# Official Journal C 262/23 O

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 262 |
| | |
| English edition | Information and Notices | Volume 4723 October 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 262

English edition

Information and Notices

Volume 4723 October 2004

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 262/1 | Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-304/01: Kingdom of Spain v Commission of the European Communities (Common fisheries policy — Regulation (EC) No 1162/2001 — Recovery of the stock of hake — Control of the activities of fishing vessels — Choice of legal basis — Principle of non-discrimination — Obligation to give reasons) | 1 |
| 2004/C 262/2 | Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-332/01: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — 1996 to 1999 — Decision 2001/557/EC — Cotton, olive oil, dried grapes, sheepmeat and goatmeat) | 1 |
| 2004/C 262/3 | Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-127/02 (reference for a preliminary ruling from the Raad van State): Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Directive 92/43/EEC — Conservation of natural habitats and of wild flora and fauna — Concept of ‘plan’ or ‘project’ — Assessment of the implications of certain plans or projects for the protected site) | 2 |
| 2004/C 262/4 | Judgment of the Court (First Chamber) of 9 September 2004 in Joined Cases C-184/02 and C-223/02: Kingdom of Spain and Republic of Finland v European Parliament and Council of the European Union (Directive 2002/15/CE — Organisation of the working time of road transport workers — Self-employed drivers — Legal basis — Freedom to pursue an occupation — Principle of equal treatment — Proportionality — Obligation to state reasons) | 3 |
| 2004/C 262/5 | Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-195/02: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 91/439/EEC — Driving licences — Mutual recognition — Compulsory registration and exchange — Conditions for the renewal of licences issued prior to the transposition of the directive) | 3 |
| 2004/C 262/6 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-292/02 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Meiland Azewijn BV v Hauptzollamt Duisburg (Excise duties — Mineral oils used in agricultural works — Directive 92/81/EEC — Article 8a — Marking in the Member State where released for consumption — Prohibition on marking in the Member State of use — Directive 95/60/EC) | 4 |
| 2004/C 262/7 | Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-319/02 (reference for a preliminary ruling from the Korkein hallinto-oikeus): Petri Manninen (Income tax — Tax credit for dividends paid by Finnish companies — Articles 56 EC and 58 EC — Cohesion of the tax system) | 4 |
| 2004/C 262/8 | Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-346/02: Commission of the European Communities v Grand Duchy of Luxembourg (Insurance — Third non-life insurance directive — Bonus-malus system) | 5 |
| 2004/C 262/9 | Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-347/02: Commission of the European Communities v French Republic (Insurance — Third non-life insurance directive — Bonus-malus system) | 5 |
| 2004/C 262/0 | Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-375/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Environment — Waste management — Castelliri waste disposal site — Directive 75/442/EEC of 18 March 1991 as amended by Directive 91/156/EEC — Articles 4 and 8) | 5 |
| 2004/C 262/1 | Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-383/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Environment — Waste management — Rodano waste disposal site — Directive 75/442/EEC as amended by Directive 91/156/EEC — Articles 4 and 8) | 6 |
| 2004/C 262/2 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-397/02 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): Clinique La Ramée ASBL, Winterthur Europe Assurance SA v Jean-Pierre Riehl, Council of the European Union (Officials — Social benefits — Communities' right of subrogation to an official's rights against the third party liable for an actionable event) | 6 |
| 2004/C 262/3 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-417/02: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 85/384/EEC — Recognition of architects' diplomas — Registration procedure with the Greek Technical Board (Technico Epimelitirio Elladas) — Obligation to provide a document stating that the evidence of formal qualifications concerned is covered by the system of mutual recognition) | 7 |
| 2004/C 262/4 | Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-456/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (Freedom of movement of persons — Citizenship of the European Union — Right of residence — Directive 90/364/EEC — Limitations and conditions — Person working in a hostel in return for benefits in kind — Entitlement to social assistance benefits) | 7 |
| 2004/C 262/5 | Judgment of the Court (Second Chamber) of 7 September 2004 in Case C-469/02: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Career break benefit — Residence condition — Indirect discrimination based on nationality — Article 39 EC — Article 7 of Regulation (EEC) No 1612/68 — Article 73 of Regulation (EEC) No 1408/71) | 8 |
| 2004/C 262/6 | Judgment of the Court (Second Chamber) of 7 September 2004 in Case C-1/03 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): criminal proceedings against Paul Van de Walle and Others and Texaco Belgium SA (Environment — Waste — Directives 75/442/EEC and 91/156/EEC — Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ — Soil infiltrated by leaked hydrocarbons — Independent operation of a service station belonging to a petroleum company) | 8 |
| 2004/C 262/7 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-70/03: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 93/13/EEC — Unfair terms in consumer contracts — Rules of interpretation — Rules concerning conflict of laws) | 9 |
| 2004/C 262/8 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-72/03 (reference for a preliminary ruling from the Commissione tributaria di Massa): Carbonati Apuani Srl v Comune di Carrara (Charges having effect equivalent to a customs duty — Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory) | 9 |
| 2004/C 262/9 | Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-113/03: Commission of the European v French Republic (Failure of a Member State to fulfil obligations — Telecommunications — Directive 97/33/CE — Number portability service — Non-geographic numbers) | 10 |
| 2004/C 262/0 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-125/03: Commission of the European Communities against Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Admissibility — Legal interest in bringing proceedings — Directive 92/50/EEC — Public contracts — Services for transport of waste — Procedure without prior publication of a contract notice) | 10 |
| 2004/C 262/1 | Judgment of the Court (First Chamber) of 9 September 2004 in Case C-269/03 (reference for a preliminary ruling from the Cour d'appel): Administration de l'enregistrement et des domains, État du grand-duché de Luxembourg v Vermietungsgesellschaft Objekt Kirchberg SARL (Sixth VAT Directive — Article 13(C) — Exemption of transactions of leasing or letting of immovable property — Right of option for taxation — Deduction of input tax — Obtaining prior approval of the tax authorities) | 11 |
| 2004/C 262/2 | Judgment of the Court (Sixth Chamber) of 9 September 2004 in Case C-450/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 98/44/EC) | 11 |
| 2004/C 262/3 | Judgment of the Court (Sixth Chamber) of 9 September 2004 in Case C-454/03: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 98/44/EC) | 11 |
| 2004/C 262/4 | Case C-284/04: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 7 June 2004 in the case of T-Mobile Austria GmbH against the Republic of Austria | 12 |
| 2004/C 262/5 | Case C-301/04 P: Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01 | 13 |
| 2004/C 262/6 | Case C-308/04 P: Appeal brought on 19 July 2004 by SGL Carbon AG against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01 | 14 |
| 2004/C 262/7 | Case C-328/04: Reference for a preliminary ruling by the Fővárosi Bíróság (Hungary) by order of that court of 24 June 2004 in the criminal proceedings against Attila Vajnai | 15 |
| 2004/C 262/8 | Case C-330/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Italian Republic | 16 |
| 2004/C 262/9 | Case C-332/04: Action brought on 28 July 2004 by Commission of the European Communities against Kingdom of Spain | 16 |
| 2004/C 262/0 | Case C-342/04 P: Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities | 17 |
| 2004/C 262/1 | Case C-351/04: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Chancery Division, by order of that court dated 22 July 2004, in the case of Ikea Wholesale Ltd against Commissioners of Customs and Excise | 18 |
| 2004/C 262/2 | Case C-352/04: Reference for a preliminary ruling by the Verwaltungsgericht Köln by order of that court of 30 June 2004 in the case of mdm Versandservice GmbH against Bundesrepublik Deutschland, joined parties: Deutsche Post AG | 19 |
| 2004/C 262/3 | Case C-353/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 22 July 2004 in the case of Nowaco Germany GmbH against Hauptzollamt Hamburg-Jonas | 19 |
| 2004/C 262/4 | Case C-359/04: Reference for a preliminary ruling by the Tribunale de Teramo by decision of that court of 31 July 2004 in the case of criminal proceedings against Christian Palazzese | 20 |
| 2004/C 262/5 | Case C-360/04: Reference for a preliminary ruling by the Tribunale di Teramo by order of that court of 31 July 2004 in the case of criminal proceedings against Angelo Sorricchio | 20 |
| 2004/C 262/6 | Case C-361/04 P: Appeal brought on 19 August 2004 (Fax: 18 August 2004) by Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso against the judgment delivered on 22 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-185/02 Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), supported by DaimlerChrysler AG, which was also a party before the Board of Appeal | 21 |
| 2004/C 262/7 | Case C-366/04: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 16 August 2004 in the case of Georg Schwarz against Bürgermeister der Landeshauptstadt Salzburg | 22 |
| 2004/C 262/8 | Case C-370/04: Action brought on 26 August 2004 by the Commission of the European Communities against the Federal Republic of Germany | 22 |
| 2004/C 262/9 | Case C-375/04: Action brought on 1 September 2004 by Commission of the European Communities against Grand Duchy of Luxembourg | 22 |
| 2004/C 262/0 | Case C-376/04: Action brought on 2 September 2004 by the Commission of the European Communities against Kingdom of Belgium | 23 |
| 2004/C 262/1 | Case C-377/04: Action brought on 2 September 2004 by the Commission of the European Communities against the Republic of Austria | 23 |
| 2004/C 262/2 | Case C-378/04: Action brought on 2 September 2004 by the Commission of the European Communities against the Republic of Austria | 23 |
| 2004/C 262/3 | Case C-279/04: Reference for a preliminary ruling by the Retten i Hørsholm (Denmark) by order of that court of 4 June 2004 in the case of Anklagemyndigheden against Steffen Ryborg | 24 |
| 2004/C 262/4 | Case C-382/04: Action brought on 6 September 2004 by the Commission of the European Communities against Grand Duchy of Luxembourg | 24 |
| 2004/C 262/5 | Case C-383/04: Action brought on 6 September 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 24 |
| 2004/C 262/6 | Case C-385/04: Action brought on 7 September 2004 by the Commission of the European Communities against the United Kingdom | 25 |
| 2004/C 262/7 | Case C-386/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 14 July 2004 in the case of Centro di Musicologia Walter Stauffer against Finanzamt München für Körperschaften | 25 |
| 2004/C 262/8 | Case C-387/04: Reference for a preliminary ruling by the Amtsgericht Dresden by order of 7 September 2004 in the insolvency proceedings against Volker Donath | 25 |
| | COURT OF FIRST INSTANCE |
| 2004/C 262/9 | Order of the Court of First Instance of 8 July 2004 in Case T-200/02, Vassilios Tsarnavas v Commission of the European Communities (Officials — Late establishment of staff report — Claim for annulment — Claim for damages — Inadmissibility) | 26 |
| 2004/C 262/0 | Order of the Court of First Instance of 14 July 2004 in Case T 360/02: Wolf-Dieter Graf Yorck von Wartenburg v Commission of the European Communities (Death of the applicant — No continuance of suit by estate — No need to adjudicate) | 26 |
| 2004/C 262/1 | Order of the Court of First Instance of 6 July 2004 in Case T-370/02 Alpenhain-Camembert-Werk and Others v Commission of the European Communities (Regulation (EC) No 1829/2002 — Registration of a designation of origin — ‘Feta’ — Application for annulment — Locus standi — Inadmissibility) | 26 |
| 2004/C 262/2 | Order of the Court of First Instance of 8 July 2004 in Case T-338/03: Eridania Sadam and Others v Commission of the European Communities (Common organisation of the markets in the sugar sector — Price regime — Regionalisation — Deficit areas — Classification of Italy — Marketing year 2003/2004 — Regulation No 1158/2003 — Action for annulment — Natural and legal persons — Inadmissibility) | 27 |
| 2004/C 262/3 | Order of the Court of First Instance of 27 July 2004 in Case T-148/04 R, TQ3 Travel Solutions Belgium SA v Commission of the European Communities (Public service contracts — Community tendering procedure — Application for interim measures — Application for suspension of operation and interim measures — Urgency — Absence) | 27 |
| 2004/C 262/4 | Case T-198/04: Action brought on 28 May 2004 by José Félix Merladet against the Commission of the European Communities | 28 |
| 2004/C 262/5 | Case T-253/04: Action brought on 25 June 2004 by Zubeyir Aydar on behalf of Kongra-Gel and 10 others against the Council of the European Union | 28 |
| 2004/C 262/6 | Case T-254/04: Action brought on 16 June 2004 by Spyridon de Athanassios Pappas against the Committee of the Regions | 29 |
| 2004/C 262/7 | Case T-259/04: Action brought on 21 June 2004 by Anne Koistinen against the Commission of the European Communities | 29 |
| 2004/C 262/8 | Case T-264/04: Action brought on 30 June 2004 by World Wide Fund for Nature European Policy Programme against the Council of the European Union | 30 |
| 2004/C 262/9 | Case T-270/04: Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities | 30 |
| 2004/C 262/0 | Case T-271/04: Action brought on 5 July 2004 by Citymo S.A. against the Commission of the European Communities | 31 |
| 2004/C 262/1 | Case T-274/04: Action brought on 8 July 2004 by Georgios Rounis against the Commission of the European Communities | 32 |
| 2004/C 262/2 | Case T-275/04: Action brought on 7 July 2004 by Aries Meca against the Commission of the European Communities | 32 |
| 2004/C 262/3 | Case T-276/04: Action brought on 8 July 2004 by Compagnie Maritime Belge N.V./S.A. against the Commission of the European Communities | 32 |
| 2004/C 262/4 | Case T-279/04: Action brought on 8 July 2004 by Éditions Odile Jacob SAS against the Commission of the European Communities | 33 |
| 2004/C 262/5 | Case T-281/04: Action brought on 9 July 2004 by Paola Staboli against the Commission of the European Communities | 34 |
| 2004/C 262/6 | Case T-283/04: Action brought on 9 July 2004 by Georgia-Pacific S.A.R.L. against the Office for Harmonisation in the Internal Market (OHIM) | 34 |
| 2004/C 262/7 | Case T-285/04: Action brought on 13 July 2004 by Michel Andrieu against the Commission of the European Communities | 35 |
| 2004/C 262/8 | Case T-289/04: Action brought on 15 July 2004 by Dimitra Lantzoni against the Court of Justice of the European Communities | 35 |
| 2004/C 262/9 | Case T-290/04: Action brought on 21 July 2004 by Miguel Teixeira Gaspar, Pedro Paixão Telhada, Ricardo Jorge da Silva Seara Pinto de Amorim and Fernando Miguel Santos Ribeiro against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 36 |
| 2004/C 262/0 | Case T-293/04: Action brought on 9 July 2004 by Guy Tachelet against the Commission of the European Communities | 37 |
| 2004/C 262/1 | Case T-294/04: Action brought on 23 July 2004 by Internationaler Hilfsfonds e.V. against the Commission of the European Communities | 37 |
| 2004/C 262/2 | Case T-296/04: Action brought on 22 July 2004 by Salvador Contreras Gila, José Ramiro Lopez and Antonio Ramiro Lopez against the Council of the European Union | 38 |
| 2004/C 262/3 | Case T-298/04: Action brought on 21 July 2004 by EFKON AG against the European Parliament and the Council of the European Union | 38 |
| 2004/C 262/4 | Case T-300/04: Action brought on 15 July 2004 by easyJet Airline Company Limited against the Commission of the European Communities | 39 |
| 2004/C 262/5 | Case T-301/04: Action brought on 28 July 2004 by Clearstream Banking Aktiengesellschaft and Clearstream International sociéte anonyme Luxembourg against the Commission of the European Communities | 39 |
| 2004/C 262/6 | Case T-302/04: Action brought on 26 July 2004 by Maison de l'Europe Avignon Méditerranée against the Commission of the European Communities | 40 |
| 2004/C 262/7 | Case T-303/04: Action brought on 29 July 2004 by European Dynamics SA against the Commission of the European Communities | 40 |
| 2004/C 262/8 | Case T-305/04: Action brought on 26 July 2004 by Eden against the Office for Harmonisation in the Internal Market (OHIM) | 41 |
| 2004/C 262/9 | Case T-306/04: Action brought on 15 July 2004 by Monika Luxem against the Commission of the European Communities | 41 |
| 2004/C 262/0 | Case T-307/04: Action brought on 19 July 2004 by Carlo Pagliacci against the Commission of the European Communities | 42 |
| 2004/C 262/1 | Case T-308/04: Action brought on 19 July 2004 by Francesco Ianniello against the Commission of the European Communities | 42 |
| 2004/C 262/2 | Case T-309/04: Action brought on 28 July 2004 by TV2/DANMARK A/S against the Commission of the European Communities | 43 |
| 2004/C 262/3 | Case T-310/04: Action brought on 26 July 2004 by Ferrero oHG mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 43 |
| 2004/C 262/4 | Case T-311/04: Action brought on 22 July 2004 by José Luis Buendia Sierra against the Commission of the European Communities | 44 |
| 2004/C 262/5 | Case T-312/04: Action brought on 22 July 2004 by Vittorio Di Bucci against the Commission of the European Communities | 45 |
| 2004/C 262/6 | Case T-313/04: Action brought on 30 July 2004 by Hewlett-Packard GmbH against the Commission of the European Communities | 45 |
| 2004/C 262/7 | Case T-314/04: Action brought on 27 July 2004 by the Federal Republic of Germany against the Commission of the European Communities | 46 |
| 2004/C 262/8 | Case T-316/04: Action brought on 2 August 2004 by Wam SpA against the Commission of the European Communities | 46 |
| 2004/C 262/9 | Case T-317/04: Action brought on 3 August 2004 by the Kingdom of Denmark against the Commission of the European Communities | 47 |
| 2004/C 262/0 | Case T-319/04: Action brought on 27 July 2004 by Port Support Customs Rotterdam B.V. against the Commission of the European Communities | 48 |
| 2004/C 262/1 | Case T-321/04: Action brought on 29 July 2004 by Air Bourbon against the Commission of the European Communities | 48 |
| 2004/C 262/2 | Case T-322/04: Action brought on 5 August 2004 by Colgate-Palmolive Company against Office for Harmonisation in the Internal Market (OHIM) | 49 |
| 2004/C 262/3 | Case T-323/04: Action brought on 4 August 2004 by Brandt Italia SpA against the Commission of the European Communities | 50 |
| 2004/C 262/4 | Case T-329/04: Action brought on 2 August 2004 by Viasat Broadcasting UK Ltd against the Commission of the European Communities | 50 |
| 2004/C 262/5 | Case T-336/04: Action brought on 13 August 2004 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities | 51 |
| 2004/C 262/6 | Case T-338/04: Action brought on 11 August 2004 by Centro Europa 7 srl against the Commission of the European Communities | 52 |
| 2004/C 262/7 | Case T-339/04: Action brought on 10 August 2004 by Wanadoo S.A. against the Commission of the European Communities | 53 |
| 2004/C 262/8 | Case T-340/04: Action brought on 11 August 2004 by France Télécom S.A. against the Commission of the European Communities | 53 |
| 2004/C 262/9 | Case T-342/04: Action brought on 9 August 2004 by Herta Adam against the Commission of the European Communities | 54 |
| 2004/C 262/0 | Case T-343/04: Action brought on 6 August 2004 by Vassilios Tsarnavas against the Commission of the European Communities | 54 |
| 2004/C 262/1 | Case T-344/04: Action brought on 13 August 2004 by Stardust Marine S.A. against the Commission of the European Communities | 55 |
| 2004/C 262/2 | Case T-345/04: Action brought on 20 August 2004 by Italian Republic against the Commission of the European Communities | 55 |
| 2004/C 262/3 | Case T-346/04: Action brought on 17 August 2004 by Sadas S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 56 |
| 2004/C 262/4 | Case T-347/04: Action brought on 17 August 2004 by Pascal Millot against the Commission of the European Communities | 57 |
| 2004/C 262/5 | Case T-348/04: Action brought on 20 August 2004 by Société Internationale de Diffusion et d'Édition against the Commission of the European Communities | 57 |
| 2004/C 262/6 | Case T-354/04: Action brought on 25 August 2004 by Gaetano Petralia against the Commission of the European Communities | 58 |
| 2004/C 262/7 | Case T-355/04: Action brought on 27 August 2004 by Co-Frutta Soc. coop. arl against the Commission of the European Communities | 58 |
| 2004/C 262/8 | Case T-360/04: Action brought on 2 September 2004 by FG Marine S.A. against the Commission of the European Communities | 59 |
| 2004/C 262/9 | Removal from the Register of Case T-283/99 | 60 |
| 2004/C 262/0 | Removal from the Register of Case T-108/02 | 60 |
| 2004/C 262/1 | Removal from the Register of Case T-174/03 | 60 |
| 2004/C 262/2 | Removal from the Register of Case T-52/04 | 60 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 262/1

Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-304/01: Kingdom of Spain v Commission of the European Communities (Common fisheries policy — Regulation (EC) No 1162/2001 — Recovery of the stock of hake — Control of the activities of fishing vessels — Choice of legal basis — Principle of non-discrimination — Obligation to give reasons)

1

2004/C 262/2

Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-332/01: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — 1996 to 1999 — Decision 2001/557/EC — Cotton, olive oil, dried grapes, sheepmeat and goatmeat)

1

2004/C 262/3

Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-127/02 (reference for a preliminary ruling from the Raad van State): Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Directive 92/43/EEC — Conservation of natural habitats and of wild flora and fauna — Concept of ‘plan’ or ‘project’ — Assessment of the implications of certain plans or projects for the protected site)

2

2004/C 262/4

Judgment of the Court (First Chamber) of 9 September 2004 in Joined Cases C-184/02 and C-223/02: Kingdom of Spain and Republic of Finland v European Parliament and Council of the European Union (Directive 2002/15/CE — Organisation of the working time of road transport workers — Self-employed drivers — Legal basis — Freedom to pursue an occupation — Principle of equal treatment — Proportionality — Obligation to state reasons)

3

2004/C 262/5

Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-195/02: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 91/439/EEC — Driving licences — Mutual recognition — Compulsory registration and exchange — Conditions for the renewal of licences issued prior to the transposition of the directive)

3

2004/C 262/6

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-292/02 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Meiland Azewijn BV v Hauptzollamt Duisburg (Excise duties — Mineral oils used in agricultural works — Directive 92/81/EEC — Article 8a — Marking in the Member State where released for consumption — Prohibition on marking in the Member State of use — Directive 95/60/EC)

4

2004/C 262/7

Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-319/02 (reference for a preliminary ruling from the Korkein hallinto-oikeus): Petri Manninen (Income tax — Tax credit for dividends paid by Finnish companies — Articles 56 EC and 58 EC — Cohesion of the tax system)

4

2004/C 262/8

Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-346/02: Commission of the European Communities v Grand Duchy of Luxembourg (Insurance — Third non-life insurance directive — Bonus-malus system)

5

2004/C 262/9

Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-347/02: Commission of the European Communities v French Republic (Insurance — Third non-life insurance directive — Bonus-malus system)

5

2004/C 262/0

Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-375/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Environment — Waste management — Castelliri waste disposal site — Directive 75/442/EEC of 18 March 1991 as amended by Directive 91/156/EEC — Articles 4 and 8)

5

2004/C 262/1

Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-383/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Environment — Waste management — Rodano waste disposal site — Directive 75/442/EEC as amended by Directive 91/156/EEC — Articles 4 and 8)

6

2004/C 262/2

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-397/02 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): Clinique La Ramée ASBL, Winterthur Europe Assurance SA v Jean-Pierre Riehl, Council of the European Union (Officials — Social benefits — Communities' right of subrogation to an official's rights against the third party liable for an actionable event)

6

2004/C 262/3

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-417/02: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 85/384/EEC — Recognition of architects' diplomas — Registration procedure with the Greek Technical Board (Technico Epimelitirio Elladas) — Obligation to provide a document stating that the evidence of formal qualifications concerned is covered by the system of mutual recognition)

7

2004/C 262/4

Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-456/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (Freedom of movement of persons — Citizenship of the European Union — Right of residence — Directive 90/364/EEC — Limitations and conditions — Person working in a hostel in return for benefits in kind — Entitlement to social assistance benefits)

7

2004/C 262/5

Judgment of the Court (Second Chamber) of 7 September 2004 in Case C-469/02: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Career break benefit — Residence condition — Indirect discrimination based on nationality — Article 39 EC — Article 7 of Regulation (EEC) No 1612/68 — Article 73 of Regulation (EEC) No 1408/71)

8

2004/C 262/6

Judgment of the Court (Second Chamber) of 7 September 2004 in Case C-1/03 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): criminal proceedings against Paul Van de Walle and Others and Texaco Belgium SA (Environment — Waste — Directives 75/442/EEC and 91/156/EEC — Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ — Soil infiltrated by leaked hydrocarbons — Independent operation of a service station belonging to a petroleum company)

8

2004/C 262/7

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-70/03: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 93/13/EEC — Unfair terms in consumer contracts — Rules of interpretation — Rules concerning conflict of laws)

9

2004/C 262/8

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-72/03 (reference for a preliminary ruling from the Commissione tributaria di Massa): Carbonati Apuani Srl v Comune di Carrara (Charges having effect equivalent to a customs duty — Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory)

9

2004/C 262/9

Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-113/03: Commission of the European v French Republic (Failure of a Member State to fulfil obligations — Telecommunications — Directive 97/33/CE — Number portability service — Non-geographic numbers)

10

2004/C 262/0

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-125/03: Commission of the European Communities against Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Admissibility — Legal interest in bringing proceedings — Directive 92/50/EEC — Public contracts — Services for transport of waste — Procedure without prior publication of a contract notice)

10

2004/C 262/1

Judgment of the Court (First Chamber) of 9 September 2004 in Case C-269/03 (reference for a preliminary ruling from the Cour d'appel): Administration de l'enregistrement et des domains, État du grand-duché de Luxembourg v Vermietungsgesellschaft Objekt Kirchberg SARL (Sixth VAT Directive — Article 13(C) — Exemption of transactions of leasing or letting of immovable property — Right of option for taxation — Deduction of input tax — Obtaining prior approval of the tax authorities)

11

2004/C 262/2

Judgment of the Court (Sixth Chamber) of 9 September 2004 in Case C-450/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 98/44/EC)

11

2004/C 262/3

Judgment of the Court (Sixth Chamber) of 9 September 2004 in Case C-454/03: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 98/44/EC)

11

2004/C 262/4

Case C-284/04: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 7 June 2004 in the case of T-Mobile Austria GmbH against the Republic of Austria

12

2004/C 262/5

Case C-301/04 P: Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

13

2004/C 262/6

Case C-308/04 P: Appeal brought on 19 July 2004 by SGL Carbon AG against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

14

2004/C 262/7

Case C-328/04: Reference for a preliminary ruling by the Fővárosi Bíróság (Hungary) by order of that court of 24 June 2004 in the criminal proceedings against Attila Vajnai

15

2004/C 262/8

Case C-330/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Italian Republic

16

2004/C 262/9

Case C-332/04: Action brought on 28 July 2004 by Commission of the European Communities against Kingdom of Spain

16

2004/C 262/0

Case C-342/04 P: Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities

17

2004/C 262/1

Case C-351/04: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Chancery Division, by order of that court dated 22 July 2004, in the case of Ikea Wholesale Ltd against Commissioners of Customs and Excise

18

2004/C 262/2

Case C-352/04: Reference for a preliminary ruling by the Verwaltungsgericht Köln by order of that court of 30 June 2004 in the case of mdm Versandservice GmbH against Bundesrepublik Deutschland, joined parties: Deutsche Post AG

19

2004/C 262/3

Case C-353/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 22 July 2004 in the case of Nowaco Germany GmbH against Hauptzollamt Hamburg-Jonas

19

2004/C 262/4

Case C-359/04: Reference for a preliminary ruling by the Tribunale de Teramo by decision of that court of 31 July 2004 in the case of criminal proceedings against Christian Palazzese

20

2004/C 262/5

Case C-360/04: Reference for a preliminary ruling by the Tribunale di Teramo by order of that court of 31 July 2004 in the case of criminal proceedings against Angelo Sorricchio

20

2004/C 262/6

Case C-361/04 P: Appeal brought on 19 August 2004 (Fax: 18 August 2004) by Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso against the judgment delivered on 22 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-185/02 Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), supported by DaimlerChrysler AG, which was also a party before the Board of Appeal

21

2004/C 262/7

Case C-366/04: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 16 August 2004 in the case of Georg Schwarz against Bürgermeister der Landeshauptstadt Salzburg

22

2004/C 262/8

Case C-370/04: Action brought on 26 August 2004 by the Commission of the European Communities against the Federal Republic of Germany

22

2004/C 262/9

Case C-375/04: Action brought on 1 September 2004 by Commission of the European Communities against Grand Duchy of Luxembourg

22

2004/C 262/0

Case C-376/04: Action brought on 2 September 2004 by the Commission of the European Communities against Kingdom of Belgium

23

2004/C 262/1

Case C-377/04: Action brought on 2 September 2004 by the Commission of the European Communities against the Republic of Austria

23

2004/C 262/2

Case C-378/04: Action brought on 2 September 2004 by the Commission of the European Communities against the Republic of Austria

23

2004/C 262/3

Case C-279/04: Reference for a preliminary ruling by the Retten i Hørsholm (Denmark) by order of that court of 4 June 2004 in the case of Anklagemyndigheden against Steffen Ryborg

24

2004/C 262/4

Case C-382/04: Action brought on 6 September 2004 by the Commission of the European Communities against Grand Duchy of Luxembourg

24

2004/C 262/5

Case C-383/04: Action brought on 6 September 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

24

2004/C 262/6

Case C-385/04: Action brought on 7 September 2004 by the Commission of the European Communities against the United Kingdom

25

2004/C 262/7

Case C-386/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 14 July 2004 in the case of Centro di Musicologia Walter Stauffer against Finanzamt München für Körperschaften

25

2004/C 262/8

Case C-387/04: Reference for a preliminary ruling by the Amtsgericht Dresden by order of 7 September 2004 in the insolvency proceedings against Volker Donath

25

COURT OF FIRST INSTANCE

2004/C 262/9

Order of the Court of First Instance of 8 July 2004 in Case T-200/02, Vassilios Tsarnavas v Commission of the European Communities (Officials — Late establishment of staff report — Claim for annulment — Claim for damages — Inadmissibility)

26

2004/C 262/0

Order of the Court of First Instance of 14 July 2004 in Case T 360/02: Wolf-Dieter Graf Yorck von Wartenburg v Commission of the European Communities (Death of the applicant — No continuance of suit by estate — No need to adjudicate)

26

2004/C 262/1

Order of the Court of First Instance of 6 July 2004 in Case T-370/02 Alpenhain-Camembert-Werk and Others v Commission of the European Communities (Regulation (EC) No 1829/2002 — Registration of a designation of origin — ‘Feta’ — Application for annulment — Locus standi — Inadmissibility)

26

2004/C 262/2

Order of the Court of First Instance of 8 July 2004 in Case T-338/03: Eridania Sadam and Others v Commission of the European Communities (Common organisation of the markets in the sugar sector — Price regime — Regionalisation — Deficit areas — Classification of Italy — Marketing year 2003/2004 — Regulation No 1158/2003 — Action for annulment — Natural and legal persons — Inadmissibility)

27

2004/C 262/3

Order of the Court of First Instance of 27 July 2004 in Case T-148/04 R, TQ3 Travel Solutions Belgium SA v Commission of the European Communities (Public service contracts — Community tendering procedure — Application for interim measures — Application for suspension of operation and interim measures — Urgency — Absence)

27

2004/C 262/4

Case T-198/04: Action brought on 28 May 2004 by José Félix Merladet against the Commission of the European Communities

28

2004/C 262/5

Case T-253/04: Action brought on 25 June 2004 by Zubeyir Aydar on behalf of Kongra-Gel and 10 others against the Council of the European Union

28

2004/C 262/6

Case T-254/04: Action brought on 16 June 2004 by Spyridon de Athanassios Pappas against the Committee of the Regions

29

2004/C 262/7

Case T-259/04: Action brought on 21 June 2004 by Anne Koistinen against the Commission of the European Communities

29

2004/C 262/8

Case T-264/04: Action brought on 30 June 2004 by World Wide Fund for Nature European Policy Programme against the Council of the European Union

30

2004/C 262/9

Case T-270/04: Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities

30

2004/C 262/0

Case T-271/04: Action brought on 5 July 2004 by Citymo S.A. against the Commission of the European Communities

31

2004/C 262/1

Case T-274/04: Action brought on 8 July 2004 by Georgios Rounis against the Commission of the European Communities

32

2004/C 262/2

Case T-275/04: Action brought on 7 July 2004 by Aries Meca against the Commission of the European Communities

32

2004/C 262/3

Case T-276/04: Action brought on 8 July 2004 by Compagnie Maritime Belge N.V./S.A. against the Commission of the European Communities

32

2004/C 262/4

Case T-279/04: Action brought on 8 July 2004 by Éditions Odile Jacob SAS against the Commission of the European Communities

33

2004/C 262/5

Case T-281/04: Action brought on 9 July 2004 by Paola Staboli against the Commission of the European Communities

34

2004/C 262/6

Case T-283/04: Action brought on 9 July 2004 by Georgia-Pacific S.A.R.L. against the Office for Harmonisation in the Internal Market (OHIM)

34

2004/C 262/7

Case T-285/04: Action brought on 13 July 2004 by Michel Andrieu against the Commission of the European Communities

35

2004/C 262/8

Case T-289/04: Action brought on 15 July 2004 by Dimitra Lantzoni against the Court of Justice of the European Communities

35

2004/C 262/9

Case T-290/04: Action brought on 21 July 2004 by Miguel Teixeira Gaspar, Pedro Paixão Telhada, Ricardo Jorge da Silva Seara Pinto de Amorim and Fernando Miguel Santos Ribeiro against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

36

2004/C 262/0

Case T-293/04: Action brought on 9 July 2004 by Guy Tachelet against the Commission of the European Communities

37

2004/C 262/1

Case T-294/04: Action brought on 23 July 2004 by Internationaler Hilfsfonds e.V. against the Commission of the European Communities

37

2004/C 262/2

Case T-296/04: Action brought on 22 July 2004 by Salvador Contreras Gila, José Ramiro Lopez and Antonio Ramiro Lopez against the Council of the European Union

38

2004/C 262/3

Case T-298/04: Action brought on 21 July 2004 by EFKON AG against the European Parliament and the Council of the European Union

38

2004/C 262/4

Case T-300/04: Action brought on 15 July 2004 by easyJet Airline Company Limited against the Commission of the European Communities

39

2004/C 262/5

Case T-301/04: Action brought on 28 July 2004 by Clearstream Banking Aktiengesellschaft and Clearstream International sociéte anonyme Luxembourg against the Commission of the European Communities

39

2004/C 262/6

Case T-302/04: Action brought on 26 July 2004 by Maison de l'Europe Avignon Méditerranée against the Commission of the European Communities

40

2004/C 262/7

Case T-303/04: Action brought on 29 July 2004 by European Dynamics SA against the Commission of the European Communities

