29.

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Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Pordenone — Second Chamber — by order of that court of 14 July 2004 in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone

(Case C-336/04)

(2004/C 251/10)

Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Provinciale di Pordenone (Provincial Tax Commission of Pordenone) (Italy) of 14 July 2004, received at the Court Registry on 2 August 2004, for a preliminary ruling in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone on the following questions:

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(1)  On the tax measures for banks and banking foundations implemented by Italy.

(2)  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 of 27.03.1999, p. 1.

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Reference for a preliminary ruling by the Consiglio di Stato sitting in judicial capacity (Sixth Chamber) by order of that court of 24 February 2004, in the case of Nuova Società di Telecomunicazioni SpA against Ministero delle Comunicazioni (Ministry of Communications)

(Case C-339/04)

(2004/C 251/11)

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato sitting in judicial capacity (Sixth Chamber) (Italy) of 24 February 2004, received at the Court Registry on 9 August 2004, for a preliminary ruling in the case of Nuova Società di Telecomunicazioni SpA against Ministero delle Comunicazioni (Ministry of Communications) and ENI SpA on the following questions:

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(1)  OJ L 117, p. 15.

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Lombardia (Sezione Terza) by order of 27 May 2004 in the case Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.)

(Case C-340/04)

(2004/C 251/12)

Reference has been made to the Court of Justice of the European Communities by order of 27 May 2004 of the Tribunale Amministrativo Regionale della Lombardia, which was received at the Court Registry on 9 August 2004, for a preliminary ruling in the case of Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.) on the following questions:

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(1)  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts.

(2)  OJ 1993, L 199 of 9.8.1993, p. 1.

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Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that court dated 27 July 2004, in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders

(Case C-341/04)

(2004/C 251/13)

Reference has been made to the Court of Justice of the European Communities by order of the Supreme Court, Ireland, dated 27 July 2004, which was received at the Court Registry on 9 August 2004, for a preliminary ruling in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders on the following questions:

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(1)  Of 29 May 2000 on insolvency proceedings (OJ L 160, 30.6.2000, p. 1).

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Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 21 July 2004 in the case of Land Oberösterreich against ČEZ a.s.

(Case C-343/04)

(2004/C 251/14)

Reference has been made to the Court of Justice of the European Communities by order of the Oberste Gerichtshof of 21 July 2004 received at the Court Registry on 10 August 2004, for a preliminary ruling in the case of Land Oberösterreich against ČEZ a.s. on the following question:

Is the term ‘proceedings which have as their object rights in rem in immovable property’ in Article 16(1)(a) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (‘the Brussels Convention’) to be interpreted as including a (preventive) action for an injunction, pursuant to Paragraph 364(2) of the Allgemeines bürgerliches Gesetzbuch (‘the ABGB’) (the General Civil Code), prohibiting emissions from a property located in a neighbouring State — which is not a Member State of the European Union — affecting land owned by the claimant (in this case, ionising radiation emitted from a nuclear plant in the Czech Republic)?

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Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 14 July 2004, in the case of The Queen on the application of International Air Transport Association against Department for Transport and in the case of The Queen on the application of European Low Fares Airline Association and Hapag-Lloyd Express GmbH against Department for Transport

(Case C-344/04)

(2004/C 251/15)

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), dated 14 July 2004, which was received at the Court Registry on 12 August 2004 for a preliminary ruling in the case of The Queen on the application of International Air Transport Association against Department for Transport and in the case of The Queen on the application of European Low Fares Airline Association and Hapag-Lloyd Express GmbH against Department for Transport on the following questions:

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(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Text with EEA relevance) — Common Statement (OJ L 46, 17.2.2004, p. 1).

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Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt

(Case C-346/04)

(2004/C 251/16)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Germany) of 26 May 2004, received at the Court Registry on 12 August 2004, for a preliminary ruling in the case of Robert Hans Conijn against Finanzamt Hamburg-Mitte-Altstadt on the following question:

Is a situation whereby a national of another Member State with restricted tax liability in Germany, unlike a person with unrestricted tax liability, may not deduct from his total income as special expenditure the costs incurred by him in obtaining tax advice contrary to Article 52 of the Treaty establishing the European Community?

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Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

(Case C-354/04 P)

(2004/C 251/17)

An appeal against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom, was brought before the Court of Justice of the European Communities on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti, represented by D. Rouget, avocat.

The appellant claims that the Court should:

Pleas and main arguments

The Community Courts have jurisdiction to hear the actions for damages in respect of the loss caused by the inclusion of the applicant association on the list of persons, groups or entities drawn up under the legislation on the fight against terrorism.

The legal basis for that jurisdiction is found in the present case in the Council Declaration of 18 December 2001, the eighth recital to Council Decision 2003/48/JHA (1) and Article 6 EU viewed together. In essence, at the time of adoption of Common Position 2001/931/CFSP, (2) the Council declared on 18 December 2001 that ‘any error as to persons, groups or entities named gives the injured party the right to seek legal compensation’. Furthermore, the right to an effective remedy against injurious acts of the institutions is one of the foundations of the European Union and the provisions which enshrine that right are therefore to be interpreted widely in order to fulfil the requirements arising out of Articles 1, 6(1) and 13 of the ECHR which must be applicable in the present case.

With regard to the existence of a loss, the inclusion of the applicant association in the disputed list causes particularly serious harm to its reputation and to its freedom of expression in that it implies that the association is accused of being a terrorist organisation. In the same way, its inclusion in the list harms the reputation, the freedom of expression, the freedom of association and the private lives of the other two applicants, who are spokesmen for the association. With regard to the causal link between the Council's behaviour and the loss suffered, the repercussions on their reputation are an inescapable and immediate consequence of the inclusion in the list.

Finally, the Council has fraudulently exploited the division into three pillars of European Union activities. In its choice of legal basis, the Council was guided by considerations of expediency such as the wish to avoid the scrutiny of the Parliament, the Ombudsman and the Court of Justice and therefore to deprive the persons concerned of the right to an effective remedy and in particular of the right to an action seeking compensation for the harm suffered. That behaviour constitutes an abuse of process.

