# Official Journal C 314/18 D

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 314 |
| | |
| English edition | Information and Notices | Volume 4718 December 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 314

English edition

Information and Notices

Volume 4718 December 2004

---

| Contents | page |
| --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 314/01 | Judgment of the Court (Third Chamber) of 14 October 2004 in Case C-279/02 P: Nuno Antas de Campos v European Parliament (Appeal — Officials — Council Regulation (EC, Euratom, ECSC) No 2688/95 — Refusal of application for voluntary termination of service) | 1 |
| 2004/C 314/02 | Judgment of the Court (Fifth Chamber) of 26 October 2004 in Case C-406/03: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Regulation (EC) No 2037/2000 — Substances that deplete the ozone layer — Incomplete implementation) | 1 |
| 2004/C 314/03 | Order of the Court (Second Chamber) of 23 September 2004 in Joined Cases C-435/02 and C-103/03 (references for preliminary rulings from the Landgericht Essen and the Landgericht Hagen): Axel Springer AG v Zeitungsverlag Niederrhein GmbH & Co. Essen KG and Hans-Jürgen Weske (Article 104(3) of the Rules of Procedure — Partnership law and company law — Directive 90/605/EEC amending the scope of Directives 78/660/EEC and 83/349/EEC — Article 54(3)(g) of the EC Treaty (now, after amendment, Article 44(2)(g) EC) — Partnerships in the form of limited partnerships all of the fully liable partners of which are constituted as private limited liability companies GmbH and Co. KG — Publication of annual accounts — Right of third parties to consult those documents — Concept of a third party — Inclusion, inter alia, of competitors — Validity — Legal basis — Principles of freedom to pursue a trade or profession, freedom of the press and equal treatment) | 2 |
| 2004/C 314/04 | Order of the Court (Third Chamber) of 27 September 2004 in Case C-470/02 P: Union européenne de radio-télévision (UER) against Commission of the European Communities (Appeal — Competition — Agreements — Joint acquisition of television rights for international sporting events — Access of third parties to those rights — Article 81(3) EC — Appeal manifestly unfounded) | 2 |
| 2004/C 314/05 | Order of the Court (Sixth Chamber) of 28 September 2004 in Case C-115/03 (request for a preliminary ruling from the Tribunale Civile di Genova [Genoa District Court]): Eco Eridiana S.r.l. v Presidenza del Consiglio di Ministri and Ministero dell'Ambiente (Article 104(3) of the Rules of Procedure — Management of waste — Hazardous waste — Directive 91/689/EEC — Article 4 — Meaning of producer of waste — Whether or not natural persons are included) | 3 |
| 2004/C 314/06 | Case C-408/04 P: Appeal brought on 23 September 2004 (Fax: 16.9.04) by the Commission of the European Communities against the judgment delivered on 1 July 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-308/00 between Salzgitter AG, supported by the Federal Republic of Germany, and the Commission of the European Communities | 3 |
| 2004/C 314/07 | Case C-428/04: Action brought on 6 October 2004 by the Commission of the European Communities against the Republic of Austria | 4 |
| 2004/C 314/08 | Case C-441/04: Reference for a preliminary ruling by the Landesgericht Klagenfurt by decision of that court of 13 August 2004 in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt | 5 |
| 2004/C 314/09 | Case C-445/04: Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that court of 13 October 2004 in the case of Possehl Erzkontor GmbH against Hauptzollamt Duisburg | 6 |
| 2004/C 314/10 | Case C-447/04: Reference for a preliminary ruling by the Landesgerichts Innsbruck by decision of that court of 30 September 2004 in the case of Autohaus Ostermann GmbH against VAV Versicherungs AG | 6 |
| 2004/C 314/11 | Case C-448/04: Action brought on 27 October 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 6 |
| 2004/C 314/12 | Case C-449/04: Action brought on 27 October 2004 by Commission of the European Communities against Grand Duchy of Luxembourg | 7 |
| 2004/C 314/13 | Case C-450/04: Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic | 7 |
| 2004/C 314/14 | Case C-451/04: Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic | 7 |
| 2004/C 314/15 | Case C-454/04: Action brought on 28 October 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 8 |
| 2004/C 314/16 | Case C-460/04: Action brought on 22 October 2004 by the Commission of the European Communities against the Kingdom of the Netherlands | 8 |
| 2004/C 314/17 | Case C-461/04: Action brought on 22 October 2004 by the Commission of the European Communities against the Kingdom of the Netherlands | 8 |
| 2004/C 314/18 | Case C-468/04: Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic | 9 |
| 2004/C 314/19 | Case C-469/04: Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic | 9 |
| 2004/C 314/20 | Case C-474/04: Action brought on 10 November 2004 by the Commission of the European Communities against the Hellenic Republic | 10 |
| 2004/C 314/21 | Case C-475/04: Action brought on 10 November 2004 by the Commission of the European Communities against the Hellenic Republic | 10 |
| 2004/C 314/22 | Removal from the register of Case C-154/03 | 10 |
| 2004/C 314/23 | Removal from the register of Case C-186/03 P | 10 |
| 2004/C 314/24 | Removal from the register of Case C-274/03 | 11 |
| 2004/C 314/25 | Removal from the register of Case C-424/03 | 11 |
| 2004/C 314/26 | Removal from the register of Case C-479/03 | 11 |
| 2004/C 314/27 | Removal from the register of Case C-21/04 | 11 |
| 2004/C 314/28 | Removal from the register of Case C-72/04 | 11 |
| 2004/C 314/29 | Removal from the register of Case C-115/04 | 11 |
| | COURT OF FIRST INSTANCE |
| 2004/C 314/30 | Judgment of the Court of First Instance of 21 October 2004 in Case T-36/99: Lenzing AG v Commission of the European Communities (State aid — Action for annulment — Admissibility — Act of individual concern to the applicant — Article 87(1) EC — Agreements on the rescheduling and repayment of debts — Private creditor test) | 12 |
| 2004/C 314/31 | Judgment of the Court of First Instance of 5 October 2004 in Case T-45/01: Stephen Sanders and Others v Commission of the European Communities (Staff employed at the JET Joint Undertaking — Equal treatment — Failure to confer status of temporary servant — Article 152 EA — Reasonable time — Material damage sustained) | 12 |
| 2004/C 314/32 | Judgment of the Court of First Instance of 14 October 2004 in Case T-1/02, Robert Polinsky v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage) | 13 |
| 2004/C 314/33 | Judgment of the Court of First Instance of 14 October 2004 in Case T-44/02: Dresdner Bank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default) | 13 |
| 2004/C 314/34 | Judgment of the Court of First Instance of 14 October 2004 in Case T-54/02: Vereins- und Westbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default) | 13 |
| 2004/C 314/35 | Judgment of the Court of First Instance of 14 October 2004 in Case T-56/02: Bayerische Hypo- und Vereinsbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default) | 14 |
| 2004/C 314/36 | Judgment of the Court of First Instance of 14 October 2004 in Case T-60/02: Deutsche Verkehrsbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default) | 14 |
| 2004/C 314/37 | Judgment of the Court of First Instance of 14 October 2004 in Case T-61/02: Commerzbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default) | 14 |
| 2004/C 314/38 | Judgment of the Court of First Instance of 14 October 2004 in Case T-137/02: Pollmeier Malchow GmbH & Co. KG v Commission of the European Communities (State aid — Action for annulment — Recommendation 96/280/EC — Meaning of small and medium-sized enterprises (SMEs)) | 15 |
| 2004/C 314/39 | Judgment of the Court of First Instance of 5 October 2004 in Case T-144/02: Richard J. Eagle and Others v Commission of the European Communities (Staff employed at the JET Joint Undertaking — Equal treatment — Failure to confer status of temporary servant — Article 152 EA — Reasonable time — Material damage sustained) | 15 |
| 2004/C 314/40 | Judgment of the Court of First Instance of 14 October 2004 in Case T-255/02, H v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage) | 16 |
| 2004/C 314/41 | Judgment of the Court of First Instance of 14 October 2004 in Case T-256/02, I v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage) | 16 |
| 2004/C 314/42 | Judgment of the Court of First Instance of 14 October 2004 in Case T-257/02, K v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage) | 16 |
| 2004/C 314/43 | Judgment of the Court of First Instance of 6 October 2004 in Case T-294/02: Miguel Vicente-Nuñez v Commission of the European Communities (Compliance with a judgment of the Court of First Instance — Decision on promotion — Seniority in grade — Date of taking effect) | 17 |
| 2004/C 314/44 | Judgment of the Court of First Instance of 6 October 2004 in Case T-356/02: Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier figurative mark including the verbal element Krafft — Application for Community word mark VITAKRAFT — Relative ground for refusal — Genuine use of the earlier mark — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 — Rule 22(2) of Regulation (EC) No 2868/95) | 17 |
| 2004/C 314/45 | Judgment of the Court of First Instance of 14 October 2004 in Case T-389/02, Sergio Sandini v Court of Justice of the European Communities (Officials — Action for damages — Admissibility — Exposure to asbestos — Occupational disease — Damage) | 18 |
| 2004/C 314/46 | Judgment of the Court of First Instance of 14 October 2004 in Case T-390/02, Antonio Cagnato v Court of Justice of the European Communities (Officials — Action for damages — Admissibility — Exposure to asbestos — Occupational disease — Damage) | 18 |
| 2004/C 314/47 | Judgment of the Court of First Instance 12 October 2004 in Case T-35/03 Aventis Cropscience S.A. v Office for Harmonisation of the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for registration of Community word mark CARPO — Earlier national word mark HARPO Z — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94) | 18 |
| 2004/C 314/48 | Judgment of the Court of First Instance of 21 October 2004 in Case T-49/03: Gunda Schumann v Commission of the European Communities (Officials — Open competition — Preselection tests — Neutralisation of a multiple-choice question — Principle of proportionality — Breach of the competition notice) | 19 |
| 2004/C 314/49 | Judgment of the Court of First Instance of 6 October 2004 in Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier Community figurative mark comprising the letter combination NL — Applications for Community figurative marks comprising the terms NLSPORT, NLJEANS, NLACTIVE and NLCollection — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 19 |
| 2004/C 314/50 | Order of the Court of First Instance of 22 September 2004 in Case T-44/03: Giorgio Lebedef and Others v Commission of the European Communities (Officials — Remuneration — Travelling expenses — Amendment of the method of calculation — Second action relating to different years — Res judicata — Absence of material capable of calling in question the judgment delivered — Application manifestly unfounded) | 20 |
| 2004/C 314/51 | Case T-364/04: Action brought on 9 September 2004 by the Hellenic Republic against the Commission of the European Communities | 20 |
| 2004/C 314/52 | Case T-378/04: Action brought on 22 September 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 21 |
| 2004/C 314/53 | Case T-383/04: Action brought on 22 September 2004 by Erich Drazdansky against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 21 |
| 2004/C 314/54 | Case T-391/04: Action brought on 28 September 2004 by Bernard Nonat against Commission of the European Communities | 22 |
| 2004/C 314/55 | Case T-397/04: Action brought on 6 October 2004 by MobilCom Aktiengesellschaft against the Commission of the European Communities | 23 |
| 2004/C 314/56 | Case T-405/04: Action brought on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 23 |
| 2004/C 314/57 | Case T-414/04: Action brought on 11 October 2004 by the Federal Republic of Germany against the Commission of the European Communities | 24 |
| 2004/C 314/58 | Case T-423/04: Action brought on 8 October 2004 by Bunker & BKR, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 24 |
| 2004/C 314/59 | Case T-424/04: Action brought on 15 October 2004 by Angel Angelidis against European Parliament | 25 |
| 2004/C 314/60 | Case T-426/04: Action brought on 20 October 2004 by Tramarin s.n.c. di Tramarin Andrea e Sergio against the Commission of the European Communities | 26 |
| 2004/C 314/61 | Case T-431/04: Action brought on 19 October 2004 by the Italian Republic against the Commission of the European Communities | 26 |
| 2004/C 314/62 | Case T-447/04: Action brought on 15 November 2004 by Capgemini Nederland B.V. against the Commission of the European Communities | 27 |
| 2004/C 314/63 | Removal from the Register of Case T-105/02 | 28 |
| 2004/C 314/64 | Removal from the Register of Case T-187/04 | 28 |