40

2004/C 262/8

Case T-305/04: Action brought on 26 July 2004 by Eden against the Office for Harmonisation in the Internal Market (OHIM)

41

2004/C 262/9

Case T-306/04: Action brought on 15 July 2004 by Monika Luxem against the Commission of the European Communities

41

2004/C 262/0

Case T-307/04: Action brought on 19 July 2004 by Carlo Pagliacci against the Commission of the European Communities

42

2004/C 262/1

Case T-308/04: Action brought on 19 July 2004 by Francesco Ianniello against the Commission of the European Communities

42

2004/C 262/2

Case T-309/04: Action brought on 28 July 2004 by TV2/DANMARK A/S against the Commission of the European Communities

43

2004/C 262/3

Case T-310/04: Action brought on 26 July 2004 by Ferrero oHG mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

43

2004/C 262/4

Case T-311/04: Action brought on 22 July 2004 by José Luis Buendia Sierra against the Commission of the European Communities

44

2004/C 262/5

Case T-312/04: Action brought on 22 July 2004 by Vittorio Di Bucci against the Commission of the European Communities

45

2004/C 262/6

Case T-313/04: Action brought on 30 July 2004 by Hewlett-Packard GmbH against the Commission of the European Communities

45

2004/C 262/7

Case T-314/04: Action brought on 27 July 2004 by the Federal Republic of Germany against the Commission of the European Communities

46

2004/C 262/8

Case T-316/04: Action brought on 2 August 2004 by Wam SpA against the Commission of the European Communities

46

2004/C 262/9

Case T-317/04: Action brought on 3 August 2004 by the Kingdom of Denmark against the Commission of the European Communities

47

2004/C 262/0

Case T-319/04: Action brought on 27 July 2004 by Port Support Customs Rotterdam B.V. against the Commission of the European Communities

48

2004/C 262/1

Case T-321/04: Action brought on 29 July 2004 by Air Bourbon against the Commission of the European Communities

48

2004/C 262/2

Case T-322/04: Action brought on 5 August 2004 by Colgate-Palmolive Company against Office for Harmonisation in the Internal Market (OHIM)

49

2004/C 262/3

Case T-323/04: Action brought on 4 August 2004 by Brandt Italia SpA against the Commission of the European Communities

50

2004/C 262/4

Case T-329/04: Action brought on 2 August 2004 by Viasat Broadcasting UK Ltd against the Commission of the European Communities

50

2004/C 262/5

Case T-336/04: Action brought on 13 August 2004 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities

51

2004/C 262/6

Case T-338/04: Action brought on 11 August 2004 by Centro Europa 7 srl against the Commission of the European Communities

52

2004/C 262/7

Case T-339/04: Action brought on 10 August 2004 by Wanadoo S.A. against the Commission of the European Communities

53

2004/C 262/8

Case T-340/04: Action brought on 11 August 2004 by France Télécom S.A. against the Commission of the European Communities

53

2004/C 262/9

Case T-342/04: Action brought on 9 August 2004 by Herta Adam against the Commission of the European Communities

54

2004/C 262/0

Case T-343/04: Action brought on 6 August 2004 by Vassilios Tsarnavas against the Commission of the European Communities

54

2004/C 262/1

Case T-344/04: Action brought on 13 August 2004 by Stardust Marine S.A. against the Commission of the European Communities

55

2004/C 262/2

Case T-345/04: Action brought on 20 August 2004 by Italian Republic against the Commission of the European Communities

55

2004/C 262/3

Case T-346/04: Action brought on 17 August 2004 by Sadas S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

56

2004/C 262/4

Case T-347/04: Action brought on 17 August 2004 by Pascal Millot against the Commission of the European Communities

57

2004/C 262/5

Case T-348/04: Action brought on 20 August 2004 by Société Internationale de Diffusion et d'Édition against the Commission of the European Communities

57

2004/C 262/6

Case T-354/04: Action brought on 25 August 2004 by Gaetano Petralia against the Commission of the European Communities

58

2004/C 262/7

Case T-355/04: Action brought on 27 August 2004 by Co-Frutta Soc. coop. arl against the Commission of the European Communities

58

2004/C 262/8

Case T-360/04: Action brought on 2 September 2004 by FG Marine S.A. against the Commission of the European Communities

59

2004/C 262/9

Removal from the Register of Case T-283/99

60

2004/C 262/0

Removal from the Register of Case T-108/02

60

2004/C 262/1

Removal from the Register of Case T-174/03

60

2004/C 262/2

Removal from the Register of Case T-52/04

60

| | III   Notices |
| --- | --- |
| 2004/C 262/3 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 251, 9.10.2004 | 61 |

III   Notices

2004/C 262/3

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 251, 9.10.2004

Official Journal of the European Union

61

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 23.10.2004 | EN | Official Journal of the European Union | C 262/1 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/1

---

JUDGMENT OF THE COURT

(Second Chamber)

of 9 September 2004

in Case C-304/01: Kingdom of Spain v Commission of the European Communities (1)

(Common fisheries policy - Regulation (EC) No 1162/2001 - Recovery of the stock of hake - Control of the activities of fishing vessels - Choice of legal basis - Principle of non-discrimination - Obligation to give reasons)

(2004/C 262/01)

Language of the case: Spanish

In Case C-304/01: Kingdom of Spain (Agent: N. Díaz Abad) v Commission of the European Communities (Agents: T. van Rijn and S. Pardo Quintillán) — application for annulment under Article 230 EC, lodged at the Court on 2 August 2001 — the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber; C. Gulmann, J.-P. Puissochet, J.N. Cunha Rodrigues and N. Colneric, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Registrar, Principal Administrator, gave a judgment on 9 September 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 289, 13.10.2001.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/1 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/1

---

JUDGMENT OF THE COURT

(Second Chamber)

of 9 September 2004

in Case C-332/01: Hellenic Republic v Commission of the European Communities (1)

(EAGGF - Clearance of accounts - 1996 to 1999 - Decision 2001/557/EC - Cotton, olive oil, dried grapes, sheepmeat and goatmeat)

(2004/C 262/02)

Language of the case: Greek

In Case C-304/01: Hellenic Republic (Agents: V. Kontolaimos and I. Chalkias) v Commission of the European Communities (Agent: M. Condou-Durande) — application for annulment under Article 230 EC brought on 3 September 2001 — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; F.G. Jacobs, Advocate General; H. von Holstein, Deputy Registrar, has given a judgment on 9 September 2004, in which it:

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

1.

Dismisses the action;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 317 of 10.11.2001.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/2 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/2

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 September 2004

in Case C-127/02 (reference for a preliminary ruling from the Raad van State): Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (1)

(Directive 92/43/EEC - Conservation of natural habitats and of wild flora and fauna - Concept of ‘plan’ or ‘project’ - Assessment of the implications of certain plans or projects for the protected site)

(2004/C 262/03)

Language of the case: Dutch

In Case C-127/02: reference for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 27 March 2002, received on 8 April 2002, between Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels and Staatssecretaris van Landbouw, Natuurbeheer en Visserij — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann (Rapporteur), J.-P. Puissochet and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, S. von Bahr and R. Silva de Lapuerta, Judges; J. Kokott, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 7 September 2002, in which it has ruled:

| 1. | Mechanical cockle fishing which has been carried on for many years but for which a licence is granted annually for a limited period, with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. |
| --- | --- |

1.

Mechanical cockle fishing which has been carried on for many years but for which a licence is granted annually for a limited period, with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

| 2. | Article 6(3) of Directive 92/43 establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site, while Article 6(2) of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive's objectives, and cannot be applicable concomitantly with Article 6(3). |
| --- | --- |

2.

Article 6(3) of Directive 92/43 establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site, while Article 6(2) of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive's objectives, and cannot be applicable concomitantly with Article 6(3).

| 3. | (a) | The first sentence of Article 6(3) of Directive 92/43 must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects. |
| --- | --- | --- |

3.

(a)

The first sentence of Article 6(3) of Directive 92/43 must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects.

| (b) | Pursuant to the first sentence of Article 6(3) of Directive 92/43, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site's conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project. |
| --- | --- |

(b)

Pursuant to the first sentence of Article 6(3) of Directive 92/43, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site's conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project.

| 4. | Under Article 6(3) of Directive 92/43, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site's conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. |
| --- | --- |

4.

Under Article 6(3) of Directive 92/43, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site's conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.

| 5. | Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6(3) of Directive 92/43, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the Member State concerned despite the expiry of the time-limit laid down for that purpose. |
| --- | --- |

5.

Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6(3) of Directive 92/43, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the Member State concerned despite the expiry of the time-limit laid down for that purpose.

---

(1)  OJ C 16 of 29.6.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/3 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/3

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JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Joined Cases C-184/02 and C-223/02: Kingdom of Spain and Republic of Finland v European Parliament and Council of the European Union (1)

(Directive 2002/15/CE - Organisation of the working time of road transport workers - Self-employed drivers - Legal basis - Freedom to pursue an occupation - Principle of equal treatment - Proportionality - Obligation to state reasons)

(2004/C 262/04)

Languages of the case: Spanish and Finnish

In Joined Cases C-184/02 and C-223/02: actions for annulment under Article 230 EC brought on 16 May and 12 June 2002, Kingdom of Spain (Agents: R. Silva de Lapuerta and subsequently N. Díaz Abad) in Case C-184/02 and Republic of Finland (Agent: T. Pynnä) in Case C-223/02 v European Parliament (Agents: M. Gómez-Leal and C. Pennera (C-184/02) and H. von Hertzen and G. Ricci (C-223/02)) and Council of the European Union (Agents: A. Lopes Sabino and G.-L. Ramos Ruano (C-184/02) and A. Lopes Sabino and H. Erno (C-223/02)), supported by Commission of the European Communities (Agents: F. Castillo de la Torre and W. Wils (C-184/02) and M. Huttunen and W. Wils (C-223/02)) — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, K. Lenaerts (Rapporteur), and K. Schiemann, Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 9 September 2004, in which it:

| 1. | Dismisses the actions; |
| --- | --- |

1.

Dismisses the actions;

| 2. | Orders the applicants to bear their own costs and pay those of the defendants; |
| --- | --- |

2.

Orders the applicants to bear their own costs and pay those of the defendants;

| 3. | Orders the Commission to bear its own costs. |
| --- | --- |

3.

Orders the Commission to bear its own costs.

---

(1)  OJ C 169 of 13.7.2002.

OJ C 202 of 24.8.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/3 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/3

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JUDGMENT OF THE COURT

(Second Chamber)

of 9 September 2004

in Case C-195/02: Commission of the European Communities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations - Directive 91/439/EEC - Driving licences - Mutual recognition - Compulsory registration and exchange - Conditions for the renewal of licences issued prior to the transposition of the directive)

(2004/C 262/05)

Language of the case: Spanish

In Case C-195/02: action under Article 226 EC for failure to fulfil obligations brought on 27 May 2002 by Commission of the European Communities (Agents: F. Castillo de la Torre and W. Wils) against Kingdom of Spain (Agent: N. Díaz Abad), supported by Kingdom of the Netherlands (Agents: H.G. Sevenster and S. Terstal) and by United Kingdom of Great Britain and Northern Ireland (Agents: P. Ormond, assisted by A. Robertson) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P Puissochet, R. Schintgen (Rapporteur), F. Macken and N. Colneric, Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, gave a judgment on 9 September 2004, in which it:

| 1. | Declares that, by adopting Articles 22 to 24 and 25(2) of the Reglamento de conductores (Regulations on Drivers), of 30 May 1977, and also the seventh transitional provision of those regulations, the Kingdom of Spain has failed to fulfil its obligations under Articles 1(2) and 7(1)(a) of, and point 4 of Annex I to, Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 96/47/EC of 23 July 1996; |
| --- | --- |

1.

Declares that, by adopting Articles 22 to 24 and 25(2) of the Reglamento de conductores (Regulations on Drivers), of 30 May 1977, and also the seventh transitional provision of those regulations, the Kingdom of Spain has failed to fulfil its obligations under Articles 1(2) and 7(1)(a) of, and point 4 of Annex I to, Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 96/47/EC of 23 July 1996;

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

2.

Orders the Kingdom of Spain to pay the costs;

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

3.

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

---

(1)  OJ C 191 of 10.8.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/4 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/4

---

JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-292/02 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Meiland Azewijn BV v Hauptzollamt Duisburg (1)

(Excise duties - Mineral oils used in agricultural works - Directive 92/81/EEC - Article 8a - Marking in the Member State where released for consumption - Prohibition on marking in the Member State of use - Directive 95/60/EC)

(2004/C 262/06)

Language of the case: German

In Case C-292/02: reference for a preliminary ruling under Article 234 EC from the Finanzgericht Düsseldorf (Germany), by decision of 6 August 2002, received on 13 August 2002, in the proceedings Meiland Azewijn BV v Hauptzollamt Duisburg — the Court (First Chamber), composed of: P. Jann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges; F.G. Jacobs, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 9 September 2004, the operative part of which is as follows:

| 1. | Article 8a(1) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, as amended by Council Directive 94/74/EC of 22 December 1994, is to be interpreted as prohibiting Member States from subjecting to excise duty mineral oil, whether marked or unmarked, contained in the standard tank of a commercial motor vehicle, such as agricultural machinery, and used as fuel not only to move the vehicle but also in order to utilise it for other purposes, such as agricultural work, when that mineral oil has been lawfully released for consumption in another Member State. |
| --- | --- |

1.

Article 8a(1) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, as amended by Council Directive 94/74/EC of 22 December 1994, is to be interpreted as prohibiting Member States from subjecting to excise duty mineral oil, whether marked or unmarked, contained in the standard tank of a commercial motor vehicle, such as agricultural machinery, and used as fuel not only to move the vehicle but also in order to utilise it for other purposes, such as agricultural work, when that mineral oil has been lawfully released for consumption in another Member State.

| 2. | The prohibition in Article 8a(1) of Directive 92/81 as amended may be relied on by individuals in proceedings before national courts in order to contest national rules that are incompatible with that prohibition. |
| --- | --- |

2.

The prohibition in Article 8a(1) of Directive 92/81 as amended may be relied on by individuals in proceedings before national courts in order to contest national rules that are incompatible with that prohibition.

---

(1)  OJ C 261 of 26.10.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/4 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/4

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 September 2004

in Case C-319/02 (reference for a preliminary ruling from the Korkein hallinto-oikeus): Petri Manninen (1)

(Income tax - Tax credit for dividends paid by Finnish companies - Articles 56 EC and 58 EC - Cohesion of the tax system)

(2004/C 262/07)

Language of the case: Finnish

In Case C-319/92: Reference to the Court under Article 234 EC from the Korkein hallinto-oikeus (Finland) for a preliminary ruling in the proceedings pending before that court by order of 10 September 2002, which arrived at the Court on 12 September 2002, in the proceedings brought by Petri Manninen — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.-P. Puissochet and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr and K. Lenaerts (Rapporteur), Judges; J. Kokott, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 7 September 2004, in which it has ruled:

Articles 56 EC and 58 EC preclude legislation whereby the entitlement of a person fully taxable in one Member State to a tax credit in relation to dividends paid to him by limited companies is excluded where those companies are not established in that State.

---

(1)  OJ C 274 of 9.11.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/5 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/5

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 September 2004

in Case C-346/02: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Insurance - Third non-life insurance directive - Bonus-malus system)

(2004/C 262/08)

Language of the case: French

In Case C-346/02, action under Article 226 EC for failure to fulfil obligations, brought on 30 September 2002, Commission of the European Communities (Agents: C. Tufvesson and J.-F. Pasquier) v Grand Duchy of Luxembourg (Agent: P. Gramegna, assisted by A. Schmitt) — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gulmann and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges, C. Stix-Hackl, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 7 September 2004, in which it:

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

1.

Dismisses the action;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

Orders the Commission of the European Communities to pay the costs.

---

(1)  OJ C 289 of 23.11.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/5 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/5

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 September 2004

in Case C-347/02: Commission of the European Communities v French Republic (1)

(Insurance - Third non-life insurance directive - Bonus-malus system)

(2004/C 262/09)

Language of the case: French

In Case C-347/02, action under Article 226 EC for failure to fulfil obligations, brought on 30 September 2002, Commission of the European Communities (Agents: C. Tufvesson and J.-F. Pasquier) v French Republic (Agents: G. de Bergues, P. Boussaroque and C. Mercier) — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gulmann and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts,, Judges; C. Stix-Hackl, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 7 September 2004 in which it:

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

1.

Dismisses the action;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

Orders the Commission of the European Communities to pay the costs.

---

(1)  OJ C 289 of 23.11.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/5 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/5

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 9 September 2004

in Case C-375/02: Commission of the European Communities v Italian Republic (1)

(Failure by a Member State to fulfil its obligations - Environment - Waste management - Castelliri waste disposal site - Directive 75/442/EEC of 18 March 1991 as amended by Directive 91/156/EEC - Articles 4 and 8)

(2004/C 262/10)

Language of the case: Italian

In Case C-375/02: Commission of the European Communities (Agents: M. Konstantinidis and R. Amorosi) v Italian Republic (Agent: I.M. Braguglia, assisted by M. Fiorilli) — action for failure to fulfil obligations under Article 226 EC brought on 18 October 2002 — the Court (Fifth Chamber), composed of: C. Gulmann, President of Chamber, S. von Bahr and R. Silva de Lapuerta (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 7 September 2004, the operative part of which is as follows:

| 1. | By failing to adopt the measures necessary to ensure that the waste deposited in the Castelliri waste disposal site (Frosinone) (Italy) is recovered or eliminated without endangering human health and without using processes or methods which could harm the environment, and by failing to adopt the measures necessary to ensure that any holder of waste at that site has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B to Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156 of 18 March 1991, or recovers or disposes of it himself, the Italian Republic has failed to fulfil its obligations under Articles 4 and 8 of that directive. |
| --- | --- |

1.

By failing to adopt the measures necessary to ensure that the waste deposited in the Castelliri waste disposal site (Frosinone) (Italy) is recovered or eliminated without endangering human health and without using processes or methods which could harm the environment, and by failing to adopt the measures necessary to ensure that any holder of waste at that site has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B to Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156 of 18 March 1991, or recovers or disposes of it himself, the Italian Republic has failed to fulfil its obligations under Articles 4 and 8 of that directive.

| 2. | The Italian Republic is ordered to pay the costs. |
| --- | --- |

2.

The Italian Republic is ordered to pay the costs.

---

(1)  OJ C 305 of 7.12.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/6 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/6

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 9 September 2004

in Case C-383/02: Commission of the European Communities v Italian Republic (1)

(Failure by a Member State to fulfil its obligations - Environment - Waste management - Rodano waste disposal site - Directive 75/442/EEC as amended by Directive 91/156/EEC - Articles 4 and 8)

(2004/C 262/11)

Language of the case: Italian

In Case C-383/02: Commission of the European Communities (Agents: M. Konstantinidis and R. Amorosi) v Italian Republic (Agent: I.M. Braguglia, assisted by M. Fiorilli) — action for failure to fulfil obligations under Article 226 EC brought on 18 October 2002 — the Court (Fifth Chamber), composed of: C. Gulmann, President of Chamber, S. von Bahr and R. Silva de Lapuerta (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 9 September 2004, the operative part of which is as follows:

| 1. | By failing to adopt the measures necessary to ensure that the waste deposited at the Rodano waste disposal site (Milan) (Italy) is recovered or eliminated without endangering human health and without using processes or methods which could harm the environment, and by failing to adopt the measures necessary to ensure that any holder of waste at that site has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B to Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156 of 18 March 1991, or recovers or disposes of it himself, the Italian Republic has failed to fulfil its obligations under Articles 4 and 8 of that directive. |
| --- | --- |

1.

By failing to adopt the measures necessary to ensure that the waste deposited at the Rodano waste disposal site (Milan) (Italy) is recovered or eliminated without endangering human health and without using processes or methods which could harm the environment, and by failing to adopt the measures necessary to ensure that any holder of waste at that site has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B to Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156 of 18 March 1991, or recovers or disposes of it himself, the Italian Republic has failed to fulfil its obligations under Articles 4 and 8 of that directive.

| 2. | The Italian Republic is ordered to pay the costs. |
| --- | --- |

2.

The Italian Republic is ordered to pay the costs.

---

(1)  OJ C 305 of 7.12.2002.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/6 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/6

---

JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-397/02 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): Clinique La Ramée ASBL, Winterthur Europe Assurance SA v Jean-Pierre Riehl, Council of the European Union (1)

(Officials - Social benefits - Communities' right of subrogation to an official's rights against the third party liable for an actionable event)

(2004/C 262/12)

Language of the case: French

In Case C-397/02: reference to the Court for a preliminary ruling under Article 234 EC by the Cour d'appel de Bruxelles (Belgium) by decision of 6 November 2002, registered on 11 November 2002, in the proceedings between Clinique La Ramée ASBL, Winterthur Europe Assurance SA and Jean-Pierre Riehl, Council of the European Union — the Court (First Chamber), composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 9 September 2004, in which it ruled:

Article 85a of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of officials and the conditions of employment of other servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, as amended by Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985, is not to be interpreted as conferring on the Communities the right to obtain from a third party liable for the death of an official reimbursement in full of the survivor's pension paid to the surviving spouse pursuant to Articles 79 and 79(a) of those Staff Regulations, where the law applicable to entitlement to compensation for damage provides that the right to a survivor's pension is unconnected with the obligation of the perpetrator of a wrongful act to compensate in full for the damage and the damage suffered by the surviving spouse as a result of the loss of the deceased wife's income is less than the amount of the survivor's pension paid to him.

---

(1)  OJ C 7 of 11.1.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/7 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/7

---

JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-417/02: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 85/384/EEC - Recognition of architects' diplomas - Registration procedure with the Greek Technical Board (Technico Epimelitirio Elladas) - Obligation to provide a document stating that the evidence of formal qualifications concerned is covered by the system of mutual recognition)

(2004/C 262/13)

Language of the case: Greek

In Case C-417/02: action under Article 226 EC for failure to fulfil obligations, brought on 19 November 2002, Commission of the European Communities (Agent: M. Patakia) v Hellenic Republic (Agent: E. Skandalou) — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, K. Lenaerts and K. Schiemann (Rapporteur), Judges; J. Kokott, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 9 September 2004, in which it:

| 1. | Declares that, by adopting and retaining in force the provisions of Article 3(1)(c) of Presidential Decree No 107/1993 of 22 March 1993, and by accepting that the Technico Epimelitirio Elladas (Greek Technical Board), with which a person must be registered in order to pursue the profession of architect in Greece, carries out, with significant delays, the processing of the files and the registration of Community nationals holding foreign diplomas which ought to be recognised under Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by adopting and retaining in force the provisions of Article 3(1)(c) of Presidential Decree No 107/1993 of 22 March 1993, and by accepting that the Technico Epimelitirio Elladas (Greek Technical Board), with which a person must be registered in order to pursue the profession of architect in Greece, carries out, with significant delays, the processing of the files and the registration of Community nationals holding foreign diplomas which ought to be recognised under Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, the Hellenic Republic has failed to fulfil its obligations under that directive;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 19 of 25.1.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/7 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/7

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 September 2004

in Case C-456/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (1)

(Freedom of movement of persons - Citizenship of the European Union - Right of residence - Directive 90/364/EEC - Limitations and conditions - Person working in a hostel in return for benefits in kind - Entitlement to social assistance benefits)

(2004/C 262/14)

Language of the case: French

In Case C-456/02: reference for a preliminary ruling under Article 234 EC from the Tribunal du travail de Bruxelles (Belgium), made by decision of 21 November 2002, received on 18 December 2002, in the proceedings between Michel Trojani and Centre public d'aide sociale de Bruxelles (CPAS) — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.-P. Puissochet and J.N. Cunha Rodrigues (Rapporteur), Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr and K. Lenaerts, Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 7 September 2004, in which it has ruled:

| 1. | A person in a situation such as that of the claimant in the main proceedings, first, does not come under Articles 43 EC and 49 EC and, second, can claim a right of residence as a worker within the meaning of Article 39 EC only if the paid activity he carries out is real and genuine. It is for the national court to carry out the examinations of fact necessary to determine whether that is so in the case pending before it. |
| --- | --- |

1.

A person in a situation such as that of the claimant in the main proceedings, first, does not come under Articles 43 EC and 49 EC and, second, can claim a right of residence as a worker within the meaning of Article 39 EC only if the paid activity he carries out is real and genuine. It is for the national court to carry out the examinations of fact necessary to determine whether that is so in the case pending before it.

| 2. | A citizen of the European Union who does not enjoy a right of residence in the host Member State under Articles 39 EC, 43 EC or 49 EC may, simply as a citizen of the Union, enjoy a right of residence there by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities must ensure that those limitations and conditions are applied in compliance with the general principles of Community law, in particular the principle of proportionality. However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on Article 12 EC in order to be granted a social assistance benefit such as the minimex. |
| --- | --- |

2.

A citizen of the European Union who does not enjoy a right of residence in the host Member State under Articles 39 EC, 43 EC or 49 EC may, simply as a citizen of the Union, enjoy a right of residence there by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities must ensure that those limitations and conditions are applied in compliance with the general principles of Community law, in particular the principle of proportionality. However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on Article 12 EC in order to be granted a social assistance benefit such as the minimex.

---

(1)  OJ C 44 of 22.2.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/8 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/8

---

JUDGMENT OF THE COURT

(Second Chamber)

of 7 September 2004

in Case C-469/02: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations - Career break benefit - Residence condition - Indirect discrimination based on nationality - Article 39 EC - Article 7 of Regulation (EEC) No 1612/68 - Article 73 of Regulation (EEC) No 1408/71)

(2004/C 262/15)

Language of the case: French

In Case C-469/02: action under Article 226 EC for failure to fulfil obligations, brought on 23 December 2002, Commission of the European Communities (Agent: H. Michard) v Kingdom of Belgium (Agent: A. Snoecx, then by E. Dominkovits) — the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues ande R. Schintgen and N. Colneric, Judges; M. Poiares Maduro, Advocate General; R. Grass, for the Registrar, has given a judgment on 7 September 2004, in which it:

| 1. | Declares that, by making the granting and payment of a benefit under the career-break benefit scheme subject to the condition that the person concerned is habitually resident in Belgium, the Kingdom of Belgium has failed to fulfil its duties under Article 39 EC, Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, Article 73 of Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996; |
| --- | --- |

1.

Declares that, by making the granting and payment of a benefit under the career-break benefit scheme subject to the condition that the person concerned is habitually resident in Belgium, the Kingdom of Belgium has failed to fulfil its duties under Article 39 EC, Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, Article 73 of Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996;

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

2.

Order the Kingdom of Belgium to pay the costs.

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(1)  OJ C 44 of 22.2.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/8 |
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23.10.2004

EN

Official Journal of the European Union

C 262/8

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JUDGMENT OF THE COURT

(Second Chamber)

of 7 September 2004

in Case C-1/03 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): criminal proceedings against Paul Van de Walle and Others and Texaco Belgium SA (1)

(Environment - Waste - Directives 75/442/EEC and 91/156/EEC - Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ - Soil infiltrated by leaked hydrocarbons - Independent operation of a service station belonging to a petroleum company)

(2004/C 262/16)

Language of the case: French

In Case C-1/03: Reference to the Court under Article 234 EC from the Cour d'appel de Bruxelles (Belgium) for a preliminary ruling in the criminal proceedings pending before that court against Paul Van de Walle, Daniel Laurent, Thierry Mersch and Texaco Belgium SA, intervener: Région de Bruxelles-Capitale — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken and N. Colneric, Judges; J. Kokott, Advocate General; R. Grass, Registrar, has given a judgment on 7 September 2004, in which it has ruled:

Hydrocarbons which are unintentionally spilled and cause soil and groundwater contamination are waste within the meaning of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991. The same is true for soil contaminated by hydrocarbons, even if it has not been excavated. In circumstances such as those in the main proceedings, the petroleum undertaking which supplied the service station can be considered to be the holder of that waste within the meaning of Article 1(c) of Directive 75/442 only if the leak from the service station's storage facilities which gave rise to the waste can be attributed to the conduct of that undertaking.

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(1)  OJ C 44 of 22.2.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/9 |
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23.10.2004

EN

Official Journal of the European Union

C 262/9

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JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-70/03: Commission of the European Communities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations - Directive 93/13/EEC - Unfair terms in consumer contracts - Rules of interpretation - Rules concerning conflict of laws)

(2004/C 262/17)

Language of the case: Spanish

In Case C-70/03: action under Article 226 EC for failure to fulfil obligations brought on 17 February 2003, Commission of the European Communities (Agents: I. Martínez del Peral and M. França) v Kingdom of Spain (Agent: L. Fraguas Gadea) — the Court (First Chamber), composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas and R. Silva de Lapuerta, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 9 September 2004, in which it:

| 1. | Declares that, by failing correctly to transpose into national law Articles 5 and 6(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing correctly to transpose into national law Articles 5 and 6(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 146 of 21.6.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/9 |
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23.10.2004

EN

Official Journal of the European Union

C 262/9

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JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-72/03 (reference for a preliminary ruling from the Commissione tributaria di Massa): Carbonati Apuani Srl v Comune di Carrara (1)

(Charges having effect equivalent to a customs duty - Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory)

(2004/C 262/18)

Language of the case: Italian

In Case C-72/03: reference for a preliminary ruling under Article 234 EC from the Commissione tributaria di Massa Carrara (Italy), by decision of 11 December 2002, registered at the Court on 18 February 2003, in the proceedings brought by Carbonati Apuani Srl v Comune di Carrara — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges; M. Poiares Maduro, Advocate General; L. Hewlett, Principal Administrator, gave a judgment on 9 September 2004, the operative part of which is as follows:

| 1. | A tax proportionate to the weight of goods, levied in one municipality of a Member State only and imposed on one class of goods when those goods are transported beyond the territorial boundaries of that municipality, constitutes a charge having effect equivalent to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it is imposed also on goods the final destination of which is within the Member State concerned. |
| --- | --- |

1.

A tax proportionate to the weight of goods, levied in one municipality of a Member State only and imposed on one class of goods when those goods are transported beyond the territorial boundaries of that municipality, constitutes a charge having effect equivalent to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it is imposed also on goods the final destination of which is within the Member State concerned.

| 2. | Article 23 EC cannot be relied on in support of claims for refunds of sums levied by way of the marble tax before 16 July 1992, except by claimants who had, before that date, initiated legal proceedings or raised an equivalent claim. |
| --- | --- |

2.

Article 23 EC cannot be relied on in support of claims for refunds of sums levied by way of the marble tax before 16 July 1992, except by claimants who had, before that date, initiated legal proceedings or raised an equivalent claim.

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(1)  OJ C 83 of 5.4.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/10 |
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23.10.2004

EN

Official Journal of the European Union

C 262/10

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 9 September 2004

in Case C-113/03: Commission of the European v French Republic (1)

(Failure of a Member State to fulfil obligations - Telecommunications - Directive 97/33/CE - Number portability service - Non-geographic numbers)

(2004/C 262/19)

Language of the case: French

In Case C-113/03: action under Article 226 EC for failure to fulfil obligations, brought on 13 March 2003, Commission of the European Communities (Agents: C. Giolito and M. Shotter) v French Republic (Agents: G. de Bergues and C. Lemaire) — the Court (Fifth Chamber), composed of: C. Gulmann (Rapporteur), President of the Chamber, S. von Bahr and R. Silva de Lapuerta, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 9 September 2004, in which it:

| 1. | Declares that, by failing to ensure that portability of non-geographic numbers was available on 1 January 2000 at the latest, as required by Article 12(5) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), as amended by Article 1(2) of Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998 with regard to operator number portability and carrier pre-selection, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to ensure that portability of non-geographic numbers was available on 1 January 2000 at the latest, as required by Article 12(5) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), as amended by Article 1(2) of Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998 with regard to operator number portability and carrier pre-selection, the French Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 113 of 10.5.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/10 |
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23.10.2004

EN

Official Journal of the European Union

C 262/10

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JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-125/03: Commission of the European Communities against Federal Republic of Germany (1)

(Failure by a Member State to fulfil its obligations - Admissibility - Legal interest in bringing proceedings - Directive 92/50/EEC - Public contracts - Services for transport of waste - Procedure without prior publication of a contract notice)

(2004/C 262/20)

Language of the case: German

In Case C-125/03: Commission of the European Communities (Agents: K. Wiedner) v Federal Republic of Germany (Agent: W.-D. Plessing and A. Tiemann) — action under Article 226 EC for failure to fulfil obligations — the Court (First Chamber), composed of: P. Jann (Rapporteur), President of Chamber, A. Rosas, S. von Bahr, K. Lenaerts and K. Schiemann, Judges; L. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 9 September 2004, in which it:

| 1. | Declares that, by virtue of the fact that contracts for refuse removal concluded by the towns of Lüdinghausen, and Olfen, and the district councils of Nordkirchen, Senden and Ascheberg were awarded in disregard of the advertising rules laid down in Article 8, in conjunction with 15(2) and 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by virtue of the fact that contracts for refuse removal concluded by the towns of Lüdinghausen, and Olfen, and the district councils of Nordkirchen, Senden and Ascheberg were awarded in disregard of the advertising rules laid down in Article 8, in conjunction with 15(2) and 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

| 2. | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 112 of 10.5.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/11 |
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23.10.2004

EN

Official Journal of the European Union

C 262/11

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JUDGMENT OF THE COURT

(First Chamber)

of 9 September 2004

in Case C-269/03 (reference for a preliminary ruling from the Cour d'appel): Administration de l'enregistrement et des domains, État du grand-duché de Luxembourg v Vermietungsgesellschaft Objekt Kirchberg SARL (1)

(Sixth VAT Directive - Article 13(C) - Exemption of transactions of leasing or letting of immovable property - Right of option for taxation - Deduction of input tax - Obtaining prior approval of the tax authorities)

(2004/C 262/21)

Language of the case: French

In Case C-269/03: reference for a preliminary ruling under Article 234 EC from the Cour d'appel (Luxembourg), by decision of 18 June 2003, received on 20 June 2003, in the proceedings brought by Administration de l'enregistrement et des domains, État du grand-duché de Luxembourg v Vermietungsgesellschaft Objekt Kirchberg SARL — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas and S. von Bahr (Rapporteur), Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 9 September 2004, the operative part of which is as follows:

The provisions of subparagraph (a) of the first paragraph and of the second paragraph of Article 13(C) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment do not preclude a Member State, which has exercised the power to allow taxpayers a right of option for taxation on leasing or letting transactions of immovable property, from adopting legislation which makes full deduction of the input VAT paid conditional upon non-retroactive, prior approval of the tax authorities.

