# Official Journal C 212/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 212 |
| | |
| English edition | Information and Notices | Volume 492 September 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 212

English edition

Information and Notices

Volume 492 September 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 212/1 | Joined Cases C-182/03 and C-217/03: Judgment of the Court (Second Chamber) of 22 June 2006 — Kingdom of Belgium v Commission of the European Communities (State aid — Existing aid regime — Tax regime for coordination centres established in Belgium — Application by an association — Admissibility — Commission Decision that the regime does not constitute aid — Change in the Commission's appraisal — Article 87(1) EC — Protection of legitimate expectations — General principle of equal treatment) | 1 |
| 2006/C 212/2 | Case C-205/03 P: Judgment of the Court (Grand Chamber) of 11 July 2006 — Federación Española de Empresa de Tecnología Sanitaria (FENIN), formerly Federación Nacional de Empresa de Instrumentación Científica, Médica, Técnica y Dental v Commission of the European Communities (Appeal — Competition — Management bodies of the Spanish national health system — Medical treatment — Definition of undertaking — Payment conditions imposed on suppliers of medical goods and equipment) | 1 |
| 2006/C 212/3 | Case C-399/03: Judgment of the Court (Second Chamber) of 22 June 2006 — Commission of the European Communities v Council of the European Union (State aid — Existing aid scheme — Tax scheme for coordination centres established in Belgium — Competence of the Council) | 2 |
| 2006/C 212/4 | Case C-212/04: Judgment of the Court (Grand Chamber) of 4 July 2006 (reference for a preliminary ruling from the Monomeles Protodikio Thessalonikis — Greece) — Konstantinos Adeneler, Pandora Kosa-Valdirka, Nikolaos Markou, Agapi Pantelidou, Christina Topalidou, Apostolos Alexopoulos, Konstantinos Vasiniotis, Vasiliki Karagianni, Apostolos Tsitsionis, Aristidis Andreou, Evangelia Vasila, Kalliopi Peristeri, Spiridon Sklivanitis, Dimosthenis Tselefis, Theopisti Patsidou, Dimitrios Vogiatzis, Rousas Voskakis, Vasilios Giatakis v Ellinikos Organismos Galaktos (ELOG) (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Successive fixed-term employment contracts in the public sector — Concepts of successive contracts and objective reasons justifying the renewal of such contracts — Measures intended to prevent abuse — Sanctions — Scope of the obligation to interpret national law in conformity with Community law) | 2 |
| 2006/C 212/5 | Case C-308/04 P: Judgment of the Court (Second Chamber) of 29 June 2006 — SGL Carbon AG v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Graphite electrodes — Article 81(1) EC — Fines — Guidelines on the method of setting fines — Leniency Notice — Principle of non bis in idem) | 3 |
| 2006/C 212/6 | Joined Cases C-393/04 and C-41/05: Judgment of the Court (Second Chamber) of 15 June 2006 (references for a preliminary ruling from the Cour d'appel de Liège (Court of Appeal, Liège ), Tribunal de première instance de Liège (Court of First Instance, Liège) — Air Liquide Industries Belgium SA v Ville de Seraing (C-393/04) and Province de Liège (C-41/05) (State aid — Definition — Exemption from municipal and provincial taxes — Effects of Article 88(3) EC — Charges having equivalent effect — Internal taxation) | 4 |
| 2006/C 212/7 | Joined Cases C-439/04 and C-440/04: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Axel Kittel v Belgian State (Sixth VAT Directive — Deduction of input tax — Carousel fraud — Contract of sale incurably void under domestic law) | 4 |
| 2006/C 212/8 | Case C-487/04: Judgment of the Court (Fourth Chamber) of 29 June 2006 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Council Regulation (EC) No 1255/1999 and Commission Regulation (EC) No 2799/1999 — Milk and milk products — Skimmed-milk powder — System of traceability of skimmed-milk powder) | 5 |
| 2006/C 212/9 | Case C-494/04: Judgment of the Court (Third Chamber) of 15 June 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Heintz van Landewijck SARL v Staatssecretaris van Financiën (Tax provisions — Harmonisation of laws — Directive 92/12/EEC — Excise duty — Tax stamps — Sixth VAT Directive — Articles 2 and 27 — Disappearance of excise stamps) | 5 |
| 2006/C 212/0 | Case C-24/05 P: Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 — Absolute ground for refusal to register — Three-dimensional mark — Three-dimensional shape of a light-brown sweet — Distinctive character) | 6 |
| 2006/C 212/1 | Case C-25/05 P: Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 — Absolute ground for refusal to register — Figurative mark — Representation of a gold-coloured sweet wrapper — Distinctive character) | 7 |
| 2006/C 212/2 | Case C-53/05: Judgment of the Court (Third Chamber) of 6 July 2006 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 92/100/EEC — Copyright — Rental and lending right — Failure to transpose within the prescribed period) | 7 |
| 2006/C 212/3 | Case C-154/05: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — J.J. Kersbergen-Lap, D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (Social security for migrant workers — Regulation (EEC) No 1408/71 — Article 4(2a), Article 10a and Annex IIa — Special non-contributory benefits — Netherlands benefit for disabled young people — Non-exportability) | 8 |
| 2006/C 212/4 | Case C-251/05: Judgment of the Court (First Chamber) of 6 July 2006 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) — Talacre Beach Caravan Sales Ltd v Commissioners of Customs & Excise (Sixth VAT Directive — Article 28 — Exemption with refund of the tax paid — Sale of goods taxed at zero-rate fitted with goods taxed at the standard rate — Residential caravans — Single supply) | 8 |
| 2006/C 212/5 | Case C-238/06 P: Appeal brought on 29 May 2006 by Develey Holding GmbH & Co. Beteiligungs KG against the judgment delivered by the Court of First Instance (Second Chamber) on 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 9 |
| 2006/C 212/6 | Case C-241/06: Reference for a preliminary ruling from the Hanseatisches Oberlandesgericht (Germany) lodged on 30 May 2006 — Lämmerzahl GmbH v Freie Hansestadt Bremen | 10 |
| 2006/C 212/7 | Case C-242/06: Reference for a preliminary ruling from the Raad van State, (Netherlands) lodged on 29 May 2006 — Minister voor Vreemdelingenzaken en Integratie and T. Sahin — against the judgment of the Rechtbank 's-Gravenhage in Case AWB 04/45792 | 10 |
| 2006/C 212/8 | Case C-243/06: Reference for a preliminary ruling from the Tribunal de commerce de Charleroi lodged on 30 May 2006 — SA Sporting du Pays de Charleroi, G-14 Groupment des clubs de football européens v Fédération internationale de football association (FIFA) | 11 |
| 2006/C 212/9 | Case C-246/06: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 2 June 2006 — Josefa Velasco Navarro v Fondo de Garantia Salarial (Fogasa) | 11 |
| 2006/C 212/0 | Case C-250/06: Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 6 June 2006 — United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL v Belgian State | 12 |
| 2006/C 212/1 | Case C-251/06: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria) lodged on 6 June 2006 — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr | 13 |
| 2006/C 212/2 | Case C-254/06: Reference for a preliminary ruling from the Cour d'appel de Bruxelles (Belgium) lodged on 7 June 2006 — Zürich Versicherungs-Gesellschaft v Bureau Benelux des marques | 13 |
| 2006/C 212/3 | Case C-255/06 P: Appeal brought on 6 June 2006 by Yedas Tarim ve Otomotiv Sanayi ve Ticaret AŞ against the judgment of the Court of First Instance (Fifth Chamber) delivered on 30 March 2006 in Case T-367/03: Yedas Tarim ve Otomotiv Sanayi ve Ticaret AS v Council of the European Union and Commission of the European Communities | 14 |
| 2006/C 212/4 | Case C-257/06: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 13 June 2006 — Roby Profumi Srl v Comune di Parma | 14 |
| 2006/C 212/5 | Case C-260/06, Case C-261/06: References for a preliminary ruling from the Cour d'appel de Montpellier (France) lodged on 15 June 2006 — Daniel Pierre Raymond Escalier and Jean Louis François Bonnarel v Ministère public | 14 |
| 2006/C 212/6 | Case C-262/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 15 June 2006 — Deutsche Telekom AG v Bundesrepublik Deutschland | 15 |
| 2006/C 212/7 | Case C-265/06: Action brought on 16 June 2006 — Commission of the European Communities v Portuguese Republic | 15 |
| 2006/C 212/8 | Case C-268/06: Reference for a preliminary ruling from Labour Court (Ireland) made on 19 June 2006 — Impact v Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport | 16 |
| 2006/C 212/9 | Case C-270/06: Action brought on 20 June 2006 — Commission of the European Communities v Republic of Austria | 17 |
| 2006/C 212/0 | Case C-272/06: Reference for a preliminary ruling from the Cour d'appel d'Angers (France) lodged on 26 June 2006 — EARL Mainelvo v Denkavit France SARL | 18 |
| 2006/C 212/1 | Case C-273/06: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 22 June 2006 — Auto Peter Petschenig GmbH v Toyota Frey Austria GmbH | 18 |
| 2006/C 212/2 | Case C-274/06: Action brought on 23 June 2006 — Commission of the European Communities v Kingdom of Spain | 19 |
| 2006/C 212/3 | Case C-275/06: Reference for a preliminary ruling from the Juzgado de lo Mercantil No 5 (Commercial Court No 5)/Madrid lodged on 26 June 2006 — Productores de Música de España v Telefónica de España SAU | 19 |
| 2006/C 212/4 | Case C-277/06: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 June 2006 — Interboves GmbH v Hauptzollamt Hamburg-Jonas | 20 |
| 2006/C 212/5 | Case C-278/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht, lodged on 26 June 2006 — Manfred Otten v Landwirtschaftskammer Niedersachsen | 20 |
| 2006/C 212/6 | Case C-279/06: Reference for a preliminary ruling from the Audiencia Provincial de Madrid (Spain) lodged on 27 June 2006 — CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL | 21 |
| 2006/C 212/7 | Case C-282/06: Reference for a preliminary ruling from the Prague Regional Court lodged on 28 June 2006 — Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA) v Miloslav Lev | 22 |
| 2006/C 212/8 | Case C-283/06: Reference for a preliminary ruling from the Zala megyei Bíróság Hongorie lodged on 29 June 2006 — Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt., Schneider Electric Hungária Rt., TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt., and Vodafon Magyarország Mobil Távközlési Rt. v Zala Megyei Közigazgatási Hivatal Vezetője | 23 |
| 2006/C 212/9 | Case C-286/06: Action brought on 29 June 2006 — Commission of the European Communities v Kingdom of Spain | 23 |
| 2006/C 212/0 | Case C-297/06: Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic | 24 |
| 2006/C 212/1 | Case C-299/06: Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic | 24 |
| 2006/C 212/2 | Case C-313/06: Action brought on 19 July 2006 — Commission of the European Communities v Italian Republic | 25 |
| 2006/C 212/3 | Case C-317/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Spain | 25 |
| 2006/C 212/4 | Case C-318/06: Action brought on 20 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg | 26 |
| 2006/C 212/5 | Case C-320/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Belgium | 26 |
| 2006/C 212/6 | Case C-321/06: Action brought on 20 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg | 26 |
| | COURT OF FIRST INSTANCE |
| 2006/C 212/7 | Case T-304/02: Judgment of the Court of First Instance of 4 July 2006 — Hoek Loos NV v Commission of the European Communities (Competition — Cartels — Dutch market for industrial and medical gases — Price fixing — Calculation of fines — Guidelines on the method of setting fines — Principles of proportionality and equal treatment) | 27 |
| 2006/C 212/8 | Joined Cases T-391/03 and T-70/04: Judgment of the Court of First Instance of 6 July 2006 — Franchet and Byk v Commission (Access to documents — Regulation (EC) No 1049/2001 — Investigations of the European Anti-Fraud Office (OLAF) — Eurostat — Refusal of access — Inspections and investigations — Court proceedings — Rights of the defence) | 27 |
| 2006/C 212/9 | Case T-45/04: Judgment of the Court of First Instance of 4 July 2006 — Tzirani v Commission (Officials — Promotion — Filling an A2 post — Rejection of candidature — Principle of legality) | 28 |
| 2006/C 212/0 | Case T-88/04: Judgment of the Court of First Instance of 4 July 2006 — Tzirani v Commission (Officials — Promotion — Filling an A2 post — Rejection of candidature — Failure to state reasons — Manifest error of assessment — Infringement of the rules for appointment of officials at grade A1 and A2) | 28 |
| 2006/C 212/1 | Case T-177/04: Judgment of the Court of First Instance of 4 July 2006 — easyJet Airline v Commission (Competition — Concentrations — Regulation (EEC) No 4064/89 — Decision declaring a concentration compatible with the common market — Action brought by a third party — Admissibility — Air transport market — Commitments) | 29 |
| 2006/C 212/2 | Case T-306/03: Order of the Court of First Instance of 16 June 2006 — Volkswagen v OHIM (CLIMATIC) (Community trade mark — Partial refusal of registration — Withdrawal of the application for registration — No need to adjudicate) | 29 |
| 2006/C 212/3 | Case T-129/06: Action brought on 26 April 2006 — Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission | 29 |
| 2006/C 212/4 | Case T-161/06: Action brought on 23 June 2006 — ARBOS v Commission | 30 |
| 2006/C 212/5 | Case T-162/06: Action brought on 26 June 2006 — Kronoply v Commission | 30 |
| 2006/C 212/6 | Case T-169/06: Action brought on 26 June 2006 — Charlott SARL v OHIM — Charlot (figurative mark Charlott France Entre Luxe et Tradition) | 31 |
| 2006/C 212/7 | Case T-170/06: Action brought on 29 June 2006 — Alrosa v Commission | 31 |
| 2006/C 212/8 | Case T-171/06: Action brought on 22 June 2006 — Laytoncrest v OHIM — Erico (TRENTON) | 32 |
| 2006/C 212/9 | Case T-175/06: Action brought on 29 June 2006 — Coca-Cola Company v OHIM — Azienda Agricola San Polo (MEZZOPANE) | 33 |
| 2006/C 212/0 | Case T-177/06: Action brought on 3 July 2006 — Ayuntamiento de Madrid and Madrid Calle 30 v Commission of the European Communities | 33 |
| 2006/C 212/1 | Case T-180/06: Action brought on 7 July 2006 — Fränkischer Weinbauverband v OHIM (three-dimensional mark Bocksbeutel) | 34 |
| 2006/C 212/2 | Case T-181/06: Action brought on 6 July 2006 — Italian Republic v Commission | 34 |
| 2006/C 212/3 | Case T-182/06: Action brought on 12 July 2006 — Kingdom of the Netherlands v Commission | 35 |
| 2006/C 212/4 | Case T-183/06: Action brought on 11 July 2006 — Portuguese Republic v Commission | 36 |
| 2006/C 212/5 | Case T-184/06: Action brought on 14 July 2006 — Commission v Internet Commerce Network and Dane-Elec Memory | 36 |
| 2006/C 212/6 | Case T-185/06: Action brought on 17 July 2006 — L'Air Liquide v Commission | 37 |
| 2006/C 212/7 | Case T-186/06: Action brought on 17 July 2006 — Solvay v Commission | 38 |
| 2006/C 212/8 | Case T-187/06: Action brought on 18 July 2006 — Ralf Schräder v Community Plant Variety Office | 39 |
| 2006/C 212/9 | Case T-189/06: Action brought on 18 July 2006 — Arkema France v Commission | 39 |
| 2006/C 212/0 | Case T-190/06: Action brought on 19 July 2006 — Total and Elf Aquitaine v Commission | 40 |
| 2006/C 212/1 | Case T-191/06: Action brought on 18 July 2006 — FMC Foret v Commission | 41 |
| 2006/C 212/2 | Case T-192/06: Action brought on 18 July 2006 — Caffaro v Commission | 42 |
| 2006/C 212/3 | Case T-194/06: Action brought on 18 July 2006 — SNIA v Commission | 43 |
| 2006/C 212/4 | Case T-195/06: Action brought on 18 July 2006 — Solvay Solexis SpA v Commission | 43 |
| 2006/C 212/5 | Case T-196/06: Action brought on 19 July 2006 — Edison v Commission | 44 |
| 2006/C 212/6 | Case T-197/06: Action brought on 18 July 2006 — FMC v Commission | 45 |
| 2006/C 212/7 | Case T-199/06: Action brought on 17 July 2006 — Akzo Nobel and Others v Commission | 45 |
| 2006/C 212/8 | Case T-159/05: Order of the Court of First Instance of 29 June 2006 — UNIPOR-Ziegel-Marketing v OHIM-Dörken (DELTA) | 46 |
| 2006/C 212/9 | Case T-217/05: Order of the Court of First Instance of 27 June 2006 — Marker Völkl v OHIM — Icon Health & Fitness Italia (MOTION) | 46 |
| 2006/C 212/0 | Case T-18/06: Order of the Court of First Instance of 5 July 2006 — Deutsche Telekom v OHIM (Alles, was uns verbindet) | 46 |
| 2006/C 212/1 | Case T-43/06: Order of the Court of First Instance of 6 July 2006 — Cofira-Sac v Commission | 46 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 212/2 | Case F-12/05: Judgment of the Civil Service Tribunal (Second Chamber) of 11 July 2006 — Tas v Commission (Recruitment — Open competition — Eligibility criteria — Non-admission to the tests — Qualifications — Professional qualification — Equal treatment) | 47 |
| 2006/C 212/3 | Case F-18/05: Judgment of the Civil Service Tribunal (First Chamber) of 12 July 2006 — D v Commission (Occupational disease — Request for recognition that the aggravation of the disease from which the applicant is suffering is of occupational origin) | 47 |
| 2006/C 212/4 | Case F-5/06: Order of the Civil Service Tribunal (Second Chamber) of 13 July 2006 — E v Commission (Officials — Lawfulness of internal procedures — Allegedly wrongful conduct of officials in the context of disciplinary proceedings and of a procedure for recognition of the occupational nature of a disease — Compensation for damage — Admissibility — Interest in bringing proceedings — Confirmatory act) | 48 |
| 2006/C 212/5 | Case F-68/06: Action brought on 22 June 2006 — Bakema v Commission | 48 |
| 2006/C 212/6 | Case F-75/06: Action brought on 17 July 2006 — Lofaro v Commission | 48 |
| 2006/C 212/7 | Case F-9/05: Order of the Civil Service Tribunal of 13 July 2006 — Lacombe v Council | 49 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 212/1

Joined Cases C-182/03 and C-217/03: Judgment of the Court (Second Chamber) of 22 June 2006 — Kingdom of Belgium v Commission of the European Communities (State aid — Existing aid regime — Tax regime for coordination centres established in Belgium — Application by an association — Admissibility — Commission Decision that the regime does not constitute aid — Change in the Commission's appraisal — Article 87(1) EC — Protection of legitimate expectations — General principle of equal treatment)

1

2006/C 212/2

Case C-205/03 P: Judgment of the Court (Grand Chamber) of 11 July 2006 — Federación Española de Empresa de Tecnología Sanitaria (FENIN), formerly Federación Nacional de Empresa de Instrumentación Científica, Médica, Técnica y Dental v Commission of the European Communities (Appeal — Competition — Management bodies of the Spanish national health system — Medical treatment — Definition of undertaking — Payment conditions imposed on suppliers of medical goods and equipment)

1

2006/C 212/3

Case C-399/03: Judgment of the Court (Second Chamber) of 22 June 2006 — Commission of the European Communities v Council of the European Union (State aid — Existing aid scheme — Tax scheme for coordination centres established in Belgium — Competence of the Council)

2

2006/C 212/4

Case C-212/04: Judgment of the Court (Grand Chamber) of 4 July 2006 (reference for a preliminary ruling from the Monomeles Protodikio Thessalonikis — Greece) — Konstantinos Adeneler, Pandora Kosa-Valdirka, Nikolaos Markou, Agapi Pantelidou, Christina Topalidou, Apostolos Alexopoulos, Konstantinos Vasiniotis, Vasiliki Karagianni, Apostolos Tsitsionis, Aristidis Andreou, Evangelia Vasila, Kalliopi Peristeri, Spiridon Sklivanitis, Dimosthenis Tselefis, Theopisti Patsidou, Dimitrios Vogiatzis, Rousas Voskakis, Vasilios Giatakis v Ellinikos Organismos Galaktos (ELOG) (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Successive fixed-term employment contracts in the public sector — Concepts of successive contracts and objective reasons justifying the renewal of such contracts — Measures intended to prevent abuse — Sanctions — Scope of the obligation to interpret national law in conformity with Community law)

2

2006/C 212/5

Case C-308/04 P: Judgment of the Court (Second Chamber) of 29 June 2006 — SGL Carbon AG v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Graphite electrodes — Article 81(1) EC — Fines — Guidelines on the method of setting fines — Leniency Notice — Principle of non bis in idem)

non bis in idem

3

2006/C 212/6

Joined Cases C-393/04 and C-41/05: Judgment of the Court (Second Chamber) of 15 June 2006 (references for a preliminary ruling from the Cour d'appel de Liège (Court of Appeal, Liège ), Tribunal de première instance de Liège (Court of First Instance, Liège) — Air Liquide Industries Belgium SA v Ville de Seraing (C-393/04) and Province de Liège (C-41/05) (State aid — Definition — Exemption from municipal and provincial taxes — Effects of Article 88(3) EC — Charges having equivalent effect — Internal taxation)

4

2006/C 212/7

Joined Cases C-439/04 and C-440/04: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Axel Kittel v Belgian State (Sixth VAT Directive — Deduction of input tax — Carousel fraud — Contract of sale incurably void under domestic law)

4

2006/C 212/8

Case C-487/04: Judgment of the Court (Fourth Chamber) of 29 June 2006 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Council Regulation (EC) No 1255/1999 and Commission Regulation (EC) No 2799/1999 — Milk and milk products — Skimmed-milk powder — System of traceability of skimmed-milk powder)

5

2006/C 212/9

Case C-494/04: Judgment of the Court (Third Chamber) of 15 June 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Heintz van Landewijck SARL v Staatssecretaris van Financiën (Tax provisions — Harmonisation of laws — Directive 92/12/EEC — Excise duty — Tax stamps — Sixth VAT Directive — Articles 2 and 27 — Disappearance of excise stamps)

5

2006/C 212/0

Case C-24/05 P: Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 — Absolute ground for refusal to register — Three-dimensional mark — Three-dimensional shape of a light-brown sweet — Distinctive character)

6

2006/C 212/1

Case C-25/05 P: Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 — Absolute ground for refusal to register — Figurative mark — Representation of a gold-coloured sweet wrapper — Distinctive character)

7

2006/C 212/2

Case C-53/05: Judgment of the Court (Third Chamber) of 6 July 2006 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 92/100/EEC — Copyright — Rental and lending right — Failure to transpose within the prescribed period)

7

2006/C 212/3

Case C-154/05: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — J.J. Kersbergen-Lap, D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (Social security for migrant workers — Regulation (EEC) No 1408/71 — Article 4(2a), Article 10a and Annex IIa — Special non-contributory benefits — Netherlands benefit for disabled young people — Non-exportability)

8

2006/C 212/4

Case C-251/05: Judgment of the Court (First Chamber) of 6 July 2006 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) — Talacre Beach Caravan Sales Ltd v Commissioners of Customs & Excise (Sixth VAT Directive — Article 28 — Exemption with refund of the tax paid — Sale of goods taxed at zero-rate fitted with goods taxed at the standard rate — Residential caravans — Single supply)

8

2006/C 212/5

Case C-238/06 P: Appeal brought on 29 May 2006 by Develey Holding GmbH & Co. Beteiligungs KG against the judgment delivered by the Court of First Instance (Second Chamber) on 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

9

2006/C 212/6

Case C-241/06: Reference for a preliminary ruling from the Hanseatisches Oberlandesgericht (Germany) lodged on 30 May 2006 — Lämmerzahl GmbH v Freie Hansestadt Bremen

10

2006/C 212/7

Case C-242/06: Reference for a preliminary ruling from the Raad van State, (Netherlands) lodged on 29 May 2006 — Minister voor Vreemdelingenzaken en Integratie and T. Sahin — against the judgment of the Rechtbank 's-Gravenhage in Case AWB 04/45792

10

2006/C 212/8

Case C-243/06: Reference for a preliminary ruling from the Tribunal de commerce de Charleroi lodged on 30 May 2006 — SA Sporting du Pays de Charleroi, G-14 Groupment des clubs de football européens v Fédération internationale de football association (FIFA)

11

2006/C 212/9

Case C-246/06: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 2 June 2006 — Josefa Velasco Navarro v Fondo de Garantia Salarial (Fogasa)

11

2006/C 212/0

Case C-250/06: Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 6 June 2006 — United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL v Belgian State

12

2006/C 212/1

Case C-251/06: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria) lodged on 6 June 2006 — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr

13

2006/C 212/2

Case C-254/06: Reference for a preliminary ruling from the Cour d'appel de Bruxelles (Belgium) lodged on 7 June 2006 — Zürich Versicherungs-Gesellschaft v Bureau Benelux des marques

13

2006/C 212/3

Case C-255/06 P: Appeal brought on 6 June 2006 by Yedas Tarim ve Otomotiv Sanayi ve Ticaret AŞ against the judgment of the Court of First Instance (Fifth Chamber) delivered on 30 March 2006 in Case T-367/03: Yedas Tarim ve Otomotiv Sanayi ve Ticaret AS v Council of the European Union and Commission of the European Communities

14

2006/C 212/4

Case C-257/06: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 13 June 2006 — Roby Profumi Srl v Comune di Parma

14

2006/C 212/5

Case C-260/06, Case C-261/06: References for a preliminary ruling from the Cour d'appel de Montpellier (France) lodged on 15 June 2006 — Daniel Pierre Raymond Escalier and Jean Louis François Bonnarel v Ministère public

14

2006/C 212/6

Case C-262/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 15 June 2006 — Deutsche Telekom AG v Bundesrepublik Deutschland

15

2006/C 212/7

Case C-265/06: Action brought on 16 June 2006 — Commission of the European Communities v Portuguese Republic

15

2006/C 212/8

Case C-268/06: Reference for a preliminary ruling from Labour Court (Ireland) made on 19 June 2006 — Impact v Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport

16

2006/C 212/9

Case C-270/06: Action brought on 20 June 2006 — Commission of the European Communities v Republic of Austria

17

2006/C 212/0

Case C-272/06: Reference for a preliminary ruling from the Cour d'appel d'Angers (France) lodged on 26 June 2006 — EARL Mainelvo v Denkavit France SARL

18

2006/C 212/1

Case C-273/06: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 22 June 2006 — Auto Peter Petschenig GmbH v Toyota Frey Austria GmbH

18

2006/C 212/2

Case C-274/06: Action brought on 23 June 2006 — Commission of the European Communities v Kingdom of Spain

19

2006/C 212/3

Case C-275/06: Reference for a preliminary ruling from the Juzgado de lo Mercantil No 5 (Commercial Court No 5)/Madrid lodged on 26 June 2006 — Productores de Música de España v Telefónica de España SAU

19

2006/C 212/4

Case C-277/06: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 June 2006 — Interboves GmbH v Hauptzollamt Hamburg-Jonas