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 314/01

Judgment of the Court (Third Chamber) of 14 October 2004 in Case C-279/02 P: Nuno Antas de Campos v European Parliament (Appeal — Officials — Council Regulation (EC, Euratom, ECSC) No 2688/95 — Refusal of application for voluntary termination of service)

1

2004/C 314/02

Judgment of the Court (Fifth Chamber) of 26 October 2004 in Case C-406/03: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Regulation (EC) No 2037/2000 — Substances that deplete the ozone layer — Incomplete implementation)

1

2004/C 314/03

Order of the Court (Second Chamber) of 23 September 2004 in Joined Cases C-435/02 and C-103/03 (references for preliminary rulings from the Landgericht Essen and the Landgericht Hagen): Axel Springer AG v Zeitungsverlag Niederrhein GmbH & Co. Essen KG and Hans-Jürgen Weske (Article 104(3) of the Rules of Procedure — Partnership law and company law — Directive 90/605/EEC amending the scope of Directives 78/660/EEC and 83/349/EEC — Article 54(3)(g) of the EC Treaty (now, after amendment, Article 44(2)(g) EC) — Partnerships in the form of limited partnerships all of the fully liable partners of which are constituted as private limited liability companies GmbH and Co. KG — Publication of annual accounts — Right of third parties to consult those documents — Concept of a third party — Inclusion, inter alia, of competitors — Validity — Legal basis — Principles of freedom to pursue a trade or profession, freedom of the press and equal treatment)

2

2004/C 314/04

Order of the Court (Third Chamber) of 27 September 2004 in Case C-470/02 P: Union européenne de radio-télévision (UER) against Commission of the European Communities (Appeal — Competition — Agreements — Joint acquisition of television rights for international sporting events — Access of third parties to those rights — Article 81(3) EC — Appeal manifestly unfounded)

2

2004/C 314/05

Order of the Court (Sixth Chamber) of 28 September 2004 in Case C-115/03 (request for a preliminary ruling from the Tribunale Civile di Genova [Genoa District Court]): Eco Eridiana S.r.l. v Presidenza del Consiglio di Ministri and Ministero dell'Ambiente (Article 104(3) of the Rules of Procedure — Management of waste — Hazardous waste — Directive 91/689/EEC — Article 4 — Meaning of producer of waste — Whether or not natural persons are included)

3

2004/C 314/06

Case C-408/04 P: Appeal brought on 23 September 2004 (Fax: 16.9.04) by the Commission of the European Communities against the judgment delivered on 1 July 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-308/00 between Salzgitter AG, supported by the Federal Republic of Germany, and the Commission of the European Communities

3

2004/C 314/07

Case C-428/04: Action brought on 6 October 2004 by the Commission of the European Communities against the Republic of Austria

4

2004/C 314/08

Case C-441/04: Reference for a preliminary ruling by the Landesgericht Klagenfurt by decision of that court of 13 August 2004 in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt

5

2004/C 314/09

Case C-445/04: Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that court of 13 October 2004 in the case of Possehl Erzkontor GmbH against Hauptzollamt Duisburg

6

2004/C 314/10

Case C-447/04: Reference for a preliminary ruling by the Landesgerichts Innsbruck by decision of that court of 30 September 2004 in the case of Autohaus Ostermann GmbH against VAV Versicherungs AG

6

2004/C 314/11

Case C-448/04: Action brought on 27 October 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

6

2004/C 314/12

Case C-449/04: Action brought on 27 October 2004 by Commission of the European Communities against Grand Duchy of Luxembourg

7

2004/C 314/13

Case C-450/04: Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic

7

2004/C 314/14

Case C-451/04: Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic

7

2004/C 314/15

Case C-454/04: Action brought on 28 October 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

8

2004/C 314/16

Case C-460/04: Action brought on 22 October 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

8

2004/C 314/17

Case C-461/04: Action brought on 22 October 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

8

2004/C 314/18

Case C-468/04: Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic

9

2004/C 314/19

Case C-469/04: Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic

9

2004/C 314/20

Case C-474/04: Action brought on 10 November 2004 by the Commission of the European Communities against the Hellenic Republic

10

2004/C 314/21

Case C-475/04: Action brought on 10 November 2004 by the Commission of the European Communities against the Hellenic Republic

10

2004/C 314/22

Removal from the register of Case C-154/03

10

2004/C 314/23

Removal from the register of Case C-186/03 P

10

2004/C 314/24

Removal from the register of Case C-274/03

11

2004/C 314/25

Removal from the register of Case C-424/03

11

2004/C 314/26

Removal from the register of Case C-479/03

11

2004/C 314/27

Removal from the register of Case C-21/04

11

2004/C 314/28

Removal from the register of Case C-72/04

11

2004/C 314/29

Removal from the register of Case C-115/04

11

COURT OF FIRST INSTANCE

2004/C 314/30

Judgment of the Court of First Instance of 21 October 2004 in Case T-36/99: Lenzing AG v Commission of the European Communities (State aid — Action for annulment — Admissibility — Act of individual concern to the applicant — Article 87(1) EC — Agreements on the rescheduling and repayment of debts — Private creditor test)

12

2004/C 314/31

Judgment of the Court of First Instance of 5 October 2004 in Case T-45/01: Stephen Sanders and Others v Commission of the European Communities (Staff employed at the JET Joint Undertaking — Equal treatment — Failure to confer status of temporary servant — Article 152 EA — Reasonable time — Material damage sustained)

12

2004/C 314/32

Judgment of the Court of First Instance of 14 October 2004 in Case T-1/02, Robert Polinsky v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage)

13

2004/C 314/33

Judgment of the Court of First Instance of 14 October 2004 in Case T-44/02: Dresdner Bank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

13

2004/C 314/34

Judgment of the Court of First Instance of 14 October 2004 in Case T-54/02: Vereins- und Westbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

13

2004/C 314/35

Judgment of the Court of First Instance of 14 October 2004 in Case T-56/02: Bayerische Hypo- und Vereinsbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

14

2004/C 314/36

Judgment of the Court of First Instance of 14 October 2004 in Case T-60/02: Deutsche Verkehrsbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

14

2004/C 314/37

Judgment of the Court of First Instance of 14 October 2004 in Case T-61/02: Commerzbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

14

2004/C 314/38

Judgment of the Court of First Instance of 14 October 2004 in Case T-137/02: Pollmeier Malchow GmbH & Co. KG v Commission of the European Communities (State aid — Action for annulment — Recommendation 96/280/EC — Meaning of small and medium-sized enterprises (SMEs))

15

2004/C 314/39

Judgment of the Court of First Instance of 5 October 2004 in Case T-144/02: Richard J. Eagle and Others v Commission of the European Communities (Staff employed at the JET Joint Undertaking — Equal treatment — Failure to confer status of temporary servant — Article 152 EA — Reasonable time — Material damage sustained)

15

2004/C 314/40

Judgment of the Court of First Instance of 14 October 2004 in Case T-255/02, H v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage)

16

2004/C 314/41

Judgment of the Court of First Instance of 14 October 2004 in Case T-256/02, I v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage)

16

2004/C 314/42

Judgment of the Court of First Instance of 14 October 2004 in Case T-257/02, K v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage)

16

2004/C 314/43

Judgment of the Court of First Instance of 6 October 2004 in Case T-294/02: Miguel Vicente-Nuñez v Commission of the European Communities (Compliance with a judgment of the Court of First Instance — Decision on promotion — Seniority in grade — Date of taking effect)

17

2004/C 314/44

Judgment of the Court of First Instance of 6 October 2004 in Case T-356/02: Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier figurative mark including the verbal element Krafft — Application for Community word mark VITAKRAFT — Relative ground for refusal — Genuine use of the earlier mark — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 — Rule 22(2) of Regulation (EC) No 2868/95)

17

2004/C 314/45

Judgment of the Court of First Instance of 14 October 2004 in Case T-389/02, Sergio Sandini v Court of Justice of the European Communities (Officials — Action for damages — Admissibility — Exposure to asbestos — Occupational disease — Damage)

18

2004/C 314/46

Judgment of the Court of First Instance of 14 October 2004 in Case T-390/02, Antonio Cagnato v Court of Justice of the European Communities (Officials — Action for damages — Admissibility — Exposure to asbestos — Occupational disease — Damage)

18

2004/C 314/47

Judgment of the Court of First Instance 12 October 2004 in Case T-35/03 Aventis Cropscience S.A. v Office for Harmonisation of the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for registration of Community word mark CARPO — Earlier national word mark HARPO Z — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94)

18

2004/C 314/48

Judgment of the Court of First Instance of 21 October 2004 in Case T-49/03: Gunda Schumann v Commission of the European Communities (Officials — Open competition — Preselection tests — Neutralisation of a multiple-choice question — Principle of proportionality — Breach of the competition notice)

19

2004/C 314/49

Judgment of the Court of First Instance of 6 October 2004 in Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier Community figurative mark comprising the letter combination NL — Applications for Community figurative marks comprising the terms NLSPORT, NLJEANS, NLACTIVE and NLCollection — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

19

2004/C 314/50

Order of the Court of First Instance of 22 September 2004 in Case T-44/03: Giorgio Lebedef and Others v Commission of the European Communities (Officials — Remuneration — Travelling expenses — Amendment of the method of calculation — Second action relating to different years — Res judicata — Absence of material capable of calling in question the judgment delivered — Application manifestly unfounded)

20

2004/C 314/51

Case T-364/04: Action brought on 9 September 2004 by the Hellenic Republic against the Commission of the European Communities

20

2004/C 314/52

Case T-378/04: Action brought on 22 September 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

21

2004/C 314/53

Case T-383/04: Action brought on 22 September 2004 by Erich Drazdansky against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

21

2004/C 314/54

Case T-391/04: Action brought on 28 September 2004 by Bernard Nonat against Commission of the European Communities

22

2004/C 314/55

Case T-397/04: Action brought on 6 October 2004 by MobilCom Aktiengesellschaft against the Commission of the European Communities

23

2004/C 314/56

Case T-405/04: Action brought on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

23

2004/C 314/57

Case T-414/04: Action brought on 11 October 2004 by the Federal Republic of Germany against the Commission of the European Communities

24

2004/C 314/58

Case T-423/04: Action brought on 8 October 2004 by Bunker & BKR, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

24

2004/C 314/59

Case T-424/04: Action brought on 15 October 2004 by Angel Angelidis against European Parliament

25

2004/C 314/60

Case T-426/04: Action brought on 20 October 2004 by Tramarin s.n.c. di Tramarin Andrea e Sergio against the Commission of the European Communities

26

2004/C 314/61

Case T-431/04: Action brought on 19 October 2004 by the Italian Republic against the Commission of the European Communities

26

2004/C 314/62

Case T-447/04: Action brought on 15 November 2004 by Capgemini Nederland B.V. against the Commission of the European Communities

27

2004/C 314/63

Removal from the Register of Case T-105/02

28

2004/C 314/64

Removal from the Register of Case T-187/04

28

---

| | III   Notices |
| --- | --- |
| 2004/C 314/65 | Last publication of the Court of Justice in the Official Journal of the European Union OJ C 300, 4.12.2004 | 29 |

III   Notices

2004/C 314/65

Last publication of the Court of Justice in the Official Journal of the European Union OJ C 300, 4.12.2004

Official Journal of the European Union

29

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 18.12.2004 | EN | Official Journal of the European Union | C 314/1 |
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18.12.2004

EN

Official Journal of the European Union

C 314/1

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JUDGMENT OF THE COURT

(Third Chamber)

of 14 October 2004

in Case C-279/02 P: Nuno Antas de Campos v European Parliament (1)

(Appeal - Officials - Council Regulation (EC, Euratom, ECSC) No 2688/95 - Refusal of application for voluntary termination of service)

(2004/C 314/01)

Language of the case: Portuguese

In Case C-279/02: Nuno Antas de Campos, official at the European Parliament, residing in Lisbon (Portugal) (Lawyers: C. Botelho Moniz and E. Maia Cadete), the other party to the proceedings being the European Parliament (Agents: R. da Silva Passos and J.F de Wachter) – appeal under Article 49 of the EC Statute of the Court of Justice, brought on 29 July 2002 – the Court (Third Chamber), composed of: A. Rosas, acting as President of the Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 14 October 2004, in which it:

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

1.