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(1)  OJ C 200 of 23.8.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/11 |
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23.10.2004

EN

Official Journal of the European Union

C 262/11

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 9 September 2004

in Case C-450/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure by a Member State to fulfil its obligations - Failure to transpose Directive 98/44/EC)

(2004/C 262/22)

Language of the case: French

In Case C-450/03: Commission of the European Communities (Agent: K. Banks) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action for failure to fulfil obligations under Article 226 EC — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of Chamber, F. Macken (Rapporteur) and S. von Bahr, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 9 September 2004, the operative part of which is as follows:

| 1. | By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 15 of that directive. |
| --- | --- |

1.

By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 15 of that directive.

| 2. | The Grand Duchy of Luxembourg is ordered to pay the costs. |
| --- | --- |

2.

The Grand Duchy of Luxembourg is ordered to pay the costs.

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(1)  OJ C 289 of 29.11.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/11 |
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23.10.2004

EN

Official Journal of the European Union

C 262/11

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 9 September 2004

in Case C-454/03: Commission of the European Communities v Kingdom of Belgium (1)

(Failure by a Member State to fulfil its obligations - Failure to transpose Directive 98/44/EC)

(2004/C 262/23)

Language of the case: French

In Case C-454/03: Commission of the European Communities (Agents: K. Banks) v Kingdom of Belgium (Agent: E. Dominkovits) — action for failure to fulfil obligations under Article 226 EC — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of Chamber, F. Macken (Rapporteur) and S. von Bahr, Judges; F.G. Jacobs, Advocate General; R.Grass, Registrar, gave a judgment on 9 September 2004, the operative part of which is as follows:

| 1. | By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Kingdom of Belgium has failed to fulfil its obligations under Article 15 of that directive. |
| --- | --- |

1.

By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Kingdom of Belgium has failed to fulfil its obligations under Article 15 of that directive.

| 2. | The Kingdom of Belgium is ordered to pay the costs. |
| --- | --- |

2.

The Kingdom of Belgium is ordered to pay the costs.

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(1)  OJ C 289 of 29.11.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/12 |
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23.10.2004

EN

Official Journal of the European Union

C 262/12

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Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 7 June 2004 in the case of T-Mobile Austria GmbH against the Republic of Austria

(Case C-284/04)

(2004/C 262/24)

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna) (Austria), of 7 June 2004, which was received at the Court Registry on 1 July 2004, for a preliminary ruling in the case of T-Mobile Austria GmbH against the Republic of Austria.

The Landesgericht für Zivilrechtssachen Wien asks the Court of Justice to give a preliminary ruling on the following questions:

| 1. | Is the third subparagraph of Article 4(5) of, in conjunction with No 1 of Annex D to, the Sixth Council Directive 77/388/EEC (1) 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 — (‘the Sixth Directive’) to be interpreted as meaning that the allocation of rights to use frequencies for mobile telecommunications systems in accordance with the UMTS/IMT-2000, GSM-DCS-1800 and TETRA standards (‘frequency use rights for mobile telecommunications systems’) by a Member State in return for a frequency use payment is a telecommunications activity? |
| --- | --- |

1.

Is the third subparagraph of Article 4(5) of, in conjunction with No 1 of Annex D to, the Sixth Council Directive 77/388/EEC (1) 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 — (‘the Sixth Directive’) to be interpreted as meaning that the allocation of rights to use frequencies for mobile telecommunications systems in accordance with the UMTS/IMT-2000, GSM-DCS-1800 and TETRA standards (‘frequency use rights for mobile telecommunications systems’) by a Member State in return for a frequency use payment is a telecommunications activity?

| 2. | Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that a Member State whose national law does not provide for the criterion mentioned in the third subparagraph of Article 4(5) of the directive of the ‘non-negligible’ extent of an activity (the de minimis rule) as a condition for having the status of taxable person must therefore be regarded as a taxable person for all telecommunications activities in every case regardless of whether the extent of those activities is negligible? |
| --- | --- |

2.

Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that a Member State whose national law does not provide for the criterion mentioned in the third subparagraph of Article 4(5) of the directive of the ‘non-negligible’ extent of an activity (the de minimis rule) as a condition for having the status of taxable person must therefore be regarded as a taxable person for all telecommunications activities in every case regardless of whether the extent of those activities is negligible?

| 3. | Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State in return for frequency use payments of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA) is to be regarded as an activity of non-negligible extent, so that the Member State is considered a taxable person in respect of that activity? |
| --- | --- |

3.

Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State in return for frequency use payments of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA) is to be regarded as an activity of non-negligible extent, so that the Member State is considered a taxable person in respect of that activity?

| 4. | Is the second subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that it would lead to significant distortions of competition if a Member State, when allocating frequency use rights for mobile telecommunications systems in return for payment of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA), does not subject those payments to turnover tax and private bidders for those frequencies must subject that activity to turnover tax? |
| --- | --- |

4.

Is the second subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that it would lead to significant distortions of competition if a Member State, when allocating frequency use rights for mobile telecommunications systems in return for payment of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA), does not subject those payments to turnover tax and private bidders for those frequencies must subject that activity to turnover tax?

| 5. | Is the first subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that an activity of a Member State which allocates frequency use rights for mobile telecommunications systems to mobile telecommunications operators in such a way that a highest bid for the frequency use payment is first ascertained in an auction procedure and the frequencies are then allocated to the highest bidder does not take place in the exercise of public authority, so that the Member State is considered a taxable person in respect of that activity, regardless of the legal nature under the Member State's national law of the act which effects the allocation? |
| --- | --- |

5.

Is the first subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that an activity of a Member State which allocates frequency use rights for mobile telecommunications systems to mobile telecommunications operators in such a way that a highest bid for the frequency use payment is first ascertained in an auction procedure and the frequencies are then allocated to the highest bidder does not take place in the exercise of public authority, so that the Member State is considered a taxable person in respect of that activity, regardless of the legal nature under the Member State's national law of the act which effects the allocation?

| 6. | Is Article 4(2) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State described in Question 5 is to be regarded as an economic activity, so that the Member State is considered a taxable person in respect of that activity? |
| --- | --- |

6.

Is Article 4(2) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State described in Question 5 is to be regarded as an economic activity, so that the Member State is considered a taxable person in respect of that activity?

| 7. | Is the Sixth Directive to be interpreted as meaning that the frequency use payments determined for the allocation of frequency use rights for mobile telecommunications systems are gross payments (which already include value added tax) or net payments (to which value added tax may still be added)? |
| --- | --- |

7.

Is the Sixth Directive to be interpreted as meaning that the frequency use payments determined for the allocation of frequency use rights for mobile telecommunications systems are gross payments (which already include value added tax) or net payments (to which value added tax may still be added)?

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(1)  OJ L 145, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/13 |
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23.10.2004

EN

Official Journal of the European Union

C 262/13

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Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

(Case C-301/04 P)

(2004/C 262/25)

An appeal was brought before the Court of Justice of the European Communities on 14 July 2004 by the Commission of the European Communities, represented by Walter Mölls, Wouter Wils and Heike Gading, with an address for service in Luxembourg, against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01.

The appellant claims that the Court should:

| 1. | set aside the judgment delivered by the Court of First Instance of the European Communities on 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 (1) in regard to paragraph 2 of its operative part; |
| --- | --- |

1.

set aside the judgment delivered by the Court of First Instance of the European Communities on 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 (1) in regard to paragraph 2 of its operative part;

| 2. | order SGL Carbon AG to pay the costs. |
| --- | --- |

2.

order SGL Carbon AG to pay the costs.

Pleas in law and main arguments:

The judgment of the Court of First Instance of 29 April 2004 concerns Commission Decision 2002/271/EC 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 Decision’).

The judgment confirmed that the seven applicants, which were members of the graphite electrode cartel between 1992 and 1998 and to which the Decision was addressed, breached Article 81 EC and Article 53 of the EEA Agreement, and also confirmed the scope of the infringement. The judgment did, however, reduce to varying degrees the fines imposed.

The appeal relates to the reduction explained in paragraphs 401 to 412 of the judgment and accorded to the company SGL (Case T-239/01, paragraph 2 of the operative part of the judgment). It concerns in particular the findings of the Court of First Instance regarding the extent of the right of the undertakings not to incriminate themselves, findings which also indirectly impinge on the limits of the Commission's powers to conduct investigations.

The Court of First Instance found in paragraphs 407 to 409 and in paragraph 412 of the judgment that SGL's responses to the request for information addressed to it pursuant to Article 11(2) of Regulation No 17 entitled that company — contrary to the view expressed by the Commission in the Decision — to a reduction in its fine, in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’). Furthermore, the Court of First Instance rejected the Commission's argument that any reduction because of SGL's replies would in any event have to be smaller than would have been the case had the undertaking itself made a voluntary disclosure (paragraph 410 of the judgment).

In the Commission's view, the passages in the judgment just cited are defective in law and the judgment is to that extent at variance with Articles 15 and 11 of Regulation No 17 in conjunction with the Leniency Notice.

The question as to whether specific answers to requests by the Commission for information in principle provided grounds for a reduction in the fine

According to settled case-law, replies to requests for information under Article 11(2) of Regulation No 17 (now Article 18(2) of Regulation No 1/2003) need not in principle be regarded as constituting cooperation in respect of which a reduction must be granted. If undertakings do not comply with such a request, the Commission may, in accordance with Article 11(5) of Regulation No 17 (Article 18(3) of Regulation No 1/2003), require them by way of a decision to provide the information sought. Certain answers, however, may provide grounds for a reduction by reason of cooperation in the investigations, that is to say, if the question put could not have been included in a decision under Article 11(5) of Regulation No 17 on the ground that it interfered in an inadmissible manner with the rights of defence of the undertakings involved.

The criteria governing the demarcation between questions that are admissible in this regard and those that are not were elaborated by the Court in its judgment in Case 374/87 Orkem [1989] ECR 3283. According to those criteria, the Commission can without restriction insist that documents that already exist and relate to the subject-matter of the investigations be handed over. It can also demand ‘information concerning such facts as may be known to [the undertaking]’ (Orkem judgment, paragraph 34). However, ‘the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove’ (Orkem judgment, paragraph 35).

The Court of First Instance failed to draw that distinction in paragraph 408 of the present judgment. Paragraph 408 concerns solely the handing over of already existing documents which it was possible to request without infringing SGL's rights of defence.

Similar arguments hold true in regard to the other request for information, which is dealt with in paragraph 412 of the judgment. As the Commission knew that SGL had warned a separate undertaking that an investigation was imminent, the Commission had, inter alia, asked SGL to which other undertaking it had provided that information. SGL named another undertaking but failed to disclose that it had also warned a third undertaking, as the Commission learned subsequently. By that question the Commission requested information ‘concerning ... facts’ and did not compel the undertaking to provide ‘an admission on its part of the existence of an infringement’. In order to classify the information provided by SGL in its reply as constituting an aggravating circumstance, which is the point on which the Court of First Instance focuses, the Commission first of all had to prove that there had been an infringement.

Concerning the extent of the reduction in the case of contributions that have been preceded by a request for information

In so far as part of the cooperation provided by SGL could be deemed to constitute an answer to a question which, in the context of a binding request for information, that is to say, a request for information in the form of a decision, might be regarded as inadmissible, the Court of First Instance failed, in paragraph 410 of the judgment, to take account of the fact that any reduction can be granted only in proportion to the additional value by which the Commission is aided in its investigations. This additional value will be comparatively greater if it is derived from a voluntary contribution which, having been made at an early stage, saves the Commission in advance from being required to take specific investigative measures, such as the planning and drafting of a request for information (even if it is not binding).

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(1)  Not yet published in the European Court Reports.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/14 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/14

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Appeal brought on 19 July 2004 by SGL Carbon AG against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

(Case C-308/04 P)

(2004/C 262/26)

An appeal was brought before the Court of Justice of the European Communities on 19 July 2004 by SGL Carbon AG, represented by Martin Klusmann and Kirsten Beckmann, Rechtsanwälte, of Freshfields Bruckhaus Deringer, Freiligrathstrasse 1, D-40479 Düsseldorf, against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01.

The appellant claims that the Court should:

| 1. | uphold the pleas in law submitted at first instance and set aside in part the judgment delivered by the Court of First Instance of the European Communities on 29 April 2004 in Case T-239/01 (1) to the extent to which it dismisses the action in as far as that action is directed against Articles 3 and 4 of the respondent's decision of 18 July 2001; |
| --- | --- |

1.

uphold the pleas in law submitted at first instance and set aside in part the judgment delivered by the Court of First Instance of the European Communities on 29 April 2004 in Case T-239/01 (1) to the extent to which it dismisses the action in as far as that action is directed against Articles 3 and 4 of the respondent's decision of 18 July 2001;

| 2. | in the alternative, reduce as appropriate the fine imposed on the appellant in Article 3 of Decision COMP/E-1/36.490 and the interest in respect of pending proceedings and default interest fixed in Article 4 of the decision in conjunction with the letter of 23 July 2001 from the respondent (SG 2001 D/290091); |
| --- | --- |

2.

in the alternative, reduce as appropriate the fine imposed on the appellant in Article 3 of Decision COMP/E-1/36.490 and the interest in respect of pending proceedings and default interest fixed in Article 4 of the decision in conjunction with the letter of 23 July 2001 from the respondent (SG 2001 D/290091);

| 3. | in the further alternative, refer the case back to the Court of First Instance for reconsideration in the light of the legal views expressed by the Court of Justice; |
| --- | --- |

3.

in the further alternative, refer the case back to the Court of First Instance for reconsideration in the light of the legal views expressed by the Court of Justice;

| 4. | order the respondent to pay all of the costs of the proceedings. |
| --- | --- |

4.

order the respondent to pay all of the costs of the proceedings.

Pleas in law and main arguments:

The appellant seeks, by a total of seven grounds of appeal, to have Articles 3 and 4 of the Commission decision set aside to a greater degree than that to which they were set aside in the judgment of the Court of First Instance:

| 1. | The appellant first submits that there has been an infringement of the principle of ne bis in idem by reason of the fact that no account was taken of the sanction which, prior to the adoption of the contested Commission decision, had already been imposed in North America in respect of the same acts. The appellant argues that, in view of the identical substantive objectives pursued by the prohibitory rules serving to protect competition in Europe and North America, some account at least ought to be taken of penalties previously imposed in respect of the same facts. This follows either directly from the ne bis in idem principle, as broadly understood, which applies in the relationship of Community law to the law of non-member countries, or from the principle of natural justice, which is even broader in scope and has been applicable since the Walt Wilhelm case-law. Furthermore, the Court has, in its judgment in Boehringer, already confirmed that there is in principle a duty to take into account sanctions imposed in the U.S. when a case before it relates to the same facts. That is something which the Court of First Instance failed to do. |
| --- | --- |

1.

The appellant first submits that there has been an infringement of the principle of ne bis in idem by reason of the fact that no account was taken of the sanction which, prior to the adoption of the contested Commission decision, had already been imposed in North America in respect of the same acts. The appellant argues that, in view of the identical substantive objectives pursued by the prohibitory rules serving to protect competition in Europe and North America, some account at least ought to be taken of penalties previously imposed in respect of the same facts. This follows either directly from the ne bis in idem principle, as broadly understood, which applies in the relationship of Community law to the law of non-member countries, or from the principle of natural justice, which is even broader in scope and has been applicable since the Walt Wilhelm case-law. Furthermore, the Court has, in its judgment in Boehringer, already confirmed that there is in principle a duty to take into account sanctions imposed in the U.S. when a case before it relates to the same facts. That is something which the Court of First Instance failed to do.

| 2. | With regard to the Court of First Instance's findings concerning the establishment of the basic amounts of the fine, the appellant submits that the Court of First Instance erred in failing to make a downward adjustment of the basic amount in relation to the appellant, even though this ought to have occurred had the definitive calculation criteria established by that Court been applied in a non-discriminatory manner. |
| --- | --- |

2.

With regard to the Court of First Instance's findings concerning the establishment of the basic amounts of the fine, the appellant submits that the Court of First Instance erred in failing to make a downward adjustment of the basic amount in relation to the appellant, even though this ought to have occurred had the definitive calculation criteria established by that Court been applied in a non-discriminatory manner.

| 3. | In its third ground of appeal the appellant contends that the specific 25 % increase in the basic amount of the fine in the light of warning calls made prior to the commencement of the Commission's inspection was unlawful. Those calls, the appellant submits, did not form part of the facts constituting the charge in issue and, contrary to the view taken by the Court of First Instance, could not have been taken into account as aggravating grounds in the calculation of the fine under Article 15(2) of Regulation No 17 without thereby infringing the principle of nulla poena sine lege. The Sarrió case-law which the Court of First Instance cites in support of the opposite contention is, the appellant argues, irrelevant inasmuch as in the facts underlying that case aggravating circumstances in the commission of acts were taken into account for purposes of increasing the fine, whereas later acts which, in retrospect, could or should have made detection of those acts more difficult were not. Furthermore, the Court of First Instance in the present case made assumptions in respect of internal matters to the detriment of the appellant, a course of action at variance with the rules of evidence. |
| --- | --- |

3.

In its third ground of appeal the appellant contends that the specific 25 % increase in the basic amount of the fine in the light of warning calls made prior to the commencement of the Commission's inspection was unlawful. Those calls, the appellant submits, did not form part of the facts constituting the charge in issue and, contrary to the view taken by the Court of First Instance, could not have been taken into account as aggravating grounds in the calculation of the fine under Article 15(2) of Regulation No 17 without thereby infringing the principle of nulla poena sine lege. The Sarrió case-law which the Court of First Instance cites in support of the opposite contention is, the appellant argues, irrelevant inasmuch as in the facts underlying that case aggravating circumstances in the commission of acts were taken into account for purposes of increasing the fine, whereas later acts which, in retrospect, could or should have made detection of those acts more difficult were not. Furthermore, the Court of First Instance in the present case made assumptions in respect of internal matters to the detriment of the appellant, a course of action at variance with the rules of evidence.

| 4. | In regard to the calculation of the fine, the appellant also takes issue with the fact that the upper limit for a fine of 10 % of an undertaking's turnover, as laid down in Article 15(2) of Regulation No 17, was exceeded. Had the Commission taken as its basis the conclusive turnover figures for 2000 or 1999, it would have been obliged to cap the arithmetical amount of the fine at 10 % of the undertaking's turnover before applying the rule under the leniency programme. The Court of First Instance erroneously left the entire question open on the legally incorrect assumption that it had no bearing on the dismissal of the relevant complaint. |
| --- | --- |

4.

In regard to the calculation of the fine, the appellant also takes issue with the fact that the upper limit for a fine of 10 % of an undertaking's turnover, as laid down in Article 15(2) of Regulation No 17, was exceeded. Had the Commission taken as its basis the conclusive turnover figures for 2000 or 1999, it would have been obliged to cap the arithmetical amount of the fine at 10 % of the undertaking's turnover before applying the rule under the leniency programme. The Court of First Instance erroneously left the entire question open on the legally incorrect assumption that it had no bearing on the dismissal of the relevant complaint.

| 5. | The appellant further takes issue with the insufficient attention paid to the significance of documents withheld in the context of the inadequate document access. The appellant expands on its submission at first instance by contending that new and incriminating documents, of which the appellant was unaware and on which it had not previously had an opportunity to set out its views, were even used for the first time in the decision by the Court of First Instance. |
| --- | --- |

5.

The appellant further takes issue with the insufficient attention paid to the significance of documents withheld in the context of the inadequate document access. The appellant expands on its submission at first instance by contending that new and incriminating documents, of which the appellant was unaware and on which it had not previously had an opportunity to set out its views, were even used for the first time in the decision by the Court of First Instance.

| 6. | The appellant further challenges the categorical decision not to take account of what all parties accept was its reduced financial capacity when the fine was being calculated and claims that such a failure constitutes an infringement of the principle of proportionality and breaches its freedom to dispose of its property. Penalties imposed under competition law may not jeopardise the existence of those on whom the penalties are imposed; the operational undertaking must be the standard by which the appropriateness and propriety of sanctions in individual cases fall to be judged. It is in general impermissible to concentrate on those parts of an undertaking which may still be salvageable after insolvency brought about by the imposition of a fine. Every fine must be calculated in such a way that no economic ‘death sentences’ are passed. |
| --- | --- |

6.

The appellant further challenges the categorical decision not to take account of what all parties accept was its reduced financial capacity when the fine was being calculated and claims that such a failure constitutes an infringement of the principle of proportionality and breaches its freedom to dispose of its property. Penalties imposed under competition law may not jeopardise the existence of those on whom the penalties are imposed; the operational undertaking must be the standard by which the appropriateness and propriety of sanctions in individual cases fall to be judged. It is in general impermissible to concentrate on those parts of an undertaking which may still be salvageable after insolvency brought about by the imposition of a fine. Every fine must be calculated in such a way that no economic ‘death sentences’ are passed.

| 7. | The appellant concludes by challenging the fact that no adjudication was made on its multi-limbed head of complaint concerning the fixing of default interest and interest in respect of pending proceedings, which was dismissed only in the result and not formally. The Court of First Instance erred in law in failing to take into account the fact that there is no legal basis whatever for determining interest and none for the level of interest established which was here used as a basis. Even if one were to recognise that the setting of interest is in principle permissible in order to prevent the bringing of abusive actions, the setting of interest is at best required to be at a significantly lower level in order to attain that objective. That must in particular be the case in view of the drastically increased level of the fine, which leads to an equally drastic increase in the absolute level of the interest imposed. The substantive heads of complaint raised were not addressed in the judgment under appeal; instead, there was a ruling on a head of complaint that the appellant had not raised. |
| --- | --- |

7.

The appellant concludes by challenging the fact that no adjudication was made on its multi-limbed head of complaint concerning the fixing of default interest and interest in respect of pending proceedings, which was dismissed only in the result and not formally. The Court of First Instance erred in law in failing to take into account the fact that there is no legal basis whatever for determining interest and none for the level of interest established which was here used as a basis. Even if one were to recognise that the setting of interest is in principle permissible in order to prevent the bringing of abusive actions, the setting of interest is at best required to be at a significantly lower level in order to attain that objective. That must in particular be the case in view of the drastically increased level of the fine, which leads to an equally drastic increase in the absolute level of the interest imposed. The substantive heads of complaint raised were not addressed in the judgment under appeal; instead, there was a ruling on a head of complaint that the appellant had not raised.

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(1)  Not yet published in the European Court Reports.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/15 |
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23.10.2004

EN

Official Journal of the European Union

C 262/15

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Reference for a preliminary ruling by the Fővárosi Bíróság (Hungary) by order of that court of 24 June 2004 in the criminal proceedings against Attila Vajnai

(Case C-328/04)

(2004/C 262/27)

Reference has been made to the Court of Justice of the European Communities by order of the Fővárosi Bíróság, Hungary, of 24 June 2004, received at the Court Registry on 30 July 2004, for a preliminary ruling in the criminal proceedings against Attila Vajnai on the following question:

Is Article 269/B, first paragraph, of the Büntető Törvénykönyv (Hungarian Criminal Code), which provides that a person who uses or displays, in public, the symbol consisting of a five-pointed red star commits — where the conduct does not amount to a more serious criminal offence — a minor offence, compatible with the fundamental Community-law principle of non-discrimination? Do Article 6 TEU, according to which the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, Directive 2000/43/EC (1), which also refers to fundamental freedoms, and Articles 10, 11 and 12 of the Charter of Fundamental Rights, allow a person who wishes to express his political convictions through a symbol representing them to do so in any Member State?

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(1)  OJ L 180, p. 22.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/16 |
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23.10.2004

EN

Official Journal of the European Union

C 262/16

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Action brought on 30 July 2004 by the Commission of the European Communities against the Italian Republic

(Case C-330/04)

(2004/C 262/28)

An action against Italian Republic was brought before the Court of Justice of the European Communities on 30 July 2004 by the Commission of the European Communities, represented by Chiara Cattabriga, acting as Agent.

The applicant claims that the Court should:

| 1) | Declare that, by failing to adopt and bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2002/33/EC (1) of the European Parliament and of the Council of 21 October 2002 amending Council Directives 90/425/EEC (2) and 92/118/EEC (3) as regards health requirements for animal by-products, or in any event by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) thereof; and |
| --- | --- |

1)

Declare that, by failing to adopt and bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2002/33/EC (1) of the European Parliament and of the Council of 21 October 2002 amending Council Directives 90/425/EEC (2) and 92/118/EEC (3) as regards health requirements for animal by-products, or in any event by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) thereof; and

| 2) | Order the Italian Republic to pay the costs. |
| --- | --- |

2)

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing the directive expired on 16 May 2003.

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(1)  OJ L 315 of 19.11.2002, p. 14.

(2)  OJ L 224 of 18.8.1990, p. 29.

(3)  OJ L 62 of 15.3.1993, p. 49.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/16 |
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23.10.2004

EN

Official Journal of the European Union

C 262/16

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Action brought on 28 July 2004 by Commission of the European Communities against Kingdom of Spain

(Case C-332/04)

(2004/C 262/29)

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 28 July 2004 by the Commission of the European Communities, represented by Gregorio Valero Jordana, of its Legal Service, and by Florence Simonetti, a detached national expert assigned to that service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| (a) | declare that:






  — | by incompletely transposing Article 3 of Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EC, (2) |
| --- | --- | --- |

(a)

declare that:

—

by incompletely transposing Article 3 of Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EC, (2)

| — | by failing to transpose Article 9(1) of Directive 85/337/EEC, as amended, |
| --- | --- |

—

by failing to transpose Article 9(1) of Directive 85/337/EEC, as amended,

| — | by infringing the transitional rules laid down by Article 3 of Directive 97/11/EC, |
| --- | --- |

—

by infringing the transitional rules laid down by Article 3 of Directive 97/11/EC,

| — | by failing correctly to transpose point 10(b) of Annex II to Directive 85/337/EEC, as amended, in conjunction with Article 2(1) and Article 4(2), and |
| --- | --- |

—

by failing correctly to transpose point 10(b) of Annex II to Directive 85/337/EEC, as amended, in conjunction with Article 2(1) and Article 4(2), and

| — | by failing to subject to the impact assessment procedure the plans for the construction of a leisure centre at Paterna (Valencia) and, consequently, by failing to apply Articles 2(1), 3, 4(2), 8 and 9 of Directive 85/337/EEC, as amended, |
| --- | --- |

—

by failing to subject to the impact assessment procedure the plans for the construction of a leisure centre at Paterna (Valencia) and, consequently, by failing to apply Articles 2(1), 3, 4(2), 8 and 9 of Directive 85/337/EEC, as amended,

the Kingdom of Spain has failed to fulfil its obligations under those directives;

| (b) | order the kingdom of Spain to pay the costs. |
| --- | --- |

(b)

order the kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Spanish legislation amending domestic law so as to make it conform with Directive 85/337/EEC, as amended by Directive 97/11/EC, comprising essentially Royal Legislative Decree No 1302/1986 of 28 June 1986, on environmental impact evaluation, as amended by Law No 6/2001 of 8 May 2001, does not require the environmental impact assessment to evaluate the foreseeable effects of the interaction of various environmental factors with each other, contrary to the requirements of Article 3 of Directive 85/337/EEC, as amended.

The Spanish legislation does not include an obligation to render public the administrative decision to grant or withhold authorisation for implementation of the project, the terms of the decision and the conditions attached to it, contrary to the requirements of Directive 85/337/EEC, as amended.

Articles 3(1) and (2) of Directive 97/11/EC state that the provisions of that Directive are to be applied to new projects for which authorisation is sought on or after 14 March 1999. The Spanish legislation breaches that Community provision since it does not apply to private projects for which the administrative authorisation procedure is pending or to public projects already at the public information stage or already approved before 8 October 2000.

Annex II to Directive 85/337/EEC, as amended, includes in Point 10(b), among the projects which may have to be the subject of an environmental impact assessment, urban-development projects, including the construction of shopping centres and parking facilities. The Spanish legislation reduces that requirement so as to apply only to projects outside urban areas. The Commission considers that that reduction of scope, which generally excludes the taking into consideration of criteria or thresholds relating to the dimensions and nature of the projects, goes beyond the degree of latitude available to the Member States under Articles 2(1) and 4(2) of Directive 85/337/EEC, as amended. In addition, it is clear from an analysis of the State and Autonomous Community legislation on town planning and of the Autonomous Community legislation on environmental impact assessments that urban-development projects on urban land and developable land are not, in most of the Autonomous Communities, subject to environmental impact assessment.

Because the domestic legislation was not properly amended so as to conform with Annex II to Directive 85/337/EEC, as amended, the Spanish authorities did not carry out an environmental impact assessment for a leisure centre at Paterna (Valencia), the only explanation given for not doing so being that it was to be constructed in an urban area.

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

(2)  Council Directive of 3 March 1997 amending Directive 85/337/EEC, OJ L 73 of 14.3.1997, p. 5.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/17 |
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23.10.2004

EN

Official Journal of the European Union

C 262/17

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Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities

(Case C-342/04 P)

(2004/C 262/30)

An appeal against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities was brought before the Court of Justice of the European Communities on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer [manager] Jürgen Schmoldt, represented by Prof. Hans-Peter Schneider, Rominteweg 3, D-30559 Hanover.

The appellants claim that the Court should:

| — | set aside the order and refer the case back to the Court of First Instance; |
| --- | --- |

—

set aside the order and refer the case back to the Court of First Instance;

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

—

order the defendant to pay the costs of the dispute.

Pleas in law and main arguments

Contrary to the findings of the Court of First Instance, the appellants are individually concerned by the Commission decision contested in the main proceedings.

The appellants put forward eight grounds of appeal.

| 1) | The contested decision proceeds on an incorrect factual basis: there is incontestably no report of 22 November 2002 of the ad hoc working party of the Standing Committee on Construction. The working party set up at the 55th meeting of the Standing Committee on 10/11 September 2002 under the objection procedure pursuant to Article 5(1) of Directive 89/106/EEC never met and/or adopted such a report. |
| --- | --- |

1)

The contested decision proceeds on an incorrect factual basis: there is incontestably no report of 22 November 2002 of the ad hoc working party of the Standing Committee on Construction. The working party set up at the 55th meeting of the Standing Committee on 10/11 September 2002 under the objection procedure pursuant to Article 5(1) of Directive 89/106/EEC never met and/or adopted such a report.

| 2) | The third appellant did not bring an action ‘on a personal basis’: the third appellant is incontestably manager of the federal division for ‘heat, cold, acoustic and fire insulation’ of the first appellant, which is an association of the undertakings in Germaany using construction products in that field, and is employed as such with the first appellant. His official tasks include representing the first appellant and the undertakings affiliated to it in the context of the relevant national and European standardisation work. |
| --- | --- |

2)

The third appellant did not bring an action ‘on a personal basis’: the third appellant is incontestably manager of the federal division for ‘heat, cold, acoustic and fire insulation’ of the first appellant, which is an association of the undertakings in Germaany using construction products in that field, and is employed as such with the first appellant. His official tasks include representing the first appellant and the undertakings affiliated to it in the context of the relevant national and European standardisation work.

| 3) | Community law lays down procedural guarantees for the appellants. The procedural guarantees relating to the Standing Committee on Construction that are contained in Article 5(1) of Directive 89/106/EEC and in the seventh recital in its preamble must also be for the benefit of those whom the Standing Committee professionally involves as an ad hoc working party in the opinion required under Article 5(1). |
| --- | --- |

3)

Community law lays down procedural guarantees for the appellants. The procedural guarantees relating to the Standing Committee on Construction that are contained in Article 5(1) of Directive 89/106/EEC and in the seventh recital in its preamble must also be for the benefit of those whom the Standing Committee professionally involves as an ad hoc working party in the opinion required under Article 5(1).

| 4) | In the procedure under Article 5(1) of Directive 89/106/EEC, the third appellant as member of the ad hoc working party of the Standing Committee on Construction represented not only the first appellant but, of course, also the second appellant as an affiliated undertaking. The second appellant is incontestably a member of the first appellant's federal division for ‘heat, cold, acoustic and fire insulation’. |
| --- | --- |

4)

In the procedure under Article 5(1) of Directive 89/106/EEC, the third appellant as member of the ad hoc working party of the Standing Committee on Construction represented not only the first appellant but, of course, also the second appellant as an affiliated undertaking. The second appellant is incontestably a member of the first appellant's federal division for ‘heat, cold, acoustic and fire insulation’.

| 5) | The second appellant made clear to the Court of First Instance, using four instances by way of example, that there was interference with ongoing contracts. |
| --- | --- |

5)

The second appellant made clear to the Court of First Instance, using four instances by way of example, that there was interference with ongoing contracts.

| 6) | The first appellant was — not that it would matter — a ‘negotiatior’. |
| --- | --- |

6)

The first appellant was — not that it would matter — a ‘negotiatior’.

| 7) | The first appellant was directly involved in the European standardisation work and the procedure pursuant to Article 5(1) of Directive 89/106/EEC. |
| --- | --- |

7)

The first appellant was directly involved in the European standardisation work and the procedure pursuant to Article 5(1) of Directive 89/106/EEC.

| 8) | The Court's decision as to costs was inappropriate. |
| --- | --- |

8)

The Court's decision as to costs was inappropriate.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/18 |
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23.10.2004

EN

Official Journal of the European Union

C 262/18

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Reference for a preliminary ruling by the High Court of Justice (England and Wales), Chancery Division, by order of that court dated 22 July 2004, in the case of Ikea Wholesale Ltd against Commissioners of Customs and Excise

(Case C-351/04)

(2004/C 262/31)

Reference has been made to the Court of Justice of the European Communities by an order of the High Court of Justice (England and Wales), Chancery Division, dated 22 July 2004, which was received at the Court Registry on 16 August 2004, for a preliminary ruling in the case of Ikea Wholesale Ltd and Commissioners of Customs and Excise on the following questions:

| i) | in the light of the findings of the Panel of the DSB of the WTO in its report dated the 30th October 2000, paragraph 7.2(g) and (h), WT/DS1412/R and of the Appellate Body of the DSB of the WTO in its decision dated the 1st March 2002, paragraphs 86 to 87, WT/DS1141/AB/R, is all or part of Council Regulation (EC) No 2398/97 of the 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bedlinen originating in Egypt, India and Pakistan (1) incompatible with Community law, in that it:






  a) | applied a wrong methodology in calculating the amounts for selling, general and administrative expenses and for profits, contrary to Article 2(6)(a) of Council Regulation (EC) No 384/96 of the 22 December 1995 on protection against dumped imports from countries not members of the Community (2), as amended, and Article 2.2.2(ii) of the Anti-Dumping Agreement; |
| --- | --- | --- |

i)

in the light of the findings of the Panel of the DSB of the WTO in its report dated the 30th October 2000, paragraph 7.2(g) and (h), WT/DS1412/R and of the Appellate Body of the DSB of the WTO in its decision dated the 1st March 2002, paragraphs 86 to 87, WT/DS1141/AB/R, is all or part of Council Regulation (EC) No 2398/97 of the 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bedlinen originating in Egypt, India and Pakistan (1) incompatible with Community law, in that it:

a)

applied a wrong methodology in calculating the amounts for selling, general and administrative expenses and for profits, contrary to Article 2(6)(a) of Council Regulation (EC) No 384/96 of the 22 December 1995 on protection against dumped imports from countries not members of the Community (2), as amended, and Article 2.2.2(ii) of the Anti-Dumping Agreement;

| b) | applied a wrong methodology incorporating the practice of ‘zeroing’ in determining the existence of dumping margins when comparing normal value with export price, contrary to Article 2(11) of Regulation 384/96 and Article 2.4.2. of the Anti-Dumping Agreement; and/or |
| --- | --- |

b)

applied a wrong methodology incorporating the practice of ‘zeroing’ in determining the existence of dumping margins when comparing normal value with export price, contrary to Article 2(11) of Regulation 384/96 and Article 2.4.2. of the Anti-Dumping Agreement; and/or

| c) | failed to evaluate all the relevant injury factors having a bearing on the state of the Community industry and erred in determining the injury to the Community industry by relying on evidence obtained from companies outside the Community industry, contrary to Article 3(5) of Regulation 384/96 and Article 3.4 of the Anti-Dumping Agreement? |
| --- | --- |

c)

failed to evaluate all the relevant injury factors having a bearing on the state of the Community industry and erred in determining the injury to the Community industry by relying on evidence obtained from companies outside the Community industry, contrary to Article 3(5) of Regulation 384/96 and Article 3.4 of the Anti-Dumping Agreement?

| ii) | are any or all of:






  a) | Council Regulation No 1644/2001 amending Regulation (EC) No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bedlinen originating in Egypt, India and Pakistan and suspending its application with regard to imports originating in India (3); |
| --- | --- | --- |

ii)

are any or all of:

a)

Council Regulation No 1644/2001 amending Regulation (EC) No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bedlinen originating in Egypt, India and Pakistan and suspending its application with regard to imports originating in India (3);

| b) | Council Regulation 160/2002 amending Regulation (EC) No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bedlinen originating in Egypt, India and Pakistan and terminating the proceeding with regard to imports originating in Pakistan (4); and/or |
| --- | --- |

b)

Council Regulation 160/2002 amending Regulation (EC) No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bedlinen originating in Egypt, India and Pakistan and terminating the proceeding with regard to imports originating in Pakistan (4); and/or

| c) | Council Regulation (EC) No 696/2002 confirming the definitive antidumping duty imposed on imports of cotton-type bedlinen originating in India by Regulation (EC) No 2398/97, as amended and suspended by Council Regulation (EC) No 1644/2001 (5); |
| --- | --- |

c)

Council Regulation (EC) No 696/2002 confirming the definitive antidumping duty imposed on imports of cotton-type bedlinen originating in India by Regulation (EC) No 2398/97, as amended and suspended by Council Regulation (EC) No 1644/2001 (5);

incompatible with Community law (including Articles 1, 7(1) and 9(4) of Regulation 384/96 read in the light of Articles 1, 7.1 and 9 of the Anti-Dumping Agreement) insofar as (i) they were adopted on the basis of a reassessment of information which was collected during the original investigation period, which reassessment showed that no dumping or lower levels of dumping had taken place during the original investigation period; but (ii) the above regulations fail to provide for reimbursement of sums already paid pursuant to Regulation 2398/97?

| iii) | are Regulations 1664/2001, 160/2002 and 696/2002 further incompatible with Articles 7(2) and 9(4) of Regulation 384/96 and the principle of proportionality, in that they allow for a level of anti-dumping duty, for the period prior to their entry into force, that is not strictly proportionate to the amount of dumping or injury the duty is intended to offset? |
| --- | --- |

iii)

are Regulations 1664/2001, 160/2002 and 696/2002 further incompatible with Articles 7(2) and 9(4) of Regulation 384/96 and the principle of proportionality, in that they allow for a level of anti-dumping duty, for the period prior to their entry into force, that is not strictly proportionate to the amount of dumping or injury the duty is intended to offset?

| iv) | do the answers to the above questions differ in respect of exports originating in India as against Pakistan, given:






  a) | the procedures followed before DSB of the WTO; and/or |
| --- | --- | --- |

iv)

do the answers to the above questions differ in respect of exports originating in India as against Pakistan, given:

a)

the procedures followed before DSB of the WTO; and/or

| b) | the findings of the Commission recorded in Regulations 1664/2001, 160/2002 and 696/2002? |
| --- | --- |

b)

the findings of the Commission recorded in Regulations 1664/2001, 160/2002 and 696/2002?

| v) | in the light of the answers to the above questions:






  a) | must a national customs authority repay all or part of the anti-dumping duties which it has collected pursuant to Regulation 2398/97; and |
| --- | --- | --- |

v)

in the light of the answers to the above questions:

a)

must a national customs authority repay all or part of the anti-dumping duties which it has collected pursuant to Regulation 2398/97; and

| b) | if so, to whom and under what conditions should repayment be made? |
| --- | --- |

b)

if so, to whom and under what conditions should repayment be made?