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(1)  Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP (OJ L 16, 22.1.2003, p. 68).

(2)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93).

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Appeal brought on 17 August 2004 by SEGI, A. Zubimendi Izaga, A. Galarraga against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-338/02 between SEGI, A. Zubimendi Izaga, A. Galarraga and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

(Case C-355/04 P)

(2004/C 251/18)

An appeal against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-338/02 between SEGI, A. Zubimendi Izaga, A. Galarraga and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom, was brought before the Court of Justice of the European Communities on 17 August 2004 by SEGI, A. Zubimendi Izaga, A. Galarraga.

The appellant claims that the Court should:

Pleas and main arguments

The pleas and main arguments relied on are identical to those in Case C-354/04 P.

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Appeal brought on 27 August 2004 by the Commission of the European Communities against the judgment delivered on 10 June 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T-153/01 and T-323/01 between Ms M. Alvarez Moreno and Commission of the European Communities

(Case C-373/04 P)

(2004/C 251/19)

An appeal against the judgment delivered on 27 August 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T/153/01 and T-323/01 between M. Alvarez Moreno and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 August 2004 by the Commission of the European Communities, represented by F. Clotuche-Duvieusart and D. Martin, Agents.

The appellant claims that the Court should:

Pleas in law and main arguments:

The action brought by Ms Alvarez Moreno in Case T-323/01 should be declared inadmissible. The Court of First Instance erred in law in classifying the letter of 23 February 2001 as a ‘decision’ and, consequently, in conferring on it the status of an act adversely affecting the applicant. First, the applicant's letter to the Commission does not contain a request for a decision within the meaning of Article 90 of the Staff Regulations, but only a request for information concerning the legal basis on which the Commission relied when deciding that it would no longer recruit interpreters aged more than 65 years. Accordingly, the answer to that letter could not constitute an act adversely affecting the applicant within the meaning of that provision. Next, the letter of 23 February does not in any event contain any decision of the Commission producing binding legal effects, of such a kind as to affect the applicant's interests, by significantly altering her legal position.

As regards the substance, the Court of First Instance erred in law, first, by holding that Article 74 of the Conditions of Employment of Other Servants is not applicable to auxiliary staff recruited pursuant to the third paragraph of Article 78 of the Conditions of Employment and, second, by holding that the rules applicable to auxiliary session interpreters (hereinafter ‘the RIAS’), adopted by the Bureau of the European Parliament on 13 July 1999, cover the question of the end of the appointment. The third paragraph of Article 78 of the Conditions of Employment, under which the contracts of employment of conference interpreters as members of the auxiliary staff may be subject to a regime which derogates from the standard arrangements, deals exclusively with conditions of recruitment and remuneration and does not concern the end of the appointment, which is therefore governed by Article 74 of the Conditions of Employment, which lays down the age limit. It is incorrect to take the view, as the Court of First Instance did in the judgment under appeal, that in the case of contracts limited to specific days, the end of the appointment constitutes a condition of recruitment and thus to introduce a distinction not provided for in the Conditions of Employment between contracts of a few days' duration and those for longer periods. Furthermore, in accepting that it is the RIAS that must govern the question of the end of the appointment of conference interpreters who are members of the auxiliary staff, those rules contain no expression provision establishing an age limit. Where the RIAS are silent, it is the Conditions of Employment, and therefore Article 74 of those Conditions, that apply.

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Removal from the register of Case C-55/04 (1)

(2004/C 251/20)

By order of 15 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-55/04: Commission of the European Communities v French Republic.

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(1)  OJ C 71, de 20.3.2004.

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COURT OF FIRST INSTANCE

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Election of the President of the Court of First Instance

(2004/C 251/21)

On 8 September 2004 the Court of First Instance, in accordance with Article 7 of the Rules of Procedure, elected Judge Bo Vesterdorf as President for the period from 8 September 2004 to 31 August 2007.

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Election of the Presidents of Chambers

(2004/C 251/22)

On 10 and 13 September 2004 the Court of First Instance, in accordance with Article 15 of its Rules of Procedure, elected Judge Jaeger, Judge Pirrung, Judge Vilaras and Judge Legal as Presidents of the Chambers composed of five Judges for the period from 10 September 2004 to 31 August 2007 and Judge Jaeger, Judge Pirrung, Judge Vilaras, Judge Legal and Judge Cooke as Presidents of the Chambers composed of three Judges for the period from 13 September 2004 to 30 September 2005.

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Assignment of Judges to the Chambers

(2004/C 251/23)

On 13 September 2004 the Court of First Instance decided to establish five Chambers of five Judges and five Chambers of three Judges for the period from 13 September 2004 to 30 September 2005 and to assign Judges to them as follows:

First Chamber, Extended Composition, sitting with five Judges:

Mr Vesterdorf, President, Mr Cooke, Mr García-Valdecasas, Ms Labucka and Ms Trstenjak, Judges

First Chamber, sitting with three Judges:

Mr Cooke, President of Chamber, Mr García-Valdecasas, Ms Labucka and Ms Trstenjak, Judges

Second Chamber, Extended Composition, sitting with five Judges:

Mr Pirrung, President of Chamber, Mr Meij, Mr Forwood, Ms Pelikánová and Mr Papasavvas, Judges

Second Chamber, sitting with three Judges:

Mr Pirrung, President of Chamber

Third Chamber, Extended Composition, sitting with five Judges:

Mr Jaeger, President of Chamber, Ms Tiili, Mr Azizi, Ms Cremona and Mr Czúcz, Judges

Third Chamber, sitting with three Judges:

Mr Jaeger, President of Chamber

Fourth Chamber, Extended Composition, sitting with five Judges:

Mr Legal, President of Chamber, Ms Lindh, Mr Mengozzi, Ms Wiszniewska-Białecka and Mr Vadapalas, Judges

Fourth Chamber, sitting with three Judges:

Mr Legal, President of Chamber

Fifth Chamber, Extended Composition, sitting with five Judges:

Mr Vilaras, President of Chamber, Ms Martins Ribeiro, Mr Dehousse, Mr Šváby and Ms Jürimäe, Judges

Fifth Chamber, sitting with three Judges:

Mr Vilaras, President of Chamber

In the First Chamber sitting with three Judges, the Judges who sit with the President of the Chamber to make up the Chamber will be designated in turn, in the order provided for by Article 6 of the Rules of Procedure of the Court of First Instance, subject to the presence of connected cases. In the Second to Fifth Chambers sitting with three Judges, the President of the Chamber will sit either with the Judges referred to at (a) above or with those referred to at (b) above, depending on which of those formations the Judge-Rapporteur belongs to. For cases in which the President of the Chamber is the Judge-Rapporteur, the President of the Chamber will sit with the Judges of one or other of those formations alternately in accordance with the order in which the cases are registered, subject to the presence of connected cases.

Cases in which the Judge-Rapporteur is assigned to another Chamber as a result of the amendment of the composition of the Chambers shall be reallocated, with effect from 13 September 2004, to the Chamber to which the Judge-Rapporteur belongs from that date.

In cases where the written procedure was completed and a hearing in the oral procedure was held or fixed before 13 September 2004, the Chamber shall continue to sit with the same composition as previously for the oral procedure, the deliberation and the judgment.

Composition of the Grand Chamber

On 13 September 2004 the Court of First Instance decided, in accordance with Article 10(1) of the Rules of Procedure, that for the period from 13 September 2004 to 30 September 2005 the Grand Chamber shall be composed of: Mr Vesterdorf, President of the Court of First Instance; Mr Jaeger, Mr Pirrung, Mr Vilaras and Mr Legal, Presidents of Chambers; the Judges of the Chamber (Extended Composition) who would have had to hear the case in question if it had been assigned to a Chamber composed of five Judges; and four other Judges designated by the President of the Court of First Instance in turn from among the Judges of each of the other Chambers, in the order of precedence of those Judges within their Chambers according to seniority in office under Article 6 of the Rules of Procedure of the Court of First Instance.

As regards cases where the written procedure was completed and, in the oral procedure, a hearing before the Grand Chamber was held or fixed before 13 September 2004, the Grand Chamber shall continue to sit with the same composition as previously for the oral procedure, the deliberation and the judgment.

Plenary session

On 13 September 2004 the Court of First Instance decided, in accordance with the second subparagraph of Article 32(1) of the Rules of Procedure, that where, following the designation of an Advocate General pursuant to Article 17 of the Rules of Procedure, there is an even number of Judges in the Court of First Instance sitting in plenary session, the rota established in advance in accordance with which the President of the Court is to designate the Judge who will not take part in the judgment of the case shall be in reverse order to the order in which the Judges rank according to their seniority in office under Article 6 of the Rules of Procedure unless the Judge who would thus be designated is the Judge-Rapporteur. In that event, it is the Judge ranking immediately above him who shall be designated.

Designation of the Judge replacing the President of the Court of First Instance as the Judge hearing an application for interim measures

On 13 September 2004 the Court of First Instance decided, in accordance with Article 106 of the Rules of Procedure, to designate Judge García-Valdecasas to replace the President of the Court of First Instance for the purpose of deciding applications for interim measures where the latter is absent or prevented from dealing with them, in respect of the period from 13 September 2004 to 30 September 2005.

Criteria for assigning cases to the Chambers

On 13 September 2004 the Court of First Instance laid down criteria as follows for the assignment of cases to the Chambers for the period from 13 September 2004 to 30 September 2005, in accordance with Article 12 of the Rules of Procedure.

In applying those rotas, the First Chamber shall not be taken into consideration at each fifth turn.

The President of the Court of First Instance may derogate from the rotas on the ground that cases are related or with a view to ensuring an even spread of the workload.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 29 April 2004

in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and Others v Commission of the European Communities (1)

(Competition - Appeal - Cartel - Graphite electrodes market - Price-fixing and market-sharing - Calculation of fines - Concurrent sanctions - Guidelines on the method of setting fines - Applicability - Gravity and duration of the infringement - Aggravating circumstances - Attenuating circumstances - Ability to pay - Cooperation during the administrative procedure - Arrangements for payment)

(2004/C 251/24)

Language of the case: German and English

In Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd, established in Tokyo (Japan), represented initially by G. Van Gerven, T. Franchoo and M. De Grave and, subsequently, by G. Van Gerven and T. Franchoo, lawyers, with an address for service in Luxembourg, SGL Carbon AG, established in Wiesbaden (Germany), represented by M. Klusmann, F. Wiemer and C. Canenbley, lawyers, Nippon Carbon Co. Ltd, established in Tokyo (Japan), represented by H. Gilliams, lawyer, Showa Denko KK, established in Tokyo (Japan), represented by M. Dolmans and P. Werdmuller, lawyers, and J. Temple Lang, Solicitor, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington, Delaware (United States), represented by K. Lasok QC and B. Hartnett, Barrister, BL, with an address for service in Luxembourg, SEC Corp., established in Amagasaki, Hyogo (Japan), represented by K. Platteau, lawyer, The Carbide/Graphite Group, Inc., established in Pittsburgh (United States), represented initially by M. Seimetz and J. Brücher and, subsequently, by P. Grund, lawyers, with an address for service in Luxembourg, against Commission of the European Communities, represented by W. Mölls and P. Hellström, and, in Case T-246/01, by W. Wils, acting as Agents, with, in Case T-239/01, H.-J. Freund, lawyer, and, in Cases T-244/01, T-246/01, T-251/01 and T-252/01, J. Flynn and C. Kilroy, Barristers, with an address for service in Luxembourg — applications for annulment, in whole or in part, of Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1) — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it:

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(1)OJ C 17, 19.1.2002.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 20 July 2004

in Case T-311/02: Vitaly Lissotschenko and Joachim Hentze v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Application to register the word mark LIMO - Absolute grounds for refusal - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

(2004/C 251/25)

Language of the case: German

In Case T-311/02: Vitaly Lissotschenko, residing in Dortmund (Germany), Joachim Hentze, residing in Werl (Germany), represented by B. Hein, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Weberndörfer and G. Schneider) — action brought against the decision of the Second Board of Appeal of OHIM of 31 July 2002 (Case R 363/2000-2) concerning registration of the word mark LIMO as a Community trade mark — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 20 July 2004, in which it:

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(1)OJ C 305 of 7.12.2002.