20

2006/C 212/5

Case C-278/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht, lodged on 26 June 2006 — Manfred Otten v Landwirtschaftskammer Niedersachsen

20

2006/C 212/6

Case C-279/06: Reference for a preliminary ruling from the Audiencia Provincial de Madrid (Spain) lodged on 27 June 2006 — CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL

21

2006/C 212/7

Case C-282/06: Reference for a preliminary ruling from the Prague Regional Court lodged on 28 June 2006 — Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA) v Miloslav Lev

22

2006/C 212/8

Case C-283/06: Reference for a preliminary ruling from the Zala megyei Bíróság Hongorie lodged on 29 June 2006 — Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt., Schneider Electric Hungária Rt., TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt., and Vodafon Magyarország Mobil Távközlési Rt. v Zala Megyei Közigazgatási Hivatal Vezetője

23

2006/C 212/9

Case C-286/06: Action brought on 29 June 2006 — Commission of the European Communities v Kingdom of Spain

23

2006/C 212/0

Case C-297/06: Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic

24

2006/C 212/1

Case C-299/06: Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic

24

2006/C 212/2

Case C-313/06: Action brought on 19 July 2006 — Commission of the European Communities v Italian Republic

25

2006/C 212/3

Case C-317/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Spain

25

2006/C 212/4

Case C-318/06: Action brought on 20 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

26

2006/C 212/5

Case C-320/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Belgium

26

2006/C 212/6

Case C-321/06: Action brought on 20 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

26

COURT OF FIRST INSTANCE

2006/C 212/7

Case T-304/02: Judgment of the Court of First Instance of 4 July 2006 — Hoek Loos NV v Commission of the European Communities (Competition — Cartels — Dutch market for industrial and medical gases — Price fixing — Calculation of fines — Guidelines on the method of setting fines — Principles of proportionality and equal treatment)

27

2006/C 212/8

Joined Cases T-391/03 and T-70/04: Judgment of the Court of First Instance of 6 July 2006 — Franchet and Byk v Commission (Access to documents — Regulation (EC) No 1049/2001 — Investigations of the European Anti-Fraud Office (OLAF) — Eurostat — Refusal of access — Inspections and investigations — Court proceedings — Rights of the defence)

27

2006/C 212/9

Case T-45/04: Judgment of the Court of First Instance of 4 July 2006 — Tzirani v Commission (Officials — Promotion — Filling an A2 post — Rejection of candidature — Principle of legality)

28

2006/C 212/0

Case T-88/04: Judgment of the Court of First Instance of 4 July 2006 — Tzirani v Commission (Officials — Promotion — Filling an A2 post — Rejection of candidature — Failure to state reasons — Manifest error of assessment — Infringement of the rules for appointment of officials at grade A1 and A2)

28

2006/C 212/1

Case T-177/04: Judgment of the Court of First Instance of 4 July 2006 — easyJet Airline v Commission (Competition — Concentrations — Regulation (EEC) No 4064/89 — Decision declaring a concentration compatible with the common market — Action brought by a third party — Admissibility — Air transport market — Commitments)

29

2006/C 212/2

Case T-306/03: Order of the Court of First Instance of 16 June 2006 — Volkswagen v OHIM (CLIMATIC) (Community trade mark — Partial refusal of registration — Withdrawal of the application for registration — No need to adjudicate)

29

2006/C 212/3

Case T-129/06: Action brought on 26 April 2006 — Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission

29

2006/C 212/4

Case T-161/06: Action brought on 23 June 2006 — ARBOS v Commission

30

2006/C 212/5

Case T-162/06: Action brought on 26 June 2006 — Kronoply v Commission

30

2006/C 212/6

Case T-169/06: Action brought on 26 June 2006 — Charlott SARL v OHIM — Charlot (figurative mark Charlott France Entre Luxe et Tradition)

31

2006/C 212/7

Case T-170/06: Action brought on 29 June 2006 — Alrosa v Commission

31

2006/C 212/8

Case T-171/06: Action brought on 22 June 2006 — Laytoncrest v OHIM — Erico (TRENTON)

32

2006/C 212/9

Case T-175/06: Action brought on 29 June 2006 — Coca-Cola Company v OHIM — Azienda Agricola San Polo (MEZZOPANE)

33

2006/C 212/0

Case T-177/06: Action brought on 3 July 2006 — Ayuntamiento de Madrid and Madrid Calle 30 v Commission of the European Communities

33

2006/C 212/1

Case T-180/06: Action brought on 7 July 2006 — Fränkischer Weinbauverband v OHIM (three-dimensional mark Bocksbeutel)

34

2006/C 212/2

Case T-181/06: Action brought on 6 July 2006 — Italian Republic v Commission

34

2006/C 212/3

Case T-182/06: Action brought on 12 July 2006 — Kingdom of the Netherlands v Commission

35

2006/C 212/4

Case T-183/06: Action brought on 11 July 2006 — Portuguese Republic v Commission

36

2006/C 212/5

Case T-184/06: Action brought on 14 July 2006 — Commission v Internet Commerce Network and Dane-Elec Memory

36

2006/C 212/6

Case T-185/06: Action brought on 17 July 2006 — L'Air Liquide v Commission

37

2006/C 212/7

Case T-186/06: Action brought on 17 July 2006 — Solvay v Commission

38

2006/C 212/8

Case T-187/06: Action brought on 18 July 2006 — Ralf Schräder v Community Plant Variety Office

39

2006/C 212/9

Case T-189/06: Action brought on 18 July 2006 — Arkema France v Commission

39

2006/C 212/0

Case T-190/06: Action brought on 19 July 2006 — Total and Elf Aquitaine v Commission

40

2006/C 212/1

Case T-191/06: Action brought on 18 July 2006 — FMC Foret v Commission

41

2006/C 212/2

Case T-192/06: Action brought on 18 July 2006 — Caffaro v Commission

42

2006/C 212/3

Case T-194/06: Action brought on 18 July 2006 — SNIA v Commission

43

2006/C 212/4

Case T-195/06: Action brought on 18 July 2006 — Solvay Solexis SpA v Commission

43

2006/C 212/5

Case T-196/06: Action brought on 19 July 2006 — Edison v Commission

44

2006/C 212/6

Case T-197/06: Action brought on 18 July 2006 — FMC v Commission

45

2006/C 212/7

Case T-199/06: Action brought on 17 July 2006 — Akzo Nobel and Others v Commission

45

2006/C 212/8

Case T-159/05: Order of the Court of First Instance of 29 June 2006 — UNIPOR-Ziegel-Marketing v OHIM-Dörken (DELTA)

46

2006/C 212/9

Case T-217/05: Order of the Court of First Instance of 27 June 2006 — Marker Völkl v OHIM — Icon Health & Fitness Italia (MOTION)

46

2006/C 212/0

Case T-18/06: Order of the Court of First Instance of 5 July 2006 — Deutsche Telekom v OHIM (Alles, was uns verbindet)

46

2006/C 212/1

Case T-43/06: Order of the Court of First Instance of 6 July 2006 — Cofira-Sac v Commission

46

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 212/2

Case F-12/05: Judgment of the Civil Service Tribunal (Second Chamber) of 11 July 2006 — Tas v Commission (Recruitment — Open competition — Eligibility criteria — Non-admission to the tests — Qualifications — Professional qualification — Equal treatment)

47

2006/C 212/3

Case F-18/05: Judgment of the Civil Service Tribunal (First Chamber) of 12 July 2006 — D v Commission (Occupational disease — Request for recognition that the aggravation of the disease from which the applicant is suffering is of occupational origin)

47

2006/C 212/4

Case F-5/06: Order of the Civil Service Tribunal (Second Chamber) of 13 July 2006 — E v Commission (Officials — Lawfulness of internal procedures — Allegedly wrongful conduct of officials in the context of disciplinary proceedings and of a procedure for recognition of the occupational nature of a disease — Compensation for damage — Admissibility — Interest in bringing proceedings — Confirmatory act)

48

2006/C 212/5

Case F-68/06: Action brought on 22 June 2006 — Bakema v Commission

48

2006/C 212/6

Case F-75/06: Action brought on 17 July 2006 — Lofaro v Commission

48

2006/C 212/7

Case F-9/05: Order of the Civil Service Tribunal of 13 July 2006 — Lacombe v Council

49

| | III   Notices |
| --- | --- |
| 2006/C 212/8 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 190, 12.8.2006 | 50 |

III   Notices

2006/C 212/8

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 190, 12.8.2006

Official Journal of the European Union

50

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 2.9.2006 | EN | Official Journal of the European Union | C 212/1 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/1

---

Judgment of the Court (Second Chamber) of 22 June 2006 — Kingdom of Belgium v Commission of the European Communities

(Joined Cases C-182/03 (1) and C-217/03) (2)

(State aid - Existing aid regime - Tax regime for coordination centres established in Belgium - Application by an association - Admissibility - Commission Decision that the regime does not constitute aid - Change in the Commission's appraisal - Article 87(1) EC - Protection of legitimate expectations - General principle of equal treatment)

(2006/C 212/01)

Language of the case: French

Parties

Applicant: Kingdom of Belgium (represented by: initially by A. Snoecx, and subsequently by E. Dominkovits, Agents, assisted by B. van de Walle de Ghelcke, J. Wouters and P. Kelley, avocats) (Case C-182/03)

Forum 187 ASBL: (represented by: A. Sutton and J. Killick, Barristers) (Case C-217/03)

Defendant: Commission of the European Communities (represented by: G. Rozet, R. Lyal, and V. Di Bucci, Agents)

Re:

Action for annulment of the decision of the Commission of the European Communities C(2003) final of 17 February 2003 concerning the aid scheme implemented by the Kingdom of Belgium in favour of coordination centres established in Belgium inasmuch as it does not authorise the renewal of current authorisations of centres

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision 2003/757/EC of 17 February 2003 on the aid scheme implemented by Belgium for coordination centres established in Belgium in so far as it does not lay down transitional measures for those coordination centres with an application for renewal of their authorisation pending on the date on which the contested decision was notified or with an authorisation which expired at the same time as or shortly after the notification of the decision; |
| --- | --- |

1.

Annuls Commission Decision 2003/757/EC of 17 February 2003 on the aid scheme implemented by Belgium for coordination centres established in Belgium in so far as it does not lay down transitional measures for those coordination centres with an application for renewal of their authorisation pending on the date on which the contested decision was notified or with an authorisation which expired at the same time as or shortly after the notification of the decision;

| 2. | Rejects the application of Forum 187 ASBL as to the remainder; |
| --- | --- |

2.

Rejects the application of Forum 187 ASBL as to the remainder;

| 3. | Orders the Commission of the European Communities to pay the costs in Case C-182/03 and half of the costs of Forum 187 ASBL in Case C-217/03; |
| --- | --- |

3.

Orders the Commission of the European Communities to pay the costs in Case C-182/03 and half of the costs of Forum 187 ASBL in Case C-217/03;

| 4. | Orders the Commission of the European Communities to pay the costs in Cases C-182/03 R and C-217/03 R. |
| --- | --- |

4.

Orders the Commission of the European Communities to pay the costs in Cases C-182/03 R and C-217/03 R.

---

(1)  OJ C 135 of 7.06.2003.

(2)  (T-276/02 – OJ C 289 of 23.11.2002).

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/1 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/1

---

Judgment of the Court (Grand Chamber) of 11 July 2006 — Federación Española de Empresa de Tecnología Sanitaria (FENIN), formerly Federación Nacional de Empresa de Instrumentación Científica, Médica, Técnica y Dental v Commission of the European Communities

(Case C-205/03 P) (1)

(Appeal - Competition - Management bodies of the Spanish national health system - Medical treatment - Definition of ‘undertaking’ - Payment conditions imposed on suppliers of medical goods and equipment)

(2006/C 212/02)

Language of the case: Spanish

Parties

Appellant: Federación Española de Empresa de Tecnología Sanitaria (FENIN), formerly Federación Nacional de Empresa de Instrumentación Científica, Médica, Técnica y Dental (represented by: J.-R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, abogados)

Other party to the proceedings: Commission of the European Communities (represented by: W. Wils and F. Castillo de la Torre, acting as Agents, and J. Rivas de Andrés and J. Gutiérrez Gisbert, abogados)

Interveners in support of the defendants: United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, Agent, and G. Barling QC), Kingdom of Spain (represented by N. Díaz Abad, L. Fraguas Gadea and F. Díez Moreno, Agents)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber, Extended Composition) of 4 March 2003 in Case T-319/99 FENIN v Commission in which the Court dismissed the action for annulment brought by the appellant against the Commission's decision of 26 August 1999 (SG(99) D/7.040) relating to the organisations which manage the Spanish national health system concerning the conditions for payment imposed by those organisations on their suppliers of health products and other allegedly anti-competitive practices of such organisations — Definition of ‘undertaking’

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the Federación Española de Empresas de Tecnología Sanitaria (FENIN) to pay the costs of these proceedings; |
| --- | --- |

2.

Orders the Federación Española de Empresas de Tecnología Sanitaria (FENIN) to pay the costs of these proceedings;

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

3.

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

---

(1)  OJ C 184, 02.08.2003.

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/2 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/2

---

Judgment of the Court (Second Chamber) of 22 June 2006 — Commission of the European Communities v Council of the European Union

(Case C-399/03) (1)

(State aid - Existing aid scheme - Tax scheme for coordination centres established in Belgium - Competence of the Council)

(2006/C 212/03)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet, V. Di Bucci and R. Lyal, Agents)

Defendant: Council of the European Union (represented by: A.-M. Colaert and F. Florindo Gijón, Agents)

Re:

Annulment of Council Decision 2003/531/EC of 16 July 2003 on the granting of aid by the Belgian Government to certain coordination centres established in Belgium (OJ 2003 L 184, p. 17)

Operative part of the judgment

The Court:

| 1. | Annuls Council Decision 2003/531/EC of 16 July 2003 on the granting of aid by the Belgian Government to certain coordination centres established in Belgium; |
| --- | --- |

1.

Annuls Council Decision 2003/531/EC of 16 July 2003 on the granting of aid by the Belgian Government to certain coordination centres established in Belgium;

| 2. | Orders the Council of the European Union to pay the costs. |
| --- | --- |

2.

Orders the Council of the European Union to pay the costs.

---

(1)  OJ C 275, 15.11.2003.

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/2 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/2

---

Judgment of the Court (Grand Chamber) of 4 July 2006 (reference for a preliminary ruling from the Monomeles Protodikio Thessalonikis — Greece) — Konstantinos Adeneler, Pandora Kosa-Valdirka, Nikolaos Markou, Agapi Pantelidou, Christina Topalidou, Apostolos Alexopoulos, Konstantinos Vasiniotis, Vasiliki Karagianni, Apostolos Tsitsionis, Aristidis Andreou, Evangelia Vasila, Kalliopi Peristeri, Spiridon Sklivanitis, Dimosthenis Tselefis, Theopisti Patsidou, Dimitrios Vogiatzis, Rousas Voskakis, Vasilios Giatakis v Ellinikos Organismos Galaktos (ELOG)

(Case C-212/04) (1)

(Directive 1999/70/EC - Clauses 1(b) and 5 of the framework agreement on fixed-term work - Successive fixed-term employment contracts in the public sector - Concepts of ‘successive contracts’ and ‘objective reasons’ justifying the renewal of such contracts - Measures intended to prevent abuse - Sanctions - Scope of the obligation to interpret national law in conformity with Community law)

(2006/C 212/04)

Language of the case: Greek

Referring court

Monomeles Protodikio Thessalonikis

Parties to the main proceedings

Claimants: Konstantinos Adeneler, Pandora Kosa-Valdirka, Nikolaos Markou, Agapi Pantelidou, Christina Topalidou, Apostolos Alexopoulos, Konstantinos Vasiniotis, Vasiliki Karagianni, Apostolos Tsitsionis, Aristidis Andreou, Evangelia Vasila, Kalliopi Peristeri, Spiridon Sklivanitis, Dimosthenis Tselefis, Theopisti Patsidou, Dimitrios Vogiatzis, Rousas Voskakis, Vasilios Giatakis

Defendant: Ellinikos Organismos Galaktos (ELOG)

Re:

Reference for a preliminary ruling — Monomeles Protodikio Thessalonikis — Interpretation of clause 5(1) and (2) of the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Employment contracts concluded with the public authorities — ‘Objective reasons’ justifying unlimited renewal of successive fixed-term contracts — ‘Successive contracts’

Operative part of the judgment

| 1. | Clause 5(1)(a) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of ‘objective reasons’ within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out. |
| --- | --- |

1.

Clause 5(1)(a) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of ‘objective reasons’ within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.

| 2. | Clause 5 of the framework agreement on fixed-term work is to be interpreted as precluding a national rule, such as that at issue in the main proceedings, under which only fixed-term employment contracts or relationships that are not separated from one another by a period of time longer than 20 working days are to be regarded as ‘successive’ within the meaning of that clause. |
| --- | --- |

2.

Clause 5 of the framework agreement on fixed-term work is to be interpreted as precluding a national rule, such as that at issue in the main proceedings, under which only fixed-term employment contracts or relationships that are not separated from one another by a period of time longer than 20 working days are to be regarded as ‘successive’ within the meaning of that clause.

| 3. | In circumstances such as those of the main proceedings, the framework agreement on fixed-term work is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, that framework agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse. |
| --- | --- |

3.

In circumstances such as those of the main proceedings, the framework agreement on fixed-term work is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, that framework agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse.

| 4. | Where a directive is transposed belatedly into a Member State's domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive. |
| --- | --- |

4.

Where a directive is transposed belatedly into a Member State's domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive.

---

(1)  OJ C 179, 10.07.2004.

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/3 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/3

---

Judgment of the Court (Second Chamber) of 29 June 2006 — SGL Carbon AG v Commission of the European Communities

(Case C-308/04 P) (1)

(Appeals - Competition - Agreements, decisions and concerted practices - Graphite electrodes - Article 81(1) EC - Fines - Guidelines on the method of setting fines - Leniency Notice - Principle of non bis in idem)

(2006/C 212/05)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by M. Klusmann and K. Beckmann, lawyers)

Other parties to the proceedings: Commission of the European Communities, (represented by A. Bouquet, H. Gading and M. Schneider, Agents), Tokai Carbon Co. Ltd, established in Tokyo (Japan), Nippon Carbon Co. Ltd, established in Tokyo, Showa Denko KK, established in Tokyo, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington (United States), SEC Corp., established in Amagasaki (Japan), The Carbide/Graphite Group Inc., established in Pittsburgh (United States)

Re:

Appeal brought against the judgment of the Court of First Instance (Second Chamber) of 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others as regards Case T-239/01 — Annulment of Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

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

2.

Orders SGL Carbon AG to pay the costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/4 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/4

---

Judgment of the Court (Second Chamber) of 15 June 2006 (references for a preliminary ruling from the Cour d'appel de Liège (Court of Appeal, Liège ), Tribunal de première instance de Liège (Court of First Instance, Liège) — Air Liquide Industries Belgium SA v Ville de Seraing (C-393/04) and Province de Liège (C-41/05)

(Joined Cases C-393/04 and C-41/05) (1)

(State aid - Definition - Exemption from municipal and provincial taxes - Effects of Article 88(3) EC - Charges having equivalent effect - Internal taxation)

(2006/C 212/06)

Language of the cases: French

Referring courts

Cour d'appel de Liège, Tribunal de première instance de Liège

Parties to the main proceedings

Applicant: Air Liquide Industries Belgium SA

Defendants: Ville de Seraing (C-393/04), Province de Liège (C-41/05)

Re:

References for a preliminary ruling — Cour d'appel de Liège, Tribunal de première instance de Liège — Interpretation of Articles 25 EC, 87 EC and 90 EC — State aid — Exemption from a municipal tax and a provincial tax on motive force solely for motors used for the distribution of natural gas, to the exclusion of motors used in the distribution of industrial gas

Operative part of the judgment

| 1. | The exemption from a municipal or provincial tax on motive force granted solely in respect of motors used in natural gas stations, to the exclusion of motors used for other industrial gases, may be regarded as State aid within the meaning of Article 87 EC. It is for the referring courts to establish whether the conditions relating to the existence of State aid are met. |
| --- | --- |

1.

The exemption from a municipal or provincial tax on motive force granted solely in respect of motors used in natural gas stations, to the exclusion of motors used for other industrial gases, may be regarded as State aid within the meaning of Article 87 EC. It is for the referring courts to establish whether the conditions relating to the existence of State aid are met.

| 2. | The fact that a tax exemption, such as that at issue in the main proceedings, may be unlawful in the light of Community law on State aid does not affect the legality of the tax itself, so that undertakings liable to pay such a tax cannot rely before national courts on the argument that the exemption was unlawful, in order to avoid payment of the tax or to obtain reimbursement of it. |
| --- | --- |

2.

The fact that a tax exemption, such as that at issue in the main proceedings, may be unlawful in the light of Community law on State aid does not affect the legality of the tax itself, so that undertakings liable to pay such a tax cannot rely before national courts on the argument that the exemption was unlawful, in order to avoid payment of the tax or to obtain reimbursement of it.

| 3. | A tax on motive force, levied in particular on motors used for transporting industrial gas through very high pressure pipes, does not constitute a charge having equivalent effect within the meaning of Article 25 EC. |
| --- | --- |

3.

A tax on motive force, levied in particular on motors used for transporting industrial gas through very high pressure pipes, does not constitute a charge having equivalent effect within the meaning of Article 25 EC.

| 4. | A tax on motive force, levied in particular on motors used for transporting industrial gas through very high pressure pipes, does not constitute discriminatory internal taxation for the purposes of Article 90 EC. |
| --- | --- |

4.

A tax on motive force, levied in particular on motors used for transporting industrial gas through very high pressure pipes, does not constitute discriminatory internal taxation for the purposes of Article 90 EC.

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(1)  OJ C 273, 06.11.2004.

OJ C 93, 16.04.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/4 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/4

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Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Axel Kittel v Belgian State

(Joined Cases C-439/04 and C-440/04) (1)

(Sixth VAT Directive - Deduction of input tax - ‘Carousel’ fraud - Contract of sale incurably void under domestic law)

(2006/C 212/07)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: Axel Kittel (C-439/04) Belgian State (C-440/04)

Defendants: Belgian State (C-439/04) Recolta Recycling SPRL (C-440-04)

Re:

Reference for a preliminary ruling — Belgian Cour de Cassation — Interpretation 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 (OJ 1977 L 145, p. 1) — Principle of fiscal neutrality — Supplies of goods under a contract of sale which is incurably void — Carousel fraud — Loss of the right to deduct for a purchaser in good faith

Operative part of the judgment

Where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller, Article 17 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, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that it precludes a rule of national law under which the fact that the contract of sale is void — by reason of a civil law provision which renders that contract incurably void as contrary to public policy for unlawful basis of the contract attributable to the seller — causes that taxable person to lose the right to deduct the value added tax he has paid. It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of value added tax or to other fraud.

By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it is for the national court to refuse that taxable person entitlement to the right to deduct.

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(1)  OJ C 6, 08.01.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/5 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/5

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Judgment of the Court (Fourth Chamber) of 29 June 2006 — Commission of the European Communities v Italian Republic

(Case C-487/04) (1)

(Failure of a Member State to fulfil obligations - Council Regulation (EC) No 1255/1999 and Commission Regulation (EC) No 2799/1999 - Milk and milk products - Skimmed-milk powder - System of traceability of skimmed-milk powder)

(2006/C 212/08)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Bordes and C. Cattabriga, Agents)

Defendant: Italian Republic (represented by: D. Del Gaizo, Agent and D. Del Gaizo, avvocato)

Re:

Failure of a Member State to fulfil obligations — Infringement of Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (OJ 1999 L 160, p. 48) and Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3) — Institution of a system of traceability of milk powder not provided for by Community legislation

Operative part of the judgment

The Court hereby:

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

1.

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

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

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 31 of 05.02.2005

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/5 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/5

---

Judgment of the Court (Third Chamber) of 15 June 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Heintz van Landewijck SARL v Staatssecretaris van Financiën

(Case C-494/04) (1)

(Tax provisions - Harmonisation of laws - Directive 92/12/EEC - Excise duty - Tax stamps - Sixth VAT Directive - Articles 2 and 27 - Disappearance of excise stamps)

(2006/C 212/09)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Heintz van Landewijck SARL

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 27(1) and (5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Ninth Directive 78/583/EEC (OJ 1978 L 194, p. 16) — Interpretation of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1) — Compatibility of national law with Community law — Tax labels for tobacco products — Disappearance before use

Operative part of the judgment

The Court:

| 1. | Neither Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products nor the principle of proportionality preclude Member States from adopting legislation which does not provide for reimbursement of the amount of excise duty paid, where the excise stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, which thereby places the financial responsibility for the loss of tax stamps on the purchaser. |
| --- | --- |

1.

Neither Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products nor the principle of proportionality preclude Member States from adopting legislation which does not provide for reimbursement of the amount of excise duty paid, where the excise stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, which thereby places the financial responsibility for the loss of tax stamps on the purchaser.

| 2. | Article 27(5) 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 must be interpreted as meaning that failure to observe the period for notification does not constitute a material procedural defect capable of rendering inapplicable a derogating measure which was notified late. |
| --- | --- |

2.

Article 27(5) 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 must be interpreted as meaning that failure to observe the period for notification does not constitute a material procedural defect capable of rendering inapplicable a derogating measure which was notified late.

| 3. | Article 27(1) and (5) of Sixth Directive 77/388 must be interpreted as meaning that a derogating scheme for collecting VAT by means of tax stamps, such as that established by Article 28 of the Law on turnover tax of 28 June 1968 (Wet op de omzetbelasting), is compatible with the requirements laid down by the provisions of the directive and does not exceed what is necessary for the simplification of the procedure for charging the tax. |
| --- | --- |

3.

Article 27(1) and (5) of Sixth Directive 77/388 must be interpreted as meaning that a derogating scheme for collecting VAT by means of tax stamps, such as that established by Article 28 of the Law on turnover tax of 28 June 1968 (Wet op de omzetbelasting), is compatible with the requirements laid down by the provisions of the directive and does not exceed what is necessary for the simplification of the procedure for charging the tax.

| 4. | The absence of an obligation to reimburse amounts paid for the purchase of excise stamps which correspond to VAT, where those stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, is not incompatible with Sixth Directive 77/388 and, in particular, with Article 27(1) and (5) thereof. |
| --- | --- |

4.

The absence of an obligation to reimburse amounts paid for the purchase of excise stamps which correspond to VAT, where those stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, is not incompatible with Sixth Directive 77/388 and, in particular, with Article 27(1) and (5) thereof.

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(1)  OJ C 45, 19.02.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/6 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/6

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Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-24/05 P) (1)

(Appeal - Community trade mark - Article 7(1)(b) and (3) of Regulation (EC) No 40/94 - Absolute ground for refusal to register - Three-dimensional mark - Three-dimensional shape of a light-brown sweet - Distinctive character)

(2006/C 212/10)

Language of the case: German

Parties

Appellant: August Storck KG (represented by: I. Rohr, H. Wrage-Molkenthin and T. Reher, Lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 10 November 2004 in Case T-396/02 Storck v OHIM, whereby the Court of First Instance dismissed the action for annulment of the refusal to register a three-dimensional trade mark consisting of the shape of a light-brown sweet for confectionery within Class 30 — Distinctive character of a trade mark — Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders August Storck KG to pay the costs. |
| --- | --- |

2.