---

(1)  OJ L 332, 4.12.1997, p.1.

(2)  OJ L 56, 6.3.1996, p.1.

(3)  OJ L 219, 14.8.2001, p.1.

(4)  OJ L 26, 30.1.2002, p. 1.

(5)  OJ L 109, 25.4.2002, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/19 |
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23.10.2004

EN

Official Journal of the European Union

C 262/19

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Reference for a preliminary ruling by the Verwaltungsgericht Köln by order of that court of 30 June 2004 in the case of mdm Versandservice GmbH against Bundesrepublik Deutschland, joined parties: Deutsche Post AG

(Case C-352/04)

(2004/C 262/32)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Köln (Cologne Administrative Court), Germany, of 30 June 2004, received at the Court Registry on 16 August 2004, for a preliminary ruling in the case of mdm Versandservice GmbH against Bundesrepublik Deutschland (Federal Republic of Germany), joined parties: Deutsche Post AG, on the following question:

Is Article 47(2) EC, read together with Article 95 EC, read together with the fifth indent of Article 12 of Directive 97/67/EC, (1) and with Article 7(1) of that directive, in both cases in the version brought into force by Directive 2002/39/EC (2) of the European Parliament and of the Council, to be interpreted as meaning that where a universal service provider applies special tariffs to business customers who supply postal items already sorted to the postal network at points in the delivery chain that are not access points, the universal service provider must also apply those tariffs to undertakings who collect postal items from the sender and supply it already sorted to the postal network to the same access point and under the same conditions as business customers, and that the universal service provider is not entitled to refuse to do so on the ground that it is obliged to provide a universal service?

---

(1)  OJ L 15 of 21.1.1998, p. 14.

(2)  OJ L 176, p. 21.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/19 |
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23.10.2004

EN

Official Journal of the European Union

C 262/19

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Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 22 July 2004 in the case of Nowaco Germany GmbH against Hauptzollamt Hamburg-Jonas

(Case C-353/04)

(2004/C 262/33)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) (Germany) of 22 July 2004, received at the Court Registry on 16 August 2004, for a preliminary ruling in the case of Nowaco Germany GmbH against Hauptzollamt Hamburg-Jonas on the following questions:

| 1. | For the purposes of establishing whether a product in respect of which recovery of export duty is sought is of marketable quality, may reliance be placed on Commission Regulation (EEC) No 1538/91 of 5 June 1991 (1) introducing detailed rules for implementing Regulation (EEC) No 1906/90 on certain marketing standards for poultry? |
| --- | --- |

1.

For the purposes of establishing whether a product in respect of which recovery of export duty is sought is of marketable quality, may reliance be placed on Commission Regulation (EEC) No 1538/91 of 5 June 1991 (1) introducing detailed rules for implementing Regulation (EEC) No 1906/90 on certain marketing standards for poultry?

| 2. | In the event that the reply to Question 1 is yes,






  (a) | Does Article 70 of Council Regulation (EEC) No 2913/92 (2) of 12 October 1992 establishing the Community Customs Code apply where it is necessary to establish whether a product in respect of which recovery of export duty is sought is of marketable quality? |
| --- | --- | --- |

2.

In the event that the reply to Question 1 is yes,

(a)

Does Article 70 of Council Regulation (EEC) No 2913/92 (2) of 12 October 1992 establishing the Community Customs Code apply where it is necessary to establish whether a product in respect of which recovery of export duty is sought is of marketable quality?

| (b) | Does the deeming provision as to condition in Article 70(1) of Council Regulation (EEC) No 2913/92 also apply if only one random sample of the product has been inspected but the pertinent Community provisions permit defects in the goods up to a certain quantitative limit and accordingly require and expressly prescribe inspection of a specific minimum number of samples to establish whether that limit has been observed? |
| --- | --- |

(b)

Does the deeming provision as to condition in Article 70(1) of Council Regulation (EEC) No 2913/92 also apply if only one random sample of the product has been inspected but the pertinent Community provisions permit defects in the goods up to a certain quantitative limit and accordingly require and expressly prescribe inspection of a specific minimum number of samples to establish whether that limit has been observed?

| 3. | In the event that the replies to Questions 2(a) and (b) are also yes:
  What is the effect of the aforementioned deeming provision where several samples are taken from an export consignment that was declared as a single unit and upon examination of a part of those samples some were found to be of marketable quality but others were not? |
| --- | --- |

3.

In the event that the replies to Questions 2(a) and (b) are also yes:

What is the effect of the aforementioned deeming provision where several samples are taken from an export consignment that was declared as a single unit and upon examination of a part of those samples some were found to be of marketable quality but others were not?

---

(1)  OJ L 143, p. 11.

(2)  OJ L 302, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/20 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/20

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Reference for a preliminary ruling by the Tribunale de Teramo by decision of that court of 31 July 2004 in the case of criminal proceedings against Christian Palazzese

(Case C-359/04)

(2004/C 262/34)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale de Teramo (Italy) of 31 August 2004, received at the Court Registry on 18 August 2004, for a preliminary ruling in the case of criminal proceedings against Christian Palazzese on the following question:

‘May Articles 43(1) and 49 (1) of the Treaty be interpreted as allowing the Member States to derogate temporarily (6 to 12 years) from the principle of freedom of establishment and of freedom to provide series within the European Union, by:

| 1) | allocating to certain persons licences for the pursuit of certain activities involving provision of services, valid for 6 or 12 years, on the basis of a body of rules which excluded from the tender procedure certain kinds of (non-Italian) competitors; |
| --- | --- |

1)

allocating to certain persons licences for the pursuit of certain activities involving provision of services, valid for 6 or 12 years, on the basis of a body of rules which excluded from the tender procedure certain kinds of (non-Italian) competitors;

| 2) | amending that system, after subsequently noting that it was not compatible with the principles enshrined in Articles 43 and 49 of the Treaty, so as to allow in future the participation of those persons who had been excluded; |
| --- | --- |

2)

amending that system, after subsequently noting that it was not compatible with the principles enshrined in Articles 43 and 49 of the Treaty, so as to allow in future the participation of those persons who had been excluded;

| 3) | not revoking the licences granted on the basis of the earlier system which, as stated, infringed the principles of freedom of establishment and of free movement of services or setting up a new tender procedure pursuant to the new rules which now comply with the abovementioned principles; |
| --- | --- |

3)

not revoking the licences granted on the basis of the earlier system which, as stated, infringed the principles of freedom of establishment and of free movement of services or setting up a new tender procedure pursuant to the new rules which now comply with the abovementioned principles;

| 4) | continuing, on the other hand, to pursue anyone carrying on business via a link with anyone who, despite being entitled to pursue such an activity in the Member State of origin, was excluded from the tender procedure precisely under the exclusions contained in the earlier rules, later removed’. |
| --- | --- |

4)

continuing, on the other hand, to pursue anyone carrying on business via a link with anyone who, despite being entitled to pursue such an activity in the Member State of origin, was excluded from the tender procedure precisely under the exclusions contained in the earlier rules, later removed’.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/20 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/20

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Reference for a preliminary ruling by the Tribunale di Teramo by order of that court of 31 July 2004 in the case of criminal proceedings against Angelo Sorricchio

(Case C-360/04)

(2004/C 262/35)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Teramo (Italy) of 31 July 2004 received at the Court Registry on 18 August 2004, for a preliminary ruling in the case of criminal proceedings against Angelo Sorricchio on the following questions:

‘May Articles 43(1) and 49 (1) of the Treaty be interpreted as allowing the Member States to derogate temporarily (6 to 12 years) from the principle of freedom of establishment and of freedom to provide series within the European Union, by:

| 1) | allocating to certain persons licences for the pursuit of certain activities involving provision of services, valid for 6 or 12 years, on the basis of a body of rules which excluded from the tender procedure certain kinds of (non-Italian) competitors; |
| --- | --- |

1)

allocating to certain persons licences for the pursuit of certain activities involving provision of services, valid for 6 or 12 years, on the basis of a body of rules which excluded from the tender procedure certain kinds of (non-Italian) competitors;

| 2) | amending that system, after subsequently noting that it was not compatible with the principles enshrined in Articles 43 and 49 of the Treaty, so as to allow in future the participation of those persons who had been excluded; |
| --- | --- |

2)

amending that system, after subsequently noting that it was not compatible with the principles enshrined in Articles 43 and 49 of the Treaty, so as to allow in future the participation of those persons who had been excluded;

| 3) | not revoking the licences granted on the basis of the earlier system which, as stated, infringed the principles of freedom of establishment and of free movement of services or setting up a new tender procedure pursuant to the new rules which now comply with the abovementioned principles; |
| --- | --- |

3)

not revoking the licences granted on the basis of the earlier system which, as stated, infringed the principles of freedom of establishment and of free movement of services or setting up a new tender procedure pursuant to the new rules which now comply with the abovementioned principles;

| 4) | continuing, on the other hand, to pursue anyone carrying on business via a link with anyone who, despite being entitled to pursue such an activity in the Member State of origin, was excluded from the tender procedure precisely under the exclusions contained in the earlier rules, later removed’. |
| --- | --- |

4)

continuing, on the other hand, to pursue anyone carrying on business via a link with anyone who, despite being entitled to pursue such an activity in the Member State of origin, was excluded from the tender procedure precisely under the exclusions contained in the earlier rules, later removed’.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/21 |
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23.10.2004

EN

Official Journal of the European Union

C 262/21

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Appeal brought on 19 August 2004 (Fax: 18 August 2004) by Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso against the judgment delivered on 22 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-185/02 Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), supported by DaimlerChrysler AG, which was also a party before the Board of Appeal

(Case C-361/04 P)

(2004/C 262/36)

An appeal was brought before the Court of Justice of the European Communities on 19 August 2004 (Fax: 18 August 2004) against the judgment delivered on 22 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-185/02 Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso and Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), supported by DaimlerChrysler AG, which was also a party before the Board of Appeal. The appellants are represented by Prof. C. Gielen, Rechtsanwalt, c/o Anwaltskanzlei Nauta Dutilh, Strawinskylaan 1999, NL-1077 XV Amsterdam.

The appellant claims that the Court should:

| — | annul the judgment delivered on 22 June 2004 by the Court of First Instance of the European Communities in Case T-185/02; (1) |
| --- | --- |

—

annul the judgment delivered on 22 June 2004 by the Court of First Instance of the European Communities in Case T-185/02; (1)

| — | annul the decision of the Third Board of Appeal of OHIM of 18 March 2002 in Case R 247/2001-3 in so far as the opposition entered by the appellant against the application lodged by the trade mark applicant for registration of the word mark PICARO as a Community trade mark was rejected; |
| --- | --- |

—

annul the decision of the Third Board of Appeal of OHIM of 18 March 2002 in Case R 247/2001-3 in so far as the opposition entered by the appellant against the application lodged by the trade mark applicant for registration of the word mark PICARO as a Community trade mark was rejected;

| — | order OHIM to bear its own costs and to pay those incurred by the appellant both at first instance and in the appeal proceedings. |
| --- | --- |

—

order OHIM to bear its own costs and to pay those incurred by the appellant both at first instance and in the appeal proceedings.

Pleas and main arguments

| — | The appeal is brought on the ground of misapplication of the term ‘likelihood of confusion’.
  In the judgment under appeal, the Court of First Instance laid down a rule according to which conceptual differences can in certain circumstances counteract the visual and phonetic similarities between the signs concerned. According to the Court of First Instance, for there to be such a counteraction, at least one of the signs at issue must have, from the point of view of the relevant public, a clear and specific meaning so that the public is capable of grasping it immediately.
  For the purpose of establishing whether visual and phonetic similarities are counteracted by the conceptual differences, it is irrelevant that the sign has a meaning which can be grasped by the public immediately. The degree of visual, phonetic and conceptual similarity must be determined in the light of the categories of goods in question and of the circumstances in which those goods are marketed.
  Moreover, the meaning or reputation of the name Picasso, divorced from the goods in respect of which that trade mark was registered, cannot be used as an argument to support the claim that there are conceptual differences and that, as a result of such a meaning or reputation, the conceptual differences cancel out the phonetic and visual similarities. |
| --- | --- |

—

The appeal is brought on the ground of misapplication of the term ‘likelihood of confusion’.

In the judgment under appeal, the Court of First Instance laid down a rule according to which conceptual differences can in certain circumstances counteract the visual and phonetic similarities between the signs concerned. According to the Court of First Instance, for there to be such a counteraction, at least one of the signs at issue must have, from the point of view of the relevant public, a clear and specific meaning so that the public is capable of grasping it immediately.

For the purpose of establishing whether visual and phonetic similarities are counteracted by the conceptual differences, it is irrelevant that the sign has a meaning which can be grasped by the public immediately. The degree of visual, phonetic and conceptual similarity must be determined in the light of the categories of goods in question and of the circumstances in which those goods are marketed.

Moreover, the meaning or reputation of the name Picasso, divorced from the goods in respect of which that trade mark was registered, cannot be used as an argument to support the claim that there are conceptual differences and that, as a result of such a meaning or reputation, the conceptual differences cancel out the phonetic and visual similarities.

| — | The appeal is brought on the ground of misapplication of the term ‘likelihood of confusion’ and, in particular, the rule that the greater the degree of inherent distinctiveness or distinctiveness resulting from the reputation of the mark the greater the protection must be.
  Whilst the Court of First Instance referred to that rule, it failed to ascertain whether the mark PICASSO is per se or inherently distinctive, which, in the appellants' view, is indeed the case.
  The judgment under appeal is wrongly based on the premiss that, when assessing the likelihood of confusion, account need be taken solely of the degree of attention at the time when the consumer considers whether and then chooses to purchase a particular product. However, it is a generally recognised principle of trade mark law that the proprietor of a trade mark is to be protected against potential confusion both before and after the purchase of his product.
  Moreover, the Court of First Instance wrongly held that, when ascertaining in opposition proceedings whether there is a likelihood of confusion, there is no need to take account of the possibility of post-sale confusion. That applies only in cases of infringement such as that in the Arsenal case. |
| --- | --- |

—

The appeal is brought on the ground of misapplication of the term ‘likelihood of confusion’ and, in particular, the rule that the greater the degree of inherent distinctiveness or distinctiveness resulting from the reputation of the mark the greater the protection must be.

Whilst the Court of First Instance referred to that rule, it failed to ascertain whether the mark PICASSO is per se or inherently distinctive, which, in the appellants' view, is indeed the case.

The judgment under appeal is wrongly based on the premiss that, when assessing the likelihood of confusion, account need be taken solely of the degree of attention at the time when the consumer considers whether and then chooses to purchase a particular product. However, it is a generally recognised principle of trade mark law that the proprietor of a trade mark is to be protected against potential confusion both before and after the purchase of his product.

Moreover, the Court of First Instance wrongly held that, when ascertaining in opposition proceedings whether there is a likelihood of confusion, there is no need to take account of the possibility of post-sale confusion. That applies only in cases of infringement such as that in the Arsenal case.

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

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/22 |
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23.10.2004

EN

Official Journal of the European Union

C 262/22

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Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 16 August 2004 in the case of Georg Schwarz against Bürgermeister der Landeshauptstadt Salzburg

(Case C-366/04)

(2004/C 262/37)

Reference has been made to the Court of Justice of the European Communities by order of the Unabhängiger Verwaltungssenat Salzburg (Independent Administrative Chamber of the Land of Salzburg, Austria) of 16 August 2004, received at the Court Registry on 23 August 2004, for a preliminary ruling in the case of Georg Schwarz against Bürgermeister der Landeshauptstadt Salzburg on the following question:

Do Articles 28 to 30 EC in conjunction with Article 7 of Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs (1) preclude a national provision, adopted before the entry into force of that directive, under which it is prohibited to offer for sale sugar confectionery or products made using sugar substitutes, without wrapping, from vending machines?

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(1)  OJ L 175, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/22 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/22

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Action brought on 26 August 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-370/04)

(2004/C 262/38)

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 26 August 2004 by the Commission of the European Communities, represented by G. Braun and W. Wils of the Commission's Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (1) in national law, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and under that directive; |
| --- | --- |

1.

declare that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (1) in national law, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and under that directive;

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

2.

order the defendant to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of Directive 2001/16/EC expired on 20 April 2003.

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(1)  OJ 2001 L 110, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/22 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/22

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Action brought on 1 September 2004 by Commission of the European Communities against Grand Duchy of Luxembourg

(Case C-375/04)

(2004/C 262/39)

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 1 September 2004 by the Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg.

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

| — | Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (1) or, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 17 of that directive. |
| --- | --- |

—

Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (1) or, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 17 of that directive.

| — | Order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

—

Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for the transposition of the directive into national law expired on 31 October 2003.

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(1)  OJ L 201 of 31.7.2002, p. 37.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/23 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/23

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Action brought on 2 September 2004 by the Commission of the European Communities against Kingdom of Belgium

(Case C-376/04)

(2004/C 262/40)

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 2 September 2004 by the Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg.

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

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (1) or, in any event, by failing to notify such provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive. |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (1) or, in any event, by failing to notify such provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

| — | Order the Kingdom of Belgium to pay the costs. |
| --- | --- |

—

Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for the transposition of the directive into national law expired on 31 October 2003.

---

(1)  OJ L 201 of 31.7.2002, p. 37.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/23 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/23

---

Action brought on 2 September 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-377/04)

(2004/C 262/41)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 2 September 2004 by the Commission of the European Communities, represented by D. Martin and H. Kreppel, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement fully Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (1) or to inform the Commission of those measures, the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement fully Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (1) or to inform the Commission of those measures, the Republic of Austria has failed to fulfil its obligations under that directive;

| 2. | order the Republic of Austria to pay the costs |
| --- | --- |

2.

order the Republic of Austria to pay the costs

Pleas in law and main arguments

The period prescribed for implementation of Directive 1999/92/EC expired on 30 June 2003.

The Commission has found that, with the exception of implementation in the Länder of Lower Austria and Tyrol, that directive has not yet been implemented fully at either Federal level or the level of the remaining Länder.

---

(1)  OJ 2000 L 23, p. 57.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/23 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/23

---

Action brought on 2 September 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-378/04)

(2004/C 262/42)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 2 September 2004 by the Commission of the European Communities, represented by Denis Martin and Horstpeter Kreppel, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | Declare that the Republic of Austria has failed to fulfil its obligations under Council Directive 1999/38/EC of 29 April 1999 amending for the second time Directive 90/394/EEC on the protection of workers from the risks related to exposure to carcinogens at work and extending it to mutagens (OJ 1999 L 138, p. 66) by not adopting the necessary legislative and administrative measures for the full implementation on that directive, or by failing to communicate such measures to the Commission. |
| --- | --- |

1.

Declare that the Republic of Austria has failed to fulfil its obligations under Council Directive 1999/38/EC of 29 April 1999 amending for the second time Directive 90/394/EEC on the protection of workers from the risks related to exposure to carcinogens at work and extending it to mutagens (OJ 1999 L 138, p. 66) by not adopting the necessary legislative and administrative measures for the full implementation on that directive, or by failing to communicate such measures to the Commission.

| 2. | Order the Republic of Austria to bear the costs. |
| --- | --- |

2.

Order the Republic of Austria to bear the costs.

Pleas in law and main arguments

The prescribed period for implementing Directive 1999/38/EC expired on 29 April 2003.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/24 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/24

---

Reference for a preliminary ruling by the Retten i Hørsholm (Denmark) by order of that court of 4 June 2004 in the case of Anklagemyndigheden against Steffen Ryborg

(Case C-279/04)

(2004/C 262/43)

Reference has been made to the Court of Justice of the European Communities by the Retten i Hørsholm (Denmark), by order of 4 June 2004, which was received at the Court Registry on 28 June 2004, for a preliminary ruling in the case of Anklagemyndigheden against Steffen Ryborg.

The Retten i Hørsholm asks the Court of Justice to give a preliminary ruling on the following questions:

| 1.a. | Are Article 39 EC, Article 49 EC and Article 10 EC to be interpreted as precluding a Member State from requiring registration of a motor vehicle when the vehicle belongs to an employer established in a neighbouring Member State and is used by an employee who is resident in the first-mentioned Member State for work purposes and during his free time in both Member States? |
| --- | --- |

1.a.

Are Article 39 EC, Article 49 EC and Article 10 EC to be interpreted as precluding a Member State from requiring registration of a motor vehicle when the vehicle belongs to an employer established in a neighbouring Member State and is used by an employee who is resident in the first-mentioned Member State for work purposes and during his free time in both Member States?

| 1.b | If in the assessment for question 1.a weight is to be accorded to whether any private use of the vehicle is ancillary to business use, which criteria should be used by the national court in determining whether the non-business use of the vehicle is ancillary to the business use, when it can be assumed that the vehicle is used for business purposes, see Case C-127/86 Yves Ledoux [1988] ECR 3741, paragraph 18? |
| --- | --- |

1.b

If in the assessment for question 1.a weight is to be accorded to whether any private use of the vehicle is ancillary to business use, which criteria should be used by the national court in determining whether the non-business use of the vehicle is ancillary to the business use, when it can be assumed that the vehicle is used for business purposes, see Case C-127/86 Yves Ledoux [1988] ECR 3741, paragraph 18?

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/24 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/24

---

Action brought on 6 September 2004 by the Commission of the European Communities against Grand Duchy of Luxembourg

(Case C-382/04)

(2004/C 262/44)

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 6 September 2004 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.

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

| 1. | Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/11/EC of 14 February 2002 amending Directive 68/193/EEC on the marketing of material for the vegetative propagation of the vine and repealing Directive 74/649/EEC (1) and, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/11/EC of 14 February 2002 amending Directive 68/193/EEC on the marketing of material for the vegetative propagation of the vine and repealing Directive 74/649/EEC (1) and, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

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

2.

Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for the transposition of the directive into national law expired on 23 February 2003.

---

(1)  OJ L 53, of 23.2.2002, p. 20.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/24 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/24

---

Action brought on 6 September 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-383/04)

(2004/C 262/45)

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 6 September 2004 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.

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

| 1. | Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/105/EC of 22 December 1999 on the marketing of forest reproductive material (1) and, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/105/EC of 22 December 1999 on the marketing of forest reproductive material (1) and, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

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

2.

Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments:

The period for the transposition of the directive into national law expired on 1 January 2003.

---

(1)  OJ L 11 of 15.1.2000, p. 17.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/25 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/25

---

Action brought on 7 September 2004 by the Commission of the European Communities against the United Kingdom

(Case C-385/04)

(2004/C 262/46)

An action against the United Kingdom was brought before the Court of Justice of the European Communities on 7 September 2004 by the Commission of the European Communities, represented by Mr Wouter Wils, acting as agent, with an address for service in Luxembourg.

The Applicant claims that the Court should:

| 1) | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (1), or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive; |
| --- | --- |

1)

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (1), or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;

| 2) | order the United Kingdom of Great Britain and Northern Ireland to pay the costs. |
| --- | --- |

2)

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

Pleas in law and main arguments:

The period within which the directive had to be transposed expired on 20 April 2003.

---

(1)  OJ L 110, 20.04.2001, p. 1.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/25 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/25

---

Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 14 July 2004 in the case of Centro di Musicologia Walter Stauffer against Finanzamt München für Körperschaften

(Case C-386/04)

(2004/C 262/47)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof of 14 July 2004, received at the Court Registry on 8 September 2004, for a preliminary ruling in the case of Centro di Musicologia Walter Stauffer against Finanzamt München für Körperschaften on the following question:

Is it contrary to Article 52 EC, in conjunction with Article 58 EC, Article 59 EC, in conjunction with Articles 66 EC and 58 EC, and Article 73b EC for a charitable foundation established under private law in another Member State, with limited liability to tax on its rental income in Germany, unlike a charitable foundation established in Germany, with unlimited liability to tax and receiving similar income, not to be entitled to exemption from corporation tax?

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/25 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/25

---

Reference for a preliminary ruling by the Amtsgericht Dresden by order of 7 September 2004 in the insolvency proceedings against Volker Donath

(Case C-387/04)

(2004/C 262/48)

Reference has been made to the Court of Justice of the European Communities by order of the Amtsgericht Dresden (Germany) of 7 September 2004, received at the Court Registry on 10 September 2004, for a preliminary ruling in the insolvency proceedings against Volker Donath on the following question:

Does the court of a Member State before which an application for the initiation of insolvency proceedings relating to a debtor's assets has been brought continue to have jurisdiction to decide whether to open insolvency proceedings even where, after lodging the application but before initiation of the proceedings, the debtor transfers the centre of his main interests to the territory of another Member State, or is jurisdiction transferred to the court of that other Member State?

---

COURT OF FIRST INSTANCE

| 23.10.2004 | EN | Official Journal of the European Union | C 262/26 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/26

---

ORDER OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-200/02, Vassilios Tsarnavas v Commission of the European Communities (1)

(Officials - Late establishment of staff report - Claim for annulment - Claim for damages - Inadmissibility)

(2004/C 262/49)

Language of the case: French

In Case T-200/02, Vassilios Tsarnavas, former official of the Commission of the European Communities, residing at Brussels (Belgium), represented by N. Lhoëst, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agent: D. Martin, with an address for service in Luxembourg) — application for annulment of the Commission's decision rejecting in part the applicant's complaint and claim for damages of EUR 12 500 as compensation for the loss allegedly suffered because of the delay in establishing his staff report for the period from 1 July 1997 to 30 June 1999 — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, E. Martins Ribeiro and I. Labucka, Judges; H. Jung, Registrar, has made an order on 8 July 2004 in which it:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders the parties to bear their own costs. |
| --- | --- |

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 202 of 24.8.2002.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/26 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/26

---

ORDER OF THE COURT OF FIRST INSTANCE

of 14 July 2004

in Case T 360/02: Wolf-Dieter Graf Yorck von Wartenburg v Commission of the European Communities (1)

(Death of the applicant - No continuance of suit by estate - No need to adjudicate)

(2004/C 262/50)

Language of the case: German

In Case T-360/02: Wolf-Dieter Graf Yorck von Wartenburg, former temporary servant of the European Parliament, residing in Wittibreut (Germany), represented by H.-H. Heyland, lawyer, with an address for service in Luxembourg, against the Commission of the European Communities (Agent: J. Currall, and B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application for annulment of a Commission communication of 17 May 2002 concerning the attachment of sums deducted from the pension of the applicant by a national court and compensation for the damage suffered — the Court of First Instance (First Chamber), composed of: B. Vesterdorf, President, P. Mengozzi and M.E. Martins Ribeiro, Judges; H. Jung, Registrar, made an order on14 July 2004, the operative part of which is as follows:

| 1. | There is no need to adjudicate on the present action. |
| --- | --- |

1.

There is no need to adjudicate on the present action.

| 2. | The parties shall bear their own costs. |
| --- | --- |

2.

The parties shall bear their own costs.

---

(1)  OJ C 55, 8. 3.2003.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/26 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/26

---

ORDER OF THE COURT OF FIRST INSTANCE

of 6 July 2004

in Case T-370/02 Alpenhain-Camembert-Werk and Others v Commission of the European Communities (1)

(Regulation (EC) No 1829/2002 - Registration of a designation of origin - ‘Feta’ - Application for annulment - Locus standi - Inadmissibility)

(2004/C 262/51)

Language of the case: German

In Case T-370/02: Alpenhain-Camembert-Werk, established in Lehen/Pfaffing (Germany), Bergpracht Milchwerk GmbH & Co. KG, established in Tettnang (Germany), Käserei Champignon Hofmeister GmbH & Co. KG, established in Lauben (Germany), Bayerland eG, established in Nuremberg (Germany), Hochland AG, established in Heimenkirch (Germany), Milchwerk Crailsheim-Dinkelsbühl eG, established in Crailsheim (Germany), Rücker GmbH, established in Aurich (Germany), represented by J. Salzwedel and J. Werner, lawyers, having an address for service in Luxembourg, supported by the United Kingdom of Great Britain and Northern Ireland (Agent: P. Ormond) against Commission of the European Communities (Agents: J.L. Iglesias Buhigues, S. Grünheid and A.-M. Rouchaud-Joët), supported by the Hellenic Republic (Agents: V. Kontolaimos, I. Chalkias and M. Tassopoulou) and by the Association of Greek Dairy Products Industries (Sevgap), represented by N. Korogiannakis, lawyer — application for annulment of Commission Regulation (EC) No 1829/2002 of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’ (OJ 2002 L 277, p. 10), in so far as it is a protected designation of origin — the Court (Third Chamber), composed of: J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, made an order on 6 July 2004, the operative part of which is as follows:

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

1.

The action is dismissed as inadmissible.

| 2. | The applicants shall bear their own costs and shall pay those of the Commission. |
| --- | --- |

2.

The applicants shall bear their own costs and shall pay those of the Commission.

| 3. | The Hellenic Republic, the United Kingdom of Great Britain and Northern Ireland and the Association of Greek Dairy Products Industries (Sevgap) shall bear their own costs. |
| --- | --- |

3.

The Hellenic Republic, the United Kingdom of Great Britain and Northern Ireland and the Association of Greek Dairy Products Industries (Sevgap) shall bear their own costs.

---

(1)  OJ C 55 of 8.3.2003.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/27 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/27

---

ORDER OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-338/03: Eridania Sadam and Others v Commission of the European Communities (1)

(Common organisation of the markets in the sugar sector - Price regime - Regionalisation - Deficit areas - Classification of Italy - Marketing year 2003/2004 - Regulation No 1158/2003 - Action for annulment - Natural and legal persons - Inadmissibility)

(2004/C 262/52)

Language of the case: Italian

In Case T-338/03: Eridania Sadam SpA, established in Bologna (Italy), Italia Zuccheri SpA, established in Bologna (Italy), Zuccherificio del Molise SpA, established in Termoli (Italy), CO. PRO. B — Cooperativa Produttori Bieticoli a rl, established in Minerbio, (Italy), SFIR — Società Fondiaria Industriale Romagnola SpA, established in Cesana (Italy), represented by G. Pittalis, I. Vigliotti, G.M. Roberti, P. Ziotti and A. Franchi, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agent: L. Visaggio, with an address for service in Luxembourg), supported by the Council of the European Union (Agent: F. Ruggeri Laderchi) — application for annulment of Article 1(c) of Commission Regulation (EC) No 1158/2003 of 30 June 2003 fixing the derived intervention prices for white sugar for the 2003/04 marketing year (OJ 2003 L 162, p. 24) — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, M.Vilaras and I. Wiszniewska-Bialecka, Judges; H. Jung, Registrar, made an order on 8 July 2004, the operative part of which is as follows:

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

1.