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ORDER OF THE COURT OF FIRST INSTANCE

of 28 June 2004

in Case T- 342/99 DEP: Airtours plc v Commission of the European Communities (1)

(Taxation of costs - Solicitors' and barristers' fees - Economists' fees - VAT)

(2004/C 251/26)

Language of the case: English

In Case T-342/99 DEP: Airtours plc, represented by M. Nicholson, solicitor, with an address for service in Luxembourg, against Commission of the European Communities (Agent: R. Lyal, with an address for service in Luxembourg) — application for taxation of the costs to be recovered from the Commission by Airtours plc following the judgment of the Court of First Instance of 6 June 2002 in Case T-342/99 Airtours v Commission [2002] ECR II-2585 — 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; H. Jung, Registrar, has made an order on 28 June 2004, the operative part of which is as follows:

The total amount of the costs to be paid by the Commission to Airtours is fixed at GBP 489 615.03 (four hundred and eighty-nine thousand, six hundred and fifteen pounds and three pence).

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(1)OJ C 79, 18.3.2000.

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ORDER OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-341/02: Regione Siciliana v Commission of the European Communities (1)

(ERDF - Regulation (EEC) No 4253/88 - Termination of financial assistance - Action for annulment - Direct concern - Inadmissibility)

(2004/C 251/27)

Language of the case: Italian

In Case T-341/02: Regione Siciliana, represented by I. Braguglia, lawyer, with an address for service in Luxembourg v Commission of the European Communities (Agents: E. de March and L. Flynn, with an address for service in Luxembourg) — action for annulment of Commission Decision D (2002) 810439 of 5 September 2002 terminating the financial contributions from the European Regional Development Fund (ERDF) in respect of the major project ‘Messina-Palermo motorway’ (ERDF No 93.05.03.001 – ARINCO No 93.IT.16.009) — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Register, made an order on 8 July 2004, the operative part of which is as follows:

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(1)OJ No C 7 of 11.1.2003.

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ORDER OF THE COURT OF FIRST INSTANCE

of 15 June 2004

in Case T-21/03: S v Commission of the European Communities (1)

(Officials - Action for annulment - Occupational illness - Recognition of illness as occupational in origin - Request for removal of certain documents from the file held by the medical committee - Refusal - Act adversely affecting an official - Manifest inadmissibility)

(2004/C 251/28)

Language of the case: French

In Case T-21/03: S, a former official of the Commission of the European Communities, residing in Thessaloniki (Greece), represented by A. Coolen, J.-N. Louis and E. Marchal, lawyers, v Commission of the European Communities (Agents: J. Currall and F. Clotuche-Duvieusart, with an address for service in Luxembourg) — action for annulment of the Commission's decision of 11 March 2002 refusing to remove certain documents from the file held by the medical committee called upon to consider the applicant's request to have the illness from which she is suffering recognised as occupational in origin — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, J. D. Cooke and D. Šváby, Judges; H. Jung, Registrar, made an order on 15 June 2004, the operative part of which is as follows:

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(1)OJ No C 83 of 5.4.2003.

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ORDER OF THE COURT OF FIRST INSTANCE

of 5 July 2004

in Case T-39/03 DaimlerChrysler AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

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

(2004/C 251/29)

Language of the case: German

In Case T-39/03: DaimlerChrysler AG, established in Stuttgart (Germany), represented by N. Siebertz, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider), the intervener before the Court of First Instance being Axon Leasing GmbH, established in Munich (Germany), represented by S. Lüft, lawyer — action brought against the decision of the Fourth Board of Appeal of OHIM of 4 November 2002 (Case R 329/2001-4) — the Court of First Instance (Second Chamber), composed of: J. Pirrung, President, N. J. Forwood and I. Pelikánová, Judges; H. Jung, Registrar, made an order on 5 July 2004, the operative part of which is as follows:

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(1)OJ C 101 of 26.4.2003.

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ORDER OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-256/03: Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV and Josef Kloh v Commission of the European Communities (1)

(Action for annulment - Regulation (EC) No 1774/2002 - Decision 2003/328/EC - Use of catering waste in feed for pigs - Inadmissible)

(2004/C 251/30)

Language of the case: German

In Case T-256/03: Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, established in Bochum (Germany), Josef Kloh, residing in Eichenried (Germany), represented by R. Steiling and S. von Zimmermann-Wienhues, lawyers, v Commission of the European Communities (Agent: G. Braun), with an address for service in Luxembourg — action for the partial annulment of Decision 2003/328/EC of 12 May 2003 on transitional measures under Regulation (EC) No 1774/2002 of the European Parliament and of the Council as regards the use of category 3 catering waste in feed for pigs and the intra-species recycling ban on the feeding of swill to pigs (OJ 2003 L 117, p. 46) — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A. W. H. Meij and N. J. Forwood, Judges; H. Jung, Registrar, made an order on 2 July 2004, the operative part of which is as follows:

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(1)OJ No C 213 of 6.9.2003.