Orders August Storck KG to pay the costs.

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(1)  OJ C 69, 19.03.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/7 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/7

---

Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-25/05 P) (1)

(Appeal - Community trade mark - Article 7(1)(b) and (3) of Regulation (EC) No 40/94 - Absolute ground for refusal to register - Figurative mark - Representation of a gold-coloured sweet wrapper - Distinctive character)

(2006/C 212/11)

Language of the case: German

Parties

Appellant: August Storck KG (represented by: I. Rohr, H. Wrage-Molkenthin and T. Reher, Lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 10 November 2004 in Case T-402/02 Storck v OHIM, whereby the Court of First Instance dismissed the action for annulment of the refusal to register a figurative mark consisting of the representation of a sweet wrapper with twisted ends for confectionery within Class 30 — Distinctive character of a trade mark — Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders August Storck KG to pay the costs. |
| --- | --- |

2.

Orders August Storck KG to pay the costs.

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(1)  OJ C 69, 19.03.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/7 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/7

---

Judgment of the Court (Third Chamber) of 6 July 2006 — Commission of the European Communities v Portuguese Republic

(Case C-53/05) (1)

(Failure of a Member State to fulfil obligations - Directive 92/100/EEC - Copyright - Rental and lending right - Failure to transpose within the prescribed period)

(2006/C 212/12)

Language of the case: Portugese

Parties

Applicant: Commission of the European Communities (represented by: P. Andrade and W.Wils, agents)

Defendant: Portugese Republic (represented by: L. Fernandes and N. Gonçalves, agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61)

Operative part of the judgment

The Court hereby:

| 1. | Declares that, by exempting all categories of public lending establishments from the obligation to pay remuneration to authors for public lending, the Portuguese Republic has failed to fulfil its obligations under Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. |
| --- | --- |

1.

Declares that, by exempting all categories of public lending establishments from the obligation to pay remuneration to authors for public lending, the Portuguese Republic has failed to fulfil its obligations under Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

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

2.

Orders the Portugese Republic to pay the costs.

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(1)  OJ C 82, 02.04.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/8 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/8

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Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — J.J. Kersbergen-Lap, D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen

(Case C-154/05) (1)

(Social security for migrant workers - Regulation (EEC) No 1408/71 - Article 4(2a), Article 10a and Annex IIa - Special non-contributory benefits - Netherlands benefit for disabled young people - Non-exportability)

(2006/C 212/13)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Applicants: J.J.Kersbergen-Lap, D. Dams-Schipper

Defendant: Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen

Re:

Reference for a preliminary ruling — Rechtbank Amsterdam — Interpretation of Articles 4(2a) and10a of and Annex IIa to Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), as amended by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p.1) — Special non-contributory benefits — System of coordination laid down under Article 10a of Regulation No 1408/71 — Field of application — Whether or not a benefit for young disabled people mentioned in Annex IIa to Regulation No 1408/71 is included — Recipients resident outside the Netherlands

Operative part of the judgment

A benefit under the Wet arbeidsongeschiktheidsvoorziening jonggehandicapten of 24 April 1997 (law on provision of incapacity benefit to disabled young people) must be regarded as a special non-contributory benefit, as referred to in Article 4(2a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 307/1999 of 8 February 1999, with the result that only the coordinating provision in Article 10a of that regulation must be applied and that benefit cannot be paid to any person residing outside the Netherlands.

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(1)  OJ C 155, 25.06.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/8 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/8

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Judgment of the Court (First Chamber) of 6 July 2006 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) — Talacre Beach Caravan Sales Ltd v Commissioners of Customs & Excise

(Case C-251/05) (1)

(Sixth VAT Directive - Article 28 - Exemption with refund of the tax paid - Sale of goods taxed at zero-rate fitted with goods taxed at the standard rate - Residential caravans - Single supply)

(2006/C 212/14)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Talacre Beach Caravan Sales Ltd

Defendant: Commissioners of Customs & Excise

Re:

Reference for a preliminary ruling — Court of Appeal (Civil Division) — Interpretation of Article 28(2)(a) 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 (OJ 1977 L 145, p. 1) — Zero-rated goods (caravans) supplied with standard-rated items — Criteria for determining whether the transaction must be regarded as a single supply for the purposes of VAT

Operative part of the judgment

The fact that specific goods are counted as a single supply, including both a principal item which is by virtue of a Member State's legislation subject to an exemption with refund of the tax paid within the meaning of Article 28(2)(a) of the 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, as amended by Council Directive 92/77/EEC of 19 October 1992 supplementing the common system of value added tax and amending Directive 77/388/EEC (approximation of VAT rates), and items which that legislation excludes from the scope of that exemption, does not prevent the Member State concerned from levying VAT at the standard rate on the supply of those excluded items.

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(1)  OJ C 205, 20.08.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/9 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/9

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Appeal brought on 29 May 2006 by Develey Holding GmbH & Co. Beteiligungs KG against the judgment delivered by the Court of First Instance (Second Chamber) on 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-238/06 P)

(2006/C 212/15)

Language of the case: German

Parties

Appellant: Develey Holding GmbH & Co. Beteiligungs KG (represented by: H. Kunz-Hallstein)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | Annul the judgment of the Court of First Instance of 15 March 2006 in Case T-129/04 (1); |
| --- | --- |

—

Annul the judgment of the Court of First Instance of 15 March 2006 in Case T-129/04 (1);

| — | Annul the decision of the Second Board of Appeal of OHIM of 20 January 2004 (Case R367/2003-2); |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM of 20 January 2004 (Case R367/2003-2);

| — | In the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

—

In the alternative, refer the case back to the Court of First Instance;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs for the first-instance proceedings and the appeal. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs for the first-instance proceedings and the appeal.

Pleas in law and main arguments

The appellant substantiates its appeal against the abovementioned judgment of the Court of First Instance as follows:

| 1. | In accordance with the theory relating to standards which is now generally recognised and also acknowledged with regard to proceedings before the Court, it corresponds to the basic rules concerning burden of proof that a party which is relying on a standard has to prove the factual premises thereof. That applies in particular to reliance on exceptions, which always have to be interpreted strictly according to the case-law of the Court. As OHIM relied on an exception in refusing protection it was thus obliged to prove the existence of the facts constituting the exception. |
| --- | --- |

1.

In accordance with the theory relating to standards which is now generally recognised and also acknowledged with regard to proceedings before the Court, it corresponds to the basic rules concerning burden of proof that a party which is relying on a standard has to prove the factual premises thereof. That applies in particular to reliance on exceptions, which always have to be interpreted strictly according to the case-law of the Court. As OHIM relied on an exception in refusing protection it was thus obliged to prove the existence of the facts constituting the exception.

| 2. | In the present case there is not just an earlier national registration, but also an earlier national registration by a Member State of both the EU and the Paris Convention for the Protection of Industrial Property (PC) within the meaning of Article 6 quinquies (A) PC which can only be denied protection under the rules relating to exceptions in Article 6 quinquies (B) PC. The special right in Article 6 quinquies (A)(1) prevents the defendant from declaring that the application is not capable of being protected at least as regards the territory of the Member State in which the identical union trade mark enjoys protection. The defendant, however, based its decision on a lack of distinctive character in the Community and thus also in the territory of the Federal Republic of Germany: to that extent the defendant is declaring a registration made by a State signatory to the Paris Convention to be invalid. In this case it is not sufficient for OHIM to rely completely on the independence of 'national', namely German, legislation as the proprietor of a mark of a State signatory to the Paris Convention may demand more than treatment under domestic law. Rather, that assessment must take place in the light of Article 6 quinquies (A) PC. |
| --- | --- |

2.

In the present case there is not just an earlier national registration, but also an earlier national registration by a Member State of both the EU and the Paris Convention for the Protection of Industrial Property (PC) within the meaning of Article 6 quinquies (A) PC which can only be denied protection under the rules relating to exceptions in Article 6 quinquies (B) PC. The special right in Article 6 quinquies (A)(1) prevents the defendant from declaring that the application is not capable of being protected at least as regards the territory of the Member State in which the identical union trade mark enjoys protection. The defendant, however, based its decision on a lack of distinctive character in the Community and thus also in the territory of the Federal Republic of Germany: to that extent the defendant is declaring a registration made by a State signatory to the Paris Convention to be invalid. In this case it is not sufficient for OHIM to rely completely on the independence of 'national', namely German, legislation as the proprietor of a mark of a State signatory to the Paris Convention may demand more than treatment under domestic law. Rather, that assessment must take place in the light of Article 6 quinquies (A) PC.

| 3. | As regards proof of lack of distinctive character, the Court of First Instance stated that OHIM complied with its obligation at least in so far as it correctly referred to general experience of life. The argument relating to general experience of life cannot, however, serve as a way of avoiding the fact that there has been failure to prove the facts. The Court of First Instance also wrongfully examined the issue of lack of distinctive character solely on the basis of Article 7(1)(b) of Regulation No 40/94 and completely disregarded Article 6 quinquies (B) PC. |
| --- | --- |

3.

As regards proof of lack of distinctive character, the Court of First Instance stated that OHIM complied with its obligation at least in so far as it correctly referred to general experience of life. The argument relating to general experience of life cannot, however, serve as a way of avoiding the fact that there has been failure to prove the facts. The Court of First Instance also wrongfully examined the issue of lack of distinctive character solely on the basis of Article 7(1)(b) of Regulation No 40/94 and completely disregarded Article 6 quinquies (B) PC.

| 4. | The Court of First Instance neither examined the distinctive character on the basis of the goods in respect of which registration of the mark was actually sought nor accurately determined the overall impression of the marks. It also drew no distinction between individual goods. The Court of First Instance overlooked the fact that the use of design as an indicator of origin also serves the needs of consumers: the shape of the packaging provides them with their only possibility of pre-selecting it in supermarkets where numerous bottles with the same contents are lined up on a shelf. |
| --- | --- |

4.

The Court of First Instance neither examined the distinctive character on the basis of the goods in respect of which registration of the mark was actually sought nor accurately determined the overall impression of the marks. It also drew no distinction between individual goods. The Court of First Instance overlooked the fact that the use of design as an indicator of origin also serves the needs of consumers: the shape of the packaging provides them with their only possibility of pre-selecting it in supermarkets where numerous bottles with the same contents are lined up on a shelf.

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(1)  OJ C 108, p. 20

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/10 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/10

---

Reference for a preliminary ruling from the Hanseatisches Oberlandesgericht (Germany) lodged on 30 May 2006 — Lämmerzahl GmbH v Freie Hansestadt Bremen

(Case C-241/06)

(2006/C 212/16)

Language of the case: German

Referring court

Hanseatisches Oberlandesgericht

Parties to the main proceedings

Applicant: Lämmerzahl GmbH

Defendant: Freie Hansestadt Bremen

Question(s) referred

| 1. | Is it compatible with Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (1), in particular Article 1(1) and (3), for a tenderer to be generally barred from gaining access to a review of a contracting authority's decision to award public contracts because the tenderer wrongfully failed to raise an irregularity in the award procedure within the time-limit laid down for that purpose in national law, where the irregularity relates






  (a) | to the form of invitation to tender selected
  or |
| --- | --- | --- |

1.

Is it compatible with Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (1), in particular Article 1(1) and (3), for a tenderer to be generally barred from gaining access to a review of a contracting authority's decision to award public contracts because the tenderer wrongfully failed to raise an irregularity in the award procedure within the time-limit laid down for that purpose in national law, where the irregularity relates

(a)

to the form of invitation to tender selected

or

| (b) | to the correctness of the determination of the contract price (the estimate is obviously wrong or the method of determination is not sufficiently transparent)
  and a review of other irregularities in the award procedure that — considered in isolation — would not be time-barred would be permissible on the basis of the contract price correctly determined or to be determined? |
| --- | --- |

(b)

to the correctness of the determination of the contract price (the estimate is obviously wrong or the method of determination is not sufficiently transparent)

and a review of other irregularities in the award procedure that — considered in isolation — would not be time-barred would be permissible on the basis of the contract price correctly determined or to be determined?

| 2. | Should the details in a tender notice relevant to determination of the contract price be subject to any special requirements so as to enable the conclusion to be drawn from irregularities relating to the estimated contract price that the protection of primary law is generally precluded even if the correctly estimated contract price exceeds the relevant threshold amount? |
| --- | --- |

2.

Should the details in a tender notice relevant to determination of the contract price be subject to any special requirements so as to enable the conclusion to be drawn from irregularities relating to the estimated contract price that the protection of primary law is generally precluded even if the correctly estimated contract price exceeds the relevant threshold amount?

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(1)  OJ L 209, p. 1.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/10 |
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2.9.2006

EN

Official Journal of the European Union

C 212/10

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Reference for a preliminary ruling from the Raad van State, (Netherlands) lodged on 29 May 2006 — Minister voor Vreemdelingenzaken en Integratie and T. Sahin — against the judgment of the Rechtbank 's-Gravenhage in Case AWB 04/45792

(Case C-242/06)

(2006/C 212/17)

Language of the case: Dutch

Referring court

Raad van State, Netherlands

Parties to the main proceedings

Appellants: Minister voor Vreemdelingenzaken en Integratie, T. Sahin

Questions referred

| 1(a). | In the light of paragraphs 81 and 84 of the judgment in Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I-12301, is Article 13 of Decision No 1/80 concerning the development of the Association to be construed as meaning that an alien, a Turkish national, who has complied with the rules for first admission and residence in the country and from 14 December 2000 to 2 October 2002 was legally employed by various employers, but failed to request in due time the extension of the period of validity of his residence permit, as a result of which after the expiry of the permit and at the time of the application for its extension, under national law, he was neither legally resident nor entitled to work in the country, can rely on that provision? |
| --- | --- |

1(a).

In the light of paragraphs 81 and 84 of the judgment in Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I-12301, is Article 13 of Decision No 1/80 concerning the development of the Association to be construed as meaning that an alien, a Turkish national, who has complied with the rules for first admission and residence in the country and from 14 December 2000 to 2 October 2002 was legally employed by various employers, but failed to request in due time the extension of the period of validity of his residence permit, as a result of which after the expiry of the permit and at the time of the application for its extension, under national law, he was neither legally resident nor entitled to work in the country, can rely on that provision?

| 1(b). | Is the reply to Question 1(a) affected by the fact that an application for extension not lodged by an alien in due time which is received within six months of the expiry of the period of validity of the residence permit, although under national law this application is treated as an application for the grant of a first residence permit, is examined in the light of the requirements laid down for authorisation of continued residence and the alien is allowed to await the decision on the application in the country? |
| --- | --- |

1(b).

Is the reply to Question 1(a) affected by the fact that an application for extension not lodged by an alien in due time which is received within six months of the expiry of the period of validity of the residence permit, although under national law this application is treated as an application for the grant of a first residence permit, is examined in the light of the requirements laid down for authorisation of continued residence and the alien is allowed to await the decision on the application in the country?

| 2(a). | Is the word ‘restriction’ in Article 13 of Decision No 1/80 to be understood to include the requirement upon an alien, a Turkish national, to whom Decision No 1/80 applies, to pay administrative charges in connection with the processing of an application for the extension of the period of validity of a residence permit, failing which payment his application will not be considered, in accordance with Article 24(2) of the Vw 2000? |
| --- | --- |

2(a).

Is the word ‘restriction’ in Article 13 of Decision No 1/80 to be understood to include the requirement upon an alien, a Turkish national, to whom Decision No 1/80 applies, to pay administrative charges in connection with the processing of an application for the extension of the period of validity of a residence permit, failing which payment his application will not be considered, in accordance with Article 24(2) of the Vw 2000?

| 2(b). | Is the reply to question 2(a) different if the amount of the charges for processing the application does not exceed the costs? |
| --- | --- |

2(b).

Is the reply to question 2(a) different if the amount of the charges for processing the application does not exceed the costs?

| 3. | Must Article 13 of Decision No 1/80, which also serves to implement the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey (1), read in conjunction with Article 59 of that Protocol, be interpreted as meaning that the amount of the administrative charges (EUR 169.00 for the alien at the relevant time) for Turkish nationals who fall within the scope of Decision No 1/80, payable in connection with the processing of an application for the grant or extension of a residence permit, may not exceed the amount of the charge (EUR 30.00) that can be levied on nationals of the European Community for the processing of an application for examination in the light of Community law and the issue of the corresponding residence document (see Article 9(1) of Directive 68/360/EEC (2) and Article 25(2) of Directive 2004/38/EC (3))? |
| --- | --- |

3.

Must Article 13 of Decision No 1/80, which also serves to implement the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey (1), read in conjunction with Article 59 of that Protocol, be interpreted as meaning that the amount of the administrative charges (EUR 169.00 for the alien at the relevant time) for Turkish nationals who fall within the scope of Decision No 1/80, payable in connection with the processing of an application for the grant or extension of a residence permit, may not exceed the amount of the charge (EUR 30.00) that can be levied on nationals of the European Community for the processing of an application for examination in the light of Community law and the issue of the corresponding residence document (see Article 9(1) of Directive 68/360/EEC (2) and Article 25(2) of Directive 2004/38/EC (3))?

---

(1)  JO 1972 L 293, p. 1.

(2)  Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, EnglishSpecial Edition 1968(II), p. 485).

(3)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory ofthe Member States amending Regulation (EEC) No 1612/68 and repealing Directives64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/11 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/11

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Reference for a preliminary ruling from the Tribunal de commerce de Charleroi lodged on 30 May 2006 — SA Sporting du Pays de Charleroi, G-14 Groupment des clubs de football européens v Fédération internationale de football association (FIFA)

(Case C-243/06)

(2006/C 212/18)

Language of the case: French

Referring court

Tribunal de commerce de Charleroi

Parties to the main proceedings

Applicants: SA Sporting du Pays de Charleroi, G-14 Groupment des clubs de football européens

Defendant: Fédération internationale de football association (FIFA)

Question referred

Do the obligations on clubs and football players having employment contracts with those clubs imposed by the provisions of FIFA's statutes and regulations providing for the obligatory release of players to national federations without compensation and the unilateral and binding determination of the coordinated international match calendar constitute unlawful restrictions of competition or abuses of a dominant position or obstacles to the exercise of the fundamental freedoms conferred by the EC Treaty and are they therefore contrary to Articles 81 and 82 of the Treaty or to any other provision of Community law, particularly Articles 39 and 49 of the Treaty?

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/11 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/11

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Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 2 June 2006 — Josefa Velasco Navarro v Fondo de Garantia Salarial (Fogasa)

(Case C-246/06)

(2006/C 212/19)

Language of the case: Spanish

Referring court

Juzgado de lo Social Único de Algeciras

Parties to the main proceedings

Applicant: Josefa Velasco Navarro

Defendant: Fondo de Garantia Salarial (Fogasa)

Questions referred

| 1. | Where it has been found by the national court that the domestic legislation, which is incomplete, did not comply, on 8 October 2005, with Directive 2002/74 (1) and its interpretation by the Court of Justice (with regard to the Community principle of equal treatment) in the order of 13 December 2005 (Case C-177/05), must that directive be regarded as having direct effect as regards FOGASA, the State guarantee institution, with effect from the following day (9 October 2005)? |
| --- | --- |

1.

Where it has been found by the national court that the domestic legislation, which is incomplete, did not comply, on 8 October 2005, with Directive 2002/74 (1) and its interpretation by the Court of Justice (with regard to the Community principle of equal treatment) in the order of 13 December 2005 (Case C-177/05), must that directive be regarded as having direct effect as regards FOGASA, the State guarantee institution, with effect from the following day (9 October 2005)?

| 2. | If the answer to Question 1 is in the affirmative, is the direct effect of Directive 2002/74/EC to apply also, because it is most beneficial to the worker (and least beneficial to the State which has failed to fulfil its obligations), to a declared state of insolvency, following a court conciliation agreement not provided for in the incomplete domestic legislation — between the date of the entry into force of the directive (8 October 2002) and the date by which the Spanish State was to adopt the laws, regulations and administrative provisions necessary to comply with the provisions of the directive (8 October 2005)? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative, is the direct effect of Directive 2002/74/EC to apply also, because it is most beneficial to the worker (and least beneficial to the State which has failed to fulfil its obligations), to a declared state of insolvency, following a court conciliation agreement not provided for in the incomplete domestic legislation — between the date of the entry into force of the directive (8 October 2002) and the date by which the Spanish State was to adopt the laws, regulations and administrative provisions necessary to comply with the provisions of the directive (8 October 2005)?

---

(1)  Directive 2002/74 of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC on the approximation of laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 2002 L 270, p. 10)

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/12 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/12

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Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 6 June 2006 — United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL v Belgian State

(Case C-250/06)

(2006/C 212/20)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicants: United Pan-Europe Communications Belgium SA, Coditel Brabant SA, Société intercommunale pour la Diffusion de la Télévision Brutele, Wolu TV ASBL

Defendant: Belgian State

Questions referred

| 1. | Must the obligation imposed on undertakings which distribute television programmes by cable to distribute certain pre-determined programmes be interpreted as conferring on the programmes' authors a ‘special right’ within the meaning of Article 86 EC? |
| --- | --- |

1.

Must the obligation imposed on undertakings which distribute television programmes by cable to distribute certain pre-determined programmes be interpreted as conferring on the programmes' authors a ‘special right’ within the meaning of Article 86 EC?

| 2. | If the first question is to be answered in the affirmative, must the rules referred to at the end of Article 86(1) EC (namely ‘the rules contained in this Treaty, in particular ... those rules provided for in Articles 12 and Articles 81 to 89’) be interpreted as not permitting Member States to require undertakings which distribute television programmes by cable to distribute certain television programmes by private broadcasting organisations, but ‘falling under’ (within the meaning of the Belgian Law of 30 March 1995 on broadcasting distributors networks and the pursuit of broadcasting activities in the bilingual region of Bruxelles-Capitale) specified public powers of that State, with the result that the number of programmes coming from other Member States or non-members of the European Union and of organisations not falling under those public powers has fallen by the number of programmes covered by the ‘must carry’ obligation? |
| --- | --- |

2.

If the first question is to be answered in the affirmative, must the rules referred to at the end of Article 86(1) EC (namely ‘the rules contained in this Treaty, in particular ... those rules provided for in Articles 12 and Articles 81 to 89’) be interpreted as not permitting Member States to require undertakings which distribute television programmes by cable to distribute certain television programmes by private broadcasting organisations, but ‘falling under’ (within the meaning of the Belgian Law of 30 March 1995 on broadcasting distributors networks and the pursuit of broadcasting activities in the bilingual region of Bruxelles-Capitale) specified public powers of that State, with the result that the number of programmes coming from other Member States or non-members of the European Union and of organisations not falling under those public powers has fallen by the number of programmes covered by the ‘must carry’ obligation?

| 3. | Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists from the time a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is liable to impede directly or indirectly, actually or potentially, the provision of services from another Member State to recipients of those services in the first Member State, which will be the case where, on account of that measure, the service provider finds itself in an unfavourable position when negotiating for access to those networks? |
| --- | --- |

3.

Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists from the time a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is liable to impede directly or indirectly, actually or potentially, the provision of services from another Member State to recipients of those services in the first Member State, which will be the case where, on account of that measure, the service provider finds itself in an unfavourable position when negotiating for access to those networks?

| 4. | Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists because a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is granted only to undertakings established in that Member State in the majority of cases, owing to the place of establishment of those benefiting from the measure or the fact that they have some other link to that Member State — while there is no justification for such a barrier based on overriding reasons of public interest in compliance with the principle of proportionality? |
| --- | --- |

4.

Must Article 49 EC be interpreted as meaning that a prohibited barrier to the freedom to provide services exists because a measure taken by a Member State, in the present case the obligation to retransmit television programmes over cable distribution networks, is granted only to undertakings established in that Member State in the majority of cases, owing to the place of establishment of those benefiting from the measure or the fact that they have some other link to that Member State — while there is no justification for such a barrier based on overriding reasons of public interest in compliance with the principle of proportionality?

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/13 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/13

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Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria) lodged on 6 June 2006 — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr

(Case C-251/06)

(2006/C 212/21)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicant: Firma Ing. Auer — Die Bausoftware GmbH

Defendant: Finanzamt Freistadt Rohrbach Urfahr

Questions referred

| 1. | If the effective centre of management of a company, firm, association or legal person is transferred from a Member State which has abolished capital duty before its formation to another Member State which charges capital duty at that time, is that company, firm, association or legal person precluded from being classified as a capital company ‘for the purposes of charging capital duty’ within the meaning of Article 4(1)(g) of Directive 69/335/EEC (1) of 17 July 1969 as amended by Directive 85/303/EEC (2) of 10 June 1985 and Article 4(3)(b) of Directive 69/335/EEC of 17 July 1969 as amended by Directive 85/303/EEC of 10 June 1985 by the fact that the first mentioned Member State has waived the charging of capital duty by repealing the relevant national legal basis for that duty? |
| --- | --- |

1.

If the effective centre of management of a company, firm, association or legal person is transferred from a Member State which has abolished capital duty before its formation to another Member State which charges capital duty at that time, is that company, firm, association or legal person precluded from being classified as a capital company ‘for the purposes of charging capital duty’ within the meaning of Article 4(1)(g) of Directive 69/335/EEC (1) of 17 July 1969 as amended by Directive 85/303/EEC (2) of 10 June 1985 and Article 4(3)(b) of Directive 69/335/EEC of 17 July 1969 as amended by Directive 85/303/EEC of 10 June 1985 by the fact that the first mentioned Member State has waived the charging of capital duty by repealing the relevant national legal basis for that duty?

| 2. | Does Article 7(2) of Directive 69/335/EEC of 17 July 1969 as amended by Directive 85/303/EEC of 10 June 1985 prohibit the Member State to which a capital company transfers the effective centre of management, on the occasion of the transfer of the effective centre of management, from charging capital duty on the transactions described in Article 4(1)(a) and (g) of Directive 69/335/EEC of 17 July 1969 as amended by Directive 85/303/EEC of 10 June 1985 if the transactions took place at the time when the capital company had its effective centre of management in a Member State which, prior to the formation of the capital company, had waived the charging of capital duty by repealing the relevant national legal basis for that duty? |
| --- | --- |

2.

Does Article 7(2) of Directive 69/335/EEC of 17 July 1969 as amended by Directive 85/303/EEC of 10 June 1985 prohibit the Member State to which a capital company transfers the effective centre of management, on the occasion of the transfer of the effective centre of management, from charging capital duty on the transactions described in Article 4(1)(a) and (g) of Directive 69/335/EEC of 17 July 1969 as amended by Directive 85/303/EEC of 10 June 1985 if the transactions took place at the time when the capital company had its effective centre of management in a Member State which, prior to the formation of the capital company, had waived the charging of capital duty by repealing the relevant national legal basis for that duty?

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(1)  English special edition: Series I Chapter 1969 (II), p. 412.