The application is dismissed as inadmissible.

| 2. | There is no need to give a decision on the applications to intervene by Azienda Agricola Palazzina ss. and Others, Associazione Nazionale Bieticoltori, Consorzio Nazionale Bieticoltori and Associazione Bieticoltori Italiani. |
| --- | --- |

2.

There is no need to give a decision on the applications to intervene by Azienda Agricola Palazzina ss. and Others, Associazione Nazionale Bieticoltori, Consorzio Nazionale Bieticoltori and Associazione Bieticoltori Italiani.

| 3. | The applicants are to bear their own costs and pay the costs incurred by the Commission. |
| --- | --- |

3.

The applicants are to bear their own costs and pay the costs incurred by the Commission.

| 4. | The Council is to bear its own costs. |
| --- | --- |

4.

The Council is to bear its own costs.

---

(1)  OJ C 289 of 29.11.2003.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/27 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/27

---

ORDER OF THE COURT OF FIRST INSTANCE

of 27 July 2004

in Case T-148/04 R, TQ3 Travel Solutions Belgium SA v Commission of the European Communities

(Public service contracts - Community tendering procedure - Application for interim measures - Application for suspension of operation and interim measures - Urgency - Absence)

(2004/C 262/53)

Language of the case: French

In Case T-148/04 R, TQ3 Travel Solutions Belgium SA, having its registered office in Mechelen (Belgium), represented by R. Ergee and K. Möric, lawyers, against Commission of the European Communities (Agents: L. Parpala and E. Manhaeve, with an address for service in Luxembourg), supported by Wagon-Lits Travel SA, having its registered office in Brussels (Belgium), represented by F. Herbert and H. Van Peer, lawyers, and D. Harrison, Solicitor, with an address for service in Luxembourg, application for suspension of the operation of the decisions of the Commission not to award to the applicant item No 1 of the contract covered by Notice No 2003/S 143-129409 for the provision of travel agency services but to award that item to another undertaking, and for an order requiring the Commission to take the measures necessary to suspend the effects of that decision awarding the contract or of the contract concluded following that decision, the President of the Court has made an order on 27 July 2004, in which he:

| 1. | Dismisses the application for interim measures; |
| --- | --- |

1.

Dismisses the application for interim measures;

| 2. | Reserves the costs. |
| --- | --- |

2.

Reserves the costs.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/28 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/28

---

Action brought on 28 May 2004 by José Félix Merladet against the Commission of the European Communities

(Case T-198/04)

(2004/C 262/54)

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 28 May 2004 by José Félix Merladet, resident in Overijse (Belgium), represented by N. Lhoëst, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare void the applicant's career development report for the period from 1 June 2001 to 31 December 2003; |
| --- | --- |

—

declare void the applicant's career development report for the period from 1 June 2001 to 31 December 2003;

| — | annul the express decision of the appointing authority of 12 February 2004 rejecting the applicant's complaint; |
| --- | --- |

—

annul the express decision of the appointing authority of 12 February 2004 rejecting the applicant's complaint;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant relies on an irregularity in the assessment procedure. During the reference period, the applicant worked in the Commission's Delegations in New Delhi (India) and in Maputo (Mozambique) under various line managers. The applicant submits that the career development review fails to give due weight to the assessments of those managers for whom he worked longer than a month.

The applicant also relies on a manifest error of assessment and failure to state reasons.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/28 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/28

---

Action brought on 25 June 2004 by Zubeyir Aydar on behalf of Kongra-Gel and 10 others against the Council of the European Union

(Case T-253/04)

(2004/C 262/55)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 25 June 2004 by Zubeyir Aydar, Fribourg, Switzerland, Haydar Isik, Maisoich, Germany, Kazim Baba, Berlin, Germany, George Aryo, Oldenzaal, Holland, Sait Uzun, Egg/Flaw, Switzerland, Lord Nicholas Rea, London, United Kingdom, Hugo Charlton, London, United Kingdom, Roger Tomkins, Droucha, Cyprus, Mark Thomas, London, United Kingdom, Hugo Van Rompaye, Geel, Belguim and Jean Paul Nunez, Montpellier, France, represented by Mr M. Muller, Mr E. Grieves and Ms C. Vine Barristers and Ms G. Pierce Solicitor.

The applicant claims that the Court should:

| — | annul the part of the Council Decision 2004/306/EC of 2 April 2004 proscribing KONGRA-GEL as an alias of the PKK and Regulation 2508/2001; |
| --- | --- |

—

annul the part of the Council Decision 2004/306/EC of 2 April 2004 proscribing KONGRA-GEL as an alias of the PKK and Regulation 2508/2001;

| — | alternatively declare Regulation 2508/2001 illegal in respect of its application to the applicants; |
| --- | --- |

—

alternatively declare Regulation 2508/2001 illegal in respect of its application to the applicants;

| — | to take such further action as the Court may in its wisdom deem appropriate; |
| --- | --- |

—

to take such further action as the Court may in its wisdom deem appropriate;

| — | order the Council to pay the costs incurred by the applicants in the present proceedings; |
| --- | --- |

—

order the Council to pay the costs incurred by the applicants in the present proceedings;

| — | order the Council to pay damages. |
| --- | --- |

—

order the Council to pay damages.

Pleas in law and main arguments

The applicants allege that in taking its decision to proscribe KONGRA-GEL as an alias of the PKK, the Council acted in breach of the EC Treaty both in respect of substance and procedure.

The applicants submit that the Council substantively breached the EC Treaty by virtue of the following:

| — | Failure to apply accessible, objective criteria to the correct facts; |
| --- | --- |

—

Failure to apply accessible, objective criteria to the correct facts;

| — | failure to respect fundamental rights including rights to freedom of expression and association protected under Articles 10 and 11 of the European Convention on Human Rights; |
| --- | --- |

—

failure to respect fundamental rights including rights to freedom of expression and association protected under Articles 10 and 11 of the European Convention on Human Rights;

| — | breach of principles of Community law such as proportionality, certainty, equality and the right to a fair hearing; |
| --- | --- |

—

breach of principles of Community law such as proportionality, certainty, equality and the right to a fair hearing;

| — | missuse of power. |
| --- | --- |

—

missuse of power.

Furthermore, the applicants submit that the Council breached the EC Treaty in respect of the procedure in the following ways:

| — | by failing to afford the applicants an opportunity to make representations prior to the proscription and/or to provide the applicants a fair hearing an/or an effective remedy by which to challenge the factual assertions relied upon by the Council, within the meaning of Articles 6 and 13 of the European Convention on Human Rights; |
| --- | --- |

—

by failing to afford the applicants an opportunity to make representations prior to the proscription and/or to provide the applicants a fair hearing an/or an effective remedy by which to challenge the factual assertions relied upon by the Council, within the meaning of Articles 6 and 13 of the European Convention on Human Rights;

| — | by failing to provide accurate or adequate reasons as to the legal and factual basis of its decision. |
| --- | --- |

—

by failing to provide accurate or adequate reasons as to the legal and factual basis of its decision.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/29 |
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23.10.2004

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Official Journal of the European Union

C 262/29

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Action brought on 16 June 2004 by Spyridon de Athanassios Pappas against the Committee of the Regions

(Case T-254/04)

(2004/C 262/56)

Language of the case: French

An action against the Committee of the Regions was brought before the Court of First Instance of the European Communities on 16 June 2004 by Spyridon de Athanassios Pappas, residing in Kraainem (Belgium), represented by Xanthi Gousta, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the appointing authority of the Committee of the Regions of 9 March 2004 in response to his complaint of 23 December 2003; |
| --- | --- |

—

annul the decision of the appointing authority of the Committee of the Regions of 9 March 2004 in response to his complaint of 23 December 2003;

| — | annul the decision of 8 October 2003 of the Bureau of the Committee of the Regions annulling recruitment procedure 2000/C 28 A/01; |
| --- | --- |

—

annul the decision of 8 October 2003 of the Bureau of the Committee of the Regions annulling recruitment procedure 2000/C 28 A/01;

| — | order the Committee of the Regions to pay the costs. |
| --- | --- |

—

order the Committee of the Regions to pay the costs.

Pleas in law and main arguments:

The applicant applied for the post of Secretary General of the Committee of the Regions and subsequently contested before the Court of First Instance (Case T-73/01) (1) the decision of the Committee to reject his application and appoint another candidate to that post. By judgment of 18 September 2003, (2) the Court of First Instance upheld his application. In the wake of that judgment, the Committee of the Regions, by decision of 8 October 2003, annulled the recruitment procedure at issue and opened a fresh recruitment procedure for the same post.

By this action, the applicant contests the latter decision and the decision rejecting the complaint he lodged about it. He submits that under Article 233 EC the defendant should have reopened the first recruitment procedure, by reconstructing his application file fully and accurately and then proceeding to consult the ad hoc selection committee. According to the applicant, it was only after those steps had been taken that the defendant could validly annul the first recruitment procedure.

---

(1)  OJ C 161, 2.6.2001, p. 23.

(2)  OJ C 289, 29.11.2003, p. 20.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/29 |
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23.10.2004

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Official Journal of the European Union

C 262/29

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Action brought on 21 June 2004 by Anne Koistinen against the Commission of the European Communities

(Case T-259/04)

(2004/C 262/57)

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 21 June 2004 by Anne Koistinen, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the Commission not to grant her the expatriation allowance provided for by Article 4(1)(a) of Annex VII of the Staff Regulations and to establish her place of origin as Brussels; |
| --- | --- |

—

annul the decision of the Commission not to grant her the expatriation allowance provided for by Article 4(1)(a) of Annex VII of the Staff Regulations and to establish her place of origin as Brussels;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant entered the service of the Commission on 16 January 2002, as a member of the auxiliary staff. On 1 July 2003 she was appointed as a probationary official. Before entering the service of the Commission, she had worked for a private firm in Brussels from 15 January 1996 to 16 August 1998, for the same firm in Helsinki from 17 August 1998 to 2 September 1998 and from 7 September 1998 to 15 January 2002 in Brussels for ‘Finpro’, a Finnish non profit-making organisation.

By this action the applicant contests the decision of the Commission not to grant her the expatriation allowance. She pleads a breach of Article 4(1)(a) of Annex VII of the Staff Regulations, pointing out that she did not live in Brussels or carry out her principal professional activity there for the whole of the reference period laid down by that provision, as she lived and worked in Helsinki from 17 August 1998 to 2 September 1998. In the alternative, she submits that ‘Finpro’ was part of the Finnish Permanent Representation to the European Union and that, therefore, the period during which she worked there should not be taken into account as that constituted work done for another State.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/30 |
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23.10.2004

EN

Official Journal of the European Union

C 262/30

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Action brought on 30 June 2004 by World Wide Fund for Nature European Policy Programme against the Council of the European Union

(Case T-264/04)

(2004/C 262/58)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 30 June 2004 by World Wide Fund for Nature European Policy Programme, Brussels, Belguim, represented by Ms R. Haynes, Barrister.

The applicant claims that the Court should:

| — | Annul the contested decision of the Council, of 30 April 2004, maintaining the Council's refusal to disclose the document it had identified as relevant to the applicant's request. |
| --- | --- |

—

Annul the contested decision of the Council, of 30 April 2004, maintaining the Council's refusal to disclose the document it had identified as relevant to the applicant's request.

Pleas in law and main arguments:

By a letter dated 23 February 2004 the applicant applied to the Council in accordance with Article 6 of Regulation 1049/2001 (1), Official Journal L 145, 31.5.2001, p. 43-48, and sought information with respect to an item entitled ‘WTO-Sustainability and Trade after Cancun’ on the agenda of the ‘Article 133 EC’ Committee for a meeting of its Deputy Members on 19 December 2003. By letter of 17 March 2004 the Council indicated that, in relation to the applicant's application, it had identified a note of the Commission covering a wide range of issues concerning the follow-up to the Cancun conference which, however, it declined to disclose on the basis that disclosure would undermine the European Union's commercial interests and would be prejudicial to economic relationships with third countries. It further informed the applicant that no minutes of meetings of the Deputy Members of the Committee were drawn up.

The applicant made a confirmatory application in accordance with Article 7 paragraph 2 of Regulation 1049/2001 on 5 April 2004. By the contested decision the Council maintained its refusal on the grounds it had already indicated.

In support of its application to annul the contested decision the applicant contends that the Council has erred in its assessment of the sensitivity of the relevant information, has failed to provide adequate reasons for its refusal and has failed to apply properly the principle of proportionality in assessing the possibility of partial disclosure.

---

(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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| 23.10.2004 | EN | Official Journal of the European Union | C 262/30 |
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23.10.2004

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Official Journal of the European Union

C 262/30

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Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities

(Case T-270/04)

(2004/C 262/59)

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 1 July 2004 by Bic Deutschland GmbH & Co OHG, established in Eschborn (Germany), represented by Dominique Voillemot, lawyer.

The applicant claims that the Court should:

| — | annul the Commission Decision of 3 May 2004 seeking payment from it of the fine which it imposed on the company Tipp-Ex by its decision of 10 July 1987 with interest calculated once and for all to 28 May 2004 and deciding to put into effect the bank guarantee provided by Deutsche Bank AG Frankfurt am Main; |
| --- | --- |

—

annul the Commission Decision of 3 May 2004 seeking payment from it of the fine which it imposed on the company Tipp-Ex by its decision of 10 July 1987 with interest calculated once and for all to 28 May 2004 and deciding to put into effect the bank guarantee provided by Deutsche Bank AG Frankfurt am Main;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments:

The applicant company is the successor in title to Tipp-Ex following the repurchase on 1 January 1997 and the subsequent internal restructuring of the BIC group. Tipp-Ex was the addressee of Decision No 87/406/EEC of 10 July 1987, by which the Commission imposed upon it a fine of ECU 400 000 for breach of Community competition rules.

Tipp-Ex had brought an action against that decision and provided the Commission with a bank guarantee payable on first demand to guarantee payment of the fine plus interest at 8 %. In accordance with usual practice in that regard, that guarantee was to be honoured only upon a written demand from the Commission, with a certified copy of the Court's judgment. On 8 February 1990, (1) the Court dismissed Tipp-Ex's action and upheld the decision of 10 July 1987.

It was only by letter of 12 February 2004 that the Commission requested payment from BIC of the amount of EUR 923 747.94, including the amount of the fine of EUR 400 000 and the additional amount of interest (EUR 523 747.94).

Following an exchange of correspondence between the applicant and the Commission, the Commission, by the contested decision, rejected BIC's arguments, based in particular on the rule of limitation set out in Article 4(1) of Regulation No 2988/74 (2) and demanded payment of the definitive amount of the fine (EUR 931 726.02).

In support of its claims, the applicant submits that:

| — | there was a breach of Article 4(1) of the abovementioned Regulation No 2988/74 which does not permit execution of a decision imposing a fine after a period of five years has elapsed. It considers, in that regard, that the limitation period in question was neither interrupted nor suspended; |
| --- | --- |

—

there was a breach of Article 4(1) of the abovementioned Regulation No 2988/74 which does not permit execution of a decision imposing a fine after a period of five years has elapsed. It considers, in that regard, that the limitation period in question was neither interrupted nor suspended;

| — | there was a manifest error of assessment regarding the functioning of the bank guarantee payable on first demand. The applicant contends, in that regard, on one hand, that the provision of such a guarantee does not constitute payment of the fine and that the mere holding of it does not, of itself, entail an obligation to make payment and, in addition, that the putting into effect of the bank guarantee requires an enforcement measure in accordance with Regulation No 2988/74. In accordance with the wording of the guarantee in question, that enforcement measure should consist of an express demand made by the Commission to Deutsche Bank, together with a certified copy of the judgment of the Court of Justice, sent by recorded delivery letter. |
| --- | --- |

—

there was a manifest error of assessment regarding the functioning of the bank guarantee payable on first demand. The applicant contends, in that regard, on one hand, that the provision of such a guarantee does not constitute payment of the fine and that the mere holding of it does not, of itself, entail an obligation to make payment and, in addition, that the putting into effect of the bank guarantee requires an enforcement measure in accordance with Regulation No 2988/74. In accordance with the wording of the guarantee in question, that enforcement measure should consist of an express demand made by the Commission to Deutsche Bank, together with a certified copy of the judgment of the Court of Justice, sent by recorded delivery letter.

Furthermore, the applicant submits that there was a breach of the principle of protection of legitimate expectations and, in the alternative, a breach of the general principle that measures should be taken within a reasonable time.

---

(1)  Case C-279/98 Tipp-Ex v Commission [1990] ECR I-261.

(2)  Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ L 319, 29.11.1974, p. 1).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/31 |
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23.10.2004

EN

Official Journal of the European Union

C 262/31

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Action brought on 5 July 2004 by Citymo S.A. against the Commission of the European Communities

(Case T-271/04)

(2004/C 262/60)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 July 2004 by Citymo S.A, established in Brussels, represented by Pierre Van Ommeslaghe and Isabelle Heenen, lawyers.

The applicant claims that the Court should:

| — | declare that the defendant is at fault and contractually liable and order it to pay to the applicant the sum of EUR 27 330 577.77, the estimated amount of its loss, together with interest at the legal rate applicable in Belgium (currently 7 %) from the date of the application to the date of actual payment, the amount being subject to adjustment during the proceedings; |
| --- | --- |

—

declare that the defendant is at fault and contractually liable and order it to pay to the applicant the sum of EUR 27 330 577.77, the estimated amount of its loss, together with interest at the legal rate applicable in Belgium (currently 7 %) from the date of the application to the date of actual payment, the amount being subject to adjustment during the proceedings;

| — | declare, alternatively, that the Community, represented by the Commission, is liable and order the Commission to pay the sum of EUR 20 589 332.22 as compensation for the loss suffered together with default interest on that sum from the date of judgment until the date of actual payment, at the rate of 6 %, the amount being subject to adjustment during the proceedings; |
| --- | --- |

—

declare, alternatively, that the Community, represented by the Commission, is liable and order the Commission to pay the sum of EUR 20 589 332.22 as compensation for the loss suffered together with default interest on that sum from the date of judgment until the date of actual payment, at the rate of 6 %, the amount being subject to adjustment during the proceedings;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant affirms that it concluded a contract for a lease with the Commission of a building in Brussels comprising 16 954 m2. The Commission even agreed that the lessor should place an order for the interior fitting-out required to be done.

However, the Commission informed the lessor before 1 November 2003, the date on which the lease became effective, that it intended neither to take the property on lease nor to indemnify the applicant for the work already arranged.

In support of its claims, the applicant submits that:

| — | Although the lease contract had not been formally signed by the Commission, it bound the parties, since the contract is concluded under Belgian law by simple consent of the parties without formalities; |
| --- | --- |

—

Although the lease contract had not been formally signed by the Commission, it bound the parties, since the contract is concluded under Belgian law by simple consent of the parties without formalities;

| — | The Commission is liable by reason of its repudiation of the contract. |
| --- | --- |

—

The Commission is liable by reason of its repudiation of the contract.

The applicant seeks the setting aside of the contract due to the Commission's fault pursuant to Article 1.184 of the Belgian Civil Code and an order that it compensate the applicant for the loss it suffers as a result thereof.

In the alternative, should the Court not accept that the contract at issue was concluded, the applicant considers that the Commission committed an act of non-contractual negligence by breaking off the negotiations. It claims in that regard that the defendant acted in bad faith by disappointing Citymo's legitimate expectations acquired during the contract negotiations and by leading it to believe that the contract would be concluded, but then withdrawing from it and failing to act in good faith by informing the applicant of its changed intentions.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/32 |
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23.10.2004

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Official Journal of the European Union

C 262/32

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Action brought on 8 July 2004 by Georgios Rounis against the Commission of the European Communities

(Case T-274/04)

(2004/C 262/61)

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 8 July 2004 by Georgios Rounis, residing in Brussels, represented by E. Boigelot, lawyer.

The applicant claims that the Court should:

| — | Annul the decision taken by the Director-General of DG COMP/A on 4 August 2003 in his capacity as appeals assessor and adversely affecting the applicant in that it confirms and definitively approves his staff reports for 1997-1999 and 1999-2001 as established; |
| --- | --- |

—

Annul the decision taken by the Director-General of DG COMP/A on 4 August 2003 in his capacity as appeals assessor and adversely affecting the applicant in that it confirms and definitively approves his staff reports for 1997-1999 and 1999-2001 as established;

| — | Annul those staff reports; |
| --- | --- |

—

Annul those staff reports;

| — | Award the applicant compensation for non-material harm, evaluated on an equitable basis at EUR 8,000, owing to the various substantial faults committed at various levels in the establishment of his staff reports for 1997-1999 and 1999-2001 and owing to the significant delay in definitively establishing those reports; |
| --- | --- |

—

Award the applicant compensation for non-material harm, evaluated on an equitable basis at EUR 8,000, owing to the various substantial faults committed at various levels in the establishment of his staff reports for 1997-1999 and 1999-2001 and owing to the significant delay in definitively establishing those reports;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant claims that there has been a breach of the second paragraph of Article 25 and Articles 26 and 43 of the Staff Regulations and also of the general implementing provisions on the application of Article 43 adopted by the Commission on 26 April 2002. The applicant also claims that there has been misuse of powers and a breach of the rights of the defence, of the principle of good administration, of the principle of equal treatment and also of the principle that the appointing authority must adopt a decision solely on the basis of legally admissible grounds, i.e. grounds which are relevant and are not vitiated by a manifest error of assessment of fact or of law.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/32 |
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23.10.2004

EN

Official Journal of the European Union

C 262/32

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Action brought on 7 July 2004 by Aries Meca against the Commission of the European Communities

(Case T-275/04)

(2004/C 262/62)

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 Aries Meca, established in Poissy (France), represented by Jean-Paul Poulain and Jean-Emmanuel Kuntz, lawyers.

The applicant claims that the Court should:

| — | annul the Commission's decision of 16 December 2003, in that Article 1 thereof declared illegal the scheme providing for automatic tax exemption for companies acquiring an undertaking in financial difficulties; |
| --- | --- |

—

annul the Commission's decision of 16 December 2003, in that Article 1 thereof declared illegal the scheme providing for automatic tax exemption for companies acquiring an undertaking in financial difficulties;

| — | annul the Commission's decision of 16 December 2003, in that Article 5 thereof ordered that the whole of the aid granted under the scheme of Article 44 septies of the Code Général des Impôts be recovered from companies incorporated for the purpose of acquiring an undertaking in financial difficulties; |
| --- | --- |

—

annul the Commission's decision of 16 December 2003, in that Article 5 thereof ordered that the whole of the aid granted under the scheme of Article 44 septies of the Code Général des Impôts be recovered from companies incorporated for the purpose of acquiring an undertaking in financial difficulties;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The decision which is the subject-matter of this case is the same as that which is challenged in Case T-273/04 Brandt Industries v Commission.

The applicant in this case, Aries Meca, is a company which, by virtue of its acquisition of Aries SAS, benefited from the provisions of the Code Général des Impôts referred to in the contested decision. Its application for annulment is based on a twofold plea that there has been an infringement of both Article 253 of the EC Treaty and Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1).

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(1)  OJ 1999 L 83, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/32 |
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23.10.2004

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Official Journal of the European Union

C 262/32

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Action brought on 8 July 2004 by Compagnie Maritime Belge N.V./S.A. against the Commission of the European Communities

(Case T-276/04)

(2004/C 262/63)

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 8 July 2004 by Compagnie Maritime Belge N.V./S.A., established in Antwerp (Belgium), represented by Denis Waelbroeck, lawyer.

The applicant claims that the Court should:

| — | annul the Commission's decision of 30 April 2004 in cases COMP/D232.450 and 32.448 imposing a fine on the applicant for infringement of Article 82 of the EC Treaty, or at least substantially reduce the fine; |
| --- | --- |

—

annul the Commission's decision of 30 April 2004 in cases COMP/D232.450 and 32.448 imposing a fine on the applicant for infringement of Article 82 of the EC Treaty, or at least substantially reduce the fine;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By Decision 93/82/EEC of 23 December 1992, the Commission imposed on, inter alia, the applicant a fine in the context of a proceeding pursuant to Articles 85 and 86 (now Articles 81 and 82) of the EC Treaty. The applicant brought an action against that decision and the Court of Justice, by judgment of 16 March 2000 (1), annulled the decision in so far as it imposed a fine on the applicant. Following that judgment, the Commission adopted the contested decision, which imposed a fine of EUR 3 400 000 on the applicant for the same infringements.

In support of its application for annulment of the latter decision, the applicant submits, first, that the Commission adopted its second decision at a time when the period within which it could reasonably do so had elapsed and that it is therefore estopped from taking action. The applicant also claims that the Commission breached its rights of defence by re-opening the procedure solely in relation to the question of the fine. According to the applicant, where the Commission imposes a fine, it must re-assess the infringements as at the date of its new decision and cannot, as in the present case, have regard to assessments of the facts made 12 years ago. The applicant also claims that the fine is unjustified, as the infringements have not been established. Lastly, the applicant argues that the fine is discriminatory and disproportionate, that it was imposed in breach of the Commission's customary practice and that it amounts to an abuse of power. The applicant maintains that it received virtually the entire fine imposed for alleged abuses of a dominant position by a conference in which it held less than one third of the rights.

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(1)  Joined Cases C-395/96 P and C-396/96 P.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/33 |
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23.10.2004

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Official Journal of the European Union

C 262/33

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Action brought on 8 July 2004 by Éditions Odile Jacob SAS against the Commission of the European Communities

(Case T-279/04)

(2004/C 262/64)

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 8 July 2004 by Éditions Odile Jacob SAS, established in Paris, represented by Olivier Fréget and Wilko van Weert, lawyers.

The applicant claims that the Court should:

| — | annul the Commission Decision of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA agreement (Case No COMP7M:2978-LAGARDERE/NATEXIS/VUP) (1); |
| --- | --- |

—

annul the Commission Decision of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA agreement (Case No COMP7M:2978-LAGARDERE/NATEXIS/VUP) (1);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission decided not to oppose the acquisition by Lagardère of control of certain assets of Vivendi Universal Publishing, controlled by Investima, itself controlled by Natexis Banques Populaires, notified to the Commission under Article 4 of Regulation (EEC) No 4064/89 (2) on 14 April 2003, and to declare it compatible with the common market and with the EEA agreement, provided the commitments offered were met.

The applicant, who claims to be directly and individually concerned by the contested decision, having actively participated in the administrative procedure preceding its adoption, seeks the annulment of the decision in question, arguing, first, that the Commission has infringed Regulation No 4064/89. The applicant submits that the bank, Natexis, cannot be covered by the exception laid down in Article 3(5)(a) of that regulation, since it acquired Vivendi Universal Publishing only after giving a commitment to resell that undertaking to Lagardère. Furthermore, the Commission wrongly classified the project in question as the acquisition of total control, when in actual fact it constituted the acquisition of joint control by Lagardère and Natexis, which should have notified it to the Commission jointly under Article 4(2) of Regulation 4064/89.

The applicant maintains also that the Commission infringed Article 6(1) and Article 2(1)(a) of Regulation No 4064/89 by accepting notification of the operation in question more than four months after it took place and by granting Lagardère successive extensions of time which had the effect of postponing the adoption of the decision by nine months. The Commission also committed a manifest error in its assessment of Lagardère's real power.

The applicant further claims that the Commission infringed Article 2 of Regulation No 4064/89 and committed a manifest error of assessment on the ground that the contested decision strengthened Lagardère's dominant position. It also submits that the Commission's acceptance of a divestiture commitment, neither the principle nor the conditions for implementation of which are such as to enable effective competition to be restored, constitutes an infringement of Article 8(2) of Regulation No 4064/89. Finally, the applicant alleges failure to give reasons for the contested decision as regards the effect of that commitment on the structure of the market in its current state.

---

(1)  OJ L 125 of 28.4.2004, p. 54.

(2)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings OJ L 257/90 p. 13.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/34 |
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23.10.2004

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Official Journal of the European Union

C 262/34

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Action brought on 9 July 2004 by Paola Staboli against the Commission of the European Communities

(Case T-281/04)

(2004/C 262/65)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 July 2004 Paola Staboli, residing in Saint-Gilles (Belgium), represented by L. Vogel, lawyer.

The applicant claims that the Court should:

| — | annul the decisions of the appointing authority of 12 March 2004 and 6 April 2004 rejecting the applicant's complaint of 29 August 2003 whereby she criticised a decision of 9 May 2003 refusing to allow her, as part of a training programme, to take part in two conferences given in Melbourne and Perth between 26 June and 5 July 2003 and also refusing to grant her training leave for that purpose; |
| --- | --- |

—

annul the decisions of the appointing authority of 12 March 2004 and 6 April 2004 rejecting the applicant's complaint of 29 August 2003 whereby she criticised a decision of 9 May 2003 refusing to allow her, as part of a training programme, to take part in two conferences given in Melbourne and Perth between 26 June and 5 July 2003 and also refusing to grant her training leave for that purpose;

| — | so far as may be necessary, also annul the abovementioned decision of 9 May 2003, adopted by the Director-General of the Commission's translation service; |
| --- | --- |

—

so far as may be necessary, also annul the abovementioned decision of 9 May 2003, adopted by the Director-General of the Commission's translation service;

| — | order the Commission to pay the sum of EUR 5,000 by way of damages and interest; |
| --- | --- |

—

order the Commission to pay the sum of EUR 5,000 by way of damages and interest;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges the appointing authority's decision refusing her request for training leave in order to participate, as a speaker, in conferences given in Melbourne and Perth, in Australia, between 26 June and 5 July 2003.

In support of her claims, the applicant alleges:

| — | Breach of the third paragraph of Article 24 of the Staff Regulations, of the decision adopted by the College of Commissioners on 7 May 2002, and in particular of Articles 1, 2 and 3 thereof, and also of the decision approving the applicant's training schedule for 2003, in that the request for training leave in question was refused on the ground that the it related solely to activities connected with her personal development whereas, first, her training schedule for the year 2003 referred expressly to it under the head of training and, furthermore, one of the objectives of officials' permanent training is specifically to ensure their personal development and their involvement in the enhancement of the reputation and excellence of the Commission. |
| --- | --- |

—

Breach of the third paragraph of Article 24 of the Staff Regulations, of the decision adopted by the College of Commissioners on 7 May 2002, and in particular of Articles 1, 2 and 3 thereof, and also of the decision approving the applicant's training schedule for 2003, in that the request for training leave in question was refused on the ground that the it related solely to activities connected with her personal development whereas, first, her training schedule for the year 2003 referred expressly to it under the head of training and, furthermore, one of the objectives of officials' permanent training is specifically to ensure their personal development and their involvement in the enhancement of the reputation and excellence of the Commission.

| — | Breach of the principle of non-discrimination, and also the existence in the present case of a manifest error of assessment, in that the appointing authority refuses to accept that the topic dealt with at the conferences in question (literature in the middle ages, and more particularly the works of Dante) comes within the applicant's continuous training, whereas the subject is directly connected with her activities within the translation service and, moreover, training leave is regularly granted to other officials for comparable activities. |
| --- | --- |

—

Breach of the principle of non-discrimination, and also the existence in the present case of a manifest error of assessment, in that the appointing authority refuses to accept that the topic dealt with at the conferences in question (literature in the middle ages, and more particularly the works of Dante) comes within the applicant's continuous training, whereas the subject is directly connected with her activities within the translation service and, moreover, training leave is regularly granted to other officials for comparable activities.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/34 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/34

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Action brought on 9 July 2004 by Georgia-Pacific S.A.R.L. against the Office for Harmonisation in the Internal Market (OHIM)

(Case T-283/04)

(2004/C 262/66)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 9 July 2004 by Georgia-Pacific S.A.R.L., established in Luxembourg, represented by R. Delorey, lawyer.

The applicant claims that the Court should:

| — | annul and alter the decision of the First Board of Appeal of the Office in so far as it held that the mark applied for under No 2 101 277 was devoid of distinctive character throughout the Community in relation to ‘rolls of paper for household use, kitchen towels, hand towels of paper’ and, when giving a new ruling, hold that the mark refused is distinctive. |
| --- | --- |

—

annul and alter the decision of the First Board of Appeal of the Office in so far as it held that the mark applied for under No 2 101 277 was devoid of distinctive character throughout the Community in relation to ‘rolls of paper for household use, kitchen towels, hand towels of paper’ and, when giving a new ruling, hold that the mark refused is distinctive.

Pleas in law and main arguments:

| Community trade mark sought: | Three-dimensional mark in the form of a design for kitchen towels. |
| --- | --- |
| Goods or services: | Goods in Class 16 (rolls of paper for household use, kitchen towels, hand towels of paper) — Application No 2 101 277. |
| Decision contested before the Board of Appeal: | Refusal to register by the examiner. |
| Decision of the Board of Appeal: | Dismissal of the appeal. |
| Pleas in law: | The contested decision infringes Article 7(1) of Regulation (EC) No 40/94.
  The sign is clearly capable of being represented graphically for the purposes of Article 7(1)(a) and Article 4 of the Regulation.
  The sign is not descriptive or customary and does not consist of a shape resulting from the natureof the goods.
  The sign is sufficiently distinctive to satisfy the requirements of Article 7(1)(b) of the Regulation. |

Community trade mark sought:

Three-dimensional mark in the form of a design for kitchen towels.

Goods or services:

Goods in Class 16 (rolls of paper for household use, kitchen towels, hand towels of paper) — Application No 2 101 277.

Decision contested before the Board of Appeal:

Refusal to register by the examiner.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

The contested decision infringes Article 7(1) of Regulation (EC) No 40/94.

The sign is clearly capable of being represented graphically for the purposes of Article 7(1)(a) and Article 4 of the Regulation.

The sign is not descriptive or customary and does not consist of a shape resulting from the natureof the goods.