Dismisses the appeal.

| 2. | Orders Mr Antas de Campos to pay the costs. |
| --- | --- |

2.

Orders Mr Antas de Campos to pay the costs.

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(1)  
  OJ C 274 of 9.11.2002

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/1 |
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18.12.2004

EN

Official Journal of the European Union

C 314/1

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 26 October 2004

in Case C-406/03: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 2037/2000 - Substances that deplete the ozone layer - Incomplete implementation)

(2004/C 314/02)

Language of the case: English

In Case C-406/03: action under Article 226 EC for failure to fulfil obligations, brought on 29 September 2003, between Commission of the European Communities (Agents: U. Wölker and M. Shotter) and Ireland (Agents: F. O'Dubhghaill and D. O'Hagan, assisted by D. McGrath) — the Court (Fifth Chamber), composed of: R. Silva de Lapuerta, President of the Chamber (Rapporteur), C. Gulmann and J. Makarczyk, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 26 October 2004, in which it:

| 1. | Declares that, by failing to provide the reports referred to in Article 16(5) and (6) and Article 17(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, and by failing to take all precautionary measures practicable to prevent and minimise leakages of methyl bromide and to define the minimum qualification requirements for the personnel involved in accordance with Artic1e 17(2) of the Regulation, Ireland has failed to fulfil its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation; |
| --- | --- |

1.

Declares that, by failing to provide the reports referred to in Article 16(5) and (6) and Article 17(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, and by failing to take all precautionary measures practicable to prevent and minimise leakages of methyl bromide and to define the minimum qualification requirements for the personnel involved in accordance with Artic1e 17(2) of the Regulation, Ireland has failed to fulfil its obligations under Article 16(5) and (6) and Article 17(1) and (2) of the Regulation;

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

2.

Orders Ireland to pay the costs.

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(1)  
  OJ C 289 of 29.11.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/2 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/2

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ORDER OF THE COURT

(Second Chamber)

of 23 September 2004

in Joined Cases C-435/02 and C-103/03 (references for preliminary rulings from the Landgericht Essen and the Landgericht Hagen): Axel Springer AG v Zeitungsverlag Niederrhein GmbH & Co. Essen KG and Hans-Jürgen Weske (1)

(Article 104(3) of the Rules of Procedure - Partnership law and company law - Directive 90/605/EEC amending the scope of Directives 78/660/EEC and 83/349/EEC - Article 54(3)(g) of the EC Treaty (now, after amendment, Article 44(2)(g) EC) - Partnerships in the form of limited partnerships all of the fully liable partners of which are constituted as private limited liability companies GmbH and Co. KG - Publication of annual accounts - Right of third parties to consult those documents - Concept of a third party - Inclusion, inter alia, of competitors - Validity - Legal basis - Principles of freedom to pursue a trade or profession, freedom of the press and equal treatment)

(2004/C 314/03)

Language of the cases: German

In Joined Cases C-435/02 and C-103/03: references for preliminary rulings under Article 234 EC from the Landgericht (Regional Court) Essen (Germany) and the Landgericht Hagen (Germany), by orders of 25 November 2002 and 11 February 2003, registered at the Court on 2 December 2002 and 5 March 2003 respectively, in the proceedings brought by Axel Springer AG against Zeitungsverlag Niederrhein GmbH & Co. Essen KG (C-435/02) and Axel Springer AG against Hans-Jürgen Weske (C-103/03), - the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has made an order on 23 September 2004, the operative part of which is as follows:

| 1. | To the extent it follows from Council Directive 90/605/EEC of 8 November 1990 amending Directive 78/660/EEC on annual accounts and Directive 83/349/EEC on consolidated accounts as regards the scope of those Directives that any person may inspect the annual accounts and annual report of the types of partnerships referred to in it, without having to establish a right or an interest requiring to be protected, that directive could validly be adopted on the basis of Article 54(3)(g) of the EC Treaty (now, after amendment, Article 44(2)(g) EC). |
| --- | --- |

1.

To the extent it follows from Council Directive 90/605/EEC of 8 November 1990 amending Directive 78/660/EEC on annual accounts and Directive 83/349/EEC on consolidated accounts as regards the scope of those Directives that any person may inspect the annual accounts and annual report of the types of partnerships referred to in it, without having to establish a right or an interest requiring to be protected, that directive could validly be adopted on the basis of Article 54(3)(g) of the EC Treaty (now, after amendment, Article 44(2)(g) EC).

| 2. | Consideration of the first two questions referred in Case C-435/02 and the second and third questions referred in Case C-103/03 in the light of the general Community-law principles of freedom to pursue a trade or profession and of freedom of expression has not disclosed anything that is capable of affecting the validity of Directive 90/605. |
| --- | --- |

2.

Consideration of the first two questions referred in Case C-435/02 and the second and third questions referred in Case C-103/03 in the light of the general Community-law principles of freedom to pursue a trade or profession and of freedom of expression has not disclosed anything that is capable of affecting the validity of Directive 90/605.

| 3. | Consideration of the third question in Case C-435/02 and the fourth question in Case C-103/03 in the light of the principle of equal treatment has not disclosed anything that is capable of affecting the validity of Directive 90/605. |
| --- | --- |

3.

Consideration of the third question in Case C-435/02 and the fourth question in Case C-103/03 in the light of the principle of equal treatment has not disclosed anything that is capable of affecting the validity of Directive 90/605.

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(1)  
  OJ C 44 of 22.2.2003.

OJ C 12 of 10.5.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/2 |
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18.12.2004

EN

Official Journal of the European Union

C 314/2

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ORDER OF THE COURT

(Third Chamber)

of 27 September 2004

in Case C-470/02 P: Union européenne de radio-télévision (UER) against Commission of the European Communities (1)

(Appeal - Competition - Agreements - Joint acquisition of television rights for international sporting events - Access of third parties to those rights - Article 81(3) EC - Appeal manifestly unfounded)

(2004/C 314/04)

Language of the case: French

In Case C-470/02 P, Union européenne de radio-télévision (UER), established in Grand-Saconnex (Switzerland) (lawyers: D. Waelbroeck and M. Johnsson) — appeal against the judgment of 8 October 2002 of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Joined Cases T-185/00, T-216/00, T-299/00 and T-300/00 M6 and Others v Commission, asking for that judgment to be set aside, the other parties to the proceedings being: Commission of the European Communities, Métropole télévision SA (M6), established in Neuilly-sur-Seine (France) (lawyers: P. Dian and J.-C. André) Antena 3 de Televisión SA, established in Madrid (Spain) (lawyers: S. Muñoz Machado and M. López-Contreras González), Gestevisión Telecinco SA, established in Madrid (Spain) (lawyers: S. Muñoz Machado and M. López-Contreras González), Sociedade Independente de Comunicação SA (SIC), established in Linda-a-Velha (Portugal) (lawyers: C. Botelho Moniz and E. Maia Cadete), Radiotelevisión Española (RTVE), Deutsches SportFernsehen GmbH (DSF), established in Ismaning (Germany) (lawyer: K. Metzlaff) and Reti Televisive Italiane SpA (RTI), established in Rome (Italy), (lawyers: G. Amorelli and D. Ciano) — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J.-P. Puissochet, A. Borg Barthet, J. Malenovský, U. Lõhmus, Judges, Advocate General: F. G. Jacobs, Registrar: R. Grass, has given a judgment on 27 September 2004, in which it:

| 1) | Dismisses the appeal. |
| --- | --- |

1)

Dismisses the appeal.

| 2) | Orders the Union européenne de radio-télévision (UER) to pay the costs. |
| --- | --- |

2)

Orders the Union européenne de radio-télévision (UER) to pay the costs.

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(1)  
  OJ C 55 of 8.3.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/3 |
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18.12.2004

EN

Official Journal of the European Union

C 314/3

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ORDER OF THE COURT

(Sixth Chamber)

of 28 September 2004

in Case C-115/03 (request for a preliminary ruling from the Tribunale Civile di Genova [Genoa District Court]): Eco Eridiana S.r.l. v Presidenza del Consiglio di Ministri and Ministero dell'Ambiente

(Article 104(3) of the Rules of Procedure - Management of waste - Hazardous waste - Directive 91/689/EEC - Article 4 - Meaning of ‘producer of waste’ - Whether or not natural persons are included)

(2004/C 314/05)

Language of the case: Italian

In Case C-115/03: request for a preliminary ruling under Article 234 EC from the Tribunale Civile di Genova (Italy), made by decision of 10 March 2003, received at the Court on 17 Mar 2003, in proceedings between Eco Eridiana S.r.l. and Presidenza del Consiglio di Ministri and Ministero dell'Ambiente, the Court (Sixth Chamber), composed of J.-P. Puissochet, President of the Chamber, S. von Bahr (Rapporteur), and A. Borg Barthet, Judges; Advocate General: M. Poiares Maduro; Registrar: R. Grass, made an order on 28 September 2004, the operative part of which is as follows:

The obligation to keep a record of hazardous waste pursuant to Article 4 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste applies to all producers of such waste, including dental surgeons' practices, and not only to producers of hazardous waste which carry on their business in the form of an undertaking or institution.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/3 |
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18.12.2004

EN

Official Journal of the European Union

C 314/3

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Appeal brought on 23 September 2004 (Fax: 16.9.04) by the Commission of the European Communities against the judgment delivered on 1 July 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-308/00 between Salzgitter AG, supported by the Federal Republic of Germany, and the Commission of the European Communities

(Case C-408/04 P)

(2004/C 314/06)

An appeal against the judgment delivered on 1 July 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-308/00 between Salzgitter AG, supported by the Federal Republic of Germany, and Commission of the European Communities was brought before the Court of Justice of the European Communities on 23 September 2004 (Fax: 16.9.04) by the Commission of the European Communities, represented by Viktor Kreuschitz and Michael Niejahr, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | Set aside the judgment of the Court of First Instance of 1 July 2004 in Case T-308/00 (1) between Salzgitter AG and the Commission of the European Communities; |
| --- | --- |

1.

Set aside the judgment of the Court of First Instance of 1 July 2004 in Case T-308/00 (1) between Salzgitter AG and the Commission of the European Communities;

1

| 2. | Refer the case back to the Court of First Instance; |
| --- | --- |

2.

Refer the case back to the Court of First Instance;

| 3. | Order Salzgitter AG to pay the costs. |
| --- | --- |

3.

Order Salzgitter AG to pay the costs.

Pleas on appeal and main arguments:

By the judgment under appeal, the Court of First Instance annulled Articles 2 and 3 of Decision 2000/797/ECSC on State aid granted by the Federal Republic of Germany to Salzgitter AG, Preussag Stahl AG and the group's steel-industry subsidiaries. By means of the repealed provisions, the Commission ordered the Federal Republic of Germany to recover illegal and incompatible aid from the beneficiary.

Pursuant to Article 1 of that decision, the special depreciation allowances and the tax-free reserves, which the applicant was granted under Article 3 of the Zonenrandförderungsgesetz (German law on the development of the border zone between the former German Democratic Republic and the former Czechoslovak Socialist Republic, the ‘ZRFG’) and of which the applicant had been the recipient in respect of eligible bases of DEM 484 million and DEM 367 million respectively, were declared by the Commission as incompatible with the common market, but were not annulled. The Zonenrandförderungsgesetz was approved by the Commission under Article 92(2)(c) of the EC Treaty — now Article 87(2)(c) EC. The ECSC Treaty does not contain a comparable provision. Thus although the aid granted to Salzgitter AG is incompatible with the common market, it cannot be recovered.