(2)  OJ 1985 L 156, p. 23.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/13 |
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2.9.2006

EN

Official Journal of the European Union

C 212/13

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Reference for a preliminary ruling from the Cour d'appel de Bruxelles (Belgium) lodged on 7 June 2006 — Zürich Versicherungs-Gesellschaft v Bureau Benelux des marques

(Case C-254/06)

(2006/C 212/22)

Language of the case: French

Referring court

Cour d'appel de Bruxelles

Parties to the main proceedings

Applicant: Zürich Versicherungs-Gesellschaft

Defendant: Bureau Benelux des marques

Question referred

Are Articles 3 and 13 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (1), to be interpreted as not precluding national legislation from providing that a court hearing an appeal against a decision on an application for a trade mark registration may not check, in respect of each of the goods or services for which registration has been applied for, that none of the grounds for refusal of registration listed in Article 3(1) of the directive applies to the mark and thus reach different conclusions depending on the goods or services concerned, if the authority responsible for registering trade marks has merely issued a blanket refusal covering all the goods and services and, during the procedure before that authority, the applicant has not sought, in the alternative, partial registration for certain goods and services.

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(1)   OJ 1989 L 40, p. 1

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/14 |
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2.9.2006

EN

Official Journal of the European Union

C 212/14

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Appeal brought on 6 June 2006 by Yedas Tarim ve Otomotiv Sanayi ve Ticaret AŞ against the judgment of the Court of First Instance (Fifth Chamber) delivered on 30 March 2006 in Case T-367/03: Yedas Tarim ve Otomotiv Sanayi ve Ticaret AS v Council of the European Union and Commission of the European Communities

(Case C-255/06 P)

(2006/C 212/23)

Language of the case: English

Parties

Appellant: Yedaş Tarim ve Otomotiv Sanayi ve Ticaret AŞ (represented by: S. Sariibrahimoglu and R. Sinner, avocats)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities

Form of order sought

The Applicant claims that the Court should:

| — | Set aside the judgment of the Court of First Instance (Fifth Chamber) in the matter of Yedas v. Commission and Council (Case T-367/03) in its entirety, |
| --- | --- |

—

Set aside the judgment of the Court of First Instance (Fifth Chamber) in the matter of Yedas v. Commission and Council (Case T-367/03) in its entirety,

| — | Refer the case of Yedas back to the Court of First Instance to review the case, |
| --- | --- |

—

Refer the case of Yedas back to the Court of First Instance to review the case,

| — | Grant an oral procedure, |
| --- | --- |

—

Grant an oral procedure,

| — | Award costs to the Applicant. |
| --- | --- |

—

Award costs to the Applicant.

Pleas in law and main arguments

The applicant submits that the Court of First Instance erred in law by failing to give the Association Agreement between Turkey and the European Economic Community (‘the Ankara Agreement’) and Protocols any proper legal significance or effect, contrary to the settled case-law of the European Court of Justice and by wrongly determining that the principles and rules contained in the Ankara Agreement and protocols are not such as to constitute legal norms against which acts of the Community institutions can be measured. According to the Applicant the provisions of the Ankara Agreement are directly applicable and capable of conferring rights upon individuals.

The Applicant also submits that the Court of First Instance erred in law by failing to examine the argument that the Republic of Turkey was eligible to be treated, in the matter of assistance, on a par with States such as Spain, Portugal and Greece and by holding that the Community institutions had no duty to act with respect to the position of Greece in respect of allocation of financial support to Turkey.

Finally the Applicant submits that the Court of First Instance erred in its legal assessment that there was no causal link between the alleged unlawful conduct of the Community institution and the alleged damage suffered.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/14 |
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2.9.2006

EN

Official Journal of the European Union

C 212/14

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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 13 June 2006 — Roby Profumi Srl v Comune di Parma

(Case C-257/06)

(2006/C 212/24)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Roby Profumi Srl

Defendant: Comune di Parma

Question referred

Is Article 10(8) of Law No 713/1986, as amended by Article 9(4) of Legislative Decree No 126/1997, compatible with Article 28 of the EC Treaty and Article 7 of Directive 76/768/EEC (1), as amended by Directive 93/35/EEC (2)?

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(1)  OJ L 262 of 27.9.1976.

(2)  OJ L 151 of 23.6.1993.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/14 |
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2.9.2006

EN

Official Journal of the European Union

C 212/14

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References for a preliminary ruling from the Cour d'appel de Montpellier (France) lodged on 15 June 2006 — Daniel Pierre Raymond Escalier and Jean Louis François Bonnarel v Ministère public

(Case C-260/06 - Case C-261/06)

(2006/C 212/25)

Language of the case: French

Referring court

Cour d'appel de Montpellier

(3rd Criminal Chamber)

Parties to the main proceedings

Cross-appellant: Ministère public

Appellants: Daniel Pierre Raymond Escalier (C-260/06) and Jean Louis François Bonnarel (C-261/06)

Question referred

Where a Member State makes the importation of a plant protection product from another Member State in which the product has already been authorised to be placed on the market in accordance with Directive 91/414/EEC (1) subject to a simplified procedure for such authorisation in order to verify that the product imported meets the identity requirements laid down in Case C-100/96 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: British Agrochemicals Association Ltd [1999] ECR I-1499, is that Member State entitled to make an operator subject to that simplified authorisation procedure if:

| — | the importer is a farmer who is importing the product solely for the needs of his own farm, which are manifold but limited in quantity, and is therefore not placing it on the market in the commercial sense which that concept implies; |
| --- | --- |

—

the importer is a farmer who is importing the product solely for the needs of his own farm, which are manifold but limited in quantity, and is therefore not placing it on the market in the commercial sense which that concept implies;

| — | the simplified marketing authorisation procedure constituting import authorisation is personal to each operator/distributor, who is required to give the product imported its own brand name and is subject to a charge of EUR 800? |
| --- | --- |

—

the simplified marketing authorisation procedure constituting import authorisation is personal to each operator/distributor, who is required to give the product imported its own brand name and is subject to a charge of EUR 800?

If the reply to the first question is negative, can the judgment in Case C-212/03 Commission v France [2005] ECR I-4213 relating to personal imports of medicinal products by individuals be applied to the case of plant protection products imported by farmers solely for the needs of their own farms?

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(1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/15 |
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2.9.2006

EN

Official Journal of the European Union

C 212/15

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 15 June 2006 — Deutsche Telekom AG v Bundesrepublik Deutschland

(Case C-262/06)

(2006/C 212/26)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Deutsche Telekom AG

Defendant: Bundesrepublik Deutschland

Questions referred

| 1. | Are the first sentence of Article 27 of Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Article 16(1)(a) of Directive 2002/22/EC (2) of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) to be understood as meaning that a statutory requirement provided for under earlier national law for the authorisation of charges for the supply of voice telephony services to end-users by an undertaking with a dominant position in that market, and hence an administrative measure confirming that requirement, should be temporarily maintained? |
| --- | --- |

1.

Are the first sentence of Article 27 of Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Article 16(1)(a) of Directive 2002/22/EC (2) of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) to be understood as meaning that a statutory requirement provided for under earlier national law for the authorisation of charges for the supply of voice telephony services to end-users by an undertaking with a dominant position in that market, and hence an administrative measure confirming that requirement, should be temporarily maintained?

If the answer to the first question is in the negative:

| 2. | Does European Community law preclude such extensive continuation? |
| --- | --- |

2.

Does European Community law preclude such extensive continuation?

---

(1)  OJ 2002 L 108, p. 33.

(2)  OJ 2002 L 108, p. 51.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/15 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/15

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Action brought on 16 June 2006 — Commission of the European Communities v Portuguese Republic

(Case C-265/06)

(2006/C 212/27)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: A.Caeiros, Agent)

Defendant: Portuguese Republic

Form of order sought

| — | Declare that by prohibiting pursuant to Article 2(1) of Decree-Law no 40/2003 of 11 March 2003 the affixing of coloured film on windows of motor vehicles the Portuguese Republic has failed to fulfil its obligations under Articles 28 and 30 EC and Articles 11 and 13 of the EEA Agreement, as that prohibition hinders the marketing in Portugal of coloured film lawfully manufactured and/or marketed in another Member State or in a State signatory to the EEA Agreement; |
| --- | --- |

—

Declare that by prohibiting pursuant to Article 2(1) of Decree-Law no 40/2003 of 11 March 2003 the affixing of coloured film on windows of motor vehicles the Portuguese Republic has failed to fulfil its obligations under Articles 28 and 30 EC and Articles 11 and 13 of the EEA Agreement, as that prohibition hinders the marketing in Portugal of coloured film lawfully manufactured and/or marketed in another Member State or in a State signatory to the EEA Agreement;

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

—

Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The prohibition laid down in Article 2(1) of Decree-Law no 40/2003 of 11 March 2003 constitutes a measure having equivalent effect to a quantitative restriction on imports, contrary to Article 28 EC and Article 11 of the EEA Agreement, as it hinders in practice the marketing in Portugal of coloured film lawfully manufactured and /or marketed in another Member State or in a State signatory to the EEA Agreement. It is also not justified under Article 30 EC and Article 13 of the EEA Agreement.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/16 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/16

---

Reference for a preliminary ruling from Labour Court (Ireland) made on 19 June 2006 — Impact v Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport

(Case C-268/06)

(2006/C 212/28)

Language of the case: English

Referring court

Labour Court (Ireland)

Parties to the main proceedings

Applicant: Impact

Defendant: Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport

Questions referred

Question 1

In deciding a case at first instance under a provision of domestic law or in determining an appeal against such a decision, are the Rights Commissioners and the Labour Court required by any principle of Community law (in particular the principle of equivalence and effectiveness) to apply a directly effective provision of Council Directive 1999/70/EC of 28th June 1999 concerning the framework agreement of fixed-term work concluded by ETUC, UNICE and CEEP (1) in circumstances where:

| — | The Rights Commissioner and the Labour Court have not been given express jurisdiction to do so under the domestic law of the Member State including the provisions of domestic law transposing the Directive, |
| --- | --- |

—

The Rights Commissioner and the Labour Court have not been given express jurisdiction to do so under the domestic law of the Member State including the provisions of domestic law transposing the Directive,

| — | Individuals can pursue alternative claims arising out of a failure by their employer to apply the Directive to their individual circumstances before the High Court and |
| --- | --- |

—

Individuals can pursue alternative claims arising out of a failure by their employer to apply the Directive to their individual circumstances before the High Court and

| — | Individuals can pursue alternative claims before an ordinary Court of competent jurisdiction against the Member State seeking damages for loss suffered by them arising from the Member States failure to transpose the Directive on time? |
| --- | --- |

—

Individuals can pursue alternative claims before an ordinary Court of competent jurisdiction against the Member State seeking damages for loss suffered by them arising from the Member States failure to transpose the Directive on time?

Question 2.

If the answer to
  Question 1
  is in the Affirmative,

| (a) | Is Clause 4(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC unconditional and sufficiently precise in its terms as to be capable of being relied upon by individuals before their national courts?. |
| --- | --- |

(a)

Is Clause 4(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC unconditional and sufficiently precise in its terms as to be capable of being relied upon by individuals before their national courts?.

| (b) | Is Clauses 5(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC unconditional and sufficiently precise in its terms as to be capable of being relied upon by individuals before their national courts? |
| --- | --- |

(b)

Is Clauses 5(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC unconditional and sufficiently precise in its terms as to be capable of being relied upon by individuals before their national courts?

Question 3

Having regard to the Court's answers to
  Question 1
  and
  Question 2(b)

  does clause 5(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC preclude a Member State, acting in its capacity as an employer, from renewing a fixed term contract of employment for up to 8 years in the period after the said Directive should have been transposed and before the transposing legislation was enacted in domestic law where:

| — | on all previous occasions the contract had been renewed for shorter periods, and the employer requires the services of the employee for the extended period, |
| --- | --- |

—

on all previous occasions the contract had been renewed for shorter periods, and the employer requires the services of the employee for the extended period,

| — | the renewal for the extended period has the effect of circumventing the application to an individual of the full benefit of Clause 5 of the Framework Agreement when transposed into domestic law, and |
| --- | --- |

—

the renewal for the extended period has the effect of circumventing the application to an individual of the full benefit of Clause 5 of the Framework Agreement when transposed into domestic law, and

| — | there are no objective reasons unrelated to the employee's status as a fixed-term worker for such a renewal. |
| --- | --- |

—

there are no objective reasons unrelated to the employee's status as a fixed-term worker for such a renewal.

Question 4

If the answer to
  Question 1
  or
  Question 2
  is in the negative, is the Rights Commissioner and the Labour Court required by any provision of Community law (and in particular the obligation to interpret domestic law in light of the wording and purpose of a Directive so as to produce the result pursued by the Directive) to interpret provisions of domestic law enacted for the purpose of transposing Council Directive 1999/70/EC of 28th June 1999 concerning the framework agreement of fixed-term work concluded by ETUC, UNICE and CEEP as having retrospective effect to the date on which the said Directive should have been transposed where:

| — | The wording of the provision of domestic law does not expressly preclude such an interpretation, but, |
| --- | --- |

—

The wording of the provision of domestic law does not expressly preclude such an interpretation, but,

| — | A rule of domestic law governing the construction of statutes precludes such retrospective application unless there is a clear and unambiguous indication to the contrary? |
| --- | --- |

—

A rule of domestic law governing the construction of statutes precludes such retrospective application unless there is a clear and unambiguous indication to the contrary?

Question 5

If the answer to
  Question 1 or Question 4
  is in the affirmative, do the ‘employment conditions’ to which clause 4 of the Framework Agreement annexed to Directive 1990/70/EC refers include conditions of an employment contract relating to remuneration and pensions?

---

(1)  OJ L 175, p. 43

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/17 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/17

---

Action brought on 20 June 2006 — Commission of the European Communities v Republic of Austria

(Case C-270/06)

(2006/C 212/29)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk, Agent, B.Wägenbaur, lawyer)

Defendant: Republic of Austria

Form of order sought

| 1. | Declare, under Article 226(1) of the Treaty establishing the European Communities, that by requiring certain credit institutions which are affiliated to a central institution to hold with their central institution (in accordance with conditions laid down by the central institution) liquidity reserves corresponding to a certain percentage of their deposit funds and preventing them from investing their liquid assets with other European financial institutions, the Republic of Austria has failed to fulfil its obligations under Article 56(1) EC. |
| --- | --- |

1.

Declare, under Article 226(1) of the Treaty establishing the European Communities, that by requiring certain credit institutions which are affiliated to a central institution to hold with their central institution (in accordance with conditions laid down by the central institution) liquidity reserves corresponding to a certain percentage of their deposit funds and preventing them from investing their liquid assets with other European financial institutions, the Republic of Austria has failed to fulfil its obligations under Article 56(1) EC.

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

2.

Order the defendant to pay the costs.

Pleas in law and main arguments

Article 56(1) EC prohibits all national rules which restrict the movement of capital between Member States and between Member States and third countries. This prohibition goes beyond removing inequalities of treatment of participants in the financial markets on the basis of their nationality and includes generally every restriction which makes the exercise of that fundamental freedom less attractive. According to the case-law of the Court of Justice, measures taken by a Member State which are liable to dissuade its residents from raising loans or making investments in other Member States constitute restrictions on the movement of capital.

The Commission is of the view that the provision of the Austrian federal banking law requiring certain credit institutions which are affiliated to a central institution to keep a part of their liquidity reserves with their central institution constitutes a restriction on the free movement of capital. That legal obligation prevents prevents primary banks from investing with other European credit institutions a significant part of their liquid assets, corresponding to the obligatory deposit, and from achieving, by way of a cross-border transfer to another Member State, higher rates of return than those provided by the central institution.

The provision at issue of the Austrian federal banking law cannot be justified on the basis of the grounds explicitly mentioned in Article 58 EC, or on grounds of consumer protection or by other overriding reasons relating to the public interest.

According to the Commission the obligatory deposit at issue laid down in the law is not necessary for the purpose of consumer protection. First statutory rules to safeguard liquidity, which apply to all banks, already exist in Austria, and secondly, there are less restrictive means for ensuring sufficient liquidity, which do not impede or impede less the free movement of capital. The existing rule is even counter-productive in terms of consumer protection, since it prevents primary banks from investing their liquidity reserve abroad and possibly more profitably, in the interest of their customers. Furthermore there is no evidence at all to indicate that the insolvency of individual primary banks would necessarily trigger a chain reaction and bring about a run on the savings deposits of other primary banks in the sector. This catastrophic scenario is not convincing, as comparable systems in other Member States manage without compulsory statutory deposits, and have operated stably for many decades without this having led to a series of collapses of banks.

Since the present statutory obligation on the relevant credit institutions is equally unnecessary for the protection of the integrity and the good reputation of the Austrian financial sector and for the achievement of effective supervision of financial institutions, it constitutes a disproportionate restriction on the free movement of capital.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/18 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/18

---

Reference for a preliminary ruling from the Cour d'appel d'Angers (France) lodged on 26 June 2006 — EARL Mainelvo v Denkavit France SARL

(Case C-272/06)

(2006/C 212/30)

Language of the case: French

Referring court

Cour d'appel d'Angers

Parties to the main proceedings

Appellant: EARL Mainelvo

Respondent: Denkavit France SARL

Question referred

Is the immediate assignment by the farmer, under an integration contract concluded with a French company, which is a subsidiary of an international group producing and supplying feedstuffs for calves, of 67.63 to 71.35 % of the slaughter premium established by Council Regulation (EC) No 1254/1999 of 17 May 1999 (1) [on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21)], within the limits fixed by an internal inter-trade agreement between the national trade organisations representing integration undertakings and veal farmers, compatible with the objectives of market regulation and of ensuring a fair standard of living for the agricultural community stated in that regulation and with the internal market measures, established for those purposes and set out in Commission Regulation (EC) No 2342/1999 of 28 October 1999 (2) [laying down detailed rules for the application of Council Regulation (EC) No 1254/1999 on the common organisation of the market in beef and veal as regards premium schemes (OJ 1999 L 281, p. 30)]?

---

(1)  Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21).

(2)  Commission Regulation (EC) No 2342/1999 of 28 October 1999 laying down detailed rules for the application of Council Regulation (EC) No 1254/1999 on the common organisation of the market in beef and veal as regards premium schemes (OJ 1999 L 281, p. 30).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/18 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/18

---

Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 22 June 2006 — Auto Peter Petschenig GmbH v Toyota Frey Austria GmbH

(Case C-273/06)

(2006/C 212/31)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Auto Peter Petschenig Gmbh

Defendant: Toyota Frey Austria GmbH

Questions referred

| 1. | Is the first indent of Article 5(1)(1)(a) of Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) (1) to be interpreted as meaning that the mere entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) (2) and the consequent mere adjustment of a distribution system, which was in line with Regulation (EC) No 1475/95 and was exempt under that regulation, to meet the requirements for exemption of a selective distribution system in accordance with Regulation (EC) No 1400/2002 is to be regarded as necessitating reorganisation within the meaning of the first indent in the first paragraph of Article 5(3) of Regulation (EC) No 1475/95? |
| --- | --- |

1.

Is the first indent of Article 5(1)(1)(a) of Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) (1) to be interpreted as meaning that the mere entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) (2) and the consequent mere adjustment of a distribution system, which was in line with Regulation (EC) No 1475/95 and was exempt under that regulation, to meet the requirements for exemption of a selective distribution system in accordance with Regulation (EC) No 1400/2002 is to be regarded as necessitating reorganisation within the meaning of the first indent in the first paragraph of Article 5(3) of Regulation (EC) No 1475/95?

| 2. | If the answer to the first question is in the negative: Is the first indent in the first paragraph of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted as meaning that the mere loss — in relation to selective distribution systems — of the territorial protection previously afforded to authorised dealers, even if combined with the authorisation of repairers who are not authorised dealers in those makes, which was not previously allowed under Regulation (EC) 1475/95, represents reorganisation within the meaning of the first indent in the first paragraph of Article 5(3) of Regulation (EC) No 1475/95, or is it necessary to show that reorganising measures have actually been taken? |
| --- | --- |

2.

If the answer to the first question is in the negative: Is the first indent in the first paragraph of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted as meaning that the mere loss — in relation to selective distribution systems — of the territorial protection previously afforded to authorised dealers, even if combined with the authorisation of repairers who are not authorised dealers in those makes, which was not previously allowed under Regulation (EC) 1475/95, represents reorganisation within the meaning of the first indent in the first paragraph of Article 5(3) of Regulation (EC) No 1475/95, or is it necessary to show that reorganising measures have actually been taken?

---

(1)  OJ L 145, p. 25.

(2)  OJ L 203, p. 30.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/19 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/19

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Action brought on 23 June 2006 — Commission of the European Communities v Kingdom of Spain

(Case C-274/06)

(2006/C 212/32)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: H.Støvlbæk and R.Vidal Puig, Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that the Kingdom of Spain has failed to fulfil its obligations under Article 56 of the EC Treaty by maintaining in force measures limiting voting rights of public entities in Spanish undertakings in the energy sector, such as the measures provided for in Supplementary Provision no 27 to Law 55/1999 of 29 December on fiscal, administrative and social measures, as amended by Article 94 of Law 62/2003 of 30 December. |
| --- | --- |

—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Article 56 of the EC Treaty by maintaining in force measures limiting voting rights of public entities in Spanish undertakings in the energy sector, such as the measures provided for in Supplementary Provision no 27 to Law 55/1999 of 29 December on fiscal, administrative and social measures, as amended by Article 94 of Law 62/2003 of 30 December.

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

—

Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Supplementary Provision no 27 to Law 55/199 provides that where an entity controlled directly or indirectly by a public authority takes control of, or acquires a significant shareholding in, an undertaking in the energy sector, the Council of Ministers may within a period of two months decide ‘not to recognise’, or to impose certain conditions on, exercise of the corresponding political rights. The decision is to be based on certain criteria allegedly designed to safeguard the energy supply.

The Commission considers that Supplementary Provision no 27 to Law 55/1999 is incompatible with Article 56 of the EC Treaty for the following reasons:

| — | where public entities take control of, or acquire a significant shareholding in, Spanish energy-sector undertakings, that is a ‘movement of capital’ within the meaning of Article 56 of the EC Treaty; |
| --- | --- |

—

where public entities take control of, or acquire a significant shareholding in, Spanish energy-sector undertakings, that is a ‘movement of capital’ within the meaning of Article 56 of the EC Treaty;

| — | the restriction of political rights which the Spanish authorities may decide to impose in connection with such taking of control or acquisition of a significant shareholding constitutes a restriction on the free movement of capital, which is prohibited as a matter of principle by Article 56 EC; and |
| --- | --- |

—

the restriction of political rights which the Spanish authorities may decide to impose in connection with such taking of control or acquisition of a significant shareholding constitutes a restriction on the free movement of capital, which is prohibited as a matter of principle by Article 56 EC; and

| — | there is no justification in the Treaty for that restriction. |
| --- | --- |

—

there is no justification in the Treaty for that restriction.

Specifically, the Commission considers that Supplementary Provision no 27 to Law 55/1999 is not justified by the need to safeguard the energy supply for the following reasons:

| — | the fact that the entities which take control or acquire a significant shareholding are controlled by a public authority does not pose any extra threat to the energy supply, and therefore cannot justify the introduction of restrictions on the free movement of capital solely in that case; |
| --- | --- |

—

the fact that the entities which take control or acquire a significant shareholding are controlled by a public authority does not pose any extra threat to the energy supply, and therefore cannot justify the introduction of restrictions on the free movement of capital solely in that case;

| — | restricting voting rights is not an appropriate means of safeguarding the energy supply, there being other more suitable means of doing so; |
| --- | --- |

—

restricting voting rights is not an appropriate means of safeguarding the energy supply, there being other more suitable means of doing so;

| — | even if restricting voting rights were an appropriate means of safeguarding the energy supply, the means at issue are disproportionate, inasmuch as the ‘non-recognition’ of the exercise of voting rights extends to all the activities and decisions of the company; |
| --- | --- |

—

even if restricting voting rights were an appropriate means of safeguarding the energy supply, the means at issue are disproportionate, inasmuch as the ‘non-recognition’ of the exercise of voting rights extends to all the activities and decisions of the company;

| — | the power of the Council of Ministers to decide on the ‘recognition’ or the ‘non-recognition’ of the exercise of voting rights is not governed by criteria which are objective and sufficiently precise, amenable to effective review by the courts. |
| --- | --- |

—

the power of the Council of Ministers to decide on the ‘recognition’ or the ‘non-recognition’ of the exercise of voting rights is not governed by criteria which are objective and sufficiently precise, amenable to effective review by the courts.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/19 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/19

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Reference for a preliminary ruling from the Juzgado de lo Mercantil No 5 (Commercial Court No 5)/Madrid lodged on 26 June 2006 — Productores de Música de España v Telefónica de España SAU

(Case C-275/06)

(2006/C 212/33)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 5 (Commercial Court No 5)/ Madrid

Parties to the main proceedings

Applicant: Productores de Música de España (Promusicae)

Defendant: Telefónica de España SAU

Question referred

Does Community law, in particular Articles 15(2) and 18 of Directive 2000/31/EC (1) of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; Article 8(1) and (2) of Directive 2001/29/EC (2) of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; Article 8 of Directive 2004/48/EC (3) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights; and Articles 17(2) and 47 of the Charter of Fundamental Rights of the European Union, permit Member States to limit the duty of operators of electronic communications networks and services, providers of telecommunications network access and providers of data storage services to retain and make available connection and traffic information generated during the supply of an information society service to where it is required in connection with a criminal investigation or the need to protect public safety and national defence, thus excluding civil proceedings?

---

(1)  OJ L 178, p. l.

(2)  OJ L 167, p. 10.

(3)  OJ L 157, p. 45.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/20 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/20

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Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 June 2006 — Interboves GmbH v Hauptzollamt Hamburg-Jonas

(Case C-277/06)

(2006/C 212/34)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Interboves GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Questions referred

| 1. | Does point 48.7(a) of Chapter VII of the Annex to Directive 91/628/EEC (1) define the basic conditions for transport by sea so that, in principle, — provided that the conditions laid down in points 48.3 and 48.4 of Chapter VII of the Annex to Directive 91/628/EEC, except for journey times and rest periods, are met — the journey times by road before and after transport by sea are not interconnected, even where animals are being transported on so-called roll-on/roll-off ferries? |
| --- | --- |

1.

Does point 48.7(a) of Chapter VII of the Annex to Directive 91/628/EEC (1) define the basic conditions for transport by sea so that, in principle, — provided that the conditions laid down in points 48.3 and 48.4 of Chapter VII of the Annex to Directive 91/628/EEC, except for journey times and rest periods, are met — the journey times by road before and after transport by sea are not interconnected, even where animals are being transported on so-called roll-on/roll-off ferries?

| 2. | Does point 48.7(b) of Chapter VII of the Annex to Directive 91/628/EEC include a special provision for so-called roll-on/roll-off ferries operating in the Community which applies alongside or in addition to the conditions laid down in point 48.4(a) of Chapter VII of the Annex to Directive 91/628/EEC, so that a new maximum journey time of 29 hours (cf. point 48.4(d) of Chapter VII of the Annex to the Directive) does not commence after arrival of the ferry at the port of destination (the animals having instead to be rested for 12 hours) only if the journey time at sea is such that the voyage has exceeded the general scheme of points 48.2 to 48.4 of Chapter VII of the Annex to the Directive — namely 29 hours in accordance with point 48.4(d)? |
| --- | --- |

2.