The sign is sufficiently distinctive to satisfy the requirements of Article 7(1)(b) of the Regulation.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/35 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/35

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Action brought on 13 July 2004 by Michel Andrieu against the Commission of the European Communities

(Case T-285/04)

(2004/C 262/67)

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 13 July 2004 by Michel Andrieu, residing in Saint-Mande (France), represented by S. Rodrigues and Y. Minatchy, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decisions of the appointing authority of 30 March 2004 replying to the applicant's complaint and also annul the career development report drawn up in respect of the applicant for the period 1 July 2001 to 31 December 2002; |
| --- | --- |

—

annul the decisions of the appointing authority of 30 March 2004 replying to the applicant's complaint and also annul the career development report drawn up in respect of the applicant for the period 1 July 2001 to 31 December 2002;

| — | find that the European Community bears extra-contractual liability on account of the contested decision and the belated establishment of the applicant's career development report; |
| --- | --- |

—

find that the European Community bears extra-contractual liability on account of the contested decision and the belated establishment of the applicant's career development report;

| — | award the applicant damages and interest for professional harm, material harm and non-material harm sustained in a total amount of EUR 64,468, including nominal damages of EUR 1 for mental harassment; |
| --- | --- |

—

award the applicant damages and interest for professional harm, material harm and non-material harm sustained in a total amount of EUR 64,468, including nominal damages of EUR 1 for mental harassment;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments:

The present action is brought against the decision adopted on 31 March 2004 by the Director of Personnel and Administration of the Commission, rejecting the applicant's complaint submitted in the context of the establishment of his career development report for the period 1 July 2001 to 31 September 2002 (REC 2001-2002).

The applicant disputes the legality of that decision and also the legality of REC 2001-2002 on which the decision is based.

In support of his claims, the applicant alleges:

| — | Breach of the rights of the defence, having regard in particular to the non-classification of certain elements of assessment in the applicant's staff file, their partial transcription on the computerised system ‘SYSPER2’ and the fact that it was impossible to identify the reference REC to be taken into account; |
| --- | --- |

—

Breach of the rights of the defence, having regard in particular to the non-classification of certain elements of assessment in the applicant's staff file, their partial transcription on the computerised system ‘SYSPER2’ and the fact that it was impossible to identify the reference REC to be taken into account;

| — | Breach of procedural guarantees, owing in particular to the conflict of interests on the part of the assessor and validator, and also breach of certain procedures for the implementation of Articles 43 and 45 of the Staff Regulations; |
| --- | --- |

—

Breach of procedural guarantees, owing in particular to the conflict of interests on the part of the assessor and validator, and also breach of certain procedures for the implementation of Articles 43 and 45 of the Staff Regulations;

| — | Manifest error of assessment; |
| --- | --- |

—

Manifest error of assessment;

| — | Failure to comply with the obligation to state reasons. |
| --- | --- |

—

Failure to comply with the obligation to state reasons.

---

| 23.10.2004 | EN | Official Journal of the European Union | C 262/35 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/35

---

Action brought on 15 July 2004 by Dimitra Lantzoni against the Court of Justice of the European Communities

(Case T-289/04)

(2004/C 262/68)

Language of the case: French

An action against the Court of Justice of the European Communities was brought before the Court of First Instance of the European Communities on 15 July 2004 by Dimitra Lantzoni, residing in Übersyren (Luxembourg), represented by Clara Marhuenda, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the defendant notified to the applicant on 7 October 2003 rejecting her complaint about the promotion points awarded to her in the 1999/2000 promotion procedure and in the 2001 promotion procedure; |
| --- | --- |

—

annul the decision of the defendant notified to the applicant on 7 October 2003 rejecting her complaint about the promotion points awarded to her in the 1999/2000 promotion procedure and in the 2001 promotion procedure;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

On 5 February 2002, the applicant, an official of the Court of Justice, was informed of the decision to award her no promotion points for the years 1999 and 2000. On 16 January 2003, the applicant was also informed that she had been awarded one promotion point in the 2001 promotion procedure. She complained about the latter decision and subsequently made another complaint, concerning the award of no points for the years 1999 and 2000. Her complaint was rejected as out of time for the years 1999 and 2000 and as unfounded as regards the year 2001.

In support of this action, the applicant submits that the contested award of points is in breach of the decision of the Court of 18 October 2000 introducing that system, on the ground that it was not made on the basis of her staff reports, as the points awarded were wholly inconsistent with those reports. As regards the rejection, on the ground that it was out of time, of her complaint about the award of no points for 1999 and 2000, the applicant submits that the delay of almost two years in communicating her staff report for 1999/2000 to her prevented her from being aware of the errors in the award of points for that promotions procedure. According to the applicant, the legal certainty of the promotion procedure concerned would not in any way be called into question if she were permitted to contest the failure to award her any points for those two years, given that the number of points obtained does not automatically guarantee a promotion.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/36 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/36

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Action brought on 21 July 2004 by Miguel Teixeira Gaspar, Pedro Paixão Telhada, Ricardo Jorge da Silva Seara Pinto de Amorim and Fernando Miguel Santos Ribeiro against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-290/04)

(2004/C 262/69)

Language of the case: Portuguese

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 21 July 2004 by Miguel Teixeira Gaspar, Pedro Paixão Telhada, Ricardo Jorge da Silva Seara Pinto de Amorim and Fernando Miguel Santos Ribeiro, resident in Parede and Brandoa, represented by Ana Clara Santos and Inês Alves Guerra, lawyers.

The applicants claim that the Court should:

| — | annul the decision of the Fourth Board of Appeal of OHIM of 17 March 2004 in Case R 0682/2001-4, notified to the applicants on 18 May 2004. |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 17 March 2004 in Case R 0682/2001-4, notified to the applicants on 18 May 2004.

Pleas in law and main arguments:

| Applicant for Community trade mark: | João Pedro Lamúrias Escoval. |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘MOONSPELL’ — Application No. 483438 for goods and services in class 41 (musical band). |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicants. |
| Mark or sign cited in opposition. | The word mark ‘MOONSPELL’ used by the applicants for goods and services in class 41 (musical band). |
| Decision of the Opposition Division: | Opposition dismissed. |
| Decision of the Board of Appeal: | Appeal dismissed. |
| Pleas in law: | Infringement of Article 8(1), (2)(c) and (4) and Articles 75 and 76 of Regulation No 40/94 (1). Widely-known mark used by the applicants at the time of the application for registration in question. Negligent assessment of the evidence submitted by the applicants. |

Applicant for Community trade mark:

João Pedro Lamúrias Escoval.

Community trade mark sought:

Figurative mark ‘MOONSPELL’ — Application No. 483438 for goods and services in class 41 (musical band).

Proprietor of mark or sign cited in the opposition proceedings:

The applicants.

Mark or sign cited in opposition.

The word mark ‘MOONSPELL’ used by the applicants for goods and services in class 41 (musical band).

Decision of the Opposition Division:

Opposition dismissed.

Decision of the Board of Appeal:

Appeal dismissed.

Pleas in law:

Infringement of Article 8(1), (2)(c) and (4) and Articles 75 and 76 of Regulation No 40/94 (1). Widely-known mark used by the applicants at the time of the application for registration in question. Negligent assessment of the evidence submitted by the applicants.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/37 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/37

---

Action brought on 9 July 2004 by Guy Tachelet against the Commission of the European Communities

(Case T-293/04)

(2004/C 262/70)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 July 2004 by Guy Tachelet, residing in Rijmenam (Belgium), represented by N. Lhöest, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the appointing authority's decision of 2 September 2003, in that:






  — | the Commission did not grant the applicant additional seniority of 48 months at the time of his recruitment; |
| --- | --- | --- |

—

annul the appointing authority's decision of 2 September 2003, in that:

—

the Commission did not grant the applicant additional seniority of 48 months at the time of his recruitment;

| — | the Commission did not reconstitute the applicant's career by bringing forward the date of his promotion to grade B3 and, if applicable, a promotion to grade B2 (now B*8); |
| --- | --- |

—

the Commission did not reconstitute the applicant's career by bringing forward the date of his promotion to grade B3 and, if applicable, a promotion to grade B2 (now B*8);

| — | the Commission did not consider the comparative merits of the persons concerned for the promotion exercises as from which the applicant became eligible for promotion to grade B3; |
| --- | --- |

—

the Commission did not consider the comparative merits of the persons concerned for the promotion exercises as from which the applicant became eligible for promotion to grade B3;

| — | in so far as necessary, annul the appointing authority's express decision of 16 March 2004 rejecting the applicant's complaint (R/714/03); |
| --- | --- |

—

in so far as necessary, annul the appointing authority's express decision of 16 March 2004 rejecting the applicant's complaint (R/714/03);

| — | order the defendant to pay compensation fixed provisionally at EUR 125,000 in the unlikely event that it should be unable to reconstitute the applicant's career in grade; |
| --- | --- |

—

order the defendant to pay compensation fixed provisionally at EUR 125,000 in the unlikely event that it should be unable to reconstitute the applicant's career in grade;

| — | order the defendant to pay all the costs of the proceedings. |
| --- | --- |

—

order the defendant to pay all the costs of the proceedings.

Pleas in law and main arguments:

The applicant, who had been classified in grade B5, step 3, on recruitment in October 1995, objects to the appointing authority's decision to fix that classification, upon review, at grade B4, step 2, and not at grade B4, step 3, not to reconstitute his career and not to consider the comparative merits of the persons concerned for the promotion exercises as from which he was eligible for promotion to grade B3.

In support of his claims, the applicant alleges:

| — | as regards seniority on the date of recruitment, infringement of the Commission's decisions of 6 June 1973 and 1 September 1983 on the criteria applicable to appointment in grade and to classification in step on recruitment, breach of Article 5(3) of the Staff Regulations and of the principle of equality and also breach of the duty to state the reasons for decisions; |
| --- | --- |

—

as regards seniority on the date of recruitment, infringement of the Commission's decisions of 6 June 1973 and 1 September 1983 on the criteria applicable to appointment in grade and to classification in step on recruitment, breach of Article 5(3) of the Staff Regulations and of the principle of equality and also breach of the duty to state the reasons for decisions;

| — | as regards the refusal to reconstitute the applicant's career, breach of Article 5(3) and Article 45 of the Staff Regulations. |
| --- | --- |

—

as regards the refusal to reconstitute the applicant's career, breach of Article 5(3) and Article 45 of the Staff Regulations.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/37 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/37

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Action brought on 23 July 2004 by Internationaler Hilfsfonds e.V. against the Commission of the European Communities

(Case T-294/04)

(2004/C 262/71)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 July 2004 by Internationaler Hilfsfonds e.V., Rosbach (Germany), represented by H. Kaltenecker, lawyer.

The applicant claims that the Court should:

| — | order the defendant to pay the applicant EUR 54 037.00 on account of material damage suffered by the applicant through conduct by Commission servants in breach of their official duty, and order the Commission to pay the costs. |
| --- | --- |

—

order the defendant to pay the applicant EUR 54 037.00 on account of material damage suffered by the applicant through conduct by Commission servants in breach of their official duty, and order the Commission to pay the costs.

Pleas in law and main arguments:

The claimant is a German non-governmental organisation, working in the humanitarian area.

The applicant maintains that in Case T-321/01 (1), concerning the rejection of two applications by the applicant for co-financing, the Court of First Instance recognised that the Commission's conduct was deficient and annulled the corresponding Commission decision. The applicant argues that, in the pre-judicial proceedings before the European Ombudsman, it incurred substantial costs, the recoverability of which the Court of First Instance did not acknowledge under its Rules of Procedure in the context of Case T-321/01. The applicant therefore sees no alternative to bringing an action against the Commission for non-contractual liablity in accordance with the second paragraph of Article 288 EC.

---

(1)  Judgment of 18.9.2003 in Case T-321/01 Internationaler Hilfsfonds v Commission, not yet published in the ECR.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/38 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/38

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Action brought on 22 July 2004 by Salvador Contreras Gila, José Ramiro Lopez and Antonio Ramiro Lopez against the Council of the European Union

(Case T-296/04)

(2004/C 262/72)

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 Salvador Contreras Gila, José Ramiro Lopez and Antonio Ramiro Lopez, residing in Jaen (Spain), represented by José Francisco Vasquez Medina, of the Jaén Bar.

The applicant claims that the Court should:

| — | Annul – ipso iure – Article 1(7) of Council Regulation (EC) No 864/04; |
| --- | --- |

—

Annul – ipso iure – Article 1(7) of Council Regulation (EC) No 864/04;

| — | Reserve the costs. |
| --- | --- |

—

Reserve the costs.

Pleas in law and main arguments:

In support of their arguments the applicants allege breach of the principle of the protection of legitimate expectations and, therefore, of the principle of legal certainty and infringement of the rule that the administration is bound by its own acts, because, as a result of the fact that the contested measure uses as the reference period for the calculation of the direct aid for the producers of olive oil only for marketing years 1999/2000, 2000/2001, 2001/2002 and 2002/2003 those producers who, in accordance with the provisions of Regulation No 2366/98, planted olive trees in the years 1997 or 1998 will be entitled to hardly any of the aid provided for, since it would appear that in those marketing years there was hardly any production, given that at least eight years must elapse in order for an olive tree to become fully productive.

They also allege infringement of the principle of non-discrimination in so far as other Member States, such as Portugal, are allowed funds intended to finance an increase in the production of young olive groves.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/38 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/38

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Action brought on 21 July 2004 by EFKON AG against the European Parliament and the Council of the European Union

(Case T-298/04)

(2004/C 262/73)

Language of the case: German

An action against the European Parliament and the Council of the European Union was brought before the Court of First Instance of the European Communities on 21 July 2004 by EFKON AG, Graz-Andritz (Austria), represented by Georg Zanger, lawyer.

The applicant claims that the Court should:

| — | annul Directive 2004/52/EC of the European Parliament and the Council of 29 April 2004; (1) |
| --- | --- |

—

annul Directive 2004/52/EC of the European Parliament and the Council of 29 April 2004; (1)

| — | in the alternative, annul Article 2(1)(a), (b) and (c) and Articles 3 and 6 of Directive 2004/52/EC of the European Parliament and the Council of 29 April 2004; |
| --- | --- |

—

in the alternative, annul Article 2(1)(a), (b) and (c) and Articles 3 and 6 of Directive 2004/52/EC of the European Parliament and the Council of 29 April 2004;

| — | in the alternative, allow the technology used by the applicant (active infra-red) in the introduction of electronic road toll systems; |
| --- | --- |

—

in the alternative, allow the technology used by the applicant (active infra-red) in the introduction of electronic road toll systems;

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

—

order the defendants to pay the costs.

Pleas in law and main arguments:

The applicant seeks the annulment of Directive 2004/52/EC of the European Parliament and the Council, arguing that, contrary to the requirement that legal measures be technologically neutral, it mandatorily prescribes specific technologies and thereby creates a market regime in favour of the technologies specified in the directive, infringing the principle of competition in the Community. The applicant complains that, with its technology (bi-directional high-speed active infra-red communication technology), it is excluded from the market for road toll systems.

The applicant further argues that the directive does not achieve its purpose, namely inter-operability between electronic road toll systems in the Member States, and at the same time hinders cooperation between the Member States, constituting an infringement of the subsidiarity principle. The applicant was not able to participate in the law-making process, thereby infringing its right to a fair hearing, and was discriminated against by the legal measure in relation to the microwave industry. The market regime created by the European legislature adversely affects the applicant in the exercise of its basic freedoms guaranteed by the EC Treaty.

---

(1)  Directive 2004/52/EC of the European Parliament and of the Council of 29 April 2004 on the interoperability of electronic road toll systems in the Community.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/39 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/39

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Action brought on 15 July 2004 by easyJet Airline Company Limited against the Commission of the European Communities

(Case T-300/04)

(2004/C 262/74)

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 15 July 2004 by easyJet Airline Company Limited, Luton, United Kingdom, represented by Mr J. Cook and Ms L. Mills Solicitors.

The applicant claims that the Court should:

| — | Annul the Commission's Decision of 7 April 2004 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/38.284/D2 Société Air France/Alitalia Linee Aeree Italiane S.p.A.); |
| --- | --- |

—

Annul the Commission's Decision of 7 April 2004 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/38.284/D2 Société Air France/Alitalia Linee Aeree Italiane S.p.A.);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision the Commission declared the provisions of Article 81 paragraph 1 of the EC Treaty inapplicable to the cooperation agreement between the airline companies Air France and Alitalia for the period 12 November 2001 to 11 November 2007, subject to compliance with the commitments in the annex to that decision.

The applicant, which is itself an airline company, seeks the annulment of that decision. It claims that the cooperation agreement is a merger of the activities of the parties to it on the routes between France and Italy and, as such, should have been assessed under Council Regulation 4064/89 (1). It further submits that the Commission failed to define the relevant markets correctly, by not considering the position of the parties to the agreement as purchasers of airport services and concluding incorrectly that the two Paris airports are substitutable and that low cost carriers are not a viable alternative for time-sensitive passengers on routes between France and Italy.

The applicant also considers that the Commission failed to apply Article 81 paragraph 1 EC properly, by carrying out an inadequate assessment of potential competition between the parties to the agreement, failing to assess accurately whether the agreement satisfies the four conditions set out in paragraph 3 of this article and basing its conclusions on manifest errors in law and assessment. Regarding the commitments annexed to the decision, it claims that the Commission failed to adequately assess their effectiveness and whether they are sufficient to restore competition. Finally, it submits that the contested decision does not contain an adequate statement of reasons because the Commission failed to consider the parties dominance on any market and the applicability of Article 82 EC to their agreement.

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(1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 257/90, p. 13).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/39 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/39

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Action brought on 28 July 2004 by Clearstream Banking Aktiengesellschaft and Clearstream International sociéte anonyme Luxembourg against the Commission of the European Communities

(Case T-301/04)

(2004/C 262/75)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 July 2004 by Clearstream Banking Aktiengesellschaft, having its registered office in Frankfurt am Main, and Clearstream International sociéte anonyme Luxembourg, having its registered office in Luxembourg, represented by Horst Satzky and Bernhard M. Maassen, lawyers.

The applicants claim that the Court should:

| — | annul the Commission decision of 2 June 2004 addressed to them in Case COMP/38.096 and which: (i) establishes that there was abuse of a dominant market position; and (ii) imposes an obligation to discontinue such abuse; and |
| --- | --- |

—

annul the Commission decision of 2 June 2004 addressed to them in Case COMP/38.096 and which: (i) establishes that there was abuse of a dominant market position; and (ii) imposes an obligation to discontinue such abuse; and

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

By the contested decision the Commission accuses the applicants of breaching Article 82 EC. In the Commission's view the applicants abused a dominant market position by ostensibly refusing for almost two years to provide Euroclear Bank S.A. (‘EB’) with so-called primary clearing and settlement services in respect of German registered shares and by applying price discrimination over five years against EB with regard to the provision of primary clearing and settlement services.

The applicants dispute that charge and request that the decision be declared void. The applicants' main head of complaint centres on the Commission's assumption that the applicant Clearstream Banking AG (‘CB’) enjoys a dominant position on the relevant market.

The applicants contend that the negotiations between CB and EB on the processing of securities transactions in respect of German registered shares lasted, not for close on two years, but for nine months at most. The reasons for the length of this period, they argue, lay with EB and not with CB. At no point did CB have an interest in, let alone the intention of, denying to EB services which it provides for other clients.

The applicants submit further that the fact could not be overlooked during negotiations that the processing of securities transactions in respect of German registered shares had no significance whatever for the exchange of services between CB and EB. In their calculation of prices the applicants followed the principle that comparable clients should be given equal treatment. EB, they submit, is not comparable to the group of clients which the Commission has used as the basis for its charge of discrimination.

The applicants also contend that the Commission never claimed that Clearstream International S.A. Luxembourg (‘CL’) was an undertaking with a dominant market position. For that reason alone it could not have abused any dominant market position. Furthermore, the objectively relevant market was inaccurately defined in the decision. The applicants take the view that the distinction drawn by the Commission between ‘primary’ and ‘secondary’ processing services cannot be based on objective grounds and is even contradictory. There is, they argue, only one single objectively relevant market for clearing and settlement. CB does not have a dominant position on this objectively relevant market for all clearing and settlement services. Neither CB nor CI is thus a party to which the rule in Article 82 EC can be addressed. The decision must be quashed in any event on grounds of erroneous market definition and — consequently — of the absence of market domination.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/40 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/40

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Action brought on 26 July 2004 by Maison de l'Europe Avignon Méditerranée against the Commission of the European Communities

(Case T-302/04)

(2004/C 262/76)

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 26 July 2004 by Maison de l'Europe Avignon Méditerranée, established in Avignon (France), represented by François Martineau, lawyer.

The applicant claims that the Court should:

| — | order the Commission to pay the sum of EUR 394 066.76 in respect of its failure to perform its financial obligations to the Maison de l'Europe Avignon Méditerranée; |
| --- | --- |

—

order the Commission to pay the sum of EUR 394 066.76 in respect of its failure to perform its financial obligations to the Maison de l'Europe Avignon Méditerranée;

| — | order the Commission to pay the entirety of the recoverable costs the amount of which is fixed in the sum of EUR 10 000. |
| --- | --- |

—

order the Commission to pay the entirety of the recoverable costs the amount of which is fixed in the sum of EUR 10 000.

Pleas in law and main arguments:

According to the applicant, the Commission had since 1996 informally allowed the applicant to set up an Info Point Europe. In 2000, the applicant entered into an agreement with the Commission for the creation of an Info Point Europe, in the applicant's view thereby formalising the situation. In 2004, the agreement was terminated by the Commission.

By this action, the applicant seeks to have the Commission held contractually liable in order to obtain payment for the supplies rendered by the applicant since 1996 in the context of its task as a European information centre for the Commission.

According to the applicant, the Commission has breached its contractual obligations and is liable for interest for late payment, for services rendered during the festival of Avignon and for the cost of running a European documentation centre since 1996.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/40 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/40

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Action brought on 29 July 2004 by European Dynamics SA against the Commission of the European Communities

(Case T-303/04)

(2004/C 262/77)

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 29 July 2004 by European Dynamics SA, Athens, Greece, represented by Mr S. Pappas, lawyer.

The applicant claims that the Court should:

| — | annul the Commission's Contract Notice 2003/S249-221337 ESP-DIMA; |
| --- | --- |

—

annul the Commission's Contract Notice 2003/S249-221337 ESP-DIMA;

| — | annul the Commission's call for tenderers PO/2003/192 (ESP-DIMA); |
| --- | --- |

—

annul the Commission's call for tenderers PO/2003/192 (ESP-DIMA);

| — | annul the Commission's Decision of 4 June 2004 ranking the offer of European Dynamic's consortium only second after the first successful tenderer; |
| --- | --- |

—

annul the Commission's Decision of 4 June 2004 ranking the offer of European Dynamic's consortium only second after the first successful tenderer;

| — | annul the Commission's Decision of 14 July 2004 rejecting the applicant's appeals against the award of the tender; |
| --- | --- |

—

annul the Commission's Decision of 14 July 2004 rejecting the applicant's appeals against the award of the tender;

| — | order the Commission to pay European Dynamic's legal and other fees and expenses incurred in connexion with this application. |
| --- | --- |

—

order the Commission to pay European Dynamic's legal and other fees and expenses incurred in connexion with this application.

Pleas in law and main arguments:

The applicant is part of a consortium that was the successful tenderer as service provider for ESP Lot 5, web applications. ESP Lot 4, Data/Information management applications, was awarded to another consortium.

According to the applicant, the tender contested in the present application, ESP-DIMA, was based on the wrong assumption that the provision of services for data and information management constitutes a new market and that the use of ESP Lot 4 had exceeded all expectations. The applicant submits that the Commission has wrongly allocated work to ESP Lot 4 that, according to the applicant, actually fell within ESP Lot 5. The applicant states that, as a result, the Commission had to increase the budget forecast for ESP Lot 4 and issue a new tender ESP-DIMA while the budget used for ESP Lot 5 remained behind the provisions.

The applicant furthermore submits that the Commission infringed an essential procedural requirement in that at least one member of the evaluation committee of the contested tender had a conflict of interest with the applicant.

Finally, the applicant claims that its ranking as second successful tenderer for ESP-DIMA is not sufficiently justified. The applicant also submits that the Commission refused to disclose information regarding the evaluation report.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/41 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/41

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Action brought on 26 July 2004 by Eden against the Office for Harmonisation in the Internal Market (OHIM)

(Case T-305/04)

(2004/C 262/78)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 26 July 2004 by Eden, established in Paris, represented by M. Antoine-Lalance, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of OHIM of 24 May 2004 (Case R 591/2003-4); |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 24 May 2004 (Case R 591/2003-4);

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

—

order OHIM to pay the costs.

Pleas in law and main arguments:

| Community trade mark sought: | Olfactory mark ‘ODEUR DE FRAISE MÛRE’ accompanied by a graphic representation of a strawberry — Registration No 001122118. |
| --- | --- |
| Goods or services: | Goods in Classes 3, 16, 18 and 25. |
| Decision contested before the Board of Appeal: | Refusal to register by the examiner. |
| Decision of the Board of Appeal: | Dismissal of the appeal. |
| Pleas in law: | Infringement of Article 7(1)(a) of Regulation No 40/94. |

Community trade mark sought:

Olfactory mark ‘ODEUR DE FRAISE MÛRE’ accompanied by a graphic representation of a strawberry — Registration No 001122118.

Goods or services:

Goods in Classes 3, 16, 18 and 25.

Decision contested before the Board of Appeal:

Refusal to register by the examiner.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

Infringement of Article 7(1)(a) of Regulation No 40/94.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/41 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/41

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Action brought on 15 July 2004 by Monika Luxem against the Commission of the European Communities

(Case T-306/04)

(2004/C 262/79)

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 15 July 2004 by Monika Luxem, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

| — | annul the Commission's decision not to appoint her an official of the European Communities, not to assign her to DG DEV/A 2 to the post declared vacant under reference COM/2002/6022/F and refusing to assign her to any other post corresponding to her abilities and her professional qualifications and experience; |
| --- | --- |

—

annul the Commission's decision not to appoint her an official of the European Communities, not to assign her to DG DEV/A 2 to the post declared vacant under reference COM/2002/6022/F and refusing to assign her to any other post corresponding to her abilities and her professional qualifications and experience;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant submitted her candidature for open competition COM/A/6/01 for the recruitment of administrators in the fields of external relations and the management of aid. In her candidature she stated that she had obtained a German diploma after three years of studies. Having passed the competition, she applied for a vacant post in the Commission. By letter of 30 July 2003 the Commission informed her that, having regard to her diploma, it was unable to accept her candidature. According to the Commission, only a German diploma obtained after four years' studies would satisfy the conditions for admission to the competition, which stipulated that the necessary diplomas must give access to doctoral studies.

In support of her action for annulment of that decision, the applicant pleads breach of the principle of legal certainty, the unlawfulness of withdrawing a decision that has conferred rights on an individual, infringement of the competition notice in question and a manifest error of assessment.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/42 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/42

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Action brought on 19 July 2004 by Carlo Pagliacci against the Commission of the European Communities

(Case T-307/04)

(2004/C 262/80)

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 19 July 2004 by Carlo Pagliacci, resident in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the jury in competition COM/A/1/02 awarding the applicant insufficient marks for him to be placed on the list of successful candidates; |
| --- | --- |

—

annul the decision of the jury in competition COM/A/1/02 awarding the applicant insufficient marks for him to be placed on the list of successful candidates;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant alleges an infringement of the competition notice, since a number of candidates placed on the list of those to have been successful did not possess the prescribed qualification, directly related to the sphere of agriculture. He also submits that one of the members of the jury worked with some of the candidates on a daily basis. In his submission, that fact placed the relevant candidates in a special situation by comparison with the other candidates and consequently entailed an infringement of the principle of equal treatment and non-discrimination. Since it is alleged that the appointing authority had not been made aware of this situation, the applicant also relies on an infringement of Article 14 of the Staff Regulations on that basis.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/42 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/42

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Action brought on 19 July 2004 by Francesco Ianniello against the Commission of the European Communities

(Case T-308/04)

(2004/C 262/81)

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 19 July 2004 by Francesco Ianniello, resident in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the appeal assessor's decision of 8 September 2003 approving the applicant's 2001-2002 career development report; |
| --- | --- |

—

annul the appeal assessor's decision of 8 September 2003 approving the applicant's 2001-2002 career development report;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

In support of his appeal, the applicant invokes a breach of Article 8 of the general provisions implementing Article 43 of the Staff Regulations. The applicant claims that the provision is unlawful because it provides for the appointment of members of the Joint Evaluation Committee whose grade is the same as, or lower than, that of the applicant and who thus do not possess all the guarantees of independence or the requisite powers. The applicant adds that, although he acts on the authority of a staff union, the director of resources or his alternate did not withdraw and took part in the consideration of his appeal.

The applicant also claims that there was a breach of the duty of confidentiality on the part of the members of the Joint Evaluation Committee, a breach of the principle that the Joint Committee should be impartial and objective, a breach of the rights of defence and of the right to an inter partes hearing, a breach of the principle of sound administration and a manifest error of assessment and inconsistency between the comments and the marks awarded.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/43 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/43

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Action brought on 28 July 2004 by TV2/DANMARK A/S against the Commission of the European Communities

(Case T-309/04)

(2004/C 262/82)

Language of the case: Danish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 July 2004 by TV2/DANMARK A/S, Odense (Denmark), represented by Olaf Koktvedgaard, lawyer.

The applicant claims that the Court should:

| — | annul Commission Decision of 19 May 2004 C(2004)1814 Final in Case C 2/2003 (ex NN 22/2002) concerning measures taken by Denmark in favour of TV2/Danmark in its entirety or, in the alternative, partially; |
| --- | --- |

—

annul Commission Decision of 19 May 2004 C(2004)1814 Final in Case C 2/2003 (ex NN 22/2002) concerning measures taken by Denmark in favour of TV2/Danmark in its entirety or, in the alternative, partially;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission approved the aid granted to TV2/DANMARK from 1995 to 2002 in the form of licence-fee resources and certain other measures as compatible with the common market, except for an amount of DKK 628.2 million which, in the Commission's view, constitutes unlawful State aid which the Kingdom of Denmark is obliged to recover from the applicant.

In support of its action the applicant submits that the contested decision was adopted in a manner contrary to the essential procedural requirements laid down in Article 87(1) EC, Article 86(2) EC, Article 295 EC and the Communication from the Commission on the application of State aid rules to public service broadcasting. The applicant submits in particular

| — | that the principle that both sides must be heard has been disregarded, that the calculation of the excess compensation includes amounts which do not relate to the period investigated and that the basis and reasoning of the assessment of the building-up of TV2's net capital are insufficient; |
| --- | --- |

—

that the principle that both sides must be heard has been disregarded, that the calculation of the excess compensation includes amounts which do not relate to the period investigated and that the basis and reasoning of the assessment of the building-up of TV2's net capital are insufficient;

| — | that the Commission's assessment is not based on the context at the time when the measures in favour of TV2 were taken; |
| --- | --- |

—

that the Commission's assessment is not based on the context at the time when the measures in favour of TV2 were taken;

| — | that the licence-fee resources transferred to TV2 and the advertising revenue, which was transferred to TV2 from 1995 to 1997 through the TV2 fund, are not State aid, since they are not State resources; |
| --- | --- |

—

that the licence-fee resources transferred to TV2 and the advertising revenue, which was transferred to TV2 from 1995 to 1997 through the TV2 fund, are not State aid, since they are not State resources;

| — | that there is no State aid, even though the transferred funds exceed TV2's net costs inherent in the performance of its public service obligations, since the funds have in fact not been used to cross-subsidise commercial activities; |
| --- | --- |

—

that there is no State aid, even though the transferred funds exceed TV2's net costs inherent in the performance of its public service obligations, since the funds have in fact not been used to cross-subsidise commercial activities;

| — | that TV2 has not obtained an economic advantage that it would not have had under normal market conditions, since the profits achieved by TV2 do not exceed reasonable earnings in the performance of TV2's public service obligations, and since the building-up of TV2's net capital was justified based on market considerations; |
| --- | --- |

—

that TV2 has not obtained an economic advantage that it would not have had under normal market conditions, since the profits achieved by TV2 do not exceed reasonable earnings in the performance of TV2's public service obligations, and since the building-up of TV2's net capital was justified based on market considerations;

| — | that the building-up of TV2's net capital does not exceed what is necessary for the fulfilment of TV2's public service obligations; |
| --- | --- |

—

that the building-up of TV2's net capital does not exceed what is necessary for the fulfilment of TV2's public service obligations;

| — | that there cannot be a decision ordering recovery from a public limited company created after the period of investigation, TV2/Danmark A/S, since there has been no enrichment for that company; |
| --- | --- |

—

that there cannot be a decision ordering recovery from a public limited company created after the period of investigation, TV2/Danmark A/S, since there has been no enrichment for that company;

| — | that the claim for interest on the amount allegedly to be repaid should be dismissed, since the amount claimed for recovery already includes interest. |
| --- | --- |

—

that the claim for interest on the amount allegedly to be repaid should be dismissed, since the amount claimed for recovery already includes interest.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/43 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/43

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Action brought on 26 July 2004 by Ferrero oHG mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-310/04)

(2004/C 262/83)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 26 July 2004 by Ferrero oHG mbH, Frankfurt am Main, Germany, represented by Dr M. Schaeffer, lawyer.

Cornu SA Fontain was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | overrule the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 17 March 2004 in case R 01540/2002-4 and allow the opposition No. B 245 714; |
| --- | --- |

—

overrule the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 17 March 2004 in case R 01540/2002-4 and allow the opposition No. B 245 714;

| — | impose the costs on the Applicant for the trade mark. |
| --- | --- |

—

impose the costs on the Applicant for the trade mark.

Pleas in law and main arguments:

| Applicant for the Community trade mark: | Cornu SA Fontain |
| --- | --- |
| Community trade mark sought: | Word mark ‘FERRO’ for goods in Classes 30 (salted biscuits) |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Mark or sign cited in opposition: | National word mark ‘FERRERO’ for goods in classes 5, 29, 30, 32 and 33 (chocolate, etc.) |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal rejected |
| Pleas in law: | Infringement of Article 8(1)(b) of Regulation 40/94 (1) |

Applicant for the Community trade mark:

Cornu SA Fontain

Community trade mark sought:

Word mark ‘FERRO’ for goods in Classes 30 (salted biscuits)

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Mark or sign cited in opposition:

National word mark ‘FERRERO’ for goods in classes 5, 29, 30, 32 and 33 (chocolate, etc.)

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal rejected

Pleas in law:

Infringement of Article 8(1)(b) of Regulation 40/94 (1)

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 11, p. 1).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/44 |
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23.10.2004

EN

Official Journal of the European Union

C 262/44

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Action brought on 22 July 2004 by José Luis Buendia Sierra against the Commission of the European Communities

(Case T-311/04)

(2004/C 262/84)

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 22 July 2004 by José Luis Buendia Sierra, residing in Brussels, represented by Marc van der Woude and Valérie Landes, lawyers.