The judgment relies essentially on the concept that the situation resulting from the adoption of the Second and Third Steel Aid Codes was characterised by elements of uncertainty and lack of clarity, which are attributable to the Commission.

Against this, the appellant puts forward the following four pleas in law:

| | Firstly, by describing the legal situation resulting from the adoption of the First, Second and Third Steel Aid Codes as ‘being characterised by uncertainty and lack of clarity’, the Court contradicts its own case-law. According to the judgment in Case T-129/96 Preussag Stahl v Commission [1998] ECR II-609, paragraph 43, the derogations laid down in the Codes to the principle of the absolute prohibition of aid in Article 4(c) of the ECSC Treaty can be granted only during a period which those Codes determine. It follows from this case-law, which has been confirmed by the European Court of Justice, that neither the First nor the Second Steel Aid Codes could produce legal effects after 31 December 1981 and 31 December 1985 respectively. Since the Third Steel Aid Code came into force, it was perfectly clear that the Commission ‘shall be informed of plans to grant aid to the steel industry under schemes on which it has already taken a decision under the EEC Treaty’ (Article 6(1) of the Third Steel Aid Code, OJ L 340, 18.12.1985, p. 1). However, the first two State Aid Codes were not applied in the contested decision and are not relevant to the dispute. In any event, contrary to the finding of the Court of First Instance in the contested judgment, the first two State Aid Codes could not produce any effects outside the sphere of the ESCS. |
| --- | --- |

Firstly, by describing the legal situation resulting from the adoption of the First, Second and Third Steel Aid Codes as ‘being characterised by uncertainty and lack of clarity’, the Court contradicts its own case-law. According to the judgment in Case T-129/96 Preussag Stahl v Commission [1998] ECR II-609, paragraph 43, the derogations laid down in the Codes to the principle of the absolute prohibition of aid in Article 4(c) of the ECSC Treaty can be granted only during a period which those Codes determine. It follows from this case-law, which has been confirmed by the European Court of Justice, that neither the First nor the Second Steel Aid Codes could produce legal effects after 31 December 1981 and 31 December 1985 respectively. Since the Third Steel Aid Code came into force, it was perfectly clear that the Commission ‘shall be informed of plans to grant aid to the steel industry under schemes on which it has already taken a decision under the EEC Treaty’ (Article 6(1) of the Third Steel Aid Code, OJ L 340, 18.12.1985, p. 1). However, the first two State Aid Codes were not applied in the contested decision and are not relevant to the dispute. In any event, contrary to the finding of the Court of First Instance in the contested judgment, the first two State Aid Codes could not produce any effects outside the sphere of the ESCS.

| | Secondly, the Court has not required any evidence of the fact that the Commission actually had ‘awareness of the aid received by the applicant’. Moreover, the Court has failed to examine the question of whether the annual reports, which were regularly submitted by the applicant, would have actually made it possible to identify non-notified aid. |
| --- | --- |

Secondly, the Court has not required any evidence of the fact that the Commission actually had ‘awareness of the aid received by the applicant’. Moreover, the Court has failed to examine the question of whether the annual reports, which were regularly submitted by the applicant, would have actually made it possible to identify non-notified aid.

| | Thirdly, the Court seems to be of the view that the transmission of documents to the Commission outside of the procedure laid down by Article 88 EC could exclude the duty to pay back illegal aid by the mere reliance of the applicant on the principle of legal certainty. |
| --- | --- |

Thirdly, the Court seems to be of the view that the transmission of documents to the Commission outside of the procedure laid down by Article 88 EC could exclude the duty to pay back illegal aid by the mere reliance of the applicant on the principle of legal certainty.

| | Finally, the judgment could be detrimental to the system of control of aid by the Commission, as it deviates from the consistent case-law of the Court, according to which an undertaking which has benefited from aid may only in principle entertain a legitimate expectation that the aid is lawful if it has been granted in compliance with the procedure laid down in that article. A diligent operator should normally be able to determine whether that procedure has been followed (Case C-5/89 Commission v Germany [1990] ECR I-3437, paragraph 14). In this judgment, the Court held that undertakings benefiting from aid could not rely on the principle of the protection of legitimate expectations, based on the principle of legal certainty, in order to avoid repayment of state aid which is incompatible with the common market. |
| --- | --- |

Finally, the judgment could be detrimental to the system of control of aid by the Commission, as it deviates from the consistent case-law of the Court, according to which an undertaking which has benefited from aid may only in principle entertain a legitimate expectation that the aid is lawful if it has been granted in compliance with the procedure laid down in that article. A diligent operator should normally be able to determine whether that procedure has been followed (Case C-5/89 Commission v Germany [1990] ECR I-3437, paragraph 14). In this judgment, the Court held that undertakings benefiting from aid could not rely on the principle of the protection of legitimate expectations, based on the principle of legal certainty, in order to avoid repayment of state aid which is incompatible with the common market.

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(1)  
  OJ C 239 of 25.9.2004

1

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/4 |
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18.12.2004

EN

Official Journal of the European Union

C 314/4

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Action brought on 6 October 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-428/04)

(2004/C 314/07)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 6 October 2004 by the Commission of the European Communities, represented by Nicola Yerrell and Horstpeter Kreppel, with an address for service in Luxembourg.

The applicant claims that the Court should rule as follows:

| I. | The Republic of Austria has failed to fulfil its obligations under Articles 2, 7, 11, 12, 13 and 18 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1), by:






  1. | failing to adopt, to date, and notwithstanding the expiry of the period for transposition, the following legislation, by means of which the directive should have been transposed into Austrian law, namely:






  (a) | the Landeslehrer-Dienstrechtsgesetz (LDG) (General Rules applying to Teachers in the Länder) |
| --- | --- | --- | --- |

I.

The Republic of Austria has failed to fulfil its obligations under Articles 2, 7, 11, 12, 13 and 18 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1), by:

1.

failing to adopt, to date, and notwithstanding the expiry of the period for transposition, the following legislation, by means of which the directive should have been transposed into Austrian law, namely:

(a)

the Landeslehrer-Dienstrechtsgesetz (LDG) (General Rules applying to Teachers in the Länder)

| (b) | the Beamten-, Kranken- und Unfallversicherungsgesetz (Law on Sickness and Accident Insurance Schemes for Civil Servants) |
| --- | --- |

(b)

the Beamten-, Kranken- und Unfallversicherungsgesetz (Law on Sickness and Accident Insurance Schemes for Civil Servants)

| (c) | the Allgemeines Sozialversicherungsgesetz (ASVG) (Law on General Sickness Insurance Schemes) |
| --- | --- |

(c)

the Allgemeines Sozialversicherungsgesetz (ASVG) (Law on General Sickness Insurance Schemes)

or in the event that these measures have since been adopted, by failing to notify them to the Commission;

| 2. | failing to transpose, or not properly transposing, the following Articles of the directive into Austrian law, namely:






  (a) | Article 2(1), concerning teachers in ‘öffentlichen Pflichtschulen’ in the Tirol |
| --- | --- | --- |

2.

failing to transpose, or not properly transposing, the following Articles of the directive into Austrian law, namely:

(a)

Article 2(1), concerning teachers in ‘öffentlichen Pflichtschulen’ in the Tirol

| (b) | Article 7(3) |
| --- | --- |

(b)

Article 7(3)

| (c) | Article 8(2) |
| --- | --- |

(c)

Article 8(2)

| (d) | Article 11(2) |
| --- | --- |

(d)

Article 11(2)

| (e) | Article 12(4) |
| --- | --- |

(e)

Article 12(4)

| (f) | Article 13(2)(a) and (b) |
| --- | --- |

(f)

Article 13(2)(a) and (b)

| II. | Order the Republic of Austria to pay the costs. |
| --- | --- |

II.

Order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

The period allowed for transposition of Directive 89/391/EEC (‘the Directive’) into Austrian law expired on 31.12.1993.

The Commission takes the view that the transposition of the Directive remains incomplete or insufficient.

Firstly, the legislative provisions which the Austrian Government promised would transpose the Directive (namely the Landeslehrer-Dienstrechtsgesetz (LDG), the Beamten-, Kranken- und Unfallversicherungsgesetz and the Allgemeines Sozialversicherungsgesetz (ASVG)), have not been adopted, and in the event that they have since come into force, they have not been notified to the Commission.

Secondly, with regard to certain provisions (in total six) of that directive, the Commission notes that, in the legislative provisions communicated by the Austrian authorities, the Directive has been incompletely or incorrectly transposed.

The Commission also complains that even though the scope of Article 2(1) of Directive 89/391/EEC is exhaustive, none of the national transposition measures relate to teachers in ‘Pflichtschulen’ in the Tirol.

Under Article 7 of the Directive, the employer is obliged to designate one or several employees to carry out activities related to the prevention of occupational risks, on condition that he has suitably qualified personnel available to him. In the Commission's view, Article 7 of the Directive favours risk management within the undertaking, as Article 7(3) only provides for recourse to qualified personnel outside the undertaking, when there is a lack of qualified personnel within the company (see on this point the judgment in Case C-441/01, Commission v Netherlands [2003]. However, the Austrian transposition measures allow the employer to choose whether to entrust protective activities either to safety specialists from within the company or outside the company.

Article 8(2) (Duty to take the necessary measures for first aid, fire-fighting and evacuation of workers) does not provide for any exception for small undertakings in the Commission's view. However, under the Austrian transposition measures, small undertakings are exempt from this obligation.

The Commission is of the view that the measures transposing Article 11(2) of the Directive do not cover certain duties to inform on the part of the employer, as provided for in that Article.

Article 12(4) of the Directive states that the training referred to in that Article may not be at the workers' expense.

Whilst the Austrian transposition measures stipulate that time spent attending such training is to be considered as remunerated work, they do not stipulate who should bear the cost of such training.

Finally, the Commission complains that Article 13(2)(a) and (b) of the Directive has not been completely transposed into Austrian law. Contrary to Article 13(2)(b), the concept of ‘work equipment’ within the meaning of Article 15 of the ArbeitnehmerInnenschutzgesetz (ASchG) (Law on the Protection of Workers) and Article 15 of the Bundesbedienstetenschutzgesetz (B-BSG) (Law on the Protection of Federal State Personnel) does not cover dangerous substances. Furthermore, the obligation laid down in Article 13(2)(b) to return personal protective equipment to its proper place after use has not been transposed into Austrian law.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/5 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/5

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Reference for a preliminary ruling by the Landesgericht Klagenfurt by decision of that court of 13 August 2004 in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt

(Case C-441/04)

(2004/C 314/08)

Reference has been made to the Court of Justice of the European Communities by decision of the Landesgericht Klagenfurt (Klagenfurt Regional Court) (Austria) of 13 August 2004, received at the Court Registry on 21 October 2004, for a preliminary ruling in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt on the following questions:

| 1. | Are Articles 28/30 EC to be interpreted as guaranteeing the freedom of the defendant, in the course of her trade, to sell silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery? |
| --- | --- |

1.

Are Articles 28/30 EC to be interpreted as guaranteeing the freedom of the defendant, in the course of her trade, to sell silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery?

| 2. | If so, does a rule of a Member State which prohibits the sale of silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery constitute a restriction on the free movement of goods within the meaning of Articles 28/30 EC? |
| --- | --- |

2.

If so, does a rule of a Member State which prohibits the sale of silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery constitute a restriction on the free movement of goods within the meaning of Articles 28/30 EC?

| 3. | If so, is a national rule which, contrary to Articles 28/30 EC, prohibits the sale of silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery not contrary to the right of an individual to sell silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery? |
| --- | --- |

3.