Does point 48.7(b) of Chapter VII of the Annex to Directive 91/628/EEC include a special provision for so-called roll-on/roll-off ferries operating in the Community which applies alongside or in addition to the conditions laid down in point 48.4(a) of Chapter VII of the Annex to Directive 91/628/EEC, so that a new maximum journey time of 29 hours (cf. point 48.4(d) of Chapter VII of the Annex to the Directive) does not commence after arrival of the ferry at the port of destination (the animals having instead to be rested for 12 hours) only if the journey time at sea is such that the voyage has exceeded the general scheme of points 48.2 to 48.4 of Chapter VII of the Annex to the Directive — namely 29 hours in accordance with point 48.4(d)?

---

(1)  OJ L 340, p. 17.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/20 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/20

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Reference for a preliminary ruling from the Bundesverwaltungsgericht, lodged on 26 June 2006 — Manfred Otten v Landwirtschaftskammer Niedersachsen

(Case C-278/06)

(2006/C 212/35)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Manfred Otten

Defendant: Landwirtschaftskammer Niedersachsen

Question(s) referred

Is Article 7(2) of Council Regulation (EEC) No 3950/92 of 28 December 1992 (1), as amended by Council Regulation (EC) No 1256/1999 of 17 May 1999 (2), to be interpreted as meaning that on expiry of rural leases on a milk-production holding or a milk-production area the attached reference quantities can revert to the lessor even if that lessor is not, or is not about to become, a producer himself, insofar as he transfers the reference quantity as soon as possible through a State sales office to a third party who has that status?

---

(1)  OJ 1992 L 405, p. 1.

(2)  OJ 1999 L 160, p. 73.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/21 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/21

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Reference for a preliminary ruling from the Audiencia Provincial de Madrid (Spain) lodged on 27 June 2006 — CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL

(Case C-279/06)

(2006/C 212/36)

Language of the case: Spanish

Referring court

Audiencia Provincial de Madrid

Parties to the main proceedings

Applicant: CEPSA, Estaciones de Servicio SA

Defendant: LV Tobar e Hijos SL

Questions referred

| 1 | (a) | Is Article 81(1) EC to be construed as meaning that a exclusive supply contract under a brand name concluded in 1996 by a distributor of petroleum products and the proprietor of a service station requiring the latter to sell exclusively the supplier's motor-vehicle and other fuels for a fixed period, and to undertake not to sell such products supplied by other distributors, falls within the ambit of that provision in so far as that obligation involves a no-competition agreement, even though that contract might, given its commercial significance, be regarded as an agency contract? |
| --- | --- | --- |

1

(a)

Is Article 81(1) EC to be construed as meaning that a exclusive supply contract under a brand name concluded in 1996 by a distributor of petroleum products and the proprietor of a service station requiring the latter to sell exclusively the supplier's motor-vehicle and other fuels for a fixed period, and to undertake not to sell such products supplied by other distributors, falls within the ambit of that provision in so far as that obligation involves a no-competition agreement, even though that contract might, given its commercial significance, be regarded as an agency contract?

| (b) | If the contract does fall within the ambit of Article 81(1) EC, is it possible to claim the benefit of exemption from the prohibition if it satisfies the requirements of Regulation No 1984/83 (1), especially those relating to duration? |
| --- | --- |

(b)

If the contract does fall within the ambit of Article 81(1) EC, is it possible to claim the benefit of exemption from the prohibition if it satisfies the requirements of Regulation No 1984/83 (1), especially those relating to duration?

| (c) | If that should be the case, does the fact that Articles 10 and 12 of that regulation permit the duration of the no-competition agreement to exceed five years as consideration for the granting of commercial or financial advantages by the supplier to the service station proprietor, require those commercial or financial advantages to be substantial or is it enough that they are not insignificant? Can those provisions be interpreted as meaning that such commercial or financial advantages have been conferred in exclusive supply contracts under a brand name in which the supplier of petroleum products bears the costs of installing and maintaining its brand image in the service station, or transfers fuel-tanks and -pumps which the service station proprietor may not use without the authorisation in writing of the sole supplier for products not supplied by the latter and which it must hand back when it ceases to use them as authorised, and the value of which is covered by the guarantee on first demand that the service station proprietor has provided in favour of the supplier? |
| --- | --- |

(c)

If that should be the case, does the fact that Articles 10 and 12 of that regulation permit the duration of the no-competition agreement to exceed five years as consideration for the granting of commercial or financial advantages by the supplier to the service station proprietor, require those commercial or financial advantages to be substantial or is it enough that they are not insignificant? Can those provisions be interpreted as meaning that such commercial or financial advantages have been conferred in exclusive supply contracts under a brand name in which the supplier of petroleum products bears the costs of installing and maintaining its brand image in the service station, or transfers fuel-tanks and -pumps which the service station proprietor may not use without the authorisation in writing of the sole supplier for products not supplied by the latter and which it must hand back when it ceases to use them as authorised, and the value of which is covered by the guarantee on first demand that the service station proprietor has provided in favour of the supplier?

| (d) | If that exemption should not be applicable, does the automatic nullity provided for by Article 81(2) EC affect the contract in its entirety? |
| --- | --- |

(d)

If that exemption should not be applicable, does the automatic nullity provided for by Article 81(2) EC affect the contract in its entirety?

| 2 | (a) | Is Article 81(1) EC be interpreted as meaning that a an exclusive supply contract under a brand name, in so far as it provides that the service station proprietor must sell motor-vehicle and other fuels supplied by the exclusive supplier at the prices for sale to the public fixed by the supplier, is in theory caught by the prohibition of restriction of competition because it fixes sale prices, taking account of its economic significance and in particular of the risks assumed by the service-station proprietor and its contribution to the costs connected with the supply of goods under the contract or of the sales promotion of those goods, given the following relevant points:






  (1) | The service-station proprietor undertakes to sell exclusively the supplier's lubricants, vehicle products and motor-vehicle and other fuels, in accordance with the retail prices, conditions and sales and business methods stipulated by the supplier for a period of 10 years, which may be extended for successive periods each of five years by express agreement in writing on notice of at least six months. |
| --- | --- | --- | --- |

2

(a)

Is Article 81(1) EC be interpreted as meaning that a an exclusive supply contract under a brand name, in so far as it provides that the service station proprietor must sell motor-vehicle and other fuels supplied by the exclusive supplier at the prices for sale to the public fixed by the supplier, is in theory caught by the prohibition of restriction of competition because it fixes sale prices, taking account of its economic significance and in particular of the risks assumed by the service-station proprietor and its contribution to the costs connected with the supply of goods under the contract or of the sales promotion of those goods, given the following relevant points:

(1)

The service-station proprietor undertakes to sell exclusively the supplier's lubricants, vehicle products and motor-vehicle and other fuels, in accordance with the retail prices, conditions and sales and business methods stipulated by the supplier for a period of 10 years, which may be extended for successive periods each of five years by express agreement in writing on notice of at least six months.

| (2) | The service-station proprietor assumes the risk associated with the motor-vehicle and other fuels as soon as they are received from the supplier in the storage tanks, including the risk of discrepancies in volume. From the moment of receipt the proprietor assumes the obligation to keep the products in the conditions necessary to ensure that they undergo no loss or deterioration and is liable, where applicable, to the supplier and to third parties for any loss, contamination or adulteration which may affect the products and for any damage arising as a result thereof. |
| --- | --- |

(2)

The service-station proprietor assumes the risk associated with the motor-vehicle and other fuels as soon as they are received from the supplier in the storage tanks, including the risk of discrepancies in volume. From the moment of receipt the proprietor assumes the obligation to keep the products in the conditions necessary to ensure that they undergo no loss or deterioration and is liable, where applicable, to the supplier and to third parties for any loss, contamination or adulteration which may affect the products and for any damage arising as a result thereof.

| (3) | The service-station proprietor is required to pay the supplier the cost of the motor-vehicle and other fuels nine days after the date of their delivery to the service station, on presentation on the date of the first supply of a bank guarantee for the total price of the supply, equivalent to 15 days. If it should fail to pay, apart from the possibility that the supplier might enforce the guarantee presented by the service-station proprietor, the latter would be required to pay for supplies before they were delivered to the service station. Payment is made by the service-station proprietor to the supplier by deducting from the price of sale to the public fixed by the distributor, including VAT, the amount of ‘commission’ due to the service-station proprietor, plus the corresponding VAT. The fuel supplied is sold on average in a period of much less than the nine days provided for payment by the applicant (respondent in these proceedings) to the defendant (the appellant in these proceedings). The distributor debits or credits the service station monthly, depending on the upward or downward variation in the prices fixed for the fuel delivered. The cost of transport is borne by the supplier. |
| --- | --- |

(3)

The service-station proprietor is required to pay the supplier the cost of the motor-vehicle and other fuels nine days after the date of their delivery to the service station, on presentation on the date of the first supply of a bank guarantee for the total price of the supply, equivalent to 15 days. If it should fail to pay, apart from the possibility that the supplier might enforce the guarantee presented by the service-station proprietor, the latter would be required to pay for supplies before they were delivered to the service station. Payment is made by the service-station proprietor to the supplier by deducting from the price of sale to the public fixed by the distributor, including VAT, the amount of ‘commission’ due to the service-station proprietor, plus the corresponding VAT. The fuel supplied is sold on average in a period of much less than the nine days provided for payment by the applicant (respondent in these proceedings) to the defendant (the appellant in these proceedings). The distributor debits or credits the service station monthly, depending on the upward or downward variation in the prices fixed for the fuel delivered. The cost of transport is borne by the supplier.

| (4) | The proprietor of the service station guarantees and is responsible for those customers who have signed up for the use of the credit card created and managed by the group of companies to which the supplier belongs, charges the sales made by means of the card one month after they are made, finances a small part of the cost of customers' use of the fuel distributor's loyalty card and assumes the risk of non-payment by those customers who have been allowed direct credit. |
| --- | --- |

(4)

The proprietor of the service station guarantees and is responsible for those customers who have signed up for the use of the credit card created and managed by the group of companies to which the supplier belongs, charges the sales made by means of the card one month after they are made, finances a small part of the cost of customers' use of the fuel distributor's loyalty card and assumes the risk of non-payment by those customers who have been allowed direct credit.

| (5) | The supplier of the petroleum products bears the costs of installing and maintaining its brand image in the service station, and also transfers the fuel-tanks and pumps which the proprietor of the service station may not use, without the supplier's authorisation in writing, to sell products not supplied by that supplier, and which are valued precisely at the amount of the bank guarantee that the service station proprietor has presented in favour of the supplier? |
| --- | --- |

(5)

The supplier of the petroleum products bears the costs of installing and maintaining its brand image in the service station, and also transfers the fuel-tanks and pumps which the proprietor of the service station may not use, without the supplier's authorisation in writing, to sell products not supplied by that supplier, and which are valued precisely at the amount of the bank guarantee that the service station proprietor has presented in favour of the supplier?

| (b) | If so, on a proper construction of Commission Regulation (EEC) No 1984/83 of 22 June 1983, and in particular of Articles 10 to 13 thereof, do those provisions catch within their scope a contract of that kind with the result that the prohibition laid down in Article 81(1) of the EC Treaty is not applicable if the contract satisfies the requirements for exemption contained in those articles of the regulation? |
| --- | --- |

(b)

If so, on a proper construction of Commission Regulation (EEC) No 1984/83 of 22 June 1983, and in particular of Articles 10 to 13 thereof, do those provisions catch within their scope a contract of that kind with the result that the prohibition laid down in Article 81(1) of the EC Treaty is not applicable if the contract satisfies the requirements for exemption contained in those articles of the regulation?

| (c) | In that case, is Article 11 of that regulation to be construed as meaning that, if the contract imposes more than one restriction on competition, and moreover if it stipulates no competition by providing for exclusive supply by one supplying undertaking, sale prices are fixed by the supplier? Does the authorisation given by the distribution company to the service station to lower its sale price without affecting the distributor's receipts, which took place in November 2001, make it possible to regard the contract as valid? |
| --- | --- |

(c)

In that case, is Article 11 of that regulation to be construed as meaning that, if the contract imposes more than one restriction on competition, and moreover if it stipulates no competition by providing for exclusive supply by one supplying undertaking, sale prices are fixed by the supplier? Does the authorisation given by the distribution company to the service station to lower its sale price without affecting the distributor's receipts, which took place in November 2001, make it possible to regard the contract as valid?

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(1)  Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ L 173, p. 5).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/22 |
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2.9.2006

EN

Official Journal of the European Union

C 212/22

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Reference for a preliminary ruling from the Prague Regional Court lodged on 28 June 2006 — Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA) v Miloslav Lev

(Case C-282/06)

(2006/C 212/37)

Language of the case: Czech

Referring court

Prague Regional Court (Krajský Soud v Praze)

Parties to the main proceedings

Applicant(s): Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA)

Defendant(s): Miloslav Lev

Question(s) referred

| 1. | In accordance with European Union law — Directive EC 2001/29 — does an author have a right to remuneration in the case of the playing of a work on radio or television by an operator of an establishment used in connection with accommodation, even where the television or radio receiver is situated in a private part of the premises used for accommodation (in a room)? |
| --- | --- |

1.

In accordance with European Union law — Directive EC 2001/29 — does an author have a right to remuneration in the case of the playing of a work on radio or television by an operator of an establishment used in connection with accommodation, even where the television or radio receiver is situated in a private part of the premises used for accommodation (in a room)?

| 2. | Does §23 of the Copyright Law No 121/2000 Coll., as amended by Law No 81/2005 Coll., conflict with Community law? |
| --- | --- |

2.

Does §23 of the Copyright Law No 121/2000 Coll., as amended by Law No 81/2005 Coll., conflict with Community law?

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/23 |
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2.9.2006

EN

Official Journal of the European Union

C 212/23

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Reference for a preliminary ruling from the Zala megyei Bíróság Hongorie lodged on 29 June 2006 — Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt., Schneider Electric Hungária Rt., TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt., and Vodafon Magyarország Mobil Távközlési Rt. v Zala Megyei Közigazgatási Hivatal Vezetője

(Case C-283/06)

(2006/C 212/38)

Language of the case: Hungarian

Referring court

Zala megyei Bíróság/Hongorie

Parties to the main proceedings

Applicant: Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt. Schneider Electric Hungária Rt. TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt. and Vodafon Magyarország Mobil Távközlési Rt.

Defendant: Zala Megyei Közigazgatási Hivatal Vezetője

Question(s) referred

| 1. | Must point 3(a) of part 4 of Annex X to the ‘Act of Accession’ (the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded), which provides that 'Hungary may apply, up to and including 31 December 2007, local business tax reductions of up to 2 % of the net receipts of undertakings, granted by local government for a limited period of time on the basis of Articles 6 and 7 of Act C of 1990 on Local Taxes', be interpreted as meaning that:






  — | Hungary has been granted a temporary derogation which allows it to maintain local business tax, or that |
| --- | --- | --- |

1.

Must point 3(a) of part 4 of Annex X to the ‘Act of Accession’ (the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded), which provides that 'Hungary may apply, up to and including 31 December 2007, local business tax reductions of up to 2 % of the net receipts of undertakings, granted by local government for a limited period of time on the basis of Articles 6 and 7 of Act C of 1990 on Local Taxes', be interpreted as meaning that:

—

Hungary has been granted a temporary derogation which allows it to maintain local business tax, or that

| — | by granting the possibility to maintain local business tax reductions, the Act of Accession also recognises that Hungary has the (provisional) right to maintain a tax on economic activities? |
| --- | --- |

—

by granting the possibility to maintain local business tax reductions, the Act of Accession also recognises that Hungary has the (provisional) right to maintain a tax on economic activities?

| 2. | Should Question 1 be answered in the negative, the referring court also asks the following question:
  On a correct interpretation 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, what are the criteria on which a tax may be considered not to be characterised as a turnover tax for the purposes of Article 33 of the Sixth Directive? |
| --- | --- |

2.

Should Question 1 be answered in the negative, the referring court also asks the following question:

On a correct interpretation 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, what are the criteria on which a tax may be considered not to be characterised as a turnover tax for the purposes of Article 33 of the Sixth Directive?

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/23 |
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2.9.2006

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Official Journal of the European Union

C 212/23

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Action brought on 29 June 2006 — Commission of the European Communities v Kingdom of Spain

(Case C-286/06)

(2006/C 212/39)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: H.Støvelbæk and R.Vidal Puig, Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 89/48/EC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three year's duration (1), and in particular Article 3 thereof, by refusing to recognise the professional qualification of engineer obtained in Italy and by making admission to internal exams for promotion in the civil service subject in the case of engineers with professional qualifications obtained in another Member State to academic recognition of those qualifications; |
| --- | --- |

—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 89/48/EC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three year's duration (1), and in particular Article 3 thereof, by refusing to recognise the professional qualification of engineer obtained in Italy and by making admission to internal exams for promotion in the civil service subject in the case of engineers with professional qualifications obtained in another Member State to academic recognition of those qualifications;

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

—

Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission has received numerous complaints concerning the rejection by the competent Spanish authorities of applications for recognition of the professional qualification of engineer obtained in Italy for the purpose of exercising in Spain the profession of Road, Canal and Port Engineer.

Under Article 3 of Directive 89/48/EEC the Spanish authorities are required to allow any national of a Member State who holds the diploma required for pursuing a regulated profession in another Member State to take up and pursue that profession. According to the facts set out by the Commission,

| (1) | the profession of Road, Canal and Port Engineer is a regulated profession in Spain; |
| --- | --- |

(1)

the profession of Road, Canal and Port Engineer is a regulated profession in Spain;

| (2) | the complainants are nationals of a Member State; |
| --- | --- |

(2)

the complainants are nationals of a Member State;

| (3) | the diploma required in Italy for taking up the profession of engineer is the Diploma de Laurea in Ingegneria Civile together with the Abilitazione all'esercizio della professione di ingegnere. The complainants hold both qualifications and are therefore entitled to pursue the profession of engineer in Italy; and |
| --- | --- |

(3)

the diploma required in Italy for taking up the profession of engineer is the Diploma de Laurea in Ingegneria Civile together with the Abilitazione all'esercizio della professione di ingegnere. The complainants hold both qualifications and are therefore entitled to pursue the profession of engineer in Italy; and

| (4) | the combined qualification composed of the Laurea in Ingegneria Civile and the Abilitazione all'esercizio della professione di ingegnere meets all the requirements of the definition of 'diploma' in Article 1(a) of the Directive. |
| --- | --- |

(4)

the combined qualification composed of the Laurea in Ingegneria Civile and the Abilitazione all'esercizio della professione di ingegnere meets all the requirements of the definition of 'diploma' in Article 1(a) of the Directive.

Consequently, the Spanish authorities were required to allow the complainants to take up the profession of Road, Canal and Port Engineer. By refusing them access to the profession, the Kingdom of Spain has failed to fulfil its obligations under Article 3 of the Directive.

It is also apparent from the facts stated by the Commission that the Spanish authorities make participation in the internal exams for promotion in the civil service where possession of the diploma of engineer is required subject, in the case of diplomas acquired outside Spain, to their being ‘approved’, that is to say, recognised as academically equivalent to a Spanish diploma. That requirement makes it more difficult to achieve promotion within the service, and hence to pursue the profession of engineer, for nationals of a Member State who hold the professional diploma required in another Member State, and is also contrary to Article 3 of the Directive.

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(1)   OJ 1989 L 19, p. 16.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/24 |
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Official Journal of the European Union

C 212/24

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Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic

(Case C-297/06)

(2006/C 212/40)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: E. Tserepa-Lacombe and I. Khatzigiannis, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/85/EC (1) of 29 September 2003 on Community measures for the control of foot-and-mouth disease repealing Directive 85/511/EEC and Decisions 89/531/EEC and 91/665/EEC and amending Directive 92/46/EEC, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/85/EC (1) of 29 September 2003 on Community measures for the control of foot-and-mouth disease repealing Directive 85/511/EEC and Decisions 89/531/EEC and 91/665/EEC and amending Directive 92/46/EEC, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive into domestic law expired on 30 June 2004.

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(1)  OJ L 306, 22.11.2003, p. 1.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/24 |
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2.9.2006

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Official Journal of the European Union

C 212/24

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Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic

(Case C-299/06)

(2006/C 212/41)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and N.Yerrell)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/92/EC (1) of the European Parliament and of the Council of 9 December 2002 on insurance mediation, the Hellenic Republic has failed to fulfil its obligations under Article 16 of that directive; |
| --- | --- |

—

declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/92/EC (1) of the European Parliament and of the Council of 9 December 2002 on insurance mediation, the Hellenic Republic has failed to fulfil its obligations under Article 16 of that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive into domestic law expired on 14 January 2005.

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(1)  OJ L 9, 15.1.2003, p. 3.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/25 |
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2.9.2006

EN

Official Journal of the European Union

C 212/25

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Action brought on 19 July 2006 — Commission of the European Communities v Italian Republic

(Case C-313/06)

(2006/C 212/42)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: D. Lawunmi and D. Recchia, Agents)

Defendant: Italian Republic

Form of order sought

| — | Declare by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/26/EC (1) of the European Parliament and of the Council of 21 April 2004 amending Directive 97/68/EC on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery or, in any case, by failing to communicate such measures to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) of that directive. |
| --- | --- |

—

Declare by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/26/EC (1) of the European Parliament and of the Council of 21 April 2004 amending Directive 97/68/EC on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery or, in any case, by failing to communicate such measures to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) of that directive.

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

—

Order the Italian Republic to pay the costs of the proceedings.

Pleas in law and main arguments

The period prescribed for transposing Directive 2004/26/EC into national law expired on 20 May 2005.

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(1)  OJ L 146, p. 1.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/25 |
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2.9.2006

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Official Journal of the European Union

C 212/25

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Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Spain

(Case C-317/06)

(2006/C 212/43)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Spain 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 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

| — | order Kingdom of Spain to pay the costs. |
| --- | --- |

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2002/14/EC into domestic law expired on 23 March 2005.

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(1)  OJ 2002 L 80, p. 29.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/26 |
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C 212/26

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Action brought on 20 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-318/06)

(2006/C 212/44)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and G. Rozet, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | Declare that, by not adopting, and, in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by not adopting, and, in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under 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 transposition of Directive 2001/86/EC into domestic law expired on 8 October 2004.

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(1)  OJ L 294, p. 22.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/26 |
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2.9.2006

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C 212/26

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Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Belgium

(Case C-320/06)

(2006/C 212/45)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and G. Rozet, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1), the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of that directive; |
| --- | --- |

—

Declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1), the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of 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 transposition of Directive 2002/14/EC into domestic law expired on 23 March 2005.

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(1)  OJ L 80, p. 29.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/26 |
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2.9.2006

EN

Official Journal of the European Union

C 212/26

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Action brought on 20 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-321/06)

(2006/C 212/46)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and G. Rozet, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | Declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11 of that directive; |
| --- | --- |

—

Declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11 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 Directive 2002/14/EC into domestic law expired on 23 March 2005.

---

(1)  OJ L 80, p. 29.

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COURT OF FIRST INSTANCE

| 2.9.2006 | EN | Official Journal of the European Union | C 212/27 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/27

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Judgment of the Court of First Instance of 4 July 2006 — Hoek Loos NV v Commission of the European Communities

(Case T-304/02) (1)

(Competition - Cartels - Dutch market for industrial and medical gases - Price fixing - Calculation of fines - Guidelines on the method of setting fines - Principles of proportionality and equal treatment)

(2006/C 212/47)

Language of the case: Dutch

Parties

Applicant: Hoek Loos NV (Schiedam, Netherlands) (represented by: J.J. Feenstra and B.F. Van Harinxma thoe Slooten, lawyers)

Defendant: Commission of the European Communities (represented by: A. Bouquet, Agent)

Re:

Application for annulment in part of Article 3 of Commission Decision 2003/207/EC final of 24 July 2002 relating to a procedure pursuant to Article 81 EC (case COMP/E-3/36.700 — Industrial and medical gases) (OJ 2003, L 84, p. 1) and, alternatively, for a reduction in the fine imposed on the applicant

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 305, 7.12.2002.

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/27 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/27

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Judgment of the Court of First Instance of 6 July 2006 — Franchet and Byk v Commission

(Joined Cases T-391/03 and T-70/04) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Investigations of the European Anti-Fraud Office (OLAF) - Eurostat - Refusal of access - Inspections and investigations - Court proceedings - Rights of the defence)

(2006/C 212/48)

Language of the case: French

Parties

Applicants: Yves Franchet and Daniel Byk (Luxembourg), represented by G. Vandersanden and L. Levi, avocats)

Defendant: Commission of the European Communities, represented by D. Maidani, J.-F. Pasquier and P. Aalto, agents)

Re:

Application for annulment of decisions of the European Anti-Fraud Office (OLAF) and of the Commission refusing the applicants access to certain documents relating to an enquiry concerning Eurostat

Operative part of the judgment

The Court:

| 1. | Dismisses the applications for annulment of the decision of 18 August 2003 and the implicit decision to reject the applicants' applications of 21 and 29 October 2003 as inadmissible; |
| --- | --- |

1.

Dismisses the applications for annulment of the decision of 18 August 2003 and the implicit decision to reject the applicants' applications of 21 and 29 October 2003 as inadmissible;

| 2. | Annuls the decision of the European Anti-Fraud Office (OLAF) of 1 October 2003 in so far as it refuses access to the communications from OLAF to the Commission other than that referred to in the press release of 19 May 2003, and the Commission decision of 19 December 2003 in so far as it refuses access to the annexes to the report of the internal audit service of 7 July 2003; |
| --- | --- |

2.

Annuls the decision of the European Anti-Fraud Office (OLAF) of 1 October 2003 in so far as it refuses access to the communications from OLAF to the Commission other than that referred to in the press release of 19 May 2003, and the Commission decision of 19 December 2003 in so far as it refuses access to the annexes to the report of the internal audit service of 7 July 2003;

| 3. | Dismisses the remainder of the actions as unfounded; |
| --- | --- |

3.

Dismisses the remainder of the actions as unfounded;

| 4 | Orders the Commission to pay one third of the applicants' costs and the parties otherwise to bear their own costs. |
| --- | --- |

4

Orders the Commission to pay one third of the applicants' costs and the parties otherwise to bear their own costs.

---

(1)  OJ C 21, 14.1.2004.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/28 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/28

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Judgment of the Court of First Instance of 4 July 2006 — Tzirani v Commission

(Case T-45/04) (1)

(Officials - Promotion - Filling an A2 post - Rejection of candidature - Principle of legality)

(2006/C 212/49)

Language of the case: French

Parties

Applicant: Marie Tzirani (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents, assisted by B. Wägenbaur, lawyer)

Re:

Application for annulment of the Commission's decision of 11 February 2003 to reject the applicant's candidature for the A2 grade post of Director of the ‘Staff Regulations: policy, management and advisory services’ Directorate in the ‘Personnel and Administration’ Directorate-General of the Commission; an application for annulment of the appointment of M.J. for that post and also an application for annulment, if necessary, of the explicit decision by the Commission to reject the applicant's complaint against those two decisions

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Commission to appoint M.J. for the post concerned in the vacancy COM/151/02 and also the decision to reject the candidature of the applicant for that post. |
| --- | --- |

1.