The applicant claims that the Court of First Instance should:

| — | annul the decision of the Director General of the Legal Service to award him only one Directorate-General priority point for the 2003 promotion period, which was confirmed and made definitive by the decision of the Appointing Authority rejecting his informal appeal; |
| --- | --- |

—

annul the decision of the Director General of the Legal Service to award him only one Directorate-General priority point for the 2003 promotion period, which was confirmed and made definitive by the decision of the Appointing Authority rejecting his informal appeal;

| — | annul the Appointing Authority's decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year; |
| --- | --- |

—

annul the Appointing Authority's decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year;

| — | annul the Appointing Authority's decision to award him a total of 20 points for the 2003 promotion year, the list of merit of Grade A5 officials for the promotion year 2003, the list of officials promoted to Grade A4 in the promotion year 2003 and, in any case, the decision not to enter his name in those lists; |
| --- | --- |

—

annul the Appointing Authority's decision to award him a total of 20 points for the 2003 promotion year, the list of merit of Grade A5 officials for the promotion year 2003, the list of officials promoted to Grade A4 in the promotion year 2003 and, in any case, the decision not to enter his name in those lists;

| — | annul, so far as may be necessary, the decision rejecting his complaint; |
| --- | --- |

—

annul, so far as may be necessary, the decision rejecting his complaint;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

According to the applicant, the decision to award him only one Directorate-General priority point is due to criteria established in the Legal Service which lead to the award of such points to officials with most seniority in grade, irrespective of their merits. In challenging that decision, the applicant alleges infringement of Article 45 of the Staff Regulations and infringement of Article 2(1) of the general provisions giving effect to Article 43 of the Staff Regulations and of Article 6(3) and (4) of the general provisions giving effect to Article 45 of the Staff Regulations. In addition, the applicant maintains that that decision offends against the principle of equal treatment and the principle that officials are to have reasonable career prospects, contains a manifest error of assessment and amounts to improper exercise of authority. Finally, he alleges breach of essential procedural requirements in the procedure for the award of points and considering the informal appeal.

Moreover, the applicant claims that the decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year is contrary to Article 45 of the Staff Regulations, Article 9 of the general provisions giving effect to Article 45 of the Staff Regulations and the principle of equal treatment. In his view, that decision is also vitiated by a manifest error of assessment and misuse of power.

Finally, the applicant challenges the decision to award him a total of 20 points, the list of merit of Grade A5 officials, the list of officials promoted to Grade A4 and the decision not to enter his name in those lists. In this connection, the applicant alleges, first of all, that the other acts challenged in this action are unlawful and also that the rules governing staff appraisal for the period 2001-2002, the general provisions giving effect to Article 43 of the Staff Regulations and the general provisions giving effect to Article 45 of the Staff Regulations are unlawful. In his view, those provisions offend against Articles 25(2) and 45 of the Staff Regulations, the principle that officials are to have reasonable career prospects and the principle of equal treatment. Last, the applicant claims that those decisions are vitiated by lack of competence and breaches of essential procedural requirements.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/45 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/45

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Action brought on 22 July 2004 by Vittorio Di Bucci against the Commission of the European Communities

(Case T-312/04)

(2004/C 262/85)

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 22 July 2004 by Vittorio Di Bucci, residing in Brussels, represented by Marc van der Woude and Valérie Landes, lawyers.

The applicant claims that the Court should:

| — | annul the decision of the Director General of the Legal Service awarding him a single priority point of the directorate general in the 2003 promotions procedure, confirmed and made final by the decision of the appointing authority rejecting the application to reconsider its decision; |
| --- | --- |

—

annul the decision of the Director General of the Legal Service awarding him a single priority point of the directorate general in the 2003 promotions procedure, confirmed and made final by the decision of the appointing authority rejecting the application to reconsider its decision;

| — | annul the decision of the appointing authority not to award him any special priority points under the aegis of the ‘Comité de promotion pour activités supplémentaires dans l'intérêt de l'institution’ in the 2003 promotions procedure; |
| --- | --- |

—

annul the decision of the appointing authority not to award him any special priority points under the aegis of the ‘Comité de promotion pour activités supplémentaires dans l'intérêt de l'institution’ in the 2003 promotions procedure;

| — | annul the decision of the appointing authority to award him a total of 20 points in the 2003 promotions procedure, the 2003 list of meritorious officials in Grade A 5, the 2003 list of officials promoted to Grade A 4 and, in any event, the decision not to include his name in those lists; |
| --- | --- |

—

annul the decision of the appointing authority to award him a total of 20 points in the 2003 promotions procedure, the 2003 list of meritorious officials in Grade A 5, the 2003 list of officials promoted to Grade A 4 and, in any event, the decision not to include his name in those lists;

| — | annul, to the extent necessary, the rejection of his complaint; |
| --- | --- |

—

annul, to the extent necessary, the rejection of his complaint;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments in this case are similar to those relied upon in Case T-311/04 José Luis Buendia Sierra v Commission

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/45 |
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23.10.2004

EN

Official Journal of the European Union

C 262/45

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Action brought on 30 July 2004 by Hewlett-Packard GmbH against the Commission of the European Communities

(Case T-313/04)

(2004/C 262/86)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 July 2004 by Hewlett-Packard GmbH, having its registered office in Böblingen (Germany), represented by Fabienne Boulanger, Marius Mrozek and Michael Tervooren, lawyers.

The applicant claims that the Court should:

| — | annul Commission Decision REM 06/02 of 7 April 2004 holding that a refund is not justified in a specific case. |
| --- | --- |

—

annul Commission Decision REM 06/02 of 7 April 2004 holding that a refund is not justified in a specific case.

Pleas in law and main arguments:

On 21 December 1995 the applicant released from its customs warehouse certain goods (printers and printer cartridges) originating in Singapore for free circulation within the Community. A customs debt arose in respect of those goods at the time of their release for free circulation. According to the applicant, the goods were released for free circulation on 21 December 1995 in order to ensure that the preferential customs rates in force up to 31 December 1995 could be claimed. Otherwise, at the time when the goods were released for free circulation, higher customs rates in respect of their release would have applied with effect from 1 January 1996. By Regulation No 3009/95 (1) goods having the same customs tariff number as those of the applicant were zero-rated with effect from 1 January 1996.

In November 1996 the applicant applied to the German customs authorities for a refund of the amount that had been charged. Its application was turned down. The German customs authorities, with the agreement of the applicant, referred the matter to the Commission.

The applicant invokes Article 239 of the Customs Code and submits that, in view of the delay in the publication of, and failure timeously to notify, Regulation No 3009/95, and by reason of its deliberate back-dating and reference to a Council Regulation No 3093/95 (2) of 22 December 1995 which was not published until 21 February 1996, the Commission has infringed the principle that Community institutions must act in a foreseeable manner and has consequently infringed the principle of legal certainty.

The applicant submits further that there has been a breach of Article 12 of Council Regulation No 2658/87, (3) which prescribes that the full text of the Combined Nomenclature for a particular year must be published by no later than 31 October of the preceding year. The purpose of that provision is specifically to provide market participants with reliable information on imminent financial consequences and it thus establishes a basis on which Community citizens can make informed plans enabling them to act in an appropriate manner.

The applicant also submits that the Commission breached its duty of care towards the applicant by failing to inform it in good time of the imminent further amendment to the Combined Nomenclature. The Commission also proceeded, when issuing the contested decision, on the basis of circumstances which did not objectively obtain. By so doing, the Commission exceeded the scope of the discretionary power which it enjoys in this context, thereby adversely affecting the applicant. The applicant concludes by stating that it did not act in a patently negligent manner or with any deceitful intention.

---

(1)  Commission Regulation (EC) No 3009/95 of 22 December 1995 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1995 L 319, p. 1).

(2)  Council Regulation (EC) No 3093/95 of 22 December 1995 laying down the rates of duty to be applied by the Community resulting from negotiations under GATT Article XXIV.6 consequent upon the accession of Austria, Finland and Sweden to the European Union (OJ 1995 L 334, p. 1).

(3)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/46 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/46

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Action brought on 27 July 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-314/04)

(2004/C 262/87)

Language of the Case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 July 2004 by the Federal Republic of Germany, represented by Claus-Dieter Quassowski and Christoph von Donat.

The applicant claims that the Court should:

| — | annul the Commission decision notified by letter of the Directorate-General for Regional Policy of 17 May 2004 in so far as the Community assistance from the European Regional Development Fund for the Objective 2 Programme 1997-1999 North Rhine-Westphalia (ERDF No 97.02.13.005/ARINCO No 97.DE.16.005) was reduced to EUR 319 046 236.76 and payment to the German authorities of the balance amounting to EUR 5 488 569.24 was refused; |
| --- | --- |

—

annul the Commission decision notified by letter of the Directorate-General for Regional Policy of 17 May 2004 in so far as the Community assistance from the European Regional Development Fund for the Objective 2 Programme 1997-1999 North Rhine-Westphalia (ERDF No 97.02.13.005/ARINCO No 97.DE.16.005) was reduced to EUR 319 046 236.76 and payment to the German authorities of the balance amounting to EUR 5 488 569.24 was refused;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

The applicant complains, pursuant to Article 230 EC, that secondary Community law and general principles of law have been infringed, that the Commission has erred in the exercise of its discretion and that there are mistakes in the contested decision's reasoning.

By the contested decision the Commission reduced the Community assistance from the structural fund (the European Regional Development Fund) for the Objective 2 Programme 1997-1999 North Rhine-Westphalia to EUR 319 046 236.76 and refused to pay to the German authorities the balance amounting to EUR 5 488 569.24. The background to the reduction is that, compared with the indicative financing plan, recourse to the programme was lower in the case of certain measures and higher in the case of others. The balancing out did not take place within the programme's respective priorities, but at the level of the programme as a whole.

The Commission is of the view that only a transfer between measures, and not a transfer between programme priorities, is possible, or that the latter would have required the Commission first to have taken a fresh decision. In its view, this also applies to expenditure under the approved programme that turns out higher and is not linked to an application for an increase in ERDF assistance.

The German Government considers the transfers to be objectively justified. It submits that the transfers, which are insignificant in amount, help to achieve the Community's assistance objectives. There are no grounds for a reduction. In particular, the reduction in the approved ERDF assistance cannot be justified on the basis that the competent authorities and agencies in the Land North Rhine-Westphalia administered in a flexible manner the indicative financing plan for the programme for Community structural interventions in the areas falling within Objective 2 in respect of the period from 1 January 1997 to 31 December 1999. In this regard, the reduction of the balance to be paid infringes Community law.

The German Government further submits that, by not allowing any flexibility at the level of priorities even where, at the end of a reference period, formal Commission approval can no longer be attained, the Commission inexpediently restricts the freedom of action of the Member State or the competent local authorities and agencies.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/46 |
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Action brought on 2 August 2004 by Wam SpA against the Commission of the European Communities

(Case T-316/04)

(2004/C 262/88)

Language of the case: Italian

An action was a brought before the Court of First Instance of the European Communities on 2 August 2004 against the Commission of the European Communities by Wam SpA, represented by Ernesto Giuliani, lawyer.

The applicant claims that Court of First Instance should:

| — | annul Decision C(2004) 1812 final of the Commission of the European Communities of 19 May 2004 concerning State aids granted by Italy to Wam SpA between 1995 and 2000, which Wam SpA considers and states to be compatible with the common market; |
| --- | --- |

—

annul Decision C(2004) 1812 final of the Commission of the European Communities of 19 May 2004 concerning State aids granted by Italy to Wam SpA between 1995 and 2000, which Wam SpA considers and states to be compatible with the common market;

| — | order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

order the Commission of the European Communities to pay the costs.

Pleas and main arguments adduced in support:

Following a complaint by the Morton Machine Co Ltd, the Commission decided to commence a formal investigation procedure, as provided for by Article 88(2) EC concerning two cases of subsidised financing granted by Italy to Wam SpA between 1995 and 2000. In the contested decision, the Commission decided to classify those measures as State aid and declared them to be in breach of article 87 EC and thus incompatible with the common market.

In support of its claims, the applicant states:

| — | that the Commission infringed the general principles of impartiality, autonomy, independence, fairness and propriety in the exercise of its functions, having treated the complaint from Morton Machine Ltd in a non-objective manner and having rejected, in that context, and without stating its reasons for doing so, the proposal from Wam SpA that it should repay the difference between the open market interest rate paid by Wam SpA when the individual instalments were disbursed and the interest charged on the two amounts of subsidised financing at issue; |
| --- | --- |

—

that the Commission infringed the general principles of impartiality, autonomy, independence, fairness and propriety in the exercise of its functions, having treated the complaint from Morton Machine Ltd in a non-objective manner and having rejected, in that context, and without stating its reasons for doing so, the proposal from Wam SpA that it should repay the difference between the open market interest rate paid by Wam SpA when the individual instalments were disbursed and the interest charged on the two amounts of subsidised financing at issue;

| — | that the Commission infringed, or misapplied, Article 87 EC by considering to be incompatible with the common market, in so far as they were liable to distort competition in intra-Community relations, aids granted to Wam SpA notwithstanding the absence of any competitive relationship between Wam SpA and Morton Machine Ltd, since Wam SpA did not produce or market industrial mixers and Wam Engineering Ltd was not a subsidiary of Wam SpA, an independent company which has its registered office in England and is governed by English law; |
| --- | --- |

—

that the Commission infringed, or misapplied, Article 87 EC by considering to be incompatible with the common market, in so far as they were liable to distort competition in intra-Community relations, aids granted to Wam SpA notwithstanding the absence of any competitive relationship between Wam SpA and Morton Machine Ltd, since Wam SpA did not produce or market industrial mixers and Wam Engineering Ltd was not a subsidiary of Wam SpA, an independent company which has its registered office in England and is governed by English law;

| — | that the Commission infringed Article 88(2) EC by treating as illegal State aid granted to Wam SpA in implementation of an Italian law, namely Law No 394 of 29 July 1981, which the Commission had declared to be compatible with Community law, or, that it infringed the Community principle of legal certainty, since it did not adopt any legislation regarding any need far action to achieve market penetration in countries outside the EU. |
| --- | --- |

—

that the Commission infringed Article 88(2) EC by treating as illegal State aid granted to Wam SpA in implementation of an Italian law, namely Law No 394 of 29 July 1981, which the Commission had declared to be compatible with Community law, or, that it infringed the Community principle of legal certainty, since it did not adopt any legislation regarding any need far action to achieve market penetration in countries outside the EU.

| — | that the Commission infringed, or misapplied, Articles 87 and 88 EC by taking the view that it had not been notified of the legal basis for the aids disbursed, and by considering them to be incompatible with the common market simply because of non-notification, and not on the basis of a proper substantive assessment; |
| --- | --- |

—

that the Commission infringed, or misapplied, Articles 87 and 88 EC by taking the view that it had not been notified of the legal basis for the aids disbursed, and by considering them to be incompatible with the common market simply because of non-notification, and not on the basis of a proper substantive assessment;

| — | that the Commission infringed Article 87 EC and Article 2(b) of Regulation (EEC) No 69/2001 by classifying as export aid, and as such outside the scope of the de minimis rules, aids that were not linked to a specific quantity of exported products but were simply used for an attempt to achieve market penetration outside the EU. |
| --- | --- |

—

that the Commission infringed Article 87 EC and Article 2(b) of Regulation (EEC) No 69/2001 by classifying as export aid, and as such outside the scope of the de minimis rules, aids that were not linked to a specific quantity of exported products but were simply used for an attempt to achieve market penetration outside the EU.

The applicant also alleges, in several respects, breach of the duty to state the reasons on which measures are based, and also the principles of justice, equity and sound administration.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/47 |
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Action brought on 3 August 2004 by the Kingdom of Denmark against the Commission of the European Communities

(Case T-317/04)

(2004/C 262/89)

Language of the case: Danish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 August 2004 by the Kingdom of Denmark, represented by Jørgen Molde, assisted by Peter Biering and Kim Lundgaard Hansen, lawyers.

The applicant claims that the Court should:

| — | annul Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark; |
| --- | --- |

—

annul Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark;

| — | in the alternative, annul Article 2 of Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark; |
| --- | --- |

—

in the alternative, annul Article 2 of Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark;

| — | in the alternative, annul Articles 2, 3 and 4 of Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark; |
| --- | --- |

—

in the alternative, annul Articles 2, 3 and 4 of Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission approved the aid granted to TV2/DANMARK A/S from 1995 to 2002 in the form of licence-fee resources and certain other measures as compatible with the common market, except for an amount of DKK 628.2 million which, in the Commission's view, constitutes unlawful State aid which the Kingdom of Denmark is obliged to recover from TV2/DANMARK A/S.

The Danish Government states in support of its action that the Commission's decision of 19 May 2004:

| — | fails to comply with essential procedural requirements; |
| --- | --- |

—

fails to comply with essential procedural requirements;

| — | infringes Article 295 EC, the provisions of the Treaty concerning State aid contained in Article 87(1) EC and Article 86(2) EC and the Communication from the Commission on the application of State aid rules to public service broadcasting; and |
| --- | --- |

—

infringes Article 295 EC, the provisions of the Treaty concerning State aid contained in Article 87(1) EC and Article 86(2) EC and the Communication from the Commission on the application of State aid rules to public service broadcasting; and

| — | infringes Council Regulation (EC) No 659/1999 (1) and Commission Directive 80/723/EEC. (2) |
| --- | --- |

—

infringes Council Regulation (EC) No 659/1999 (1) and Commission Directive 80/723/EEC. (2)

The Danish Government puts forward the following in support of its principal action for annulment:

| — | that the principle that both sides must be heard has been disregarded, which has deprived the Danish Government of the opportunity to defend itself, thereby affecting the outcome in the Commission's decision; |
| --- | --- |

—

that the principle that both sides must be heard has been disregarded, which has deprived the Danish Government of the opportunity to defend itself, thereby affecting the outcome in the Commission's decision;

| — | that neither the licence-fee resources transferred to TV2 nor the advertising revenue, which was transferred to TV2 through the TV2 fund until it was abolished in 1997, are State aid, since they are not State resources within the meaning of Article 87; |
| --- | --- |

—

that neither the licence-fee resources transferred to TV2 nor the advertising revenue, which was transferred to TV2 through the TV2 fund until it was abolished in 1997, are State aid, since they are not State resources within the meaning of Article 87;

| — | that the capital built up in TV2 from 1995 to 2002 constitutes reasonable earnings in the performance of its public service obligations and that, accordingly, it is not 'excess compensation' constituting State aid contrary to the EC Treaty; |
| --- | --- |

—

that the capital built up in TV2 from 1995 to 2002 constitutes reasonable earnings in the performance of its public service obligations and that, accordingly, it is not 'excess compensation' constituting State aid contrary to the EC Treaty;

| — | that the Commission's calculation of ‘excess compensation’ is incorrect; |
| --- | --- |

—

that the Commission's calculation of ‘excess compensation’ is incorrect;

| — | that there is no State aid, even though the transferred funds exceed TV2's net costs inherent in the performance of its public service obligations, since the funds have in fact not been used to cross-subsidise commercial activities and therefore do not distort competition; |
| --- | --- |

—

that there is no State aid, even though the transferred funds exceed TV2's net costs inherent in the performance of its public service obligations, since the funds have in fact not been used to cross-subsidise commercial activities and therefore do not distort competition;

| — | that any State funds transferred to TV2 must be considered to have been transferred in accordance with the criterion of the private investor in a market economy and that it is therefore not State aid. |
| --- | --- |

—

that any State funds transferred to TV2 must be considered to have been transferred in accordance with the criterion of the private investor in a market economy and that it is therefore not State aid.

---

(1)  Council Regulation (EC) No 659/1999 of 22.3.1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2)  Commission Directive 80/723/EEC of 25.6.1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/48 |
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Action brought on 27 July 2004 by Port Support Customs Rotterdam B.V. against the Commission of the European Communities

(Case T-319/04)

(2004/C 262/90)

Language of the case: Dutch

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 July 2004 by Port Support Customs Rotterdam B.V., established in Rotterdam (Netherlands), represented by A.T.M. Jansen.

The applicant claims that the Court should:

| — | annul the defendant's decision of 18 May 2004; |
| --- | --- |

—

annul the defendant's decision of 18 May 2004;

| — | order the defendant to make the information available to the applicant and to supply it with a copy of the requested documents. |
| --- | --- |

—

order the defendant to make the information available to the applicant and to supply it with a copy of the requested documents.

Pleas in law and main arguments:

The applicant requested access to the OLAF mission report on footwear and textile products from Cambodia. The applicant was granted only partial access to that report and therefore requested access to those parts of the report which had not been disclosed. The applicant was not granted such access.

In support of its application, the applicant alleges infringement of Article 8 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. (1) The applicant submits that the Commission failed to reply to its confirmatory application.

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(1)  OJ 2001 L 145, p. 43.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/48 |
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Action brought on 29 July 2004 by Air Bourbon against the Commission of the European Communities

(Case T-321/04)

(2004/C 262/91)

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 29 July 2004 by Air Bourbon, a company established in Sainte-Marie, La Réunion (France), represented by Sauveur Vaisse, lawyer.

The applicant claims that the Court should:

| — | annul Decision C (2003) 4708 final of 16 December 2003 by which the Commission authorised the French State to grant aid to Air Austral; |
| --- | --- |

—

annul Decision C (2003) 4708 final of 16 December 2003 by which the Commission authorised the French State to grant aid to Air Austral;

| — | order the Commission and the French State to take the measures necessary to ensure that Air Austral repays the aid unduly received; |
| --- | --- |

—

order the Commission and the French State to take the measures necessary to ensure that Air Austral repays the aid unduly received;

| — | order the Commission to pay Air Bourbon the sum of EUR 10 000 in respect of costs pursuant to Article 87(2) of the Rules of Procedure. |
| --- | --- |

—

order the Commission to pay Air Bourbon the sum of EUR 10 000 in respect of costs pursuant to Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments:

The applicant seeks the annulment of Decision C(2003) 4708 of 16 December 2003 by which the Commission considered, on the basis of Article 87(3) of the Treaty, that the aid granted to AIR AUSTRAL was compatible with the common market. Specifically it was an operating aid in the sum of EUR 1 950 536 in the form of a tax allowance in favour of taxpayers who invest in the refitting of two type B 777-2000 aircraft to be used to open the route between Paris and La Réunion and which, operating as a general partnership, will lease those aircraft to AIR AUSTRAL for five years and then transfer them to that company for an unknown sum.

The contested decision is based on the consideration that the aid in question is an operating aid which, under the Guidelines on national regional aid, may be authorised to offset part of the additional transport costs in the outermost regions, including La Réunion.

The applicant considers that the aid in question must be considered incompatible with the common market for the following reasons:

| — | the aid is an investment aid intended for the purchase of transport equipment, which is prohibited under those guidelines; |
| --- | --- |

—

the aid is an investment aid intended for the purchase of transport equipment, which is prohibited under those guidelines;

| — | the aid is solely intended for AIR AUSTRAL and creates an imbalance between the distortions of competition and the benefits in terms of regional development; |
| --- | --- |

—

the aid is solely intended for AIR AUSTRAL and creates an imbalance between the distortions of competition and the benefits in terms of regional development;

| — | the aid fails to comply with the principle of the non-aggregation of public funds, since AIR AUSTRAL has received public funds from the Region and Département of La Réunion which do not correspond to an investment made by a private investor operating under normal market conditions. Those funds moreover gave rise to excess supply on the air route between Paris and Saint Denis; |
| --- | --- |

—

the aid fails to comply with the principle of the non-aggregation of public funds, since AIR AUSTRAL has received public funds from the Region and Département of La Réunion which do not correspond to an investment made by a private investor operating under normal market conditions. Those funds moreover gave rise to excess supply on the air route between Paris and Saint Denis;

| — | that aid upsets the balance which must exist between the benefits arising from the aid for the development of the region and the distortions to the conditions of competition between AIR AUSTRAL and the applicant. |
| --- | --- |

—

that aid upsets the balance which must exist between the benefits arising from the aid for the development of the region and the distortions to the conditions of competition between AIR AUSTRAL and the applicant.

AIR BOURBON also submits that there has been an infringement of its rights of defence as guaranteed by Article 88(3) of the Treaty.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/49 |
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Action brought on 5 August 2004 by Colgate-Palmolive Company against Office for Harmonisation in the Internal Market (OHIM)

(Case T-322/04)

(2004/C 262/92)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 5 August 2004 by Colgate-Palmolive Company, established in New York (United States), represented by Enrique Armijo Chávarri and Antonio Castán Pérez-Gómez, lawyers.

The applicant claims that the Court of First Instance should:

| — | Annul the decision of the Second Board of Appeal of OHIM of 18 May 2004 delivered in Case R 0076/2004-2, and; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM of 18 May 2004 delivered in Case R 0076/2004-2, and;

| — | Order OHIM to pay the costs. |
| --- | --- |

—

Order OHIM to pay the costs.

Pleas in law and main arguments:

| Mark covered by the application: | Word mark ‘SIMPLY WHITE’- Application No 2688315. |
| --- | --- |
| Products or services: | Dentifrices, toothpaste and mouth wash (Class 3). |
| Decision challenged before the Board of Appeal: | Refusal by the Examiner of the application. |
| Decision of the Board of Appeal: | Application dismissed. |
| Grounds for decision: | Incorrect interpretation of Article 7(1)(b) and (c) of Regulation No 40/94. |

Mark covered by the application:

Word mark ‘SIMPLY WHITE’- Application No 2688315.

Products or services:

Dentifrices, toothpaste and mouth wash (Class 3).

Decision challenged before the Board of Appeal:

Refusal by the Examiner of the application.

Decision of the Board of Appeal:

Application dismissed.

Grounds for decision:

Incorrect interpretation of Article 7(1)(b) and (c) of Regulation No 40/94.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/50 |
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Action brought on 4 August 2004 by Brandt Italia SpA against the Commission of the European Communities

(Case T-323/04)

(2004/C 262/93)

Language of the case: Italian

An action was a brought before the Court of First Instance of the European Communities on 4 August 2004 against the Commission of the European Communities by Brandt Italia SpA, represented by Martijn van Empel, Claudio Visco and Salvatore Lamarca, lawyers.

The applicant claims that Court of First Instance should:

| — | declare void, and accordingly annul, Commission Decision C(2004)930 final of 30 March 2004; |
| --- | --- |

—

declare void, and accordingly annul, Commission Decision C(2004)930 final of 30 March 2004;

| — | in the alternative, declare the decision to be partially void, as regards only Article 3 thereof in so far as it orders the Italian State to recover illegally disbursed aid; |
| --- | --- |

—

in the alternative, declare the decision to be partially void, as regards only Article 3 thereof in so far as it orders the Italian State to recover illegally disbursed aid;

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

—

order the Commission to pay the costs.

Pleas and main arguments adduced in support:

The contested decision declared incompatible with the common market State aid relating to urgent provisions in favour of employment which was implemented by Italy by means of Decree Law No 23 of 14 February 2003, converted into the Law of 17 April 2003, requiring the Italian Government to recover from the applicant the aid in question which it is said to have received in connection with the sale of a branch of the refrigeration business of Ocean Spa, situated in Verolanuova, Brescia.

In support of its claims, Brandt contests first of all the premise of the Decision that Decree No 23/2003 conferred on the purchasers an individual benefit, resulting in distortion of competition. In fact, the alleged benefits deriving from the decree are, on the basis of the current legislation governing the Earnings and Mobility Supplement Fund (legislation of a general nature), generally available to any other company which takes on workers from the lists of workers available for transfer. Therefore, Decree 23/2003, although alleviating the position of workers who were transferred, does not grant any economic benefit to the purchasers, namely Brandt in the present case. Also, the applicant claims that the Commission failed to undertake a complete and detailed evaluation of the economic effects of the national measure, failing to take account of the additional costs incurred by companies which acquire businesses, they being obliged to take on burdens and responsibilities (both social and financial) to which — in the absence of the measure — they would not be subject. Finally, the applicant refers to the general nature of the measure in question, which in fact gives rise to the same consequences as those already provided for by the general provisions of Law No 223/91. According to the applicant, it was because, when examining Decree 23/2003, the Commission classified the measure as being similar to a general aid scheme that it ordered the Italian Government to recover the financial benefit which Brandt allegedly received on an individual basis by virtue of the decree. The Commission, by ordering repayment of an individual aid in the context of a decision relating to an aid scheme, infringed Article 88 EC, and also failed to comply with the provisions of Regulation (EC) No 659/99 regarding the adoption of provisional recovery measures.

The applicant also alleges infringement of Articles 88 and 89 EC and of Regulations Nos 994/98 and 2204/2002. In that connection, it complains that the Commission declared to be retrospectively illegal a measure potentially covered by the exemption rules contained in Regulation No 2204/2002, which was therefore classifiable as existing aid within the meaning of Article 88 EC. Moreover, the applicant claims, the Commission unlawfully arrogated to itself the right to determine that Decree 23/2003 was not covered by Regulation No 2204/2002, thereby exceeding the limits applicable to its power of intervention under the combined provisions of Article 89 EC and of Regulations Nos 994/98 and 2204/2002.

The applicant also observes that Article 3 of the contested decision, which imposes on Italy an obligation to recover the alleged State aid from the beneficiaries of the measure, breaches the principle of the protection of legitimate expectations.

Finally, the applicant alleges failure to fulfil the obligation to state reasons, laid down by Article 253 EC, and also misuse of powers.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/50 |
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Action brought on 2 August 2004 by Viasat Broadcasting UK Ltd against the Commission of the European Communities

(Case T-329/04)

(2004/C 262/94)

Language of the case: Danish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 August 2004 by Viasat Broadcasting UK Ltd, West Drayton (Great Britain), represented by Simon Evers Hjelmborg, lawyer.

The applicant claims that the Court should:

| — | annul Article 1 of Commission Decision of 19 May 2004 in State aid Case C 2/2003 (ex NN 22/2002) concerning Denmark's measures in favour of TV2/Danmark in so far as the decision declares the aid to be compatible with the common market under Article 86(2) EC; |
| --- | --- |

—

annul Article 1 of Commission Decision of 19 May 2004 in State aid Case C 2/2003 (ex NN 22/2002) concerning Denmark's measures in favour of TV2/Danmark in so far as the decision declares the aid to be compatible with the common market under Article 86(2) EC;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission approved the aid granted to TV2/DANMARK A/S from 1995 to 2002 in the form of licence-fee resources and certain other measures as compatible with the common market, except for an amount of DKK 628.2 million which, in the Commission's view, constitutes unlawful State aid which the Kingdom of Denmark is obliged to recover from TV2/DANMARK A/S. The applicant has applied for annulment of that part of the decision by which the Commission declares part of the aid to be compatible with the common market.

The applicant submits that the Commission's assessment is incorrect in the re-examination of the question of whether TV2/DANMARK A/S's public service obligations are defined in sufficient detail, since it has found that all of TV2/DANMARK A/S's programme range forms part of its public service obligations. It is precisely this aspect which makes it difficult to re-examine whether the Danish State has complied and continues to comply with the Community competition rules, in particular Article 87(1) EC, together with Article 86(2) EC.

The applicant adds that the Commission's method for assessing whether the aid found to exist within the meaning of Article 87(1) EC pursuant to Article 86(1) EC is compatible with the common market is incorrect because the method does not take account of the presence of indirect (horizontal) State aid (cross-subsidisation), contrary to Article 87(1) EC:

| — | because the anti-competitive conduct by TV2/DANMARK A/S in the market for sales of television advertising cannot be necessary for the performance of TV2/DANMARK A/S's public service obligations pursuant to Article 86(2) EC, with the result that Article 87(1) EC applies absolutely in relation to TV2/DANMARK A/S's conduct in commercial markets; |
| --- | --- |

—

because the anti-competitive conduct by TV2/DANMARK A/S in the market for sales of television advertising cannot be necessary for the performance of TV2/DANMARK A/S's public service obligations pursuant to Article 86(2) EC, with the result that Article 87(1) EC applies absolutely in relation to TV2/DANMARK A/S's conduct in commercial markets;

| — | because the Commission assessed only whether possible excess compensation from the State (the direct vertical and prohibited State aid) had been provided to assist the commercial activities, and not whether the compensation from the State (the direct vertical and permitted State aid) had been provided in order to obtain an economic advantage in the commercial activities which distorted competition; |
| --- | --- |

—

because the Commission assessed only whether possible excess compensation from the State (the direct vertical and prohibited State aid) had been provided to assist the commercial activities, and not whether the compensation from the State (the direct vertical and permitted State aid) had been provided in order to obtain an economic advantage in the commercial activities which distorted competition;

| — | because the 'stand alone' test applied by the Commission is not applicable to the present case, because it is based on a comparison between TV2/DANMARK A/S's competitors' costs (instead of TV2/DANMARK A/S's own costs) and TV2/DANMARK A/S's income from commercial activities, thereby ignoring possible differences in levels of efficiency, with the result that the test does not show fully whether TV2/DANMARK A/S's commercial activities through cross-subsidation have generated an economic advantage which distorts competition; |
| --- | --- |

—

because the 'stand alone' test applied by the Commission is not applicable to the present case, because it is based on a comparison between TV2/DANMARK A/S's competitors' costs (instead of TV2/DANMARK A/S's own costs) and TV2/DANMARK A/S's income from commercial activities, thereby ignoring possible differences in levels of efficiency, with the result that the test does not show fully whether TV2/DANMARK A/S's commercial activities through cross-subsidation have generated an economic advantage which distorts competition;

| — | because the price test applied by the Commission is not applicable to the present case, either. |
| --- | --- |

—

because the price test applied by the Commission is not applicable to the present case, either.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/51 |
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Action brought on 13 August 2004 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities

(Case T-336/04)

(2004/C 262/95)

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 13 August 2004 by TV Danmark A/S, Copenhagen, Denmark and Kanal 5 Denmark Ltd., Hounslow, United Kingdom represented by Mr D. Vandermeersch, Mr K. Karl and Mr H. Peytz, lawyers with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Article 1 of Decision C 2/03 Commission of 19 May 2004 on State financing of Danish public broadcaster TV2/Danmark by means of licence fee and other measures, in so far as the Commission found that aid granted to TV2/Danmark between 1995 and 2002 in the form of licence fee resources and other measures identified in the decision is compatible with the common market under Article 86(2) EC; |
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annul Article 1 of Decision C 2/03 Commission of 19 May 2004 on State financing of Danish public broadcaster TV2/Danmark by means of licence fee and other measures, in so far as the Commission found that aid granted to TV2/Danmark between 1995 and 2002 in the form of licence fee resources and other measures identified in the decision is compatible with the common market under Article 86(2) EC;

| — | order the Commission to pay the applicant's legal fees, costs and other expenses incurred in connection with this application. |
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order the Commission to pay the applicant's legal fees, costs and other expenses incurred in connection with this application.

Pleas in law and main arguments:

In the contested decision, the Commission held that, between 1995 and 2002, the Danish public broadcaster TV2/DANMARK benefited from State aid within the meaning of Article 87(1) EC. The Commission concluded that the aid is compatible with the common market under Article 86(2) EC, except for an overcompensation amounting to 628.2 million DKK which should be repaid by TV 2 / DANMARK A/S.