If so, is a national rule which, contrary to Articles 28/30 EC, prohibits the sale of silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery not contrary to the right of an individual to sell silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery?

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/6 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/6

---

Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that court of 13 October 2004 in the case of Possehl Erzkontor GmbH against Hauptzollamt Duisburg

(Case C-445/04)

(2004/C 314/09)

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Düsseldorf (Düsseldorf Finance Court) (Germany) of 13 October 2004, received at the Court Registry on 21 October 2004, for a preliminary ruling in the case of Possehl Erzkontor GmbH against Hauptzollamt Duisburg on the following question:

Does fused magnesia of the kind described in detail in this order, which is caustic-burned from natural mined magnesite and obtained in a second processing stage by fusion in an electric arc furnace, come under subheading 2519 90 10 of Annex I to the Combined Nomenclature?

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/6 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/6

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Reference for a preliminary ruling by the Landesgerichts Innsbruck by decision of that court of 30 September 2004 in the case of Autohaus Ostermann GmbH against VAV Versicherungs AG

(Case C-447/04)

(2004/C 314/10)

Reference has been made to the Court of Justice of the European Communities by decision of the Landesgericht Innsbruck (Austria) of 30 September 2004, which was received at the Court Registry on 27 October 2004, for a preliminary ruling in the case of Autohaus Ostermann GmbH against VAV Versicherungs AG.

The Landesgericht Innsbruck asks the Court of Justice to give a preliminary ruling on the following question:

Is Article 4(6) of Directive 2000/26/EC of the European Parliament and the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) (1) to be interpreted as meaning that the insurance company against which a claim has been made is always subject to a three-month time-limit to deal with the matter, even in the case of a simple factual and legal situation, or that this refers merely to a ‘setting of the due date’, which does not exclude earlier settlement of the claim by the insurance company after the setting of an ‘appropriate’ time-limit for payment which is also within the three-month period?

1

---

(1)  OJ L 181, p. 65.

1

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/6 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/6

---

Action brought on 27 October 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-448/04)

(2004/C 314/11)

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 27 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (1) or, in any event, by failing to inform the Commission of them, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (1) or, in any event, by failing to inform the Commission of them, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

1

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 2 December 2002.

---

(1)  
  OJ L 149 of 2.6.2001, p. 34.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/7 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/7

---

Action brought on 27 October 2004 by Commission of the European Communities against Grand Duchy of Luxembourg

(Case C-449/04)

(2004/C 314/12)

An action was brought before the Court of Justice of the European Communities on 27 October 2004 by Commission of the European Communities, represented by C. O'Reilly and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.

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

| 1. | Declare that, by not adopting the laws, regulations and administrative provisions needed to comply with Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, (1) the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declare that, by not adopting the laws, regulations and administrative provisions needed to comply with Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, (1) the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

1

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

2.

Order the Grand Duchy of Luxembourg to pay the costs.

Pleas and main arguments

The period set for transposition of the directive into internal law expired on 11 February 2003.

---

(1)  
  OJ L 187 of 10.7.2001.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/7 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/7

---

Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic

(Case C-450/04)

(2004/C 314/13)

An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (1) or, in any event, by failing to inform the Commission of them, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (1) or, in any event, by failing to inform the Commission of them, the French Republic has failed to fulfil its obligations under that directive;

1

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 2 December 2002.

---

(1)  
  OJ L 149 of 2.6.2001, p. 34.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/7 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/7

---

Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic

(Case C-451/04)

(2004/C 314/14)

An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.

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

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

1.

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

1

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 31 December 2002.

---

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

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/8 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/8

---

Action brought on 28 October 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-454/04)

(2004/C 314/15)

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 28 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.

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

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

1.

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

1

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 31 December 2002.

---

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

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/8 |
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18.12.2004

EN

Official Journal of the European Union

C 314/8

---

Action brought on 22 October 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-460/04)

(Language of the case: Dutch)

(2004/C 314/16)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 22 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and R. Troosters, acting as Agents.

The applicant claims that the Court should:

| 1. | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/51/EC (1) of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, or at least by failing to forward those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/51/EC (1) of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, or at least by failing to forward those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

1

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

2.

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

The period within which Directive 2001/51/EC had to be transposed expired on 11 February 2003.

---

(1)  
  OJ L 187 of 10.7.2001, pp. 45-46.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/8 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/8

---

Action brought on 22 October 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-461/04)

(Language of the case: Dutch)

(2004/C 314/17)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 22 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and R. Troosters, acting as Agents.

The applicant claims that the Court should:

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

1.

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

1

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

2.

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

The period within which Directive 2001/55/EC had to be transposed expired on 31 December 2002.

---

(1)  
  OJ L 212 of 07.08.2001, pp. 12-23.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/9 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/9

---

Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-468/04)

(2004/C 314/18)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 4 November 2004 by the Commission of the European Communities, represented by Georgios Zavvos and Arnaud Bordes, members of the Commission's Legal Service.

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/33/EC (1) of the European Parliament and of the Council of 21 October 2002 amending Council Directives 90/425/EEC and 92/118/EEC as regards health requirements for animal by-products, and in any event by failing to inform the Commission thereof, the Hellenic Republic 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 2002/33/EC (1) of the European Parliament and of the Council of 21 October 2002 amending Council Directives 90/425/EEC and 92/118/EEC as regards health requirements for animal by-products, and in any event by failing to inform the Commission thereof, the Hellenic Republic has failed to fulfil its obligations under that directive.

1

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 30 April 2003.

---

(1)  
  OJ L 315 of 31.10.2002, p. 14.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/9 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/9

---

Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-469/04)

(2004/C 314/19)

An action against the Hellenic Republic was brought before the Court of Justice of the European Commission on 4 November 2004 by the Commission of the European Communities, represented by Yiorgos Zabbos and Arnaud Bordes, of the Commission's Legal Service.

The applicant claims that the Court should:

| — | Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/60/EC (1) of 27 June 2002 laying down specific provisions for the control of African swine fever and amending Directive 92/119/EEC as regards Teschen disease and African swine fever and, in any event, by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

—

Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/60/EC (1) of 27 June 2002 laying down specific provisions for the control of African swine fever and amending Directive 92/119/EEC as regards Teschen disease and African swine fever and, in any event, by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive.

1

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

—

Order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period allowed for transposition of the directive into the national legal system expired on 30 June 2003.

---

(1)  
  OJ L 192 of 27 June 2002, p. 27.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/10 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/10

---

Action brought on 10 November 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-474/04)

(2004/C 314/20)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 10 November 2004 by the Commission of the European Communities, represented by Maria Kondou Durande and Carmel O'Reilly, Legal Advisers in the Commission's Legal Service.

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/40/EC of 28 May 2001
   (1) on the mutual recognition of decisions on the expulsion of third country nationals, or in any event by failing to notify the measures in question to the Commission, the Hellenic Republic 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 Council Directive 2001/40/EC of 28 May 2001
   (1) on the mutual recognition of decisions on the expulsion of third country nationals, or in any event by failing to notify the measures in question to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive.

1

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 2 December 2002.

---

(1)  
  OJ L 149 of 28.5.2001, p. 34.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/10 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/10

---

Action brought on 10 November 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-475/04)

(2004/C 314/21)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 10 November 2004 by the Commission of the European Communities, represented by Georgios Zavvos and Michael Shotter, Members of the Commission's Legal Service.

The applicant claims that the Court should:

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

—

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

1

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 31 July 2003.

---

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

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/10 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/10

---

Removal from the register of Case C-154/03 (1)

(2004/C 314/22)

By order of 15 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-154/03: Commission of the European Communities v Ireland.

---

(1)  
  OJ C 146 of 21.6.2003.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/10 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/10

---

Removal from the register of Case C-186/03 P (1)

(2004/C 314/23)

By order of 23 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-186/03 P: Strabag Benelux NV v Council of the European Union.

---

(1)  
  OJ C 213 of 6.9.2003.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/11 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/11

---

Removal from the register of Case C-274/03 (1)

(2004/C 314/24)

By order of 16 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-274/03: Commission of the European Communities v Ireland.

---

(1)  
  OJ C 200 of 23.8.2003.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/11 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/11

---

Removal from the register of Case C-424/03 (1)

(2004/C 314/25)

By order of 23 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-424/03: Commission of the European Communities v Kingdom of Spain.

---

(1)  
  OJ C 275 of 15.11.2003.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/11 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/11

---

Removal from the register of Case C-479/03 (1)

(2004/C 314/26)

By order of 23 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-479/03: Commission of the European Communities v Grand Duchy of Luxembourg.

---

(1)  
  OJ C 7 of 10.1.2004.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/11 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/11

---

Removal from the register of Case C-21/04 (1)

(2004/C 314/27)

By order of 8 September 2004 the President of the Fifth Chamber of the Court of Justice of the European Communities has ordered the removal from the register of Case C-21/04: Commission of the European Communities v Ireland.

---

(1)  
  OJ C 55 of 8.3.2003.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/11 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/11

---

Removal from the register of Case C-72/04 (1)

(2004/C 314/28)

By order of 24 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-72/04: Commission of the European Communities v Republic of Finland.

---

(1)  
  OJ C 94 of 17.4.2004.

1

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/11 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/11

---

Removal from the register of Case C-115/04 (1)

(2004/C 314/29)

By order of 23 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-115/04: Commission of the European Communities v Republic of Finland.

---

(1)  
  OJ C 94 of 17.4.2004.

1

---

COURT OF FIRST INSTANCE

| 18.12.2004 | EN | Official Journal of the European Union | C 314/12 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/12

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 21 October 2004

in Case T-36/99: Lenzing AG v Commission of the European Communities (1)

(State aid - Action for annulment - Admissibility - Act of individual concern to the applicant - Article 87(1) EC - Agreements on the rescheduling and repayment of debts - Private creditor test)

(2004/C 314/30)

Language of the case: German

In Case T-36/99: Lenzing AG, established in Lenzing (Austria), represented initially by H.-J. Niemeyer, then by I. Brinker and U. Soltész, lawyers, against Commission of the European Communities (Agents: V. Kreuschitz and D. Triantafyllou, assisted by M. Núñez-Müller, lawyer, with an address for service in Luxembourg), supported by Kingdom of Spain (Agent: N. Díaz Abad, with an address for service in Luxembourg) — application for partial annulment of Commission Decision 1999/395/EC of 28 October 1998 on State aid implemented by Spain in favour of Sniace, SA, located in Torrelavega, Cantabria (OJ 1999 L 149, p. 40), as amended by Commission Decision 2001/43/EC of 20 September 2000 (OJ 2001 L 11, p. 46) — the Court of First Instance (Fifth Chamber, Extended Composition), composed of R. García-Valdecasas, President, P. Lindh, J.D. Cooke, H. Legal and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 21 October 2004, in which it:

| 1. | Annuls Article 1(1) of Commission Decision 1999/395/EC of 28 October 1998 on State aid implemented by Spain in favour of Sniace, SA, located in Torrelavega, Cantabria, as amended by Commission Decision 2001/43/EC of 20 September 2000; |
| --- | --- |

1.

Annuls Article 1(1) of Commission Decision 1999/395/EC of 28 October 1998 on State aid implemented by Spain in favour of Sniace, SA, located in Torrelavega, Cantabria, as amended by Commission Decision 2001/43/EC of 20 September 2000;

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

2.

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

| 3. | Orders the Kingdom of Spain to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of Spain to bear its own costs.

---

(1)  
  OJ C 160 of 5.6.1999.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/12 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/12

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 5 October 2004

in Case T-45/01: Stephen Sanders and Others v Commission of the European Communities (1)

(Staff employed at the JET Joint Undertaking - Equal treatment - Failure to confer status of temporary servant - Article 152 EA - Reasonable time - Material damage sustained)

(2004/C 314/31)

Language of the case: English

In Case T-45/01: Stephen Sanders, residing in Oxfordshire (United Kingdom), and the 94 applicants whose names appear in the annex, represented by P. Roth, QC, I. Hutton and A. Howard, Barristers, against Commission of the European Communities (Agents: J. Currall and L. Escobar Guerrero, with an address for service in Luxembourg), supported by Council of the European Union (Agent: initially by J.-P. Hix and A. Pilette, and subsequently by J.-P. Hix and B. Driessen) — application for damages for the material loss sustained as a result of the failure to recruit the applicants as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, M. Jaeger and H. Legal, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 5 October 2004, in which it:

| 1. | Orders the Commission to pay damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking; |
| --- | --- |

1.