Annuls the decision of the Commission to appoint M.J. for the post concerned in the vacancy COM/151/02 and also the decision to reject the candidature of the applicant for that post.

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

2.

Orders the defendant to pay the costs.

---

(1)  OJ C 94 of 17.4.2004

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/28 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/28

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Judgment of the Court of First Instance of 4 July 2006 — Tzirani v Commission

(Case T-88/04) (1)

(Officials - Promotion - Filling an A2 post - Rejection of candidature - Failure to state reasons - Manifest error of assessment - Infringement of the rules for appointment of officials at grade A1 and A2)

(2006/C 212/50)

Language of the case: French

Parties

Applicant: Marie Tzirani (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents, assisted by B. Wägenbaur, lawyer)

Re:

Application for annulment of the decision of the Commission of 23 May 2003 to reject the applicant's candidature for the A2 grade post of Director of the ‘Social policy, Luxembourg staff, health and safety’ Directorate in the ‘Personnel and Administration’ Directorate-General of the Commission; an application for annulment of the decision of the Commission of 21 May 2003 to appoint Ms D.S. for that post and, if necessary, an application for annulment of the implied rejection of the applicant's complaint against those two decisions

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Commission to appoint Mme D.S. for the post concerned in the vacancy COM/063/03 and also the decision to reject the candidature of the applicant for that post. |
| --- | --- |

1.

Annuls the decision of the Commission to appoint Mme D.S. for the post concerned in the vacancy COM/063/03 and also the decision to reject the candidature of the applicant for that post.

| 2. | Dismisses the remainder of the application. |
| --- | --- |

2.

Dismisses the remainder of the application.

| 3. | Orders the defendant to pay the costs. |
| --- | --- |

3.

Orders the defendant to pay the costs.

---

(1)  OJ C 106 of 30.4.2004

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/29 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/29

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Judgment of the Court of First Instance of 4 July 2006 — easyJet Airline v Commission

(Case T-177/04) (1)

(Competition - Concentrations - Regulation (EEC) No 4064/89 - Decision declaring a concentration compatible with the common market - Action brought by a third party - Admissibility - Air transport market - Commitments)

(2006/C 212/51)

Language of the case: English

Parties

Applicant: easyJet Airline Co. Ltd (Luton, United Kingdom) (represented by: initially by J. Cook, J. Parker and S. Dolan, Solicitors, and subsequently by M. Werner and M. Waha, avocats, L. Mills, Solicitor, M. de Lasala Lobera and R. Malhotra, avocats)

Defendant: Commission of the European Communities (represented by: P. Oliver, A. Bouquet and A. Whelan, Agents)

Intervener in support of the defendant: French Republic (represented by: G. de Bergues, Agent)

Re:

Annulment of the Commission Decision of 11 February 2004 declaring compatible with the common market the concentration between Air France and KLM (Case No COMP/M.3280 — Air France/KLM) (OJ 2004 C 60, p. 5), whereby Air France was to acquire full control of KML

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

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

2.

Orders the applicant to bear its own costs and to pay those of the Commission.

| 3. | Orders the French Republic to bear its own costs. |
| --- | --- |

3.

Orders the French Republic to bear its own costs.

---

(1)  OJ C 201, 7.8.2004.

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/29 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/29

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Order of the Court of First Instance of 16 June 2006 — Volkswagen v OHIM (CLIMATIC)

(Case T-306/03) (1)

(Community trade mark - Partial refusal of registration - Withdrawal of the application for registration - No need to adjudicate)

(2006/C 212/52)

Language of the case: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: S. Risthaus, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 7 July 2003 (Case R 1012/2001-2) regarding an application for registration of a figurative mark containing the word sign CLIMATIC as a Community trade mark

Operative part of the judgment

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

1.

There is no longer any need to adjudicate on the action.

| 2. | The applicant is ordered to pay the costs. |
| --- | --- |

2.

The applicant is ordered to pay the costs.

---

(1)  OJ C 289 of 29.11.2003

---

| 2.9.2006 | EN | Official Journal of the European Union | C 212/29 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/29

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Action brought on 26 April 2006 — Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission

(Case T-129/06)

(2006/C 212/53)

Language of the case: German

Parties

Applicants: Diy-Mar Insaat Sanayi ve Ticaret Limited Sirketi (Cankaya/Ankara, Turkey) and M. Akar (Cankaya/Ankara, Turkey) (represented by: C. Sahin, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Reservation of rights to bring a claim for damages; |
| --- | --- |

—

Reservation of rights to bring a claim for damages;

| — | Suspension, as a matter of priority, of implementation of the procedure with regard to the subject-matter of the present proceedings; |
| --- | --- |

—

Suspension, as a matter of priority, of implementation of the procedure with regard to the subject-matter of the present proceedings;

| — | Annulment of the procedure of 23 December 2005 with the number MK/KS/DELTUR/(2005)/SecE/D/1614 which is the subject-matter of the present proceedings; |
| --- | --- |

—

Annulment of the procedure of 23 December 2005 with the number MK/KS/DELTUR/(2005)/SecE/D/1614 which is the subject-matter of the present proceedings;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicants are contesting the decision of the European Commission Delegation in Turkey of 23 December 2005 which was addressed to the applicants with regard to the call for tenders in respect of the construction of educational establishments in the provinces of Diyarbakir and Siirt.

The applicants submit, inter alia, that their tender was the lowest and that the file in respect thereof was complete and therefore the contract should have been awarded to them. Furthermore, they submit that the contested decision infringes European Union law.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/30 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/30

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Action brought on 23 June 2006 — ARBOS v Commission

(Case T-161/06)

(2006/C 212/54)

Language of the case: German

Parties

Applicant(s): ARBOS, Gesellschaft für Musik und Theater (Klagenfurt, Austria) (represented by: H. Karl, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

| — | Order that the defendant pay the claimant EUR 38 545,42 plus 12 % interest since 1.1.2001 and EUR 27 618,91 plus 12 % interest since 1.3.2003; |
| --- | --- |

—

Order that the defendant pay the claimant EUR 38 545,42 plus 12 % interest since 1.1.2001 and EUR 27 618,91 plus 12 % interest since 1.3.2003;

| — | Order that the defendant pay the claimant EUR 26 459,38 in pre-litigation costs and bear the costs of the proceedings |
| --- | --- |

—

Order that the defendant pay the claimant EUR 26 459,38 in pre-litigation costs and bear the costs of the proceedings

Pleas in law and main arguments

The claimant claims compensation from the European Commission under Article 288 EC for the damage it claims to have suffered from the wrongful withholding of assistance. It bases its claim on two contracts for assistance concluded in 2000 in 2002 and each containing an arbitration clause in the annex.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/30 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/30

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Action brought on 26 June 2006 — Kronoply v Commission

(Case T-162/06)

(2006/C 212/55)

Language of the case: German

Parties

Applicant: Kronoply GmbH & Co KG (Heiligengrabe, Germany) (represented by: R. Nierer and L. Gordalla, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission's decision of 21 September 2005 regarding State aid No C 5/2004 (ex N 609/2003) by which the Commission declares the aid Germany wishes to grant the applicant to be incompatible with the common market; |
| --- | --- |

—

Annul the Commission's decision of 21 September 2005 regarding State aid No C 5/2004 (ex N 609/2003) by which the Commission declares the aid Germany wishes to grant the applicant to be incompatible with the common market;

| — | Order the Commission to bear its own costs and to pay those of the applicant. |
| --- | --- |

—

Order the Commission to bear its own costs and to pay those of the applicant.

Pleas in law and main arguments

The applicant is contesting Commission Decision C(2005) 3497 of 21 September 2005 in which the Commission decided that the investment grant which Germany intended to give Kronoply GmbH in the context of the multisectoral framework on regional aid for large investment projects (1) constitutes State aid which is incompatible with the common market.

The applicant submits four pleas in law in support of its application.

First, it complains that the Commission clearly erred as regards the findings of fact. In that respect it submits, inter alia, that the defendant did not ascertain the date on which the applicant applied for grants although it is of decisive importance with regard to an examination of the facts. Furthermore, it submits that the Commission overlooked the fact that the national administrative procedure has not yet been brought to an end.

Secondly, the applicant submits in support of its application the plea that the contested decision is not adequately reasoned.

Furthermore, the applicant submits that the Commission has infringed Article 87(3)(a) and (c) EC and Article 88 EC, Regulation (EC) No 659/1999 (2) and the Guidelines on national regional aid (3).

Lastly, the applicant complains of manifest errors of assessment and misuse of powers on the part of the defendant.

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(1)  OJ 1998 C 107, p. 7.

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty.

(3)  OJ 1998 C 74, p. 9, amended by OJ 2000 C 258, p. 5.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/31 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/31

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Action brought on 26 June 2006 — Charlott SARL v OHIM — Charlot (figurative mark ‘Charlott France Entre Luxe et Tradition’)

(Case T-169/06)

(2006/C 212/56)

Language in which the application was lodged: French

Parties

Applicant: Charlott SARL (Chapanost, France) (represented by: L. Conrad, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal of OHIM: Charlot — Conferecções para Homens, Artigos de Lã o Outros SA (Lisbon, Portugal)

Forms of order sought

| — | annul the decision of 24 April 2006 of the Second Board of Appeal of OHIM (Case R 223/2005-2); |
| --- | --- |

—

annul the decision of 24 April 2006 of the Second Board of Appeal of OHIM (Case R 223/2005-2);

| — | rule that the company Charlot — Conferecções para Homens, Artigos de Lã o Outros SA does not fulfil the obligations laid down in Article 43(2) of Regulation (EC) No 40/94; |
| --- | --- |

—

rule that the company Charlot — Conferecções para Homens, Artigos de Lã o Outros SA does not fulfil the obligations laid down in Article 43(2) of Regulation (EC) No 40/94;

| — | order OHIM to proceed with registration of the mark lodged by Charlott SARL; |
| --- | --- |

—

order OHIM to proceed with registration of the mark lodged by Charlott SARL;

| — | order OHIM or any unsuccessful party to pay the costs of the present proceedings, especially the recoverable costs under Article 91(b) of the Rules of Procedure of this Court of 2 May 1991. |
| --- | --- |

—

order OHIM or any unsuccessful party to pay the costs of the present proceedings, especially the recoverable costs under Article 91(b) of the Rules of Procedure of this Court of 2 May 1991.

Pleas in law and main arguments

Applicant for a Community trade mark: Charlott SARL

Community trade mark concerned: Figurative mark ‘Charlott France Entre Luxe et Tradition’ for goods in Class 25 — Application No 001853274

Proprietor of the mark or sign cited in the opposition proceedings: Charlot –Conferecções para Homens, Artigos de Lã o Outros SA

Mark or sign cited in opposition: National figurative mark ‘Charlot’ for goods in Class 25

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Decision of the Opposition Division annulled.

Pleas in law: Infringement of Article 43(2) of Regulation (EC) No 40/94 and of Article 22(2) of Regulation (EC) No 2868/95 on the grounds that, according to the applicant, the opposing party has not proven genuine use of its mark during the five preceding years and has not furnished proof of the extent of the use allegedly made of that mark.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/31 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/31

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Action brought on 29 June 2006 — Alrosa v Commission

(Case T-170/06)

(2006/C 212/57)

Language of the case: English

Parties

Applicant: Alrosa Company Ltd. (Mirny, Russia) (represented by: R. Subiotto, S. Mobley, K. Jones, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision in its entirety; |
| --- | --- |

—

Annul the decision in its entirety;

| — | order the Commission to pay Alrosa's legal and other costs and expenses in relation to this matter. |
| --- | --- |

—

order the Commission to pay Alrosa's legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

The applicant contests the Commission's decision of 22 February 2006, by which the Commission made binding upon De Beers a commitment to phase out between 2006 and 2008 and to cease as from 1 January 2009 all direct and indirect purchases of rough diamonds from the applicant.

In support of its application, the applicant invokes, first, a violation of its right to be heard in the procedure leading to the decision. The applicant submits that the Commission was required to explain which third party observations and what aspects of the Commission's analysis justified the rejection of the commitments originally proposed jointly by De Beers and the applicant and the adoption of the final commitments proposed by De Beers.

Second, the applicant invokes a violation of Article 9 of Regulation 1/2003 in that the commitments made binding by the contested decision were offered only by De Beers, rather than by the undertakings concerned, namely De Beers and the applicant. The applicant adds that the contested decision has not been adopted for a specified period.

Finally, the applicant submits that the contested decision's absolute and potentially indefinite prohibition on De Beers' purchasing rough diamonds directly or indirectly from the applicant violates Article 82 EC and Article 9 of Regulation 1/2003, as well as the fundamental principles of freedom of contract and proportionality.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/32 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/32

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Action brought on 22 June 2006 — Laytoncrest v OHIM — Erico (TRENTON)

(Case T-171/06)

(2006/C 212/58)

Language in which the application was lodged: Greek

Parties

Applicant: Laytoncrest Limited (London, United Kingdom) (represented by: Nikolaos K. Dontas, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Erico International Corporation (represented by: Gille Hrabal Struck Neidlein Prop Roos, Düsseldorf, Germany)

Form of order sought

| — | annulment of the decision of 26 April 2006 of the Second Board of Appeal in Case R-406/2004-2 |
| --- | --- |

—

annulment of the decision of 26 April 2006 of the Second Board of Appeal in Case R-406/2004-2

| — | referral of the case for a decision on the merits to the Boards of Appeal of OHIM |
| --- | --- |

—

referral of the case for a decision on the merits to the Boards of Appeal of OHIM

| — | an order that OHIM and Erico International Corporation, if it intervenes, pay the costs |
| --- | --- |

—

an order that OHIM and Erico International Corporation, if it intervenes, pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Laytoncrest

Community trade mark concerned: the word mark TRENTON for goods in Classes 7, 9 and 11 — Application No 2 298 438

Proprietor of the mark or sign cited in the opposition proceedings: Erico International Corporation

Mark or sign cited in opposition: word mark LENTON for goods in Classes 6 and 7

Decision of the Opposition Division: opposition rejected. Opponent ordered to bear the costs.

Decision of the Board of Appeal: appeal and opposition proceedings closed, by reason of the applicant's implied withdrawal of the application for registration of the trade mark in question

Pleas in law: Infringement of Articles 44 and 61(1) of Council Regulation No 40/94 and Rule 50(1) of Commission implementing Regulation No 2868/95. The applicant claims that in the contested decision the fact that it did not take part in the opposition and appeal procedure was wrongly considered to amount to withdrawal of its application for registration of the trade mark in question, whereas it states that the Board of Appeal should, despite the applicant's failure to submit observations, have continued the procedure and reached a decision on the merits.

Infringement of the fundamental legal principle of observance of the rights of the defence and the right to a hearing in accordance with Article 73 of Regulation No 40/94 and Rule 54 of implementing Regulation No 2868/95, pursuant to which the Board of Appeal should have given the applicant an opportunity to state its position before a decision was given against it.

Infringement of Article 74(1) of Regulation No 40/79. The applicant claims that the Board of Appeal went beyond its jurisdiction and misused its powers in finding that the applicant had withdrawn by implication its entire application for registration.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/33 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/33

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Action brought on 29 June 2006 — Coca-Cola Company v OHIM — Azienda Agricola San Polo (MEZZOPANE)

(Case T-175/06)

(2006/C 212/59)

Language in which the application was lodged: Spanish

Parties

Applicant: Coca-Cola Company (N.W Atlanta, Georgia, U.S.A) (represented by: E. Armijo Chavarri and A. Castán Pérez-Gómez, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Azienda Agricola San Polo Exe S.r.l

Form of order sought

| — | annul the decision of the First Board of Appeal of OHIM of 5 April 2006 in Case R-99/2005-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 5 April 2006 in Case R-99/2005-1;

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

—

order the Office to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Azienda Agricola San Polo Exe S.r.l

Community trade mark concerned: Figurative mark 'MEZZOPANE' for goods in Class 33 — Application No 2 242 147.

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Word mark 'MEZZO' and 'MEZZOMIX' for goods in Class 32.

Decision of the Opposition Division: Application for registration of the mark refused.

Decision of the Board of Appeal: Opposition Division's decision annulled.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 since the goods designated by the opposing marks are similar, the opposing marks are visually and phonetically similar and the marks at issue are capable of giving rise to a likelihood of confusion in the course of trade.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/33 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/33

---

Action brought on 3 July 2006 — Ayuntamiento de Madrid and Madrid Calle 30 v Commission of the European Communities

(Case T-177/06)

(2006/C 212/60)

Language of the case: Spanish

Parties

Applicants: Ayuntamiento de Madrid and Madrid Calle 30 (Madrid) (represented by: J. L. Buendía Sierra and R. González-Gallarza Granizo)

Defendant: Commission of the European Communities

Form of order sought

| — | order the cancellation of the classification by the European Commission (Eurostat) of Madrid Calle 30 in the ‘public administration’ sector, in accordance with the ‘European System of Accounts’ (ESA 95) set out in Annex A of Regulation (EC) No 2223/96 of the Council of 25 June 1996, which is based on the accounts published by the Commission (Eurostat) on 24 April 2006 on the data for the year 2005 on government deficit and debt for the application of the Protocol on the excessive deficit procedure; |
| --- | --- |

—

order the cancellation of the classification by the European Commission (Eurostat) of Madrid Calle 30 in the ‘public administration’ sector, in accordance with the ‘European System of Accounts’ (ESA 95) set out in Annex A of Regulation (EC) No 2223/96 of the Council of 25 June 1996, which is based on the accounts published by the Commission (Eurostat) on 24 April 2006 on the data for the year 2005 on government deficit and debt for the application of the Protocol on the excessive deficit procedure;

| — | order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments

This application seeks annulment of the classification by the European Commission (Eurostat) of Madrid Calle 30 S.A. in the ‘public administration’ sector, in accordance with the ‘EUROPEAN SYSTEM OF ACCOUNTS — ESA 95’ (ESA 95) set out in Annex A of Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community (1). According to the applicants, that classification is based on the accounts published by the Commission (Eurostat) on 24 April 2006 on the data for the year 2005 on government deficit and debt for the application of the Protocol on the excessive deficit procedure annexed to the EC Treaty.

The applicants submit that Madrid Calle 30 is a corporation whose shares are held by the Ayuntamiento de Madrid and a private consortium, formed of three construction and service companies selected after a call for tenders subject to strict criteria in respect of market prices.

In support of their forms of order the applicants allege:

| — | infringement of several of the ESA 95 rules on the classification of institutional units in the ‘public administration’ or ‘non-financial corporation’ sectors. |
| --- | --- |

—

infringement of several of the ESA 95 rules on the classification of institutional units in the ‘public administration’ or ‘non-financial corporation’ sectors.

| — | infringement of the general principles that administrative acts must state the principles on which they are based and that the person concerned must be given a hearing. |
| --- | --- |

—

infringement of the general principles that administrative acts must state the principles on which they are based and that the person concerned must be given a hearing.

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(1)  OJ 1996 L 310, p. 1.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/34 |
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Action brought on 7 July 2006 — Fränkischer Weinbauverband v OHIM (three-dimensional mark ‘Bocksbeutel’)

(Case T-180/06)

(2006/C 212/61)

Language of the case: German

Parties

Applicant: Fränkischer Weinbauverband e.V. (Würzburg, Germany) (represented by N. Hetzelt and A. Weigand, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 April 2006 (Case No R 0479/2004-1); |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 April 2006 (Case No R 0479/2004-1);

| — | order the defendant to publish Community trade mark No 002323301 in accordance with Article 40 of the Community trade mark regulation and; |
| --- | --- |

—

order the defendant to publish Community trade mark No 002323301 in accordance with Article 40 of the Community trade mark regulation and;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The three-dimensional collective mark ‘Bocksbeutel’ for goods and services in Classes 32, 33 and 42 (Registration No 2 323 301).

Decision of the Examiner: Partial rejection of the application.

Decision of the Board of Appeal: Rejection of the appeal.

Pleas in law: The mark applied for is capable of being protected as it has the necessary distinctive character within the meaning of Article 7(1)(b) in conjunction with Article 64 of Regulation (EC) No 40/94 (1). Furthermore, the contested decision infringes the principle of equal treatment.

---

(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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| 2.9.2006 | EN | Official Journal of the European Union | C 212/34 |
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C 212/34

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Action brought on 6 July 2006 — Italian Republic v Commission

(Case T-181/06)

(2006/C 212/62)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: Giacomo Aiello, avvocato dello stato)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision 2006/334/EC of 28 April 2006 (C (2006) 1702) in so far as it excludes from Community financing certain expenditure incurred by the Italian Republic under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and order the defendant to pay the costs of the proceedings. |
| --- | --- |

—

Annul Commission Decision 2006/334/EC of 28 April 2006 (C (2006) 1702) in so far as it excludes from Community financing certain expenditure incurred by the Italian Republic under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The Italian Republic has brought an action before the Court of First Instance challenging Commission Decision C (2006) 1702 of 28 April 2006 in so far as it excludes from Community financing certain expenditure incurred by the applicant under the European Agricultural Guidance and Guarantee Fund (EAGGF).

In support of its claims, the applicant alleges infringement and misapplication of:

| — | Article 11(1)(c)(4), Article 13(2), Article 15(4)(a), Article 30(1) and (2), and Article 51 of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297 of 2.11.1996, p. 19); |
| --- | --- |

—

Article 11(1)(c)(4), Article 13(2), Article 15(4)(a), Article 30(1) and (2), and Article 51 of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297 of 2.11.1996, p. 19);

| — | the third subparagraph of Article 17(2) of Commission Regulation (EC) No 659/97 of 16 April 1997 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards intervention arrangements in the fruit and vegetables sector (OJ 1997 L 100 of 17.4.1997, p. 22); |
| --- | --- |

—

the third subparagraph of Article 17(2) of Commission Regulation (EC) No 659/97 of 16 April 1997 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards intervention arrangements in the fruit and vegetables sector (OJ 1997 L 100 of 17.4.1997, p. 22);

| — | Article 8(2)(c) and (d), Article 8(4)(b) and Article 16(1) of Commission Regulation (EC) No 609/2001 of 28 March 2001 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards operational programmes, operational funds and Community financial assistance, and repealing Regulation (EC) No 411/97 (OJ 2001 L 90 of 30.3.2001, p. 4); |
| --- | --- |

—

Article 8(2)(c) and (d), Article 8(4)(b) and Article 16(1) of Commission Regulation (EC) No 609/2001 of 28 March 2001 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards operational programmes, operational funds and Community financial assistance, and repealing Regulation (EC) No 411/97 (OJ 2001 L 90 of 30.3.2001, p. 4);

| — | Article 3 of Commission Regulation (EC) No 412/97 of 3 March 1997 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards the recognition of producer organisations (OJ 1997 L 62 of 4.3.1997, p. 16); |
| --- | --- |

—

Article 3 of Commission Regulation (EC) No 412/97 of 3 March 1997 laying down detailed rules for the application of Council Regulation (EC) No 2200/96 as regards the recognition of producer organisations (OJ 1997 L 62 of 4.3.1997, p. 16);

| — | Articles 6 and 9 of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391 of 31.12.1992. p. 36). |
| --- | --- |

—

Articles 6 and 9 of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391 of 31.12.1992. p. 36).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/35 |
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C 212/35

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Action brought on 12 July 2006 — Kingdom of the Netherlands v Commission

(Case T-182/06)

(2006/C 212/63)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H.G. Sevenster and D.J.M. de Grave, acting as Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision 2006/372/EC of 3 May 2006 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty laying down limits on the emissions of particulate matter by diesel-powered vehicles; |
| --- | --- |

—

Annul Commission Decision 2006/372/EC of 3 May 2006 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty laying down limits on the emissions of particulate matter by diesel-powered vehicles;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant informed the Commission, in accordance with Article 95(5) EC, of its intention to establish national rules for limiting emissions of particulate matter by diesel-powered vehicles, in derogation from the provisions of Directive 98/69/EC (1). Under those notified rules, a limit value of 5 milligrams per kilometre for the emission of fine particulate matter was to be set with effect from 1 January 2007 for new diesel-powered passenger cars and diesel-powered commercial vehicles. The present limit value in Directive 98/69 is 25 milligrams per kilometre. In view of specific problems in the Netherlands concerning air quality, the Netherlands Government considers that it is necessary to introduce a more stringent rule. The Commission rejected the proposed national rule in the contested Decision 2006/372/EC (2).

In support of its application, the applicant first claims infringement by the Commission of the appraisal criteria of Article 95(5) EC by reason of its view that the Netherlands had not indicated that there was a specific problem in regard to air quality and, more particularly, with the obligations under Directive 99/30 (3).

Second, the applicant submits that there has been an infringement of the duty of care and the duty to state reasons under Article 253 EC by virtue of the Commission's failure to take into account, without detailed reasons, more recent and relevant data which the Netherlands Government provided in good time prior to the contested decision.

Third, the applicant submits that the Commission breached the EC Treaty by failing, in its appraisal of alternative measures pursuant to Article 95(6) EC, to proceed on the basis of the specifically pursued objective of the national provision in respect of which approval was sought.

The applicant accordingly contends that there has been a failure to comply with the obligation under Article 253 EC to state reasons in the appraisal of the conditions under Article 95(6) EC.

The applicant concludes by alleging a breach of Article 95(5) and (6) EC and the requirement under Article 253 EC to state reasons by virtue of the fact that the Commission treated the international context of the planned measure as being relevant in its appraisal of the request made by the Netherlands Government.

---

(1)  Directive 98/69/EC of the European Parliament and of the Council of 13 October 1998 relating to measures to be taken against air pollution by emissions from motor vehicles and amending Council Directive 70/220/EEC (OJ 1998 L 350, p. 1).

(2)  Commission Decision 2006/372/EC of 3 May 2006 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty laying down limits on the emissions of particulate matter by diesel-powered vehicles [notification made under no C(2000) 1791] (OJ 2006 L 142, p. 16).

(3)  Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/36 |
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Action brought on 11 July 2006 — Portuguese Republic v Commission

(Case T-183/06)

(2006/C 212/64)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (Lisbon, Portugal) (represented by: L.Fernandes, Agent, C.Botelho Moniz, advogado, and E.Maia Cadete, advogado)

Defendant: Commission

Form of order sought

| — | Annul the Decision of 28 April 2006 of the Commission of the European Communities entitled ‘Commission Decision 28/IV/2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF)’ in so far as it applies in the case of Portugal a financial correction of 100 % in the flax sector, amounting to EUR 3 135 348,71; |
| --- | --- |

—

Annul the Decision of 28 April 2006 of the Commission of the European Communities entitled ‘Commission Decision 28/IV/2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF)’ in so far as it applies in the case of Portugal a financial correction of 100 % in the flax sector, amounting to EUR 3 135 348,71;

| — | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments

The subject-matter of the action is the decision of the Commission of the European Communities of 28 April 2006 entitled ‘Commission Decision 28/IV/2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Guidance and Guarantee Fund (EAGGF)’ in so far as it applies in the case of Portugal a financial correction of 100 % in the flax sector, amounting to EUR 3 135 348,71, in the context of the scheme introduced by Commission Regulation (EEC) No 1164/89 of 28 April 1989 laying down detailed rules concerning the aid for fibre flax and hemp (1).