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-422/03 R II, Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities

(Interim Measures - Directives 67/548/EEC and 2004/73/EC - Conditions of admissibility)

(2004/C 251/31)

Language of the case: English

In Case T-422/03 R II, Enviro Tech Europe Ltd, established in Surrey (United Kingdom), Enviro Tech International Inc., established in Chicago (United States), represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application seeking, first, ‘suspension of the inclusion of nPB’ in the 29th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234); secondly, suspension of implementation of the inclusion of nPB in Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Directive 67/548 (OJ 2004 L 252, p. 1); and, thirdly, that other interim measures be ordered — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-76/04 R, Bactria Industriehygiene-Service Verwaltungs GmbH & Co. KG v Commission of the European Communities

(Interim measures - Regulation (EC) No 2032/2003 - Biocidal products - Admissibility of the application)

(2004/C 251/32)

Language of the case: English

In Case T-76/04 R, Bactria Industriehygiene-Service Verwaltungs GmbH & Co. KG established in Kirchheimboladen (Germany), represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application for suspension of the operation of Article 5(1) and (2) of and Annexes II and V to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and the Council, concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1) — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 2 July 2004

in Case T-78/04 R, Sumitomo Chemical (UK) plc v Commission of the European Communities

(Interim measures - Regulation (EC) No 2032/2003 - Biocidal products - Admissibility of the application)

(2004/C 251/33)

Language of the case: English

In Case T-78/04 R, Sumitomo Chemical (UK) plc, represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application for suspension of the operation of Article 5(1) and (2) of and Annexes II and V to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and the Council, concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1) — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

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ORDER OF THE COURT OF FIRST INSTANCE

of 9 July 2004

in Case T-132/04: André Bonnet v Court of Justice of the European Communities (1)

(Officials - Prior administrative procedure - Manifest inadmissibility)

(2004/C 251/34)

Language of the case: French

In Case T-132/04: André Bonnet, residing in Saint-Pierre-de-Vassols (France), represented by H. de Lepinau, lawyer, with an address for service in Luxembourg v Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — action for, first, annulment of the decisions of 11 February and 4 March 2004 terminating, in respect of the applicant, the procedure for recruitment to the post of lecteur d'arrêts in the cabinet of the President of the Court of Justice and annulment of the decision to appoint another candidate to that post, and, second, damages — the Court of First Instance (Second Chamber), composed of A. W. H. Meij, acting for the President, N. J. Forwood and I. Pelikánová, Judges; H. Jung, Registrar, made an order on 9 July 2004, the operative part of which is as follows:

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(1)OJ No C 168 of 26.6.2004.

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Action brought on 30 April 2004 by M. Schäfer against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-163/04)

(2004/C 251/35)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German

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 30 April 2004 by M. Schäfer, Bergisch-Gladbach (Germany), represented by I. Reese, lawyer.

KoKa Verwaltung GmbH, Hamburg (Germany), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

Pleas in law and main arguments:

On 26 December 2000, the applicant filed with the Office for Harmonisation in the Internal Market an application for registration of the figurative mark ‘Mike's Meals on Wheels’ as a Community trade mark for services in Classes 35 and 42. Relying on its earlier German marks, namely the figurative mark ‘MIKE'S SANDWICH MARKET’ and the word mark ‘MIKE’, KoKa Verwaltung GmbH entered opposition on the ground of a likelihood of confusion.

The Opposition Division rejected the opposition and ordered the opponent to pay the costs. The opponent objected to that decision and applied for restitutio in integrum. It also brought an appeal seeking to have the decision annulled in its entirety and the proceedings stayed pending the ruling on the application for restitutio in integrum.

By decision of 16 June 2003, the Opposition Division granted the application for restitutio in integrum and resumed the opposition proceedings.

By the contested decision, the Board of Appeal held that the appeal had become devoid of purpose. The appeal proceedings were therefore discontinued and the appeal fee was reimbursed. The Board of Appeal also ordered each of the parties to bear the costs incurred by them in the appeal proceedings.

The action brought by the applicant challenges that ruling on costs. He claims that the Office failed to exercise properly the discretion enjoyed by it under Article 81(4) of Regulation (EC) No 40/94 in the event that the proceedings are discontinued. The applicant was in no way responsible for the initiation of and need to conduct appeal proceedings. The appeal proceedings were the result of, first, the incorrect postcode in the Office's letterhead and, secondly, the appellant's exhaustion of the entire period prescribed for the submission of evidence of use. The applicant had no control over either of those two causes of the proceedings for restitutio in integrum and the appeal proceedings. Under Article 81 of Regulation (EC) No 40/94, the ruling on costs is a matter of unfettered discretion. That unfettered discretion includes the possibility of ordering the Office to pay the costs. Moreover, it is an infringement of the applicant's fundamental rights to deny him compensation for his costs and trouble.

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Action brought on 1 June 2004 by Hans-Martin Tillack against the Commission of the European Communities

(Case T-193/04)

(2004/C 251/36)

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 1 June 2004 by Hans-Martin Tillack, Brussels, represented by Ian S. Forrester, QC, Thierry Bosly, Christoph Arhold, Nathalie Flandin, Justus Herrlinger and Juliette Siaens, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments:

In March 2004, the applicant's office and home were searched by the Belgian authorities following an official complaint of the Antifraud Unit of the European Commission (OLAF), accusing the applicant of bribery of an EU official.

The applicant submits that OLAF's decision must be declared void, since it was taken in breach of essential procedural requirements and it infringed the fundamental right of the protection of journalistic sources.

The applicant alleges that in breach of Article 11(7) of Regulation 1073/1999 (1), the OLAF Supervisory Committee was not informed prior to the complaints to the national authorities. During the entire internal OLAF investigation, the applicant has never been heard. Moreover, the decision was void in that it was based on the wrong legal basis. OLAF acted in the context of an internal OLAF investigation which aims to cover alleged breaches of applicable rules by officials although the applicant is neither an official nor a servant of any Community organ.

Furthermore, the applicant submits that OLAF's decision infringed the fundamental right of protection of journalistic sources, as part of freedom of the press, since the national authorities were asked to search the applicant's home and office in order to identify his informants within the Commission.

As far as his application for damages is concerned, the applicant alleges that OLAF's complaints to the national authorities and its various public accusations of the applicant constituted maladministration which caused significant injury to the applicant's professional and personal reputation.

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(1)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25.12.1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136 of 31.5.1999, p. 1).