Orders the Commission to pay damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking;

| 2. | Orders the parties to produce to the Court of First Instance within six months of this judgment an agreement on the quantum of damages due in reparation of the said loss; |
| --- | --- |

2.

Orders the parties to produce to the Court of First Instance within six months of this judgment an agreement on the quantum of damages due in reparation of the said loss;

| 3. | In the absence of agreement orders the parties to put before the Court of First Instance within the same period their submissions on the quantum of damages; |
| --- | --- |

3.

In the absence of agreement orders the parties to put before the Court of First Instance within the same period their submissions on the quantum of damages;

| 4. | Reserves the costs. |
| --- | --- |

4.

Reserves the costs.

---

(1)  
  OJ C 134 of 5.5.2001.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/13 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/13

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-1/02, Robert Polinsky v Court of Justice of the European Communities (1)

(Officials - Action for damages - Exposure to asbestos - Occupational disease - Damage)

(2004/C 314/32)

Language of the case: French

In Case T-1/02, Robert Polinsky, an official of the Court of Justice of the European Communities, residing in Thionville (France), represented by J. Iturriagagoitia Bassas, lawyer, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders the parties to bear their own costs.

---

(1)  
  OJ C 84 of 6.4.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/13 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/13

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-44/02: Dresdner Bank AG v Commission of the European Communities (1)

(Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)

(2004/C 314/33)

Language of the case: German

In Case T-44/02: Dresdner Bank AG, established in Frankfurt am Main (Germany), represented by M. Hirsch and W. Bosch, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has given a judgment on 14 October 2004, in which it:

| 1. | Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant; |
| --- | --- |

1.

Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

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

2.

Orders the Commission to pay the costs.

---

(1)  
  OJ C 109 of 4.5.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/13 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/13

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-54/02: Vereins- und Westbank AG v Commission of the European Communities (1)

(Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)

(2004/C 314/34)

Language of the case: German

In Case T-54/02: Vereins- und Westbank AG, established in Hamburg (Germany), represented by J. Schulte, M Ewen and A. Neus, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1. | Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant; |
| --- | --- |

1.

Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

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

2.

Orders the Commission to pay the costs.

---

(1)  
  OJ C 97 of 20.4.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/14 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/14

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-56/02: Bayerische Hypo- und Vereinsbank AG v Commission of the European Communities (1)

(Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)

(2004/C 314/35)

Language of the case: German

In Case T-56/02: Bayerische Hypo- und Vereinsbank AG, established in Munich (Germany), represented by W. Knapp, T. Müller-Ibold and B. Bergmann, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has given a judgment on 14 October 2004, in which it:

| 1. | Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant; |
| --- | --- |

1.

Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

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

2.

Orders the Commission to pay the costs.

---

(1)  
  OJ C 109 of 4.5.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/14 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/14

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-60/02: Deutsche Verkehrsbank AG v Commission of the European Communities (1)

(Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)

(2004/C 314/36)

Language of the case: German

In Case T-60/02: Deutsche Verkehrsbank AG, established in Frankfurt am Main (Germany), represented by M. Klusmann and by F. Wiemer, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1. | Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant; |
| --- | --- |

1.

Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

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

2.

Orders the Commission to pay the costs.

---

(1)  
  OJ C 109 of 4.5.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/14 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/14

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-61/02: Commerzbank AG v Commission of the European Communities (1)

(Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)

(2004/C 314/37)

Language of the case: German

In Case T-61/02: Commerzbank AG, established in Frankfurt am Main (Germany), represented by H. Satzky, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has given a judgment on 14 October 2004, in which it:

| 1. | Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant; |
| --- | --- |

1.

Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

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

2.

Orders the Commission to pay the costs.

---

(1)  
  OJ C 109 of 4.5.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/15 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/15

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-137/02: Pollmeier Malchow GmbH & Co. KG v Commission of the European Communities (1)

(State aid - Action for annulment - Recommendation 96/280/EC - Meaning of small and medium-sized enterprises (SMEs))

(2004/C 314/38)

Language of the case: German

In Case T-137/02: Pollmeier Malchow GmbH & Co. KG, established in Malchow (Germany), represented by S. Völcker and J. Heithecker, lawyers, against Commission of the European Communities (Agents: V. Kreuschitz and V. Di Bucci, and M. Núñez-Müller) — action for annulment of Commission Decision 2002/821/EC of 15 January 2002 on the State aid implemented by Germany for Pollmeier GmbH, Malchow (OJ 2002 L 296, p. 20) — the Court of First Instance (Fourth Chamber, Extended Composition), composed of H. Legal, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  
  OJ C 169 of 13.07.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/15 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/15

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 5 October 2004

in Case T-144/02: Richard J. Eagle and Others v Commission of the European Communities (1)

(Staff employed at the JET Joint Undertaking - Equal treatment - Failure to confer status of temporary servant - Article 152 EA - Reasonable time - Material damage sustained)

(2004/C 314/39)

Language of the case: English

In Case T-144/02: Richard J. Eagle, residing in Oxfordshire (United Kingdom), and the 12 applicants whose names appear in the annex, represented by D. Beard, Barrister, against Commission of the European Communities (Agents: J. Currall and L. Escobar Guerrero, with an address for service in Luxembourg), supported by Council of the European Union (Agents: J.-P. Hix and A. Pilette) — application for damages for the material loss sustained as a result of the failure to recruit the applicants as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, M. Jaeger and H. Legal, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 5 October 2004, in which it:

| 1. | Orders the Commission to pay damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking; |
| --- | --- |

1.

Orders the Commission to pay damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking;

| 2. | Orders the parties to produce to the Court of First Instance within six months of this judgment an agreement on the quantum of damages due in reparation of the said loss; |
| --- | --- |

2.

Orders the parties to produce to the Court of First Instance within six months of this judgment an agreement on the quantum of damages due in reparation of the said loss;

| 3. | In the absence of agreement orders the parties to put before the Court of First Instance within the same period their submissions on the quantum of damages; |
| --- | --- |

3.

In the absence of agreement orders the parties to put before the Court of First Instance within the same period their submissions on the quantum of damages;

| 4. | Reserves the costs. |
| --- | --- |

4.

Reserves the costs.

---

(1)  
  OJ C 169 of 13.7.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/16 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/16

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-255/02, H v Court of Justice of the European Communities (1)

(Officials - Action for damages - Exposure to asbestos - Occupational disease - Damage)

(2004/C 314/40)

Language of the case: French

In Case T-255/02, H, an official of the Court of Justice of the European Communities, residing in Oetrange (Luxembourg), represented by J. Iturriagagoitia Bassas, lawyer, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders the parties to bear their own costs.

---

(1)  
  OJ C 274 of 9.11.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/16 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/16

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-256/02, I v Court of Justice of the European Communities (1)

(Officials - Action for damages - Exposure to asbestos - Occupational disease - Damage)

(2004/C 314/41)

Language of the case: French

In Case T-256/02, I, an official of the Court of Justice of the European Communities, residing in Luxembourg (Luxembourg), represented by J. Iturriagagoitia Bassas, and K Delvolvé, lawyers, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders the parties to bear their own costs.

---

(1)  
  OJ C 274 of 9.11.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/16 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/16

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-257/02, K v Court of Justice of the European Communities (1)

(Officials - Action for damages - Exposure to asbestos - Occupational disease - Damage)

(2004/C 314/42)

Language of the case: French

In Case T-257/02, K, an official of the Court of Justice of the European Communities, residing in Luxembourg (Luxembourg), represented by J. Iturriagagoitia Bassas and K. Delvolvé, lawyers, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders the parties to bear their own costs.

---

(1)  
  OJ C 274 of 9.11.2002.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/17 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/17

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 6 October 2004

in Case T-294/02: Miguel Vicente-Nuñez v Commission of the European Communities (1)

(Compliance with a judgment of the Court of First Instance - Decision on promotion - Seniority in grade - Date of taking effect)

(2004/C 314/43)

Language of the case: French

In Case T-258/01: Miguel Vicente-Nuñez, an official of the Commission of the European Communities, residing in Kraainem (Belgium), represented by M.-A. Lucas, lawyer, against Commission of the European Communities (Agents: C. Berardis-Kayser and L. Lozano Palacios, with an address for service in Luxembourg) — application for annulment of the Commission's decision promoting the applicant to Grade A 5, Step 3 under the 1998 procedure, adopted in order to comply with the judgment delivered by the Court of First Instance on 9 March 2000 in Case T-10/99, in so far as it limits its effect to 1 April 2000, and, second, a claim for damages, the Court of First Instance (Third Chamber), composed of J Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, gave a judgment on 6 October 2004, in which it:

| 1. | Annuls the Commission's decision of 11 June 2002, in so far as it does not have the effect of replacing Mr Vicente-Nuñez in a situation comparable, from the point of view of his seniority in grade, to the situation in which he would have been had he been promoted to Grade A 5 on 1 April 1998; |
| --- | --- |

1.

Annuls the Commission's decision of 11 June 2002, in so far as it does not have the effect of replacing Mr Vicente-Nuñez in a situation comparable, from the point of view of his seniority in grade, to the situation in which he would have been had he been promoted to Grade A 5 on 1 April 1998;

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

2.

Dismisses the remainder of the application;

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

3.

Orders the Commission to pay the costs.

---

(1)  
  OJ No C 289 of 23.11.2002

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/17 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/17

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 6 October 2004

in Case T-356/02: Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier figurative mark including the verbal element ‘Krafft’ - Application for Community word mark VITAKRAFT - Relative ground for refusal - Genuine use of the earlier mark - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 - Rule 22(2) of Regulation (EC) No 2868/95)

(2004/C 314/44)

Language of the case: German

In Case T-356/02: Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG, established in Bremen (Germany), represented by U. Sander, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: A. Apostolakis and G. Schneider), the other party to the proceedings before the OHIM Board of Appeal and intervener before the Court of First Instance being Krafft, SA, established in Andoain (Spain), represented by P. Koch Moreno, lawyer — ACTION seeking the annulment of the decision of the Fourth Board of Appeal of OHIM of 4 September 2002 (Joined Cases R 506/2000-4 and R 581/2000-4) in opposition proceedings between Krafft, SA, and Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; B. Pastor, Deputy Registrar, for the Registrar, has given a judgment on 6 October 2004, in which it:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 September 2002 (Joined Cases R 506/2000-4 and R 581/2000-4) in so far as it allowed the intervener's appeal before the Board of Appeal concerning the goods ‘industrial oils and greases; lubricants; fuels (including motor spirit) and illuminants’ (Class 4) and the goods ‘building materials (not metallic); non-metallic rigid pipes for building, asphalt, pitch and bitumen’ (Class 19) contained in the Community trade mark application; |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 September 2002 (Joined Cases R 506/2000-4 and R 581/2000-4) in so far as it allowed the intervener's appeal before the Board of Appeal concerning the goods ‘industrial oils and greases; lubricants; fuels (including motor spirit) and illuminants’ (Class 4) and the goods ‘building materials (not metallic); non-metallic rigid pipes for building, asphalt, pitch and bitumen’ (Class 19) contained in the Community trade mark application;

| 2. | Dismisses the remainder of the action; |
| --- | --- |

2.

Dismisses the remainder of the action;

| 3. | Orders the parties to bear their own costs. |
| --- | --- |

3.

Orders the parties to bear their own costs.