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(1)  OJ L 121, 29.4.1989, p.4

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/36 |
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2.9.2006

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Official Journal of the European Union

C 212/36

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Action brought on 14 July 2006 — Commission v Internet Commerce Network and Dane-Elec Memory

(Case T-184/06)

(2006/C 212/65)

Language of the case: French

Parties

Applicant: Commission of the European Communities (Brussels, Belgium) (represented by: L. Ström, Agent, assisted by P. Elvinger, lawyer)

Defendants: Internet Commerce Network and Dane-Elec Memory

Form of order sought by the applicant

The applicant claims that the court should:

| — | summon the parties and mediate between them; if not |
| --- | --- |

—

summon the parties and mediate between them; if not

| — | accept that this application is in due form and declare it admissible; and |
| --- | --- |

—

accept that this application is in due form and declare it admissible; and

| — | primarily, order the company Dane-Elec Memory to pay the Commission the sum of EUR 55 878 with interest for late payment, in pursuance of the ‘upon first demand’ guarantee; |
| --- | --- |

—

primarily, order the company Dane-Elec Memory to pay the Commission the sum of EUR 55 878 with interest for late payment, in pursuance of the ‘upon first demand’ guarantee;

| — | in the alternative, order the company ICN to repay the advance of EUR 55 878 made by the Commission with interest for late payment, on the ground of non-fulfilment of its contractual undertakings in connection with the Crossemarc project; |
| --- | --- |

—

in the alternative, order the company ICN to repay the advance of EUR 55 878 made by the Commission with interest for late payment, on the ground of non-fulfilment of its contractual undertakings in connection with the Crossemarc project;

| — | order the unsuccessful party, under Article 69 (2) of the Rules of Procedure, to pay the costs and expenses of the proceedings; |
| --- | --- |

—

order the unsuccessful party, under Article 69 (2) of the Rules of Procedure, to pay the costs and expenses of the proceedings;

| — | order the interim execution of the judgement to be given, notwithstanding appeal and without security; |
| --- | --- |

—

order the interim execution of the judgement to be given, notwithstanding appeal and without security;

| — | reserve to the applicant all other rights, pleas in law and actions, and, in particular, the right to add to its claim for payment. |
| --- | --- |

—

reserve to the applicant all other rights, pleas in law and actions, and, in particular, the right to add to its claim for payment.

Pleas in law and main arguments

The European Community, represented by the European Commission, concluded on 28 February 2001 with, among others, the company Internet Commerce Network (ICN), Contract IST-2000-25366 covering the carrying-out of a project ‘Cross-lingual Multi Agent Retail Comparison — Crossemarc’ in the framework of a programme for research, technological development and demonstration technologies of Information Society Technologies (IST) 1998-2002 (1). By letter of guarantee signed on 1 September 2000 Dane-Elec Memory, ICN's parent company, guaranteed ICN's contractual commitments to the Commission under Contract IST-2005-25366.

An advance of payment was made by the Commission to the parties associated in the project, including ICN, through a coordinator, NCSR ‘Demokritos’. Subsequently, the coordinator requested ICN's contribution in accordance with the tasks defined in the project. Since that contribution was not made and ICN's representative informed the coordinator of financial difficulties encountered by ICN, the coordinator contacted the company Dane-Elec Memory, the guarantor of ICN's obligations. The director of Dane-Elec Memory informed the coordinator that ICN was going to withdraw from the project and repay the advances. Having received no confirmation in writing of that withdrawal or the commitment to repay, the coordinator of the project and the Commission sent ICN a demand for repayment of the advances made. Since that demand received no reply, a request to honour the financial guarantee in accordance with its commitments in the letter of guarantee was sent to Dane-Elec Memory. It refused to honour that guarantee on the ground that the contractual default was not proven by the Commission. That refusal was repeated in spite of the fact that the Commission gave reasons for its demand.

On the basis of the arbitration clauses contained in Contract IST-2000-25366 between ICN and the Commission and in the letter of guarantee issued by Dane-Elec Memory in favour of the Commission, the Commission brought this action seeking an order that Dane-Elec Memory pay the Commission the amount of the advances paid to ICN plus interest for late payment, in pursuance of the ‘upon first demand’ guarantee. In the alternative, the applicant seeks an order that ICN repay the advance made by the Commission plus interest for late payment, for non-fulfilment of its contractual obligations in connection with the ‘Crossmarc project’.

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(1)  Call for expression of interest published in OJ 1999 C 12, p. 5.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/37 |
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Action brought on 17 July 2006 — L'Air Liquide v Commission

(Case T-185/06)

(2006/C 212/66)

Language of the case: French

Parties

Applicant: L'Air Liquide SA (Paris, France) (represented by: R. Saint Esteben and M. Pittie, lawyers)

Defendant: Commission of the European Communities

Form of order sought by the applicant

The applicant claims that the Court should:

| — | declare the action admissible; |
| --- | --- |

—

declare the action admissible;

| — | annul Article 1(i) of Commission Decision C (2006) 1766 final of 3 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as it decided that L'Air Liquide infringed Article 81 EC and Article 53 EEA between 12 May 1995 and 31 December 1997; |
| --- | --- |

—

annul Article 1(i) of Commission Decision C (2006) 1766 final of 3 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as it decided that L'Air Liquide infringed Article 81 EC and Article 53 EEA between 12 May 1995 and 31 December 1997;

| — | consequently, annul Articles 2(f) and 4 of Commission Decision C (2006) 1766 final of 3 May 2006, as regards L'Air Liquide; |
| --- | --- |

—

consequently, annul Articles 2(f) and 4 of Commission Decision C (2006) 1766 final of 3 May 2006, as regards L'Air Liquide;

| — | order the Commission to pay all the costs incurred by the applicant in connection with this action. |
| --- | --- |

—

order the Commission to pay all the costs incurred by the applicant in connection with this action.

Pleas in law and main arguments

By this action, the applicant seeks the partial annulment of Commission Decision C (2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, including the applicant, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a number of agreements and concerted practices consisting in exchanges of information between competitors and agreements on prices and production capacities as well as monitoring the implementation of those agreements in the hydrogen peroxide and sodium perborate sector.

In support of its claims, the applicant relies on four pleas in law.

By its first plea in law, the applicant claims that the Commission made a manifest error of assessment in deciding that the matters which it put forward in order to presume L'Air Liquide jointly and severally liable because of the conduct of its subsidiary were sufficient having regard to the criteria established by the case-law and that the Commission therefore misapplied the rules governing the attribution to a parent company of the conduct of its subsidiary and thus infringed Article 81 EC.

By its second plea in law, the applicant claims that by wrongly invoking the presumption of attribution with regard to L'Air Liquide, the Commission also improperly reversed the burden of proof and thus infringed the applicant's right to a fair hearing.

By its third plea in law, the applicant argues that, even if the Court of First Instance considers that the Commission was justified in presuming the attribution to L'Air Liquide of the conduct of its subsidiary Chemoxal, the Commission failed to fulfil its obligation to state its reasons in that it did not discuss any of the evidence put forward by L'Air Liquide to demonstrate Chemoxal's independence and thus reversed that presumption of joint and several liability, which is only a rebuttable presumption.

By its fourth plea in law, the applicant maintains that the Commission has not shown sufficiently in law and fact its legitimate interest in bringing proceedings against the applicant in the present proceedings by adopting, in spite of the time-bar on its power to penalise L'Air Liquide, a decision establishing L'Air Liquide's commission of an infringement of Article 81(1) EC and Article 53 of the EEA Agreement and that in default of such a legitimate interest, the Commission therefore had no power to adopt such a decision against the applicant.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/38 |
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Action brought on 17 July 2006 — Solvay v Commission

(Case T-186/06)

(2006/C 212/67)

Language of the case: English

Parties

Applicant: Solvay S.A. (Brussels, Belgium) (represented by: O.W. Brouwer, D. Mes, lawyers, M. O'Regan and A. Villette, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul, in full or in part, Articles 1, 2 and 3 of the European Commission's Decision of 3 May 2006 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F/38.620 — Hydrogen peroxide and perborate) insofar as it relates to the applicant, in particular insofar as it finds that the applicant infringed Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement (a) between 31 January 1994 and August 1997 and (b) between 18 May and 31 December 2000; |
| --- | --- |

—

Annul, in full or in part, Articles 1, 2 and 3 of the European Commission's Decision of 3 May 2006 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F/38.620 — Hydrogen peroxide and perborate) insofar as it relates to the applicant, in particular insofar as it finds that the applicant infringed Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement (a) between 31 January 1994 and August 1997 and (b) between 18 May and 31 December 2000;

| — | annul or substantially reduce the fines imposed on the applicant and on Solvay Solexis SpA pursuant to the decision; |
| --- | --- |

—

annul or substantially reduce the fines imposed on the applicant and on Solvay Solexis SpA pursuant to the decision;

| — | order the defendant to pay the costs of the proceedings, including costs incurred by the applicant associated with payment in whole or part of the fine or constituting a bank guarantee; |
| --- | --- |

—

order the defendant to pay the costs of the proceedings, including costs incurred by the applicant associated with payment in whole or part of the fine or constituting a bank guarantee;

| — | take any other measures that the Court considers to be appropriate. |
| --- | --- |

—

take any other measures that the Court considers to be appropriate.

Pleas in law and main arguments

By the contested decision the Commission found that the applicant had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a hydrogen peroxide and sodium perborate cartel, which consisted mainly of exchanges between competitors of information on prices and sales volumes, agreements on prices, agreements on reduction of production capacity in the EEA and monitoring of the anti-competitive arrangements.

The applicant contends that the Commission was entitled to find that Solvay had infringed Article 81 EC between August 1997 and 18 May 2000, but that the Commission committed infringements of law and manifest errors of assessment in the application of Article 81 EC finding that Solvay committed an infringement, on the one hand, between 31 January 1994 and August 1997 and, on the other, between 18 May and 31 December 2000. These infringements and manifest errors of assessment relate in particular to:

| a) | the misapplication of the concepts of ‘agreement’, ‘concerted practice’ and ‘single and continuous infringement’; |
| --- | --- |

a)

the misapplication of the concepts of ‘agreement’, ‘concerted practice’ and ‘single and continuous infringement’;

| b) | failing to prove to the requisite standard the applicant's participation in a cartel other than in the periods admitted by the applicant; |
| --- | --- |

b)

failing to prove to the requisite standard the applicant's participation in a cartel other than in the periods admitted by the applicant;

| c) | presuming continuing anti-competitive effects after 18 May 2000; and |
| --- | --- |

c)

presuming continuing anti-competitive effects after 18 May 2000; and

| d) | failing to analyse properly the evidence in its file in relation to the above periods. |
| --- | --- |

d)

failing to analyse properly the evidence in its file in relation to the above periods.

The applicant further submits that the Commission, when calculating the fine, has made several infringements of law and manifest errors of assessment in applying its 2002 Leniency Notice (1) and Regulation No 1/2003 (2), including in relation to:

| a) | the timing of applications for a reduction of fines and/or the provision of significant added value there under; |
| --- | --- |

a)

the timing of applications for a reduction of fines and/or the provision of significant added value there under;

| b) | the assessment of the added value of the evidence provided by the applicant; and |
| --- | --- |

b)

the assessment of the added value of the evidence provided by the applicant; and

| c) | the level of the reduction of the fine accorded to the applicant, which according to Solvay manifestly failed to take account of the extent of the evidential value contributed by it, as well as its substantial and continuous cooperation. |
| --- | --- |

c)

the level of the reduction of the fine accorded to the applicant, which according to Solvay manifestly failed to take account of the extent of the evidential value contributed by it, as well as its substantial and continuous cooperation.

Furthermore, the applicant alleges that the fine was excessive and disproportionate and that the Commission failed to provide any, alternatively any sufficient, reasons to justify its calculation of the fine.

More over, the applicant submits that the Commission unlawfully imposed a fine upon the applicant's subsidiary, Solvay Solexis SpA.

Finally, the applicant claims that the Commission breached essential procedural requirements and rights of defence by not giving full access to the file and by not giving access to non-confidential versions of replies to statements of objections of other parties in the Commission procedure.

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(1)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)

(2)  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, p. 1).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/39 |
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Action brought on 18 July 2006 — Ralf Schräder v Community Plant Variety Office

(Case T-187/06)

(2006/C 212/68)

Language of the case: German

Parties

Applicant(s): Ralf Schräder (Lüdinghausen, Germany) (represented by: T, Leidereiter, W.-A. Schmidt and I. Memmler, lawyers)

Defendant(s): Community Plant Variety Office (CPVO)

Form of order sought

| — | Amendment of the decision by the Board of Appeal of the CPVO of 2 May 2006 (Az. 003/2004) so as to allow the applicant's appeal against the defendant's decision No R 446 and to grant plant variety right in respect of plant variety right application SUMCOL 01(No 2001/0905); |
| --- | --- |

—

Amendment of the decision by the Board of Appeal of the CPVO of 2 May 2006 (Az. 003/2004) so as to allow the applicant's appeal against the defendant's decision No R 446 and to grant plant variety right in respect of plant variety right application SUMCOL 01(No 2001/0905);

| — | In the alternative, annulment of the decision by the defendant's Board of Appeal of 2 May 2006 (Az. A003/2004) with a direction to the defendant to make a fresh decision on that application in the light of the judgment; |
| --- | --- |

—

In the alternative, annulment of the decision by the defendant's Board of Appeal of 2 May 2006 (Az. A003/2004) with a direction to the defendant to make a fresh decision on that application in the light of the judgment;

| — | In the alternative, annulment of the decision of the defendant's Board of Appeal of 2 May 2006 (Az. A003/2004); |
| --- | --- |

—

In the alternative, annulment of the decision of the defendant's Board of Appeal of 2 May 2006 (Az. A003/2004);

| — | The CPVO to pay the costs. |
| --- | --- |

—

The CPVO to pay the costs.

Pleas in law and main arguments

Community plant variety right at issue: SUMCOL 01 (Variety application No. 2001/0905).

Decision of the Committee: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Grounds: In particular, infringement of Article 62 in conjunction with Article 7 of Council Regulation (EC) No 2100/94 (1) through legal misassessment of the content; according to the applicant, the plant variety in respect of which application was made is eligible for protection because it has the necessary distinctiveness; Infringement of Article 76 of Regulation No 2100/94 on account of insufficient examination of the content, and of Article 75 of that regulation for infringement of the right to a fair hearing.

---

(1)  Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/39 |
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2.9.2006

EN

Official Journal of the European Union

C 212/39

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Action brought on 18 July 2006 — Arkema France v Commission

(Case T-189/06)

(2006/C 212/69)

Language of the case: French

Parties

Applicant: Arkema France (Puteaux, France) (represented by: A. Winckler, lawyer, S. Sorinas, lawyer, and P. Geffriaud, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | on the basis of Article 230 EC, annul the decision adopted by the Commission of 3 May 2006 in Case COMP/F/38.620 in so far as it concerns Arkema; |
| --- | --- |

—

on the basis of Article 230 EC, annul the decision adopted by the Commission of 3 May 2006 in Case COMP/F/38.620 in so far as it concerns Arkema;

| — | in the alternative, annul or reduce, on the basis of Artice 229 EC, the amount of the fine imposed upon it by that decision; |
| --- | --- |

—

in the alternative, annul or reduce, on the basis of Artice 229 EC, the amount of the fine imposed upon it by that decision;

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

—

order the Commission pay to pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, which included the applicant, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a complex of agreements and concerted practices consisting of the exchange of information between competitors and agreements on prices and production capacities and also of supervision of the implementation of those agreements in the hydrogen peroxide and sodium perborate sector. In the alternative, it seeks the annulment or reduction of the amount of the fine imposed on it by that decision.

In support of its claims, the applicant puts forward four pleas in law.

By its first plea, the applicant submits that, by holding Elf Aquitaine and Total liable for the infringement committed by Arkema on the basis of a mere presumption linked to the fact that almost all its capital was held by those companies at the material time, the Commission made errors of law and fact in the application of the rules relating to holding a parent company liable for practices implemented by a subsidiary and it breached the principle of non-discrimination. The applicant claims to have refuted that presumption of control during the investigation. In addition, it argues that the Commission breached its duty to state reasons under Article 253 EC and also the principle of good administration by not responding to all the arguments expanded by the applicant in its response to the statement of objections.

By its second plea, the applicant claims that the Commission made an error of law in that it increased by 200 % the ‘starting amount’ for Arkema's fine by way of a deterrent by taking as a basis the turnover of Total and Elf Aquitaine, the parent companies at the material time, since one or both of those companies could not, according to the applicant, be held liable for the alleged breach. As a subsidiary argument in the context of that plea, the applicant submits that, supposing that the parent companies could be held liable for the breach, the Commission breached the principles of proportionality and equal treatment by applying a multiplying factor of 3 (or an increase by 200 %) to the ‘starting amount’ of the fine imposed on Arkema by way of a deterrent.

Thirdly, the applicant submits that it is in breach of law that the decision increased the ‘basic amount’ of Arkema's fine by 50 % on the grounds of repeated infringement. It argues that the application of the notion of repeated infringement is manifestly excessive in the present case and contrary to the principle of legal certainty as regards infringements found by the Commission on the basis of facts far removed from the present time. Furthermore, the applicant alleges that the Commission breached the principle of ‘non bis in idem’ and the principle of proportionality, since the existence of earlier decisions against it had already been taken into account on several occasions by the Commission in other recent decisions in which it imposed on Arkema an increase of the fine by 50 % by virtue of repeated infringement. The applicant claims that it is being penalised again for the same acts.

Finally, it submits that the decision is well founded in neither law nor fact, in so far as it did not grant the applicant a reduction greater than 30 % of the amount of the fine by virtue of its cooperation during the proceedings. The applicant contends that the Commission made a manifest error of assessment and also an error of law in that it did not apply Title B of the Leniency Notice (1) to grant it a reduction of the fine of 50 %.

---

(1)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/40 |
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2.9.2006

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Official Journal of the European Union

C 212/40

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Action brought on 19 July 2006 — Total and Elf Aquitaine v Commission

(Case T-190/06)

(2006/C 212/70)

Language of the case: French

Parties

Applicants: Total SA and Elf Aquitaine (Courbevoie, France) (represented by: E. Morgan de Rivery, lawyer, and A. Noël-Baron, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Articles 1(o) and (p), 2(i), 3 and 4 of Commission Decision C(2006) 1766 final of 3 May 2006; |
| --- | --- |

—

annul Articles 1(o) and (p), 2(i), 3 and 4 of Commission Decision C(2006) 1766 final of 3 May 2006;

| — | in the alternative, amend Article 2(i) of Commission Decision C(2006) 1766 final of 3 May 2006, in so far as it imposes a fine of EUR 78.663 million on Arkema SA, of which Total SA is held jointly and severally liable for EUR 42 million, and ELF Aquitaine SA for EUR 65.1 million, and reduce the amount of the fine in question to an appropriate level; |
| --- | --- |

—

in the alternative, amend Article 2(i) of Commission Decision C(2006) 1766 final of 3 May 2006, in so far as it imposes a fine of EUR 78.663 million on Arkema SA, of which Total SA is held jointly and severally liable for EUR 42 million, and ELF Aquitaine SA for EUR 65.1 million, and reduce the amount of the fine in question to an appropriate level;

| — | in any event, order the Commission to pay all the costs. |
| --- | --- |

—

in any event, order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicants seek the partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, which included the applicants, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a complex of agreements and concerted practices consisting of the exchange of information between competitors and agreements on prices and production capacities and also of supervision of the implementation of those agreements in the hydrogen peroxide and sodium perborate sector. In the alternative, they seek the reduction of the amount of the fine imposed on their subsidiary for which they are held jointly and severally liable.

The main claim is based on ten pleas in law.

Firstly, the applicants submit that the contested decision breaches their rights to a defence and also the presumption of innocence.

Secondly, they contend that the contested decision, in so far as it finds them liable for the disputed breach committed by their subsidiary, breaches the obligation to state reasons, firstly because the reasoning of the Commission, which the applicants consider to be partially contradictory, is insufficiently developed, having regard to the novelty of the position adopted in regard to them, and, secondly, because the Commission, by refusing to respond, ignored the specific factors put forward by the applicants to justify their lack of involvement in the management of the subsidiary.

The applicants also consider that the contested decision breaches the unitary nature of the concept of an undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation 1/2003 (1), and also the rules which govern whether breaches committed by a subsidiary can be imputed to its parent company. As regards that plea, the applicants claim that the Commission has disregarded the restrictive guidelines of the Community Courts regarding its power to hold a parent company liable for breaches committed by its subsidiary. It also adopted an interpretation of the case-law relating to imputability which was incorrect and went against its decision-making practice. According to the applicants, the Commission also breached the principle of independence of legal persons.

The applicants consider in addition that the Commission made manifest errors of assessment by incorrectly applying to Total the presumption of imputability and by considering, when assessing the repetition of the breaches, that Total's subsidiary fined by the contested decision had always belonged to it.

Furthermore, the applicants contend that the Commission infringed several essential principles that are recognised by the Member States and which form part of Community law, such as the principle of non-discrimination, the principle of liability for one's own acts, the principle of the individual nature of penalties and the principle of legality.

The applicants also submit that the contested decision compromises the principles of good administration and legal certainty.

The applicants finally consider that the Commission infringes the rules governing the calculation of fines such as the principle of equal treatment, in so far as it does not apply a reduction of 25 % to the starting amount of the fine imposed on the applicants whereas it did apply it to another undertaking to which the contested decision was addressed. According to the applicants, the contested decision also exceeds the limits placed on the Commission's power regarding the taking into account of the deterrent effect, in breach of the principle of the presumption of innocence and the principle of legal certainty.

Lastly, the applicants claim that the contested decision constitutes a misuse of powers in that it holds them liable for the breach committed by their subsidiary and penalises them jointly and severally with it.

In the alternative, the applicants consider that the fine imposed upon their subsidiary, and for which they are held jointly and severally liable, should be reduced to a fair level. They seek to obtain a reduction of 25 % in the starting amount of the fine imposed upon them and also to rely on mitigating circumstances in that they were ordered to pay large fines almost simultaneously in two similar cases.

---

(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, p. 1

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/41 |
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2.9.2006

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Official Journal of the European Union

C 212/41

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Action brought on 18 July 2006 — FMC Foret v Commission

(Case T-191/06)

(2006/C 212/71)

Language of the case: English

Parties

Applicant: FMC Foret S.A. (Sant Cugat del Vallés, Spain) (represented by: M. Seimetz, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Commission Decision C(2006)1766 final of 3 May 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as it imposes a fine on the applicant; |
| --- | --- |

—

Annulment of Commission Decision C(2006)1766 final of 3 May 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as it imposes a fine on the applicant;

| — | in the alternative, reduce the fine imposed on the applicant, and |
| --- | --- |

—

in the alternative, reduce the fine imposed on the applicant, 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 means of its application, the applicant, as far as it is concerned, seeks annulment of Commission Decision C(2006)1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, on the basis of which the Commission found that the undertakings concerned had infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a single and continuous infringement regarding hydrogen peroxide and sodium perborate, covering the whole EEA territory, which consisted mainly of exchanges between competitors of information on prices and sales volumes, agreements on prices, agreements on reduction of production capacity in the EEA and monitoring of the anti-competitive arrangements.

In support of its claims for a reduction of charges, the applicant mainly contends the evidentiary standard set by the Commission on its behalf and, secondly, pleads violation of its rights of defence.

The applicant, first, claims the Commission has failed to discharge the burden of proof and has not engaged in a reasonable appraisal of the evidence relating to the existence of a cartel. Thus, the applicant criticises the Commission for having relied on vague and uncorroborated allegations contained in leniency applications submitted by other undertakings, despite its Hearing Officer concerns.

The applicant further submits that both its testimony and evidence produced at various instances of the procedure in order to demonstrate the falsity of submissions against it went unchallenged, to be finally rejected by the Commission without justification.

The applicant, secondly, accuses the Commission of having wrongfully withheld evidence from it. In this respect, it was allegedly denied the right of defence with regards to access in the replies given to the Commission's Statement of Objections, while it claims to have demonstrated, in its own reply, its refusal to participate in cartel activities.

Finally, FMC Foret estimates the fine levied by the Commission against it excessive and disproportionate with regard to its turnover and given the wholly passive role it claims to have played in the alleged cartel.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/42 |
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2.9.2006

EN

Official Journal of the European Union

C 212/42

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Action brought on 18 July 2006 — Caffaro v Commission

(Case T-192/06)

(2006/C 212/72)

Language of the case: Italian

Parties

Applicant(s): Caffaro S.r.l. (represented by: Alberto Santa Maria and Claudi Biscaretti di Rufia, lawyers,)

Defendant(s): Commission of the European Communities

Forms of order sought

| — | Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it imposes on Caffaro S.r.l., jointly and severally with SNIA S.p.A., a fine of EUR 1 078 000. |
| --- | --- |

—

Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it imposes on Caffaro S.r.l., jointly and severally with SNIA S.p.A., a fine of EUR 1 078 000.

| — | In the alternative, reduction of the fine on Caffaro S.r.l. to a symbolic amount. |
| --- | --- |

—

In the alternative, reduction of the fine on Caffaro S.r.l. to a symbolic amount.

| — | Further in the alternative, substantial reduction of the fine on Caffaro S.r.l., taking account of the short duration of the infringement and of attenuating circumstances |
| --- | --- |

—

Further in the alternative, substantial reduction of the fine on Caffaro S.r.l., taking account of the short duration of the infringement and of attenuating circumstances

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

—

The Commission to pay the costs.

Pleas in law and main arguments

The contested decision in this case is the same as in Case T-185/06 L'air Liquide v Commission.

In support of its arguments, the applicant argues:

| — | that it should be regarded as a victim rather than a participant in the hydrogen peroxide cartel. In assessing Caffaro's position in the proceeding in question, the Commission entirely failed to take account of the fact that, far from profiting from the cartel in question, Caffaro quit the the market in sodium perborate precisely as a consequence of the unlawful agreements made on the hydrogen peroxide market. The applicant emphasised to the Commission that it manufactured only sodium perborate, that it was merely a customer for hydrogen peroxide, and that it could therefore not be a member of the hydrogen peroxide cartel but rather a victim of it. |
| --- | --- |

—

that it should be regarded as a victim rather than a participant in the hydrogen peroxide cartel. In assessing Caffaro's position in the proceeding in question, the Commission entirely failed to take account of the fact that, far from profiting from the cartel in question, Caffaro quit the the market in sodium perborate precisely as a consequence of the unlawful agreements made on the hydrogen peroxide market. The applicant emphasised to the Commission that it manufactured only sodium perborate, that it was merely a customer for hydrogen peroxide, and that it could therefore not be a member of the hydrogen peroxide cartel but rather a victim of it.

| — | that the Commission made an obvious error by using for all the participants in the infringement, save the applicant, overall market shares in 1999, the last full year of the infringement concerning both products (sodium perborate and hydrogen peroxide). Surprisingly, in relation to Caffaro, the Commission used instead market data for 1998, whereas, according to settled case-law, the Commission must, for the purpose of assessing the specific weight of an undertaking, take into consideration the turnover achieved by each undertaking during the reference year. The case-law has interpreted that principle to the effect that only the use of a common reference year for all the undertakings participating in the same infringement guarantees equal treatment. |
| --- | --- |

—

that the Commission made an obvious error by using for all the participants in the infringement, save the applicant, overall market shares in 1999, the last full year of the infringement concerning both products (sodium perborate and hydrogen peroxide). Surprisingly, in relation to Caffaro, the Commission used instead market data for 1998, whereas, according to settled case-law, the Commission must, for the purpose of assessing the specific weight of an undertaking, take into consideration the turnover achieved by each undertaking during the reference year. The case-law has interpreted that principle to the effect that only the use of a common reference year for all the undertakings participating in the same infringement guarantees equal treatment.