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Action brought on 14 June 2004 by Ultradent Products, Inc., and Michael J.S. Renouf against the Commission of the European Communities

(Case T-237/04)

(2004/C 251/37)

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 14 June 2004 by Ultradent Products Inc., South Jordan, Utah, USA and Michael J. S. Renouf, Brussels, Belguim, represented by Mr S. Crosby and Mr C. Bryant, Solicitors.

The applicant claims that the Court should:

Pleas in law and main arguments:

By three letters dated 27 October 2003 the second applicant presented to the Commission three requests for access to documents connected to the question of whether tooth-bleaching products should be classified as cosmetic products or as medical devices. More particularly, the second applicant requested access to documents relating to a complaint made on behalf of the first applicant to the Commission contesting the classification of such products by the United Kingdom Authorities, to documents relating to the preparation of the answer by Commissioner Borino to a written question to the Commission on such products and finally to all documents of the Commission relating to the question of the classification of such products. At the same time the second applicant, who is a solicitor, declared in his application that he was acting on behalf of the first applicant.

Confirmatory applications were filed on 16 December 2003. On 17 December 2003 the Commission replied to the initial applications and the applicants filed a further confirmatory application on 7 January 2004 which purported to withdraw the three previous confirmatory applications of 16 December. The Commission replied to the application of 7 January 2004 by a letter dated 5 April 2004. Enclosed with this letter were a number of documents.

The applicants contend that the administrative procedure revealed that, apart from the documents disclosed to the applicants by the letter of 5 April 2004, a number of documents on the matters in question certainly exist and other documents may also be presumed to exist. According to the applicants all these documents are within the scope of the initial application and within the possession of the Commission, but have not been disclosed to the applicants. On this basis the applicants consider the letter of 5 April 2004 as a decision to refuse access to all these documents, and request its annulment. In support of their application they invoke a violation of Article 8 of Regulation 1049/2001 (1) Official Journal L 145, 31/05/2001 p. 43-48 and of this regulation in general. They further submit that the Commission failed to give reasons for not granting access to the documents that certainly exist, nor has it invoked any exceptions to the right of access in order to justify its refusal.

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

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Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

(Case T-257/04)

(2004/C 251/38)

Language of the case: Polish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 June 2004 by the Republic of Poland, represented by Jarosław Pietras, acting as Agent.

The applicant claims that the Court should:

Pleas in law and main arguments

With regard to Article 3 of Regulation No 1972/2003 the applicant raises the following heads of complaint:

With regard to Article 4(3) of Regulation No 1972/2003 the applicant argues that the Commission lacked competence and that there has been a breach of the first paragraph of Article 41 of the abovementioned Act of Accession and infringement of the principles of proportionality and non-discrimination on grounds of nationality, in so far as the level of duty laid down in the contested provision exceeds the differential between the Community customs rate and the Polish rate as on 30 April 2004.

With regard to the eighth indent of Article 4(5) of Regulation No 1972/2003 the applicant argues that the Commission lacked competence and that there has been a breach of the first paragraph of Article 41 of the abovementioned Act of Accession and infringement of the principle of proportionality in so far as the contested provision covers products for which the Polish customs rate for imports on 30 April 2004 was greater than or equal to the Community rate and also products in respect of which there was, on 1 May 2004, no evidence of surplus stocks at national level.

With regard to all of the contested provisions of Regulation No 1972/2003, the applicant argues that the Commission abused its powers by adopting measures the real objective of which was not to facilitate Poland in adopting the rules of the Common Agricultural Policy but rather to protect the market of the Community of 15 States against competition from Polish agricultural producers.

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(1)  OJ 2003 L 236, p. 33.

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Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

(Case T-258/04)

(2004/C 251/39)

Language of the case: Polish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 June 2004 by the Republic of Poland, represented by Jarosław Pietras, acting as Agent.

The applicant claims that the Court should:

Pleas in law and main arguments

With regard to Article 5 of Regulation No 60/2004 the applicant raises the following heads of complaint:

With regard to Article 6(1) and (2) of Regulation No 60/2004, the applicant argues that the Commission lacked competence and that there has been a breach of Article 22, the first paragraph of Article 41 and Part 4 of Annex IV to the abovementioned Act of Accession, in conjunction with Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (2) — to the extent to which the contested provisions provide for account to be taken by the Commission of processed products containing sugar (sugar equivalent) when determining the existence of surplus quantities of sugar and isoglucose and impose a prohibition on the elimination of surplus quantities of sugar and isoglucose by way of exportation of processed products containing sugar (sugar equivalent).

With regard to Articles 6(3), 7(1) and 8(2)(a) of Regulation No 60/2004, the applicant alleges infringement of the principles of solidarity and good faith in relations between the Member States and the Community institutions (Article 10 EC) by reason of the imposition on Poland, through the contested measures, of obligations with which it is in practice not possible to comply, and by reason of the refusal to cooperate with a view to overcoming difficulties which have arisen.

With regard to all of the contested provisions of Regulation No 60/2004, the applicant argues that the Commission abused its powers by adopting measures the real objective of which is not to facilitate Poland in adopting the rules of the Common Agricultural Policy but rather to protect the market of the Community of 15 States against competition from Polish agricultural producers.

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(1)  OJ 2003 L 236, p. 33.

(2)  OJ 2001 L 178, p. 1, as subsequently amended.

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Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market

(Case T-262/04)

(2004/C 251/40)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 25 June 2004 by BIC S.A., established in Clichy (France), represented by Michel-Paul Escande, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments:

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Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market

(Case T-263/04)

(2004/C 251/41)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 25 June 2004 by BIC S.A., established in Clichy (France), represented by Michel-Paul Escande, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments:

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(1)  Probably R 469/2003-4.

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Action brought on 7 July 2004 by Brandt Industries against the Commission of the European Communities

(Case T-273/04)

(2004/C 251/42)

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 7 July 2004 by Brandt Industries, established in Rueil-Malmaison (France), represented by Niels Dejean and Christophe Delrieu, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments

By the decision of 16 December 2003 the Commission concluded that the scheme provided for in Article 44 septies of the Code Général des Impôts (French General Taxation Code) constituted a State aid incompatible with the common market, without prejudice to de minimis aid and aid compatible with the guidelines on aid for regional purposes or with the exemption rule regarding aid to small and medium-sized undertakings. It ordered France to recover the aid granted.