The applicants request the annulment of Article 1 of the decision to the extent that it held that a part of the aid is compatible with the common market. The applicants submit that in adopting that part of the decision, the Commission has infringed Article 86(2), 87 and 88 EC, as well as the Protocol annexed to the EC Treaty on the system of public broadcasting in the Member States.

The applicants allege that the Commission infringed Articles 87 and 88 EC, when, after having found that the aid was new aid, it nevertheless proceeded to hold that the aid (with the exception of the amount found in overcompensation) was compatible with the common market while it should have established the illegality of the entire aid due to lack of notification.

Furthermore, the applicants submit that the Commission infringed Articles 86(2), 87 and 88 EC and the Protocol, when it held that all of TV2's costs relate to public service obligations and could therefore be funded by the State in spite of the lack of a sufficiently precise definition of the public service obligations of TV2. The Commission also infringed the said articles when it approved the State aid on the basis of the test of whether TV2 attempted ‘to maximise revenues’ and put the burden of proof on the applicants. It committed a manifest error of assessment when it disregarded the evidence of TV2 undercutting prices of a stand alone efficient operator.

The applicants also allege that the Commission infringed Article 86(2) EC and the Protocol when it approved the aid notwithstanding its own finding of doubt as to the pricing behaviour of TV2 and the price level in Denmark. Furthermore, the Commission infringed Article 86(2) EC when it failed to examine whether the net costs of TV2 were proportionate to the public service obligations and when accepting the absence of any, or in the alternative, sufficient Danish public control over TV2's performance of its public service remit.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/52 |
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23.10.2004

EN

Official Journal of the European Union

C 262/52

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Action brought on 11 August 2004 by Centro Europa 7 srl against the Commission of the European Communities

(Case T-338/04)

(2004/C 262/96)

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 11 August 2004 by Centro Europa 7 srl, represented by Vittorio Ripa di Meana and Roberto Mastroianni, lawyers.

The applicant claims that the Court should:

| — | annul the decision not to take any further action on the complaint lodged by the applicant on 18 October 2001, notified to the applicant by letter by the Director of DG Competition, Mr Menshing, on 4 June 2004, sent by fax on 9 June 2004, No D (2004)/471; |
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annul the decision not to take any further action on the complaint lodged by the applicant on 18 October 2001, notified to the applicant by letter by the Director of DG Competition, Mr Menshing, on 4 June 2004, sent by fax on 9 June 2004, No D (2004)/471;

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

Pleas in law and main arguments:

The applicant in the present case participated in July 1999 in the tender procedure organised in Italy for the granting of private terrestrial analogue television broadcasting licences, obtaining the award of a six-year contract for unencrypted transmission, renewable for a further six years. However, the applicant has still not been able to transmit in the clear because it has still not been allocated the frequencies under the contract. Implementation of the national frequency plan, which would have fulfilled its legitimate expectations, has not been carried out because, in accordance with the Italian legislation in force, the frequencies are taken up by television operators which have not obtained a licence and have been able to continue operating under the ‘transitional arrangements’ introduced by Law No 249 of 1997. Accordingly, the fact that the third network of the group Mediaset (Retequattro) continues to carry on business has made it impossible to free up the necessary frequencies in order to allow the applicant to commence transmission as it should after obtaining the broadcasting licence.

This action has been brought against the decision not to take action against the complaint regarding distortion of competition as a result of the abovementioned situation and of the request to the Commission asking it to take action, pursuant to Article 86(3) of the EC Treaty, regarding measures favouring the undertaking RTI on which Italian law has conferred special rights.

In support of its claims, the applicant alleges infringement of Articles 82 and 86 of the Treaty and breach of the obligation to provide reasons inasmuch as the defendant:

| — | should have examined the complaint in question for not having replied to the principal complaint regarding the discrimination suffered in respect of access to the television broadcasting market. |
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should have examined the complaint in question for not having replied to the principal complaint regarding the discrimination suffered in respect of access to the television broadcasting market.

| — | adopted the act in question without taking into consideration the fact that the measures which the Italian authorities adopted or failed to adopt, by excluding Europa 7 from the market in television broadcasting, strengthened RTI's dominant position. |
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adopted the act in question without taking into consideration the fact that the measures which the Italian authorities adopted or failed to adopt, by excluding Europa 7 from the market in television broadcasting, strengthened RTI's dominant position.

| — | failed to take into consideration the consequences of the entry into force of Law No 11 of 2004 on the applicant's position. In that connection, the applicant also alleges breach of the general principle of sound administration, as enshrined in Article 47 of the Charter of Fundamental Rights. |
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failed to take into consideration the consequences of the entry into force of Law No 11 of 2004 on the applicant's position. In that connection, the applicant also alleges breach of the general principle of sound administration, as enshrined in Article 47 of the Charter of Fundamental Rights.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/53 |
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23.10.2004

EN

Official Journal of the European Union

C 262/53

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Action brought on 10 August 2004 by Wanadoo S.A. against the Commission of the European Communities

(Case T-339/04)

(2004/C 262/97)

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 10 August 2004 by Wanadoo S.A., established in Issy-les-Moulineaux (France), represented by Hugues Calvet et Marie-Cécile Rameau, lawyers.

The applicant claims that the Court should:

| — | annul the decision of the Commission of 18 May 2004 ordering the applicant, and all undertakings directly or indirectly controlled by it, to submit to an inspection pursuant to Article 20(4) of Council Regulation No 1/2003 (1); |
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annul the decision of the Commission of 18 May 2004 ordering the applicant, and all undertakings directly or indirectly controlled by it, to submit to an inspection pursuant to Article 20(4) of Council Regulation No 1/2003 (1);

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

Pleas in law and main arguments:

In support of its action, the applicant submits that by adopting the contested decision the Commission infringed the duty of cooperation with the national courts and authorities pursuant to Article 10 EC and Regulation No 1/2003. According to the applicant, the Commission failed to disclose to the national court which authorised the inspection in question the existence of proceedings pending before the French competition authority concerning the alleged infringements of Article 82 EC by the applicant and of a decision of the same authority of 11 May 2004. Furthermore, the applicant submits that the French competition authority remains in charge of the case and that consequently the Commission should not have intervened in it.

The applicant further submits that the contested decision infringes the obligation carefully and impartially to examine all relevant evidence in the case, the duty to state reasons and the principle of proportionality. Lastly, it alleges a manifest error of assessment.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1 of 4.1.2003, p. 1).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/53 |
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23.10.2004

EN

Official Journal of the European Union

C 262/53

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Action brought on 11 August 2004 by France Télécom S.A. against the Commission of the European Communities

(Case T-340/04)

(2004/C 262/98)

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 11 August 2004 by France Télécom S.A., established in Paris, represented by Christophe Clarenc and Javier Ruiz Calzado, lawyers.

The applicant claims that the Court should:

| — | annul Commission Decision C (2004) 1929 of 18 May 2004 ordering France Télécom S.A. and all undertakings directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(4) of Regulation No 1/2003 (Case No COM/C-38.916); |
| --- | --- |

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annul Commission Decision C (2004) 1929 of 18 May 2004 ordering France Télécom S.A. and all undertakings directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(4) of Regulation No 1/2003 (Case No COM/C-38.916);

| — | order the Commission to pay in full the costs incurred by France Télécom in bringing the present action for annulment. |
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order the Commission to pay in full the costs incurred by France Télécom in bringing the present action for annulment.

Pleas in law and main arguments:

The subject matter of the decision in question is ‘the suspected imposition of unfair selling prices in respect of high-speed Internet access for residential customers, contrary to Article 82 EC, with the intention of restricting and deterring competitors’ (Article 1 of the contested decision) and applies to the applicant and its subsidiary Wanadoo, and all undertakings directly or indirectly controlled by them (Article 3). The Commission considered that in order to confirm the alleged practices an inspection was required pursuant to Article 20(4) of Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1). It is the decision ordering that inspection which is challenged in the present case.

In support of the form of order it seeks, the applicant first alleges that there has been a breach of the duty to state reasons. It states in this connection that it fails to understand why it is the addressee of the decision and it is the subject of that inspection. It points out that in accordance with the reasoning of its ‘Wanadoo’ decision of 16 July 2003, which recognised Wanadoo's independence from the applicant in its policy of fixing prices for the French residential market for high-speed internet access services, the Commission in its decision imputes to Wanadoo, and not to France Telecom, the allegedly unfair sale prices in question, and the alleged strategy of deterring competitors. Moreover, the Commission failed to explain why it found it necessary to order an inspection in respect of Wanadoo's selling prices, in spite of the fact that those prices are to be maintained by it under its decision of 16 July 2003 and furthermore had just been inspected and approved by the French competition authority.

Second, the applicant complains that the contested decision disregarded the requirements of the principle of sincere cooperation which applies to the European Commission in its relations with national institutions, as established under Article 10 EC and set out in Regulation (EC) No 1/2003, first, by failing to inform the national court in full of the background to the case, then, by failing to consult the French competition authority, as provided in Article 11(6) of that regulation, even though the matter had been brought before it in January 2004.

Third and finally, the applicant alleges an infringement of the principle of proportionality both in light of the apparent objective of the inspection and the background to it and the complete lack of evidence of the existence of a risk that evidence will be concealed or destroyed.

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(1)  OJ 2003 L 1, of 4.1.2003, p. 1.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/54 |
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23.10.2004

EN

Official Journal of the European Union

C 262/54

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Action brought on 9 August 2004 by Herta Adam against the Commission of the European Communities

(Case T-342/04)

(2004/C 262/99)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 August 2004 by Herta Adam, residing at Brussels, represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission's decision refusing the applicant the benefit of the expatriation allowance provided for by Article 4(1)(a) of Annex VII to the Staff Regulations; |
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annul the Commission's decision refusing the applicant the benefit of the expatriation allowance provided for by Article 4(1)(a) of Annex VII to the Staff Regulations;

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

Pleas in law and main arguments

In support of her application, the applicant alleges infringement of Article 4 of Annex VII to the Staff Regulations in that the period during which she worked in the office of the representation of a German Land in Brussels is not considered by the Commission as employment arising from services carried out for another State. The applicant also alleges infringement of the principle of equal treatment.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/54 |
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23.10.2004

EN

Official Journal of the European Union

C 262/54

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Action brought on 6 August 2004 by Vassilios Tsarnavas against the Commission of the European Communities

(Case T-343/04)

(2004/C 262/100)

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 6 August 2004 by Vassilios Tsarnavas, resident in Volos (Greece), represented by N. Lhoëst, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the appeal assessor adopted on 4 August 2003, approving, without amendment, the applicant's final staff report for the period from 1 July 1997 to 30 June 1999; |
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annul the decision of the appeal assessor adopted on 4 August 2003, approving, without amendment, the applicant's final staff report for the period from 1 July 1997 to 30 June 1999;

| — | annul the Commission's implied decision rejecting the complaint submitted by the applicant under Article 90(2) of the Staff Regulations on 30 December 2003; |
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annul the Commission's implied decision rejecting the complaint submitted by the applicant under Article 90(2) of the Staff Regulations on 30 December 2003;

| — | order the Commission to pay the applicant compensation of EUR 10 000 in respect of non-material damage; |
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order the Commission to pay the applicant compensation of EUR 10 000 in respect of non-material damage;

| — | order the Commission to pay the costs of this action. |
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order the Commission to pay the costs of this action.

Pleas in law and main arguments:

The applicant challenges the appeal assessor's decision, which approves, without amendment, his staff report for the period 1997–1999. He also claims compensation for the non-material damage he has suffered.

The applicant puts forward the following pleas in support of his application for annulment:

| — | procedural irregularities; |
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procedural irregularities;

| — | manifest error of assessment; |
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manifest error of assessment;

| — | failure to state reasons; |
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failure to state reasons;

| — | misuse of powers and harassment; |
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misuse of powers and harassment;

As regards his claim for compensation, the applicant submits that the staff report was drawn up four years late, which is quite unacceptable. Furthermore, the applicant was subjected to harassment. For all the damage suffered, the applicant is claiming compensation which he assesses, on the basis of equity, at EUR 10 000.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/55 |
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23.10.2004

EN

Official Journal of the European Union

C 262/55

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Action brought on 13 August 2004 by Stardust Marine S.A. against the Commission of the European Communities

(Case T-344/04)

(2004/C 262/101)

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 13 August 2004 by Stardust Marine S.A., established in Paris, represented by Bernard Vatier, lawyer.

The applicant claims that the Court should:

| — | Declare that European Commission Decision 2000/513/EC of 8 September 1999, which orders the French State to recover the alleged State aid of FRF 600 million from STARDUST, is vitiated by illegality, and that that illegality is of such a kind as to engage the Commission's liability under Article 288 of the EC Treaty; |
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Declare that European Commission Decision 2000/513/EC of 8 September 1999, which orders the French State to recover the alleged State aid of FRF 600 million from STARDUST, is vitiated by illegality, and that that illegality is of such a kind as to engage the Commission's liability under Article 288 of the EC Treaty;

| — | Consequently, order the European Commission to pay to Stardust the sum of EUR 112 635 569.73 in damages, with statutory interest from the date of the present application; |
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Consequently, order the European Commission to pay to Stardust the sum of EUR 112 635 569.73 in damages, with statutory interest from the date of the present application;

| — | Order that the forthcoming decision shall be provisionally enforceable; |
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Order that the forthcoming decision shall be provisionally enforceable;

| — | Order the Commission to pay all the costs in the present action. |
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Order the Commission to pay all the costs in the present action.

Pleas in law and main arguments

In support of its application, the applicant claims that the unlawful nature of Decision 2000/513/EC cannot be disputed, since that decision has already been annulled by judgment of the Court of Justice EC of 16 May 2002 in Case C-482/99. That unlawfulness is, the applicant submits, sufficient to engage the Commission's non-contractual liability under Article 288 EC. The applicant also claims that, even supposing that the decision at issue were a legislative act containing economic policy measures, the Commission would have infringed a superior rule of law protecting individuals by adopting a decision adversely affecting the applicant without legal or factual basis. Therefore, the applicant argues that the Commission is required to pay damages to it.

As concerns the harm allegedly sustained, the applicant states that STARDUST was the subject of a court-supervised recovery scheme by judgment of the Tribunal de Commerce de Paris. The cessation of payments which led to that judgment is the direct consequence of the debt arising from the Commission's decision. The harm sustained is the amount of the deficit in STARDUST's assets.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/55 |
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23.10.2004

EN

Official Journal of the European Union

C 262/55

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Action brought on 20 August 2004 by Italian Republic against the Commission of the European Communities

(Case T-345/04)

(2004/C 262/102)

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 20 August 2004 by the Italian Republic

The applicant claims that the Court should annul the following decisions:

| — | the memorandum of 17 June 2004 No D (2004) 4074 concerning DOCUP Ob 2 — Lombardy Region 2000-2006 (No. CCI 2000 IT 16 2 DO 014) — Certification of the intermediate statement of expenses and claim for payment, received on 17 June 2004, by which the European Commission — Directorate General Regional Policy — Regional intervention in France, Greece, Italy, transmitted the following decision: ‘the Commission therefore requests the submission of the intermediate statement of expenses and the claim for payment in question together with the following information in respect of every measure providing for an aid scheme:






  — | total amount of advances paid |
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the memorandum of 17 June 2004 No D (2004) 4074 concerning DOCUP Ob 2 — Lombardy Region 2000-2006 (No. CCI 2000 IT 16 2 DO 014) — Certification of the intermediate statement of expenses and claim for payment, received on 17 June 2004, by which the European Commission — Directorate General Regional Policy — Regional intervention in France, Greece, Italy, transmitted the following decision: ‘the Commission therefore requests the submission of the intermediate statement of expenses and the claim for payment in question together with the following information in respect of every measure providing for an aid scheme:

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total amount of advances paid

| — | amount of the advances paid which are eligible for structural fund contribution as previously stated. |
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amount of the advances paid which are eligible for structural fund contribution as previously stated.

In the absence of such information, the Commission will not be able to make the payment requested in respect of the measures relating to the aid scheme of the DocUP Lombardy 2000-2006 Objective 2’ together with all other connected and prior acts;

| — | the memorandum of 14 July 2004, n. JE/OA D (2004) 5446, concerning DOCUP OB 2 — Friuli-Venezia Giulia Region 2000-2006 (No. CCI 2000 IT 16 2 DO 013) — Certification of the intermediate statement of expenses and claim for payment, received on 15 July 2004, by which the European Commission — Directorate General Regional Policy — Regional intervention in France, Greece, Italy, transmitted the following decision: ‘the Commission therefore requests the submission of the intermediate statement of expenses and the claim for payment in question together with the following information in respect of every measure providing for an aid scheme:






  — | total amount of advances paid |
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the memorandum of 14 July 2004, n. JE/OA D (2004) 5446, concerning DOCUP OB 2 — Friuli-Venezia Giulia Region 2000-2006 (No. CCI 2000 IT 16 2 DO 013) — Certification of the intermediate statement of expenses and claim for payment, received on 15 July 2004, by which the European Commission — Directorate General Regional Policy — Regional intervention in France, Greece, Italy, transmitted the following decision: ‘the Commission therefore requests the submission of the intermediate statement of expenses and the claim for payment in question together with the following information in respect of every measure providing for an aid scheme:

—

total amount of advances paid

| — | amount of the advances paid which are eligible for structural fund contribution as previously stated. |
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amount of the advances paid which are eligible for structural fund contribution as previously stated.

In the absence of such information, the Commission will not be able to make the payment requested in respect of the measures relating to the aid scheme of the DocUP Friuli-Venezia Giulia 2000-2006 Objective 2’ together with all other connected and prior acts;

| — | order the Commission of the European Communities to pay the costs. |
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order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments:

This action has been brought against the memoranda of the European Commission of 17 June 2004 No D (2004) 4074 (DOCUP Regione Lombardia) and of 14 July 2004 No JE/OA D (2004) 5446 (DOCUP Friuli Venezia Giulia), both of which seek to subject the procedure for the payment of advances in the context of aid schemes to conditions which are not required by the legislation in force with the purpose of limiting improperly the expenditure which is eligible for the use of the structural funds concerned.

In support of its claims, the Italian Republic alleges:

| — | breach of essential procedural requirements inasmuch as the legal basis is incorrect, there is no statement of reasons and the decision-making procedure has not been complied with. The applicant points out in that regard that the contested acts make no mention of the provision of law enabling them to be adopted. |
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breach of essential procedural requirements inasmuch as the legal basis is incorrect, there is no statement of reasons and the decision-making procedure has not been complied with. The applicant points out in that regard that the contested acts make no mention of the provision of law enabling them to be adopted.

Further to the breach of the obligation to provide reasons, the applicant also claims that the contested memoranda were not adopted in accordance with the correct procedure provided by the Commission's rules of procedure.

| — | infringement of Article 32 of the basic regulation (Council Regulation No 1260/99) and of Commission Regulation No 448/04 which make subject payment of advances only to evidence that the State which is the final beneficiary has paid the relevant monies to the final recipients of the investment. |
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infringement of Article 32 of the basic regulation (Council Regulation No 1260/99) and of Commission Regulation No 448/04 which make subject payment of advances only to evidence that the State which is the final beneficiary has paid the relevant monies to the final recipients of the investment.

| — | infringement of the rules governing eligibility of the expenditure laid down in the basic regulation. According to the applicant, the relevant regulation in the present case precludes the approach adopted by the Commission, according to which the rules on eligibility of expenditure must be understood to mean that they subject eligibility of expenditure to evidence that the financing has actually been used to carry out a project which fulfils the purpose for which the aid was granted. |
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infringement of the rules governing eligibility of the expenditure laid down in the basic regulation. According to the applicant, the relevant regulation in the present case precludes the approach adopted by the Commission, according to which the rules on eligibility of expenditure must be understood to mean that they subject eligibility of expenditure to evidence that the financing has actually been used to carry out a project which fulfils the purpose for which the aid was granted.

| — | infringement of the rules governing financial control (Article 38 of the basic regulation and implementing provisions) which do not provide for the requirements alleged by the Commission. |
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infringement of the rules governing financial control (Article 38 of the basic regulation and implementing provisions) which do not provide for the requirements alleged by the Commission.

| — | breach of the principle of proportionality, in view of the fact that the Commission requires evidence beyond that which is required and necessary. |
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breach of the principle of proportionality, in view of the fact that the Commission requires evidence beyond that which is required and necessary.

| — | infringement of Regulation No 448/04 by breach of the principles of equality and legal certainty and contradiction in the contested memorandum. |
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infringement of Regulation No 448/04 by breach of the principles of equality and legal certainty and contradiction in the contested memorandum.

| — | infringement of Article 9 of Commission Regulation (EC) No 438/2001 for failure to observe the accounting rules provided for therein. |
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infringement of Article 9 of Commission Regulation (EC) No 438/2001 for failure to observe the accounting rules provided for therein.

| — | breach of the principle of simplified procedures. |
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breach of the principle of simplified procedures.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/56 |
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23.10.2004

EN

Official Journal of the European Union

C 262/56

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Action brought on 17 August 2004 by Sadas S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-346/04)

(2004/C 262/103)

Language in which the application was submitted: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 17 August 2004 by Sadas S.A., established in Tourcoing (France), represented by A. Bertrand, lawyer.

L.T.J. Diffusion was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | alter in its entirety the operative part of the decision of the First Board of Appeal in Case R 393/2003-1; |
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alter in its entirety the operative part of the decision of the First Board of Appeal in Case R 393/2003-1;

| — | annul the decision contested in that case by which the examiner found that there is a likelihood of confusion in the minds of the public between the mark ‘ARTHUR’ and the mark in respect of which registration is sought ‘ARTHUR ET FELICIE’; |
| --- | --- |

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annul the decision contested in that case by which the examiner found that there is a likelihood of confusion in the minds of the public between the mark ‘ARTHUR’ and the mark in respect of which registration is sought ‘ARTHUR ET FELICIE’;

| — | order L.T.J. Diffusion to pay the costs. |
| --- | --- |

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order L.T.J. Diffusion to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant. |
| --- | --- |
| Community trade mark sought: | Three-dimensional mark ‘ARTHUR ET FELICIE’ — Application No 0373787. |
| Goods or services: | Goods in Classes 16, 24 and 25. |
| Proprietor of mark or sign cited in opposition: | L.T.J. Diffusion. |
| Mark or sign cited in opposition: | National trade mark ‘ARTHUR’ for Class 25 (clothing). |
| Decision of the Opposition Division: | Rejection of the opposition. |
| Decision of the Board of Appeal: | Annulment of the decision of the Opposition Division. |
| Pleas in law: | Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94. |

Applicant for Community trade mark:

The applicant.

Community trade mark sought:

Three-dimensional mark ‘ARTHUR ET FELICIE’ — Application No 0373787.

Goods or services:

Goods in Classes 16, 24 and 25.

Proprietor of mark or sign cited in opposition:

L.T.J. Diffusion.

Mark or sign cited in opposition:

National trade mark ‘ARTHUR’ for Class 25 (clothing).

Decision of the Opposition Division:

Rejection of the opposition.

Decision of the Board of Appeal:

Annulment of the decision of the Opposition Division.

Pleas in law:

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

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/57 |
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23.10.2004

EN

Official Journal of the European Union

C 262/57

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Action brought on 17 August 2004 by Pascal Millot against the Commission of the European Communities

(Case T-347/04)

(2004/C 262/104)

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 17 August 2004 by Pascal Millot, resident in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission's decision of 11 September 2003 definitively setting the applicant's grading at the first step in Grade A6; |
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annul the Commission's decision of 11 September 2003 definitively setting the applicant's grading at the first step in Grade A6;

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

Pleas in law and main arguments

In support of his action, the applicant argues that the contested decision infringes the second paragraph of Article 32 of the Staff Regulations and the principle of equal treatment and non-discrimination, since it was taken without considering the option of allowing him additional seniority in his grade on account of his training and professional experience prior to his recruitment.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/57 |
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Official Journal of the European Union

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Action brought on 20 August 2004 by Société Internationale de Diffusion et d'Édition against the Commission of the European Communities

(Case T-348/04)

(2004/C 262/105)

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 20 August 2004 by Société Internationale de Diffusion et d'Édition (SIDE), established in Vitry-sur-Seine (France), represented by Nicole Coutrelis and Valérie Giacobbo, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Article 1, last sentence, of the Commission decision of 20 April 2004 concerning the implementation by France of aid in favour of the Coopérative d'Exportation du livre français (CELF); |
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annul Article 1, last sentence, of the Commission decision of 20 April 2004 concerning the implementation by France of aid in favour of the Coopérative d'Exportation du livre français (CELF);

| — | in the alternative, annul Article 1, last sentence, of the decision insofar as it declares the aid compatible before 1994 or, alternatively, 1997 or 1999; |
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in the alternative, annul Article 1, last sentence, of the decision insofar as it declares the aid compatible before 1994 or, alternatively, 1997 or 1999;

| — | in the further alternative, annul Article 1, last sentence, of the decision insofar as it declares the aid compatible before 1 November 1993; |
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in the further alternative, annul Article 1, last sentence, of the decision insofar as it declares the aid compatible before 1 November 1993;

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

Pleas in law and main arguments:

The applicant is an export agency for French-language books. In 1992, it lodged a complaint with the Commission relating to aid paid since 1977 by the French Government to the Coopérative d'Exportation du Livre Français (CELF). The Commission adopted decisions pursuant to that complaint. Those decisions were annulled by judgments of 18 September 1995 in Case T-49/93 and of 28 February 2002 in Case T-155/98. Further to the second judgment, the Commission adopted a third decision which is challenged in this action.

The applicant submits first that the market in export agency has many particular features of which the contested decision fails to take account. The applicant also notes that the description of the aid in the decision is erroneous in that, according to the applicant, this is individual aid and not an aid scheme, the aid is given on a discriminatory basis and the criterion for payment, namely handling small orders, is artificial.

In support of its action, the applicant claims that the decision has no legal basis in that it declares the aid compatible, as an aid to culture, pursuant to Article 87(3)(d) EC in respect of the period prior to 1 November 1993. According to the applicant, that provision was introduced by the Treaty on European Union and thus could not form the legal basis for declaring aid compatible before that Treaty entered into force, namely on 1 November 1993.

The applicant further claims breach of Article 88(3) EC in that the Commission based its decision on information dated later than the entry into force of the aid. According to the applicant, the decision results in a Member State being permitted to supply evaluation criteria which fluctuate over a period of more than 10 years, thereby favouring the situation of a State which has not complied with the obligation to notify, in breach of Article 88(3) EC.

Finally, the applicant claims breach of Article 87(3)(d) EC. According to the applicant, the Commission declared the aid compatible on the basis of assessment criteria which form part of assessment of an aid scheme open to all whilst the aid at issue is individual aid paid to a single operator. The applicant also claims that examination of CELF's accounting data shows that the aid has no link with the handling of small orders.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/58 |
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Action brought on 25 August 2004 by Gaetano Petralia against the Commission of the European Communities

(Case T-354/04)

(2004/C 262/106)

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 25 August 2004 by Gaetano Petralia, represented by Carlo Forte, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the authority empowered to conclude contracts of employment of 7 October 2003 to classify him in Grade B 5, step 3; |
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annul the decision of the authority empowered to conclude contracts of employment of 7 October 2003 to classify him in Grade B 5, step 3;

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

Pleas in law and main arguments:

The applicant in the present case, who was engaged on the basis of the notice for the recruitment of temporary agents in as IT and management assistants in technical research and development, category B, COM/R/B/02/1999, contests the decision of the authority empowered to conclude contracts of employment definitively classifying him in Grade B 5, step 3.

The applicant took part in the selection procedure on the presumption that he would be engaged as a member of the temporary staff on the basis of his professional experience and, therefore, in Grade B3 or B4, step 3, relying on the second paragraph of Title VIII of the notice.

In support of his claims, the applicant alleges error of assessment of his own professional merits.

He further alleges breach of the principle of legitimate expectations and of the obligation to provide a statement of reasons for acts of the administration.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/58 |
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Action brought on 27 August 2004 by Co-Frutta Soc. coop. arl against the Commission of the European Communities

(Case T-355/04)

(2004/C 262/107)

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 27 August 2004 by Co-Frutta Soc. coop. arl, represented by Wilma Viscardini and Gabriele Donà, lawyers.

The applicant claims that the Court should:

| — | annul under Article 230 of the EC Treaty the decision of the Commission of the European Communities in the letter of the Director General of DG Agriculture dated 28 April 2004 (AGRI/11451/28.04.2004) rejecting Co-Frutta's initial application for access to documents containing information on traders registered in the Community as importers of bananas (OCM bananas) for the years 1998, 1999 and 2000, together with the implied rejection of Co-Frutta's confirmatory application submitted by letter of 3 May 2004; |
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annul under Article 230 of the EC Treaty the decision of the Commission of the European Communities in the letter of the Director General of DG Agriculture dated 28 April 2004 (AGRI/11451/28.04.2004) rejecting Co-Frutta's initial application for access to documents containing information on traders registered in the Community as importers of bananas (OCM bananas) for the years 1998, 1999 and 2000, together with the implied rejection of Co-Frutta's confirmatory application submitted by letter of 3 May 2004;

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

Pleas in law and main arguments:

In support of its claims, the applicant argues that the refusal of its request for access to documents is unlawful inasmuch as it stems from misapplication by the Commission of the procedural and substantive rules governing the subject-matter. In particular:

| — | the Commission infringed the procedural time-limits laid down in Regulation (EC) No 1049/2001 (1) and Decision 2001/937 (2) and refused access on the basis of belated opposition by certain Member States; |
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the Commission infringed the procedural time-limits laid down in Regulation (EC) No 1049/2001 (1) and Decision 2001/937 (2) and refused access on the basis of belated opposition by certain Member States;

| — | the measure is manifestly contradictory in so far as the delay was caused by the need to consult the Member States. Yet the Commission itself maintains that, irrespective of the opposition by those Member States, it would in any event have refused access. Thus the Commission is also in breach of the relevant rules which required it to reach an unfettered decision, since it had already made up its mind as to the final decision to be adopted; |
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the measure is manifestly contradictory in so far as the delay was caused by the need to consult the Member States. Yet the Commission itself maintains that, irrespective of the opposition by those Member States, it would in any event have refused access. Thus the Commission is also in breach of the relevant rules which required it to reach an unfettered decision, since it had already made up its mind as to the final decision to be adopted;

| — | the Commission relied on one of the exceptions provided for in Regulation No 1049/2001 to refuse access, without putting forward any ground in that regard; in any event, as to the exception relied on (protection of commercial secrecy under Article 4(2) of Regulation No 1049/2001), the applicant notes that the conditions for the application of that exception do not exist since in the OCM banana sector there cannot be said to be any commercial secrets to be protected, in the terms stated by the Commission; |
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the Commission relied on one of the exceptions provided for in Regulation No 1049/2001 to refuse access, without putting forward any ground in that regard; in any event, as to the exception relied on (protection of commercial secrecy under Article 4(2) of Regulation No 1049/2001), the applicant notes that the conditions for the application of that exception do not exist since in the OCM banana sector there cannot be said to be any commercial secrets to be protected, in the terms stated by the Commission;

| — | the Commission failed to rule in regard to a series of documents mentioned in the applicant's request for access, thereby infringing the principle of sound administration; |
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the Commission failed to rule in regard to a series of documents mentioned in the applicant's request for access, thereby infringing the principle of sound administration;

| — | the Commission did not grant partial access in respect of the documents from the States which did not oppose disclosure. |
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the Commission did not grant partial access in respect of the documents from the States which did not oppose disclosure.

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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 (OJ L 145 of 31.5.2001, p. 43).

(2)  Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure (OJ L 345 of 29.12.2001, p. 94).

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/59 |
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Action brought on 2 September 2004 by FG Marine S.A. against the Commission of the European Communities

(Case T-360/04)

(2004/C 262/108)

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 2 September 2004 by FG Marine S.A., established in Roissy (France), represented by Marie-Aline Michel, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | order the Commission, which incurred non-contractual liability by adopting Decision 2000/513/EC of 8 September 1999 on aid granted by France to Stardust Marine (OJ 1999 L 206, p. 6), to compensate the applicant and to find that the compensation to which it is legitimately entitled may not be lower than FF 200 000 000 (EUR 30 489 803.44). |
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order the Commission, which incurred non-contractual liability by adopting Decision 2000/513/EC of 8 September 1999 on aid granted by France to Stardust Marine (OJ 1999 L 206, p. 6), to compensate the applicant and to find that the compensation to which it is legitimately entitled may not be lower than FF 200 000 000 (EUR 30 489 803.44).

Pleas in law and main arguments:

The applicant company in the present case, a majority partner in Stardust Marine, submits that the Community incurred non-contractual liability arising from the losses it claims to have suffered as a result of the Commission's decision of 8 September 1999, which declared incompatible with the common market the capital increases, advances on current account and recapitalisations effected within Stardust Marine by Consortium de Réalisation (CDR) as part of Crédit Lyonnais' restructuring plans, and ordered recovery thereof.

The recovery order contained in the aforementioned decision is the reason for Stardust Marine's having tabled its balance sheet, which deprived the applicant of the benefits of the restructuring it effected.

FG Marine states in support of its contentions that the decision contested in the present case disregarded the private investor criterion and was annulled by the Court in its judgment of 16 May 2002 in Case C-482/99 French Republic v Commission. (1) In addition, in adopting the decision, the Commission did not place itself in the context as it existed at the time and did not view Crédit Lyonnais and its subsidiaries as shareholders in Stardust Marine, but rather as its bankers. Lastly, the decision at issue here disregarded completely any prospects for recovery which Stardust Marine might have.

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(1)  [2002] ECR I-4397.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/60 |
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Removal from the Register of Case T-283/99 (1)

(2004/C 262/109)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-283/99, Vlutter Handelsonderneming B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

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(1)  OJ C 47 of 19.2.2000.

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Removal from the Register of Case T-108/02 (1)

(2004/C 262/110)

(Language of the case: French)

By order of 2 August 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-108/02, Jégo-Quéré & Cie S.A. v Commission of the European Communities.

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(1)  OJ C 144 of 15.6.2002.

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Removal from the Register of Case T-174/03 (1)

(2004/C 262/111)

(Language of the case: French)

By order of 6 July 2004, the President of the First Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-174/03, Franco Cozzani v Commission of the European Communities.

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(1)  OJ C 184 of 2.8.2003.

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| 23.10.2004 | EN | Official Journal of the European Union | C 262/60 |
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Removal from the Register of Case T-52/04 (1)

(2004/C 262/112)

(Language of the case: French)

By order of 6 July 2004, the President of the Third Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-52/04, Luis Escobar Guerrero v Commission of the European Communities.

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(1)  OJ C 94 of 17.4.2004.

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III Notices

| 23.10.2004 | EN | Official Journal of the European Union | C 262/61 |
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(2004/C 262/113)

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

OJ C 251, 9.10.2004

Past publications

OJ C 239, 25.9.2004

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

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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