---

(1)  
  OJ C 55, 8.3.2003.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/18 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/18

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-389/02, Sergio Sandini v Court of Justice of the European Communities (1)

(Officials - Action for damages - Admissibility - Exposure to asbestos - Occupational disease - Damage)

(2004/C 314/45)

Language of the case: French

In Case T-389/02, Sergio Sandini, an official of the Court of Justice of the European Communities, residing in Ehlange (Luxembourg), represented by J. Iturriagagoitia Bassas and K. Delvolvé, lawyers, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders the parties to bear their own costs.

---

(1)  
  OJ C 44 of 22.2.2003.

---

| 18.12.2004 | EN | Official Journal of the European Union | C 314/18 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/18

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-390/02, Antonio Cagnato v Court of Justice of the European Communities (1)

(Officials - Action for damages - Admissibility - Exposure to asbestos - Occupational disease - Damage)

(2004/C 314/46)

Language of the case: French

In Case T-390/02, Antonio Cagnato, an official of the Court of Justice of the European Communities, residing in Dippach-Gare (Luxembourg), represented by J. Iturriagagoitia Bassas and K. Delvolvé, lawyers, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders the parties to bear their own costs.

---

(1)  
  OJ C 44 of 22.2.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/18 |
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18.12.2004

EN

Official Journal of the European Union

C 314/18

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JUDGMENT OF THE COURT OF FIRST INSTANCE

12 October 2004

in Case T-35/03 Aventis Cropscience S.A. v Office for Harmonisation of the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Application for registration of Community word mark CARPO - Earlier national word mark HARPO Z - Likelihood of confusion - Article 8(1)(b) of Regulation No 40/94)

(2004/C 314/47)

Language of the case: Spanish

In Case T-35/03 Aventis Cropscience S.A., established in Lyon (France), represented by Enrique Armijo Chávarri, lawyer, v Office for Harmonisation of the Internal Market (Trade Marks and Designs) (OHIM) (Agents: I. de Medrano Caballero and G. Schneider), the other party to the proceedings being BASF Aktiengesellschaft, established in Ludwigshafen am Rhein (Germany), for the annulment of Decision R 803/2001-2 of the Second Board of Appeal of OHIM of 18 November 2002 concerning the opposition by the proprietor of the earlier national word mark HARPO Z to registration of the trade mark CARPO, the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and I. Pelikánová, Judges; Registrar: I. Natsinas, administrator, gave a judgment on 12 October 2004, in which it:

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

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  
  OJ C 83 of 5.4.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/19 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/19

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 21 October 2004

in Case T-49/03: Gunda Schumann v Commission of the European Communities (1)

(Officials - Open competition - Preselection tests - Neutralisation of a multiple-choice question - Principle of proportionality - Breach of the competition notice)

(2004/C 314/48)

Language of the case: German

In Case T-49/03: Gunda Schumann, residing in Berlin (Germany), represented by Y. Block, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application for annulment of the decision of the selection board in open competition COM/A/11/01 not to admit the applicant to the tests following the preselection tests, the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. Garcia-Valdecasas and J.D. Cooke Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 21 October 2004, in which it:

| 1. | Dismisses the application as inadmissible in that it seeks annulment of the decision of 19 July 2002; |
| --- | --- |

1.

Dismisses the application as inadmissible in that it seeks annulment of the decision of 19 July 2002;

| 2. | Dismisses the application as unfounded in that it seeks annulment of the decision of 4 June 2002; |
| --- | --- |

2.

Dismisses the application as unfounded in that it seeks annulment of the decision of 4 June 2002;

| 3. | Orders the parties to bear their own costs. |
| --- | --- |

3.

Orders the parties to bear their own costs.

---

(1)  
  OJ No C 101 of 26.4.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/19 |
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18.12.2004

EN

Official Journal of the European Union

C 314/19

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 6 October 2004

in Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier Community figurative mark comprising the letter combination ‘NL’ - Applications for Community figurative marks comprising the terms ‘NLSPORT’, ‘NLJEANS’, ‘NLACTIVE’ and ‘NLCollection’ - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 314/49)

Language of the case: Spanish

In Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd, established in Weymouth, Dorset (United Kingdom), represented by R. Ballester and G. Marín, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto, J. García Murillo and S. Laitinen), the other party to the proceedings before the Board of Appeal of OHIM being Naulover SA, established in Barcelona (Spain) — four actions brought against the decisions of the First Board of Appeal of OHIM of 27 January 2003 (R 95/2002-1, R 577/2001-1 and R 578/2001-1) and 15 April 2003 (R 19/03-1) relating to opposition proceedings between Naulover SA and New Look Ltd — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 6 October 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

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(1)  
  OJ C 146 of 21.6.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/20 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/20

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ORDER OF THE COURT OF FIRST INSTANCE

of 22 September 2004

in Case T-44/03: Giorgio Lebedef and Others v Commission of the European Communities (1)

(Officials - Remuneration - Travelling expenses - Amendment of the method of calculation - Second action relating to different years - Res judicata - Absence of material capable of calling in question the judgment delivered - Application manifestly unfounded)

(2004/C 314/50)

Language of the case: French

In Case T-44/03: Giorgio Lebedef, an official of the Commission of the European Communities, residing in Senningerberg (Luxembourg), and the 49 other officials named in an annex to the order, represented by G. Bounéou, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: J. Currall and V. Joris, with an address for service in Luxembourg) – application for annulment of the Commission's decision amending, for the years 1993, 1994 and 1995, the method used in calculating the annual expenses of travelling to Greece as regards the itinerary via Brindisi and also annulment of the applicants' reimbursement statements implementing that decision, the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, made an order on 22 September 2004, in which it:

| 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.

---

(1)  
  OJ C 101 of 26.4.2003.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/20 |
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18.12.2004

EN

Official Journal of the European Union

C 314/20

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Action brought on 9 September 2004 by the Hellenic Republic against the Commission of the European Communities

(Case T-364/04)

(2004/C 314/51)

Language of the case: Greek

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 September 2004 by the Hellenic Republic, represented by I. Khalkias and Eleni Evolopoulou, members of the State Legal Service.

The applicant claims that the Court should:

| — | annul or modify the contested decision. E 2004/561/EC/16.7.2004. (1) |
| --- | --- |

—

annul or modify the contested decision. E 2004/561/EC/16.7.2004. (1)

Pleas in law and main arguments

In the contested decision the Commission, in clearing the accounts in accordance with Regulation (EEC) No 729/70 (2), excluded from Community financing various expenditure incurred by the Hellenic Republic in the fruit and vegetables sector and in the sector of animal premiums, with the result that it is not recognised as legitimate Community expenditure and is chargeable to the Hellenic Republic.

More specifically, certain of that expenditure relates to production aid for processors of peaches, pursuant to Regulation No 2201/96 (3), from which an amount was excluded on the ground that the minimum price was not complied with. In support of that limb of its action, the Hellenic Republic alleges that the provisions of Regulation No 2201/96 and of Regulation No 504/79 (4) were misinterpreted, that the principle of proportionality was infringed and that the factual circumstances were wrongly assessed.

Further, in the same decision expenditure relating to the sector of production aid for processing tomatoes was also excluded, on the ground that there were direct payments of the aid to tomato producer organisations rather than to the processors. In support of that limb of its action, the Hellenic Republic relies on exceptional circumstances, that is to say, the bankruptcy of processing undertakings and serious cash-flow difficulties, maintaining that there was no ensuing economic harm to the Community. It also alleges that the factual circumstances were wrongly assessed, that the principle of proportionality was infringed and that Article 7 of Regulation No 1258/1999 (5) and Article 8 of Regulation No 1663/1995 (6) were infringed.

Another part of the expenditure excluded concerns expenditure for animal premiums. The Hellenic Republic asks that the contested decision be annulled and on that limb it is maintained that the Commission erred as to the facts, wrongly assessed the factual circumstances, ignored crucial evidence and gave erroneous reasons for its decision. It also alleges infringement of the principle of proportionality.

---

(1)  
  Official Journal L 250 of 24.7.2004, p. 21.

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

(3)  Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products (OJ L 297, 21.11.1996, p. 29).

(4)  Commission Regulation (EC) No 504/97 of 19 March 1997 laying down detailed rules for the application of Council Regulation (EC) No 2201/96 as regards the system of production aid for products processed from fruit and vegetables (OJ 1997 L 78, 20.03.1997, p. 14).

(5)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ L 160 of 26.06.1999, p. 103).

(6)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ L 158 of 8.7.1995, p. 6).

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/21 |
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18.12.2004

EN

Official Journal of the European Union

C 314/21

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Action brought on 22 September 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-378/04)

(2004/C 314/52)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 22 September 2004 by Orsay GmbH, established in Willstätt (Germany), represented by D. von Schultz, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of OHIM of 15 June 2004 – R 909/2002-4 – Orsay (word/figurative mark)/D'ORSAY (word/figurative mark) and Decision 2562/2002 of the Opposition Division of OHIM of 28 August 2002 insofar as registration of the Community trade mark sought by application No 1 042 605 was refused for the goods ‘clothing, boots, shoes and slippers; headgear’, on the ground of Opposition No B 242 075; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 15 June 2004 – R 909/2002-4 – Orsay (word/figurative mark)/D'ORSAY (word/figurative mark) and Decision 2562/2002 of the Opposition Division of OHIM of 28 August 2002 insofar as registration of the Community trade mark sought by application No 1 042 605 was refused for the goods ‘clothing, boots, shoes and slippers; headgear’, on the ground of Opposition No B 242 075;

| — | declare that the Community trade mark ‘Orsay’ sought by application No 1 042 605 is to be registered by OHIM for the goods ‘clothing, boots, shoes and slippers; headgear’ in Class 25; |
| --- | --- |

—

declare that the Community trade mark ‘Orsay’ sought by application No 1 042 605 is to be registered by OHIM for the goods ‘clothing, boots, shoes and slippers; headgear’ in Class 25;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘Orsay’ for goods in Class 23 (yarns and threads, etc.), Class 24 (clothing etc.) and Class 25 (headgear), application No 1 042 605 |
| Decision of the Opposition Division: | Refusal to register the mark applied for |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

Figurative mark ‘Orsay’ for goods in Class 23 (yarns and threads, etc.), Class 24 (clothing etc.) and Class 25 (headgear), application No 1 042 605

Decision of the Opposition Division:

Refusal to register the mark applied for

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

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

---

(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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| 18.12.2004 | EN | Official Journal of the European Union | C 314/21 |
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18.12.2004

EN

Official Journal of the European Union

C 314/21

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Action brought on 22 September 2004 by Erich Drazdansky against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-383/04)

(2004/C 314/53)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 22 September 2004 by Erich Drazdansky, resident in Wiener Neustadt (Austria), represented by M. Kadlicz, lawyer.