The applicant contests the Commission decision. It submits that the decision should be annulled on the ground that the decision does not show adequate reasons in light of the requirements of Article 253 EC. In the decision, the Commission itself recognised that it had no specific information on the firms which automatically benefited from the scheme under Article 44 septies of the Code Général des Impôts.

Furthermore, the applicant submits that the contested decision is in breach of Article 14 of Regulation (EC) No 659/1999. The Commission did not take account of the fact that the tax aid to companies formed to take over firms in difficulty had the effect of bringing those companies to propose a higher price for the assets than that which they would have offered if that aid had not existed. Consequently, all or part of the aid was transferred, by way of an increase in the repurchase price of those assets, to the creditors of the firm in receivership, so that the takeover companies could not be regarded as the actual beneficiaries of the entirety of the aid. Reimbursement of the aid received by the takeover companies is not a measure necessary for the return of the competition situation to what it was before the grant of the aid, but, on the contrary, would place the takeover companies in a less favourable position than that in which they would have been without the aid, so that it contravenes the principles of fair competition and of proportionality.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ L 83, p. 1).

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Action brought on 9 July 2004 by Jabones Pardo, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-278/04)

(2004/C 251/43)

Language of the case: Spanish

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 9 July 2004 by Jabones Pardo, S.A., established in Madrid, represented by José Enrique Astiz Suárez, of the Madrid Bar.

The applicant claims that the Court should:

Pleas in law and main arguments:

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Action brought on 9 July 2004 by the Italian Republic against the Commission of the European Communities

(Case T-282/04)

(2004/C 251/44)

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 9 July 2004 by the Italian Republic, represented by Gianni De Bellis, avvocato dello Stato.

The applicant claims that the Court should:

Pleas in law and main arguments:

The expenditure excluded from Community financing by the contested decision, as regards the applicant, relates to the ‘Settlement of Young Farmers’ measure provided for in the document on the planning of rural development in the Region of Tuscany, approved by Decision C(2000) 2510 of 7 September 2000, and the flat-rate adjustment of 2 % applied to the supply of food aid for the needy which, according to the Commission, does not offer a system of checks with sufficient safeguards.

In support of its claim, the applicant pleads:

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

(2)  Commission Regulation (EC) No 1750/1999 of 23 July 1999 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 214 of 13.8.1999, p. 31).

(3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests (OJ L 312 of 23.12.1995, p. 1).

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Action brought on 12 July 2004 by UPS Europe N.V./S.A. and UPS Deutschland Inc. & Co OHG against the Commission of the European Communities

(Case T-284/04)

(2004/C 251/45)

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 12 July 2004 by UPS Europe N.V./S.A., Brussels, Belguim and UPS Deutschland Inc. & C. OHG, represented by Mr T.R. Ottervanger and Ms A.S. Bijleveld, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments:

By a decision dated 20 March 2001 (1) the Commission decided that Deutsche Post AG had infringed Article 82 of the EC Treaty through its practices in the mail-order parcel sector. It further required Deutsche Post to create a separate commercial parcel services subsidiary as well as a system of transparent and market-based pricing between Deutsche Post AG and that subsidiary. Deutsche Post was required to inform the Commission annually on the fulfilment of these undertakings. Deutsche Post did so by letter of 22 May 2003. The applicants, who are also active in the same business sector, requested and received a non-confidential version of that letter on 22 September 2003. On 20 October 2003 the applicants requested the Commission to grant them access to the average internal transfer prices charged by Deutsche Post to its subsidiary, information which had been blanked out in the non-confidential version of the letter of 22 May 2003. They also requested access to a report and a calculation which, according to the same letter, had been submitted to the Commission on 16 November 2001. The request was made on the basis of Regulation 1049/2001 (2) Official Journal L 145, 31/05/2001, p. 43-48. The applicants repeated their request on 18 November 2003 and made a confirmatory application on 13 April 2004. By letter of 21 April 2004 the Commission acknowledged receipt of the confirmatory application and stated that it was consulting Deutsche Post on the exact scope of the commercially sensitive information in the documents requested. Not having received any further answer, the applicants consider that there is an implied Commission decision to refuse their application for access, and request the Court to annul it.

In support of their application the applicants invoke a breach of Regulation 1049/2001, contending that none of the exceptions of Article 4 apply and that therefore access should have been granted as requested. They also invoke a breach by the Commission of the duty, under Article 253 EC, to state reasons for its decision. The applicants submit that the Commission is in breach of Regulation 1049/2001 also on the grounds that it neither replied within the prescribed time limit nor stated any reasons for refusing to grant access. Finally, they argue that the Commission has violated its own Rules of Procedure as amended by the Commission's decision of 5 December 2001 (3). According to the applicants, the Commission should have finalised its consultation of Deutsche Post and have taken a decision within the 15 day working period.

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(1)  Commission Decision of 20 March 2001 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/35.141 — Deutsche Post AG) (notified under document number C(2001) 728), OJ L 125 5/5/2001 p. 27.

(2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

(3)  OJ L 345, 29/12/2001 p. 94.

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Action brought on 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities

(Case T-286/04)

(2004/C 251/46)

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 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland, represented by Mr R. Thompson QC and Mr S. Grodzinski Barrister with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The Commission's Decision 2004/451 was taken within the framework of Council Regulation (EC) 1258/1999 (2) on the financing of the common agricultural policy. By the contested Article 2 the Commission decided to disjoin the accounts of, among others, the paying agencies referred to by the applicant, and make those accounts the subject of a future clearance decision.

The applicant contends that, as far as those agencies are concerned, the decision to disjoin their accounts was made on the sole or principal basis that the ‘sampling’ methodology used by the United Kingdom's National Audit Office for the purposes of preparing its audit report and certificates for the 2003 accounts, was different from the particular sampling methodology suggested for use in Guideline 8.