The applicant also argues:

| — | Infringement of defence rights in that, contrary to what the Commission maintains, representatives of Caffaro did not participate in the meeting in Brussels of 26 November 1998. |
| --- | --- |

—

Infringement of defence rights in that, contrary to what the Commission maintains, representatives of Caffaro did not participate in the meeting in Brussels of 26 November 1998.

| — | Misapplication of Article 25 of Regulation (EC) No 1/2003, and of the time-limit contained therein, inasmuch as Caffaro ceased participation in the presumed arrangement more than five years before the commencement of the Commission's investigation in relation to Caffaro. |
| --- | --- |

—

Misapplication of Article 25 of Regulation (EC) No 1/2003, and of the time-limit contained therein, inasmuch as Caffaro ceased participation in the presumed arrangement more than five years before the commencement of the Commission's investigation in relation to Caffaro.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/43 |
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2.9.2006

EN

Official Journal of the European Union

C 212/43

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Action brought on 18 July 2006 — SNIA v Commission

(Case T-194/06)

(2006/C 212/73)

Language of the case: Italian

Parties

Applicant(s): SNIA S.p.A. (represented by: Alberto Santa Maria and Claudi Biscaretti di Rufia, lawyers,)

Defendant(s): Commission of the European Communities

Forms of order sought

| — | Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it imposes on SNIA S.p.A., jointly and severally with Caffaro S.r.l., a fine of EUR 1 078 000. |
| --- | --- |

—

Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it imposes on SNIA S.p.A., jointly and severally with Caffaro S.r.l., a fine of EUR 1 078 000.

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

—

The Commission to pay the costs.

Pleas in law and main arguments

The contested decision in this case is the same as in Case T-185/06 L'air Liquide v Commission.

In that decision, the Commission maintains that, at the time of the facts, Industrie Chimiche Caffaro S.p.A. (ICC) was managerially dependent not only on Caffaro S.p.A., a company quoted on the Italian stock exchange and controlling ICC as to 100 %, but also on the applicant, a majority shareholder of Caffaro S.p.A. of between 53 % and 59 %. Essentially on the basis of that indirect link, the applicant is considered jointly and severally liable for the infringement of which the Commission accuses Caffaro S.r.l.

In support of its arguments, the applicant claims:

| — | that the Commission has not established a relationship of dependency between SNIA and ICC during the period in question. Nor has it demonstrated the existence, during the same period, of such a relationship between Caffaro S.p.A. and ICC. |
| --- | --- |

—

that the Commission has not established a relationship of dependency between SNIA and ICC during the period in question. Nor has it demonstrated the existence, during the same period, of such a relationship between Caffaro S.p.A. and ICC.

| — | that, as regards the relevance of the merger between Caffaro S.p.A. and SNIA for the purposes of identifying a decisive influence of SNIA, the Commission ignored the fact that the merger by incorporation of Caffaro S.p.A. into SNIA S.p.A. (like the change of the company name of ICC to Caffaro S.p.A., now Caffaro S.r.l.) occurred in 2000, that is to say a year after the exit from the market in bleaching agents, and that, as already stated, the Commission has not in any way demonstrated decisive influence by Caffaro S.p.A. over ICC. |
| --- | --- |

—

that, as regards the relevance of the merger between Caffaro S.p.A. and SNIA for the purposes of identifying a decisive influence of SNIA, the Commission ignored the fact that the merger by incorporation of Caffaro S.p.A. into SNIA S.p.A. (like the change of the company name of ICC to Caffaro S.p.A., now Caffaro S.r.l.) occurred in 2000, that is to say a year after the exit from the market in bleaching agents, and that, as already stated, the Commission has not in any way demonstrated decisive influence by Caffaro S.p.A. over ICC.

| — | that the only party responsible for the presumed infringement is ICC (now Caffaro S.r.l.), which, moreover, has not ceased to exist as a legal entity but has merely changed its name. On the other hand, even if one were to hold that Caffaro S.p.A. was responsible for the presumed infringement, the legal sucessor of the latter is Caffaro S.r.l. and not SNIA. |
| --- | --- |

—

that the only party responsible for the presumed infringement is ICC (now Caffaro S.r.l.), which, moreover, has not ceased to exist as a legal entity but has merely changed its name. On the other hand, even if one were to hold that Caffaro S.p.A. was responsible for the presumed infringement, the legal sucessor of the latter is Caffaro S.r.l. and not SNIA.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/43 |
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C 212/43

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Action brought on 18 July 2006 — Solvay Solexis SpA v Commission

(Case T-195/06)

(2006/C 212/74)

Language of the case: Italian

Parties

Applicant: Solvay Solexis SpA (represented by: Tommaso Salonico and Gian Luca Zampa, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision in part, in particular Articles 1, 2 and 3 thereof, and reduce the penalty imposed on Solexis accordingly; |
| --- | --- |

—

annul the decision in part, in particular Articles 1, 2 and 3 thereof, and reduce the penalty imposed on Solexis accordingly;

| — | order the defendant to pay the costs of the proceedings, including the applicant's costs with regard to the payment in whole or in part of the penalty or in respect of provision of the bank guarantee. |
| --- | --- |

—

order the defendant to pay the costs of the proceedings, including the applicant's costs with regard to the payment in whole or in part of the penalty or in respect of provision of the bank guarantee.

Pleas in law and main arguments

The contested decision in this case is the same as that in Case T-185/06 L'Air Liquide v Commission. That decision laid down that Solexis is jointly and severally liable with Edison SpA for a fine of EUR 25 619 million. The applicant's liability derives exclusively from the conduct of the company Ausimont SA which, at the time of the facts, was subject to sole control by Edison.

In support of its claims, the applicant argues that the penalty imposed on it by the decision which is the subject-matter of the action should be regarded as wrongly set, owing to:

| — | incorrect assessment of the duration of the infringement, which took place from May/September 1997 to May 2000 and not, as regards the applicant itself, from May 1995 to December 2000; |
| --- | --- |

—

incorrect assessment of the duration of the infringement, which took place from May/September 1997 to May 2000 and not, as regards the applicant itself, from May 1995 to December 2000;

| — | incorrect assessment concerning the main effect on and application to the market of the infringement and of the passive role played by the applicant, in the period from May 1995 to May/September 1997 inclusive; |
| --- | --- |

—

incorrect assessment concerning the main effect on and application to the market of the infringement and of the passive role played by the applicant, in the period from May 1995 to May/September 1997 inclusive;

| — | non-participation of the applicant in the agreement on the limitation of capacity. When imposing the penalty the Commission disregarded the fact that Ausimont never joined, either in 1997 or subsequently, the agreement on the restriction/limitation of production capacity. The infringement attributable to Ausimont is therefore less serious than that committed by other undertakings on account of its lesser effect on competition, and also in accordance with the fundamental principles of equal treatment, fairness and proportionality; |
| --- | --- |

—

non-participation of the applicant in the agreement on the limitation of capacity. When imposing the penalty the Commission disregarded the fact that Ausimont never joined, either in 1997 or subsequently, the agreement on the restriction/limitation of production capacity. The infringement attributable to Ausimont is therefore less serious than that committed by other undertakings on account of its lesser effect on competition, and also in accordance with the fundamental principles of equal treatment, fairness and proportionality;

| — | failure to take into account its cooperation. In fact the defendant did not grant the applicant any benefit with regard to its cooperation, or as a result of its participation in the leniency programme, or in respect of the mitigating circumstance provided for by the Guidelines. |
| --- | --- |

—

failure to take into account its cooperation. In fact the defendant did not grant the applicant any benefit with regard to its cooperation, or as a result of its participation in the leniency programme, or in respect of the mitigating circumstance provided for by the Guidelines.

Finally, the applicant claims infringement of the principle of proportionality.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/44 |
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Action brought on 19 July 2006 — Edison v Commission

(Case T-196/06)

(2006/C 212/75)

Language of the case: Italian

Parties

Applicant(s): Edison S.p.A. (represented by: Mario Siragusa, Roberto Casati, Matteo Beretta, Pietro Merlino and Eugenio Bruti Liberati, lawyers,)

Defendant(s): Commission of the European Communities

Forms of order sought

| — | Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it affects the applicant. |
| --- | --- |

—

Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it affects the applicant.

| — | In the alternative, annulment or reduction of the fine imposed on Edison by the contested decision. |
| --- | --- |

—

In the alternative, annulment or reduction of the fine imposed on Edison by the contested decision.

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

—

The Commission to pay the costs.

Pleas in law and main arguments

The contested decision in this case is the same as in Case T-185/06 L'air Liquide v Commission. That decision held the applicant jointly and severally liable for the infringement committed by Ausimont for the whole duration of its participation in the cartel, and fined it EUR 58 125 000 for that infringement, EUR 25 619 000 of which jointly and severally with Solvay Solexis S.p.A.. That latter company is currently controlled by Solvay SA/NV, but, at the time of the infringement, under the name of Ausimont S.p.A., it was indirectly controlled by Montedison (now Edison).

In support of its arguments, the applicant argues:

| — | Infringement of essential procedural requirements, especially of the principle that both sides should be heard and of the rights of the defence; infringement of Article 27(1) of Regulation (EC) No 1/2003 and of Article 11(2) of Regulation (EC) No 773/2004, for using for the first time in the decision, in support of its accusations, the fact that, for a large part of the infringement period, the managing director of Ausimont was also a board member of Montecatini, i.e. the intermediate company entirely controlled by Montedison (now Edison), which held the entire company capital of Ausimont. |
| --- | --- |

—

Infringement of essential procedural requirements, especially of the principle that both sides should be heard and of the rights of the defence; infringement of Article 27(1) of Regulation (EC) No 1/2003 and of Article 11(2) of Regulation (EC) No 773/2004, for using for the first time in the decision, in support of its accusations, the fact that, for a large part of the infringement period, the managing director of Ausimont was also a board member of Montecatini, i.e. the intermediate company entirely controlled by Montedison (now Edison), which held the entire company capital of Ausimont.

| — | Infringement of Article 81 of the EC Treaty by wrongly imputing to the applicant the infringement of the competition rules committed by Ausimont. First, the Commission erred in concluding that entire ownership of the capital of an undertaking is sufficient to give rise to the presumption that the controlling company exercises a determining influence on the controlled company, so that the former may be regarded as jointly and severally liable for the infringement committed by the latter. Secondly, the applicant argues that the contested decision is self-contradictory and insufficient in its reasoning, and that Article 81 of the EC Treaty has been infringed in relation to the conclusion that, in this case, there were ‘other elements’ present which indicated that Ausimont was not an autonomous entity capable of deciding its own commercial strategy. |
| --- | --- |

—

Infringement of Article 81 of the EC Treaty by wrongly imputing to the applicant the infringement of the competition rules committed by Ausimont. First, the Commission erred in concluding that entire ownership of the capital of an undertaking is sufficient to give rise to the presumption that the controlling company exercises a determining influence on the controlled company, so that the former may be regarded as jointly and severally liable for the infringement committed by the latter. Secondly, the applicant argues that the contested decision is self-contradictory and insufficient in its reasoning, and that Article 81 of the EC Treaty has been infringed in relation to the conclusion that, in this case, there were ‘other elements’ present which indicated that Ausimont was not an autonomous entity capable of deciding its own commercial strategy.

The applicant also claims that there has been infringement of the duty to state reasons, in that the Commission failed to consider all the documentary proofs and factual circumstances adduced by Edison in support of the contention that Ausimont was independent in determining its own commercial policies.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/45 |
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2.9.2006

EN

Official Journal of the European Union

C 212/45

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Action brought on 18 July 2006 — FMC v Commission

(Case T-197/06)

(2006/C 212/76)

Language of the case: English

Parties

Applicant: FMC Corporation (Philadelphia, USA) (represented by: C. Stanbrook, Q.C., and Y. Virvilis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision C(2006) 1766 final of 3 May 2006, in so far as it applies to FMC Corporation; and |
| --- | --- |

—

Annul Commission Decision C(2006) 1766 final of 3 May 2006, in so far as it applies to FMC Corporation; and

| — | in the alternative reduce the fine imposed on FMC Corporation; and |
| --- | --- |

—

in the alternative reduce the fine imposed on FMC Corporation; and

| — | order the Commission to bear the costs of these present proceedings. |
| --- | --- |

—

order the Commission to bear the costs of these present proceedings.

Pleas in law and main arguments

The applicant seeks partial annulment of the Commission's Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen Peroxide and Perborate, by which the Commission found that the applicant had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a cartel, which consisted mainly of exchanges between competitors of information on prices and sales volumes, agreements on prices, agreements on reduction of production capacity in the EEA and monitoring of the anti-competitive arrangements.

The applicant invokes two pleas in law in support of its application and contends in general that it is not liable for the infringements of its subsidiary Foret as it did not exercise a decisive influence over the subsidiary.

Firstly, the applicant claims that the contested decision is inadequately reasoned.

Secondly, the applicant submits that the contested decision is flawed both in law and in fact as:

| a) | the Commission's conclusions were based on a misconstruction of the evidence, on wrongful discrimination in giving different weight to different sources of oral evidence, and generally on a manifest error of assessment; |
| --- | --- |

a)

the Commission's conclusions were based on a misconstruction of the evidence, on wrongful discrimination in giving different weight to different sources of oral evidence, and generally on a manifest error of assessment;

| b) | the Commission used the wrong legal test of control for the purposes of determining the applicant's responsibility for the infringement of Foret; |
| --- | --- |

b)

the Commission used the wrong legal test of control for the purposes of determining the applicant's responsibility for the infringement of Foret;

| c) | the Commission used evidence which did not relate to the period of the alleged infringement; and |
| --- | --- |

c)

the Commission used evidence which did not relate to the period of the alleged infringement; and

| d) | the Commission used evidence which it had not notified to the applicant as forming the basis of the case against the company, thereby denying the applicant the opportunity of exercising its rights of defence. |
| --- | --- |

d)

the Commission used evidence which it had not notified to the applicant as forming the basis of the case against the company, thereby denying the applicant the opportunity of exercising its rights of defence.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/45 |
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2.9.2006

EN

Official Journal of the European Union

C 212/45

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Action brought on 17 July 2006 — Akzo Nobel and Others v Commission

(Case T-199/06)

(2006/C 212/77)

Language of the case: English

Parties

Applicants: Akzo Nobel NV (Arnhem, Netherlands), Akzo Nobel Chemicals Holding AB (Nacka, Sweden), Eka Chemicals AB (Bohus, Sweden) (represented by: C. Swaak, N. Neij, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the fine imposed on the applicants in the contested decision, or, in subsidiary order, to increase by 10 % the 40 % reduction granted under the Leniency Notice; |
| --- | --- |

—

Annul the fine imposed on the applicants in the contested decision, or, in subsidiary order, to increase by 10 % the 40 % reduction granted under the Leniency Notice;

| — | order the Commission to pay its own costs and those of the applicants. |
| --- | --- |

—

order the Commission to pay its own costs and those of the applicants.

Pleas in law and main arguments

The applicants seek the annulment of the fine imposed on them by Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen Peroxide and Perborate, by which the Commission found that the applicants had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a cartel, which consisted mainly of exchanges between competitors of information on prices and sales volumes, agreements on prices, agreements on reduction of production capacity in the EEA and monitoring of the anti-competitive arrangements. The two applicants Akzo Nobel Chemicals Holding AB and Akzo Nobel NV are held jointly and severally liable for the infringement committed by the applicant Eka Chemicals AB (‘Eka’).

The applicants submit that the Commission has breached the obligation to state reasons pursuant to Article 253 EC in not stating any reason for granting only a 40 % reduction of the fine within a band of 30-50 % despite the far-reaching compliance of Eka's cooperation with the criteria of the Leniency Notice (1).

In the alternative, the applicants seek an increase of 10 % of the 40 % reduction of the fine granted under the Leniency Notice on the ground that the Commission misapplied the Leniency Notice in that Eka was not granted the highest reduction available within the relevant band, notwithstanding the fact that its cooperation fully met the criteria established at point 23, second paragraph, of the Leniency Notice. According to the applicants, the Commission therefore violated the applicant's legitimate expectations.

Furthermore, the applicants contend that the Commission violated the principle of equal treatment in that it treated:

| i) | similar situations, i.e. that of Eka and Arkema who's cooperation fully met the criteria in point 23 of the Leniency Notice, in a different manner by granting the maximum reduction available within the relevant band only to Arkema, and |
| --- | --- |

i)

similar situations, i.e. that of Eka and Arkema who's cooperation fully met the criteria in point 23 of the Leniency Notice, in a different manner by granting the maximum reduction available within the relevant band only to Arkema, and

| ii) | different situations, i.e. that of Eka and Solvay, in a similar manner by granting both a reduction of the fine which is not the highest reduction available under the relevant band even though Eka, according to the applicants, had contributed more valuable and timely cooperation than Solvay. |
| --- | --- |

ii)

different situations, i.e. that of Eka and Solvay, in a similar manner by granting both a reduction of the fine which is not the highest reduction available under the relevant band even though Eka, according to the applicants, had contributed more valuable and timely cooperation than Solvay.

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(1)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/46 |
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2.9.2006

EN

Official Journal of the European Union

C 212/46

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Order of the Court of First Instance of 29 June 2006 — UNIPOR-Ziegel-Marketing v OHIM-Dörken (DELTA)

(Case T-159/05) (1)

(2006/C 212/78)

Language of the case: German

The President of the Fifth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 171, 9.7.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/46 |
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2.9.2006

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Official Journal of the European Union

C 212/46

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Order of the Court of First Instance of 27 June 2006 — Marker Völkl v OHIM — Icon Health & Fitness Italia (MOTION)

(Case T-217/05) (1)

(2006/C 212/79)

Language of the case: German

The President of the Fifth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 205, 20.8.2005.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/46 |
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2.9.2006

EN

Official Journal of the European Union

C 212/46

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Order of the Court of First Instance of 5 July 2006 — Deutsche Telekom v OHIM (Alles, was uns verbindet)

(Case T-18/06) (1)

(2006/C 212/80)

Language of the case: German

The President of the Fourth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 86, 8.4.2006.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/46 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/46

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Order of the Court of First Instance of 6 July 2006 — Cofira-Sac v Commission

(Case T-43/06) (1)

(2006/C 212/81)

Language of the case: Italian

The President of the Second Chamber has ordered that the case be removed from the register.

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(1)  OJ C 86, 8.4.2006.

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EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 2.9.2006 | EN | Official Journal of the European Union | C 212/47 |
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2.9.2006

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Official Journal of the European Union

C 212/47

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Judgment of the Civil Service Tribunal (Second Chamber) of 11 July 2006 — Tas v Commission

(Case F-12/05) (1)

(Recruitment - Open competition - Eligibility criteria - Non-admission to the tests - Qualifications - Professional qualification - Equal treatment)

(2006/C 212/82)

Language of the case: French

Parties

Applicant: David Tas (Brussels, Belgium) (represented by: S. Orlandi, X. Martin, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall and K. Herrmann, Agents)

Re:

Annulment of the Selection Board's decision not to admit the applicant to the tests in competition EPSO/A/4/03, organised to draw up a reserve list of assistant administrators at Grade A 8 in the sectors ‘European public administration’, ‘Law’, ‘Economy’ and ‘Audit’.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

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

2.

Orders the parties to bear their own costs.

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(1)  OJ C 132, 28.05.2005 (case initially registered at the Court of First Instance of the European Communities under number T-124/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/47 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/47

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Judgment of the Civil Service Tribunal (First Chamber) of 12 July 2006 — D v Commission

(Case F-18/05) (1)

(Occupational disease - Request for recognition that the aggravation of the disease from which the applicant is suffering is of occupational origin)

(2006/C 212/83)

Language of the case: French

Parties

Applicant: D (Brussels, Belgium) (represented by: J. Van Rossum, S. Orlandi and J.-N. Louis, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall, Agent)

Re:

Annulment of the Commission's decision to reject the applicant's request for recognition that the aggravation of the disease from which he is suffering is of occupational origin.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the Commission of the European Communities rejecting the request for recognition that the applicant's disease or aggravation thereof is of occupational origin. |
| --- | --- |

1.

Annuls the decision of the Commission of the European Communities rejecting the request for recognition that the applicant's disease or aggravation thereof is of occupational origin.

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

2.

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

---

(1)  OJ C 155, 25.6.2005 (case initially registered at the Court of First Instance of the European Communities under Case T-147/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/48 |
| --- | --- | --- | --- |

2.9.2006

EN

Official Journal of the European Union

C 212/48

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Order of the Civil Service Tribunal (Second Chamber) of 13 July 2006 — E v Commission

(Case F-5/06) (1)

(Officials - Lawfulness of internal procedures - Allegedly wrongful conduct of officials in the context of disciplinary proceedings and of a procedure for recognition of the occupational nature of a disease - Compensation for damage - Admissibility - Interest in bringing proceedings - Confirmatory act)

(2006/C 212/84)

Language of the case: French

Parties

Applicant: E (London, United Kingdom) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall and V. Joris, Agents)

Re:

Annulment of the Appointing Authority's decision of 4 October 2005 dismissing the applicant's complaint concerning the checking of the lawfulness of disciplinary proceedings and of a procedure for recognition of the applicant's occupational disease, and a claim for damages.

Operative part of the order

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

1.

The action is dismissed as clearly inadmissible.

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

2.

The parties shall each bear their own costs.

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(1)  OJ C 74, 25.3.2006.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/48 |
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2.9.2006

EN

Official Journal of the European Union

C 212/48

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Action brought on 22 June 2006 — Bakema v Commission

(Case F-68/06)

(2006/C 212/85)

Language of the case: English

Parties

Applicant: Reint Jacob Bakema (Zuidlaren, the Netherlands) (represented by: L. Rijpkema, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of the authority authorised to conclude contracts of employment (AACC) dated 22 March 2006; |
| --- | --- |

—

Annul the decision of the authority authorised to conclude contracts of employment (AACC) dated 22 March 2006;

| — | Order the AACC to engage the applicant in function group IV, grade 16; |
| --- | --- |

—

Order the AACC to engage the applicant in function group IV, grade 16;

| — | Declare that the applicant must be granted an adequate sum by way of damages. |
| --- | --- |

—

Declare that the applicant must be granted an adequate sum by way of damages.

Pleas in law and main arguments

The applicant, a former member of the so-called local technical assistance staff (ALAT), has been engaged as a member of the contract staff and classified in function group IV, grade 14.

In his action, the applicant claims that the defendant made inaccurate application of the relevant legislation, especially of Article 82 (2) (c) of the Conditions of Employment of Other Servants of the Communities (CEOS) and Article 2 of General Implementation Provisions (GIP) 49-2004. The applicant submits that the defendant's interpretation of the term ‘diploma’ contained in those articles is inaccurate and arbitrary. In the calculation of his professional experience, the defendant should have taken into consideration all the activities the applicant carried out after obtaining his ‘kandidaatsdiploma’.

The applicant further claims that, even if he used to be a member of ALAT before his engagement as a member of contract staff, the principle laid down in Article 86 of the CEOS should be applied to his case. According to that principle, where an agent moves to a new post within a function group, he shall not be classified in a lower grade or step than in his former post.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/48 |
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2.9.2006

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Official Journal of the European Union

C 212/48

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Action brought on 17 July 2006 — Lofaro v Commission

(Case F-75/06)

(2006/C 212/86)

Language of the case: French

Parties

Applicant: Alessandro Lofaro (Brussels, Belgium) (represented by: J.-L. Laffineur, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of 28 September 2005 to dismiss the applicant at the end of his probationary period and the report at the expiry of the probationary period on which that decision was based; |
| --- | --- |

—

annul the decision of 28 September 2005 to dismiss the applicant at the end of his probationary period and the report at the expiry of the probationary period on which that decision was based;

| — | so far as necessary, annul the decision of the authority empowered to conclude contracts of employment (AECE) of 31 March 2005 rejecting the applicant's complaint; |
| --- | --- |

—

so far as necessary, annul the decision of the authority empowered to conclude contracts of employment (AECE) of 31 March 2005 rejecting the applicant's complaint;

| — | order the defendant to pay the applicant, as compensation for the loss suffered, damages assessed on equitable grounds at EUR 85 473 for material loss and EUR 50 000 for non-material loss, such amounts to be increased or reduced as appropriate during the proceedings; |
| --- | --- |

—

order the defendant to pay the applicant, as compensation for the loss suffered, damages assessed on equitable grounds at EUR 85 473 for material loss and EUR 50 000 for non-material loss, such amounts to be increased or reduced as appropriate during the proceedings;

| — | order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments

The applicant, formerly a member of the Commission's temporary staff, was taken on from 16 September 2004 until 15 September 2009 under a contract which provided for a probationary period of 6 months, in accordance with Article 14 of the Conditions of Employment of Other Servants. Following an initial negative evaluation report, an extension of the probationary period by six months and a second negative evaluation report, the defendant terminated that contract.

In his application, the applicant submits that the defendant made manifest errors of assessment, in so far as, first, it used incorrect facts as a basis or misinterpreted the facts and, second, it blamed the applicant for problems for which he could not be held responsible.

In addition, according to the applicant, the defendant infringed the general principles which safeguard the right to dignity and to a defence and made superfluous critical comments.

The applicant finally argues that, by not completing the evaluation report at the latest one month before the expiry of the probationary period, the defendant infringed Article 14 of the Conditions of Employment of Other Servants.

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| 2.9.2006 | EN | Official Journal of the European Union | C 212/49 |
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2.9.2006

EN

Official Journal of the European Union

C 212/49

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Order of the Civil Service Tribunal of 13 July 2006 — Lacombe v Council

(Case F-9/05) (1)

(2006/C 212/87)

Language of the case: French

The President of the Tribunal sitting in full court has ordered that the case be removed from the register.

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(1)  OJ C 115 of 14.05.2005. (case initially registered before the Court of First Instance of the European Communities under number T-116/05 and transferred to the Civil Service Tribunal of the European Communities by order of 15.12.2005).

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III Notices

| 2.9.2006 | EN | Official Journal of the European Union | C 212/50 |
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2.9.2006

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Official Journal of the European Union

C 212/50

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(2006/C 212/88)

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

OJ C 190, 12.8.2006

Past publications

OJ C 178, 29.7.2006

OJ C 165, 15.7.2006

OJ C 154, 1.7.2006

OJ C 143, 17.6.2006

OJ C 131, 3.6.2006

OJ C 121, 20.5.2006

These texts are available on:

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

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

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

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

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