In support of its application the applicant first of all submits that the Commission has no legal competence to require national certifying bodies to conform to the methodology laid down in a Guideline, where it accepts that the criteria laid down in Regulation 1258/99 as well as Regulation 1663/1995 (3), have been met. The applicant further contends that the Commission has misdirected itself in law by interpreting its own Guideline as a binding rule of law. Even were it to be decided, contrary to the applicant's submissions, that the Guideline is in principle capable of laying down a binding rule of law, the applicant argues that it is at least ambiguous in its meaning and the Commission's interpretation is contrary to the principle of legal certainty. The applicant also alleges that in the light of the history of the matter, the conduct of the Commission in seeking to impose its own interpretation of Guideline 8 is contrary to the protection of legitimate expectations. Moreover, the Commission's attempt to control the way in which the United Kingdom National Audit Office exercises its expertise is, according to the applicant, contrary to the principle of subsidiarity laid down in Article 5 of the EC Treaty and manifested by Article 3 paragraph 1 of Regulation 1663/95. Finally, the applicant submits that, to the extent that it may be argued by the Commission that the contested decision was based on other considerations, it is vitiated by a manifest error of assessment.

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(1)OJ L 155, 30/04/2004, p. 129-133.

(2)OJ L 160, 26/06/1999, p. 103-112.

(3)  Commission Regulation (REGULATION) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section, OJ L 158, 08/07/1995, p. 6.

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Action brought on 15 July 2004 by Kris Van Neyghem against the Committee of the Regions

(Case T-288/04)

(2004/C 251/47)

Language of the case: Dutch

An action against the Committee of the Regions was brought before the Court of First Instance of the European Communities on 15 July 2004 by Kris Van Neyghem, residing in Tienen (Belgium), represented by Dirk Janssens.

The applicant claims that the Court should:

Pleas in law and main arguments:

The applicant has been working as an official of the Committee of the Regions since 1 December 2002. He is challenging the decision of 26 March 2003 whereby he was definitively classified in Grade B 5, Step 4.

In support of his application, the applicant argues that the contested decision is inadequately reasoned and that there has been a breach of Articles 5(3), 31 and 32 of the Staff Regulations, in conjunction with an infringement of the principle of equal treatment.

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Action brought on 19 July 2004 by Caremar SpA against the Commission of the European Communities

(Case T-292/04)

(2004/C 251/48)

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 19 July 2004 by Caremar SpA and others, represented by Gian Michele Roberti, Alessandra Franchi and Guido Bellitti, lawyers.

The applicants claim that the Court should:

Pleas in law and main arguments:

The pleas in law and main arguments are similar to those relied on in Case T-265/04 Adriatica di Navigazione and Others v Commission (1).

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(1)  Not yet published in the Official Journal.

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Action brought on 22 July 2004 by Centro Provincial de Jóvenes Agricultores de Jaén against Council of the European Union

(Case T-295/04)

(2004/C 251/49)

Language of the case: Spanish

An action against Council of the European Union was brought before the Court of First Instance of the European Communities on 22 July 2004 by Centro Provincial de Jóvenes Agricultores de Jaén, established in Jaen (Spain), represented by José Francisco Vázquez Medina, of the Jaen Bar.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant is contesting the abovementioned provision insofar as it includes, exclusively in respect of olive oil, the 1999/2000 marketing year together with the other 3 planned for the remaining agricultural sectors (2000/2001, 2001/2002 and 2002/2003), for the determination of the direct support to be provided for producers.

In support of its claims, the applicant maintains that not only is there an inadequate statement of reasons for the contested provision, contrary to the duty to provide reasons, it also discriminates against certain regions and many farmers in view of the fact that in the 1999/2000 marketing year the harvest was very poor in Andalusia, particularly in Jaen. Thus, by calculating the assistance to be provided by taking into account the aforementioned marketing year, olive oil producers in Jaen, together with others in Cordoba and Granada, will, by that mere fact, suffer serious economic harm and thus be discriminated against.

Finally, the applicant alleges misuse of powers.

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Action brought on 22 July 2004 by Cristóbal Gallego Martínez, Benito García Burgos and Antonio Parras Rosa against Council of the European Union

(Case T-297/04)

(2004/C 251/50)

Language of the case: Spanish

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 22 July 2004 by Cristóbal Gallego Martínez, Benito García Burgos and Antonio Parras Rosa, residing in Jaen (Spain), represented by José Francisco Vázquez Medina, of the Jaen Bar.

The applicant claims that the Court should:

Pleas in law and main arguments

The pleas in law and main arguments are identical with those put forward in Case T-295/04.

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Action brought on 22 July 2004 by the Italian Republic against the Commission of the European Communities

(Case T-304/04)

(2004/C 251/51)

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 July 2004 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato.

The applicant claims that the Court should:

Pleas in law and main arguments:

The Italian Republic has challenged before the Court of First Instance of the European Communities Commission Decision C(2004) 1812 final of 19 May 2004 declaring unlawful aid granted by Italy (under Law No 394 of 1981) in the form of interest relief to WAM SpA of EUR 103 313.20 from 24 April 1996 and EUR 106 366.60 from 9 November 2000 (State aid No C 4/2003/(ex NN 102/2002), with order for recovery. Law No 394 of 1981 supports, inter alia, Italian companies wishing to set up a subsidiary, representative offices, shops and warehouses.

In support of its claim, the Italian Republic has pleaded:

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(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 of 27.03.1999, p. 1).

(2)  Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid (OJ L 10, 13.01.2001, p. 30).

(3)  Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (OJ L 10, 13.01.2001, p. 30).

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III Notices

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(2004/C 251/52)

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

OJ C 239, 25.9.2004

Past publications

OJ C 228, 11.9.2004

OJ C 217, 28.8.2004

OJ C 201, 7.8.2004

OJ C 190, 24.7.2004

OJ C 179, 10.7.2004

OJ C 168, 26.6.2004

These texts are available on:

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