The applicant claims that the Court should:

| — | alter the decision of the Second Board of Appeal of the Office for Harmonisation of 23 July 2004 — R 1014/2001-2 so as to allow the appeal and refuse or reject the opposition; |
| --- | --- |

—

alter the decision of the Second Board of Appeal of the Office for Harmonisation of 23 July 2004 — R 1014/2001-2 so as to allow the appeal and refuse or reject the opposition;

| — | in the alternative, annul the decision of OHIM and require it to reach a fresh decision on the appeal; |
| --- | --- |

—

in the alternative, annul the decision of OHIM and require it to reach a fresh decision on the appeal;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark sought: | Word mark ‘Vitacan’ for goods in Class 29 (milk drinks etc.), Class 30 (cocoa or chocolate drinks) and Class 32 (fruit drinks etc.), application No 452 284 |
| Decision of the Opposition Division: | Refusal to register the mark applied for |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 8(1)(b) of Regulation No 40/94 (1) |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

Word mark ‘Vitacan’ for goods in Class 29 (milk drinks etc.), Class 30 (cocoa or chocolate drinks) and Class 32 (fruit drinks etc.), application No 452 284

Decision of the Opposition Division:

Refusal to register the mark applied for

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

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

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(1)  Council Regulation No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/22 |
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18.12.2004

EN

Official Journal of the European Union

C 314/22

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Action brought on 28 September 2004 by Bernard Nonat against Commission of the European Communities

(Case T-391/04)

(2004/C 314/54)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 September 2004 by Bernard Nonat, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission's decisions not to enter the applicant's name in a avourable position on either the list of merit or the list of officials promoted to grade A4 in the 2003 promotion exercise; |
| --- | --- |

—

annul the Commission's decisions not to enter the applicant's name in a avourable position on either the list of merit or the list of officials promoted to grade A4 in the 2003 promotion exercise;

| — | declare unlawful Article 12 of the general provisions for the implementation DGE) of Article 45 of the Staff Regulations in so far as it provides for the award of transitional priority points at the rate of one point per year of seniority in grade with a maximum of seven points and additional special priority points within a limit of 150 % of the possibilities for promotion in the previous exercise without taking account of the actual merits which officials have displayed during the reference years; |
| --- | --- |

—

declare unlawful Article 12 of the general provisions for the implementation DGE) of Article 45 of the Staff Regulations in so far as it provides for the award of transitional priority points at the rate of one point per year of seniority in grade with a maximum of seven points and additional special priority points within a limit of 150 % of the possibilities for promotion in the previous exercise without taking account of the actual merits which officials have displayed during the reference years;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in these proceedings objects to the appointing authority's refusal to promote him to A4 in the 2003 promotion exercise.

In support of his claims, he alleges that there has been a breach of Articles 43 and 45 of the Staff Regulations and also of the principle of non-discrimination and the principle that an official is entitled to reasonable career prospects.

He states in that regard that the new procedures adopted by the Commission for the assessment and promotion of officials deprive officials of an assessment of their own merits. In his specific case, and in application of Article 12(3b) of the DGE of Article 45 of the Staff Regulations, he is deemed to have the same merits, in terms of additional special priority points, as officials in the same grade who were not proposed in the previous exercise.

It is thus apparent that two different categories of officials in terms of merit are treated in the same way, in breach of the principle of non-discrimination and of Article 45 of the Staff Regulations: first, officials who, beyond the limit of 150 % of the possibilities of promotion for the 2002 promotion exercise, were proposed for promotion in that exercise and, second, officials eligible for promotion in 2002 who were not proposed.

Likewise, the award of one transitional priority point per year of seniority in grade has the effect, in breach of Article 45 of the Staff Regulations, of enhancing the seniority in grade of officials eligible for promotion without taking account of the respective merits which they have displayed during the reference period.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/23 |
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18.12.2004

EN

Official Journal of the European Union

C 314/23

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Action brought on 6 October 2004 by MobilCom Aktiengesellschaft against the Commission of the European Communities

(Case T-397/04)

(2004/C 314/55)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 6 October 2004 by MobilCom Aktiengesellschaft, Büdelsdorf (Germany), represented by K. Jacobsen, U. Wellmann and T. Sharpe.

The applicant claims that the Court should:

| — | annul the decision of the Commission of the European Communities of 14 July 2004 concerning aid C5/03 (ex N 239/03); |
| --- | --- |

—

annul the decision of the Commission of the European Communities of 14 July 2004 concerning aid C5/03 (ex N 239/03);

| — | in the alternative, annul Article 1 of the decision of the Commission of the European Communities of 14 July 2004 concerning aid C5/03 (ex N 239/03), in so far as it is stated in the final clause ‘ ... provided that Germany satisfies the condition referred to in Article 2 of this Decision’, and annul Articles 2 and 3 of that decision in their entirety. |
| --- | --- |

—

in the alternative, annul Article 1 of the decision of the Commission of the European Communities of 14 July 2004 concerning aid C5/03 (ex N 239/03), in so far as it is stated in the final clause ‘ ... provided that Germany satisfies the condition referred to in Article 2 of this Decision’, and annul Articles 2 and 3 of that decision in their entirety.

Pleas in law and main arguments:

By the contested decision, State aid granted to the applicant by Germany was declared to be compatible with the common market, subject to compliance by Germany with the condition referred to in Article 2 of that decision. As a result of that condition, the applicant is required to close its ‘online shop’ for seven months.

The applicant submits, first, that the Commission has no material competence. Since the applicant exercises its activity as an intermediary for the sale of mobile telephony contracts exclusively in Germany, the grant of State aid cannot prejudice trade between the Member States.

Moreover, the applicant argues that there is no appropriate legal basis for the imposition of such a condition and that there has therefore been an infringement of the EC Treaty or a provision to be applied in implementing the Treaty.

According to the applicant, the condition imposed on the applicant is arbitrary as the reasons given for it are inadequate. The applicant therefore alleges that the Commission either erred in the exercise of it discretion or failed to exercise that discretion. Furthermore, the Commission failed to show clearly that the contested decision is necessary, appropriate and also the least restrictive measure and thus failed to comply with the principle of proportionality.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/23 |
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18.12.2004

EN

Official Journal of the European Union

C 314/23

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Action brought on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-405/04)

(2004/C 314/56)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG, Hamburg (Germany), represented by M. Wolter, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 August 2004 in Case R 912/2002-2; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 August 2004 in Case R 912/2002-2;

| — | declare that the provisions of Article 7(1)(b) and (c) and 7(2) do not prevent publication of the mark applied for, ‘Caipi’, for goods in Class 33 (alcoholic beverages (not including beer)); |
| --- | --- |

—

declare that the provisions of Article 7(1)(b) and (c) and 7(2) do not prevent publication of the mark applied for, ‘Caipi’, for goods in Class 33 (alcoholic beverages (not including beer));

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

| Applicant for the Community trade mark: | The applicant |
| --- | --- |
| The trade mark applied for: | Word mark ‘Caipi’ for goods in Class 33 (alcoholic beverages (not including beer)), application No 2 655 967 |
| Decision of the examiner: | Refusal to register the mark applied for |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Grounds of claim: | Infringement of Article 7(1)(b) and (c) and of Article 12 of Regulation (EC) No 40/94.  (1) Wrongful failure to take account of earlier national registrations. |

Applicant for the Community trade mark:

The applicant

The trade mark applied for:

Word mark ‘Caipi’ for goods in Class 33 (alcoholic beverages (not including beer)), application No 2 655 967

Decision of the examiner:

Refusal to register the mark applied for

Decision of the Board of Appeal:

Dismissal of the appeal

Grounds of claim:

Infringement of Article 7(1)(b) and (c) and of Article 12 of Regulation (EC) No 40/94.  (1) Wrongful failure to take account of earlier national registrations.

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(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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| 18.12.2004 | EN | Official Journal of the European Union | C 314/24 |
| --- | --- | --- | --- |

18.12.2004

EN

Official Journal of the European Union

C 314/24

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Action brought on 11 October 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-414/04)

(2004/C 314/57)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 October 2004 by the Federal Republic of Germany, represented by C.-D. Quassowski and C. von Donat, lawyer.

The applicant claims that the Court should:

| — | annul the Commission decision notified by letter of the Directorate-General for Regional Policy of 9 August 2004 in so far as the Community assistance from the European Regional Development Fund for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) was reduced to EUR 72 794 851.67 and payment to the German authorities of the balance of EUR 2 268 988.33 was refused; |
| --- | --- |

—

annul the Commission decision notified by letter of the Directorate-General for Regional Policy of 9 August 2004 in so far as the Community assistance from the European Regional Development Fund for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) was reduced to EUR 72 794 851.67 and payment to the German authorities of the balance of EUR 2 268 988.33 was refused;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission reduced the Community assistance from the ERDF Structural Funds for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) to EUR 72 794 851.67 and refused to pay the German authorities the balance of EUR 2 268 988.33. The reason for the reduction is that, compared with the indicative financial plan, recourse to the programme was lower with respect to certain measures and higher with respect to others. A balance between the more and less heavily used measures was not achieved within the individual priorities of the programme but rather at the level of the programme as a whole.

In support of its action, the applicant first of all observes that, under Article 24 of Regulation No 4253/88, (1) Community assistance may be reduced only if there has been a significant change affecting the nature or conditions of the operation or measure. In the applicant's view, the adjustments made do not constitute such a significant change.

If those adjustments are to be regarded as a significant change, the applicant submits that the Commission gave prior approval in its ‘Guidelines on the closure of operational programmes (1994-1999) of the Structural Funds’ (SEC(1999) 1316).

The applicant also complains that the Commission abused its discretion by failing to even exercise it and that there are errors in the reasoning for the contested decision.

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(1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/24 |
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Official Journal of the European Union

C 314/24

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Action brought on 8 October 2004 by Bunker & BKR, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-423/04)

(2004/C 314/58)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 8 October 2004 by Bunker & BKR, S.L., established in Almansa (Spain), represented by José Enrique Astiz Suárez, lawyer.

The applicant claims that the Court should:

| — | vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 June 2004 in Case R 458/2002-4 as regards its findings as to the similarity of the signs and the goods, ordering that the opposition be rejected and the application granted in respect of all the goods for which protection is sought; and |
| --- | --- |

—

vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 June 2004 in Case R 458/2002-4 as regards its findings as to the similarity of the signs and the goods, ordering that the opposition be rejected and the application granted in respect of all the goods for which protection is sought; and

| — | in the alternative, annul the decision and refer the case back to the opposition division in order that a new and accurate comparison of the remaining signs may be carried out, regard being had to the visual and phonetic differences between ‘BOOTS & SHOES B.K.R. MADE IN SPAIN’ and ‘BK RODS’ and to their compatibility on the market, there being no risk that consumers associate them as regards the origin and quality of the goods which they designate. |
| --- | --- |

—

in the alternative, annul the decision and refer the case back to the opposition division in order that a new and accurate comparison of the remaining signs may be carried out, regard being had to the visual and phonetic differences between ‘BOOTS & SHOES B.K.R. MADE IN SPAIN’ and ‘BK RODS’ and to their compatibility on the market, there being no risk that consumers associate them as regards the origin and quality of the goods which they designate.

Pleas in law and main arguments:

| Applicant for Community trade mark: | CALZADOS BUNKER, S.A. (ownership in the application was subsequently transferred to the applicant). |
| --- | --- |
| Community trade mark sought: | Figurative mark comprising the initials ‘BKR’ set in a diamond shape, with the words ‘Boots & Shoes — Made in Spain’ — Application No 649.756 for goods in classes 18 and 25 and services in class 39. |
| Proprietor of mark or sign cited in the opposition proceedings: | MARINE STOCK LIMITED. |
| Mark or sign cited in opposition: | Various national trade marks, including the Austrian word mark ‘BK RODS’ (No 149.254) for goods in class 25 (clothing and footwear). The opposition was directed against all the goods and services covered by the Community trade-mark application at issue in the proceedings. |
| Decision of the Opposition Division: | Opposition upheld in respect of the goods in class 25 and rejected in respect of goods in class 18 and services in class 39. |
| Decision of the Board of Appeal: | Dismissed the appeal. |

Applicant for Community trade mark:

CALZADOS BUNKER, S.A. (ownership in the application was subsequently transferred to the applicant).

Community trade mark sought:

Figurative mark comprising the initials ‘BKR’ set in a diamond shape, with the words ‘Boots & Shoes — Made in Spain’ — Application No 649.756 for goods in classes 18 and 25 and services in class 39.

Proprietor of mark or sign cited in the opposition proceedings:

MARINE STOCK LIMITED.

Mark or sign cited in opposition:

Various national trade marks, including the Austrian word mark ‘BK RODS’ (No 149.254) for goods in class 25 (clothing and footwear). The opposition was directed against all the goods and services covered by the Community trade-mark application at issue in the proceedings.

Decision of the Opposition Division:

Opposition upheld in respect of the goods in class 25 and rejected in respect of goods in class 18 and services in class 39.

Decision of the Board of Appeal:

Dismissed the appeal.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/25 |
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Official Journal of the European Union

C 314/25

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Action brought on 15 October 2004 by Angel Angelidis against European Parliament

(Case T-424/04)

(2004/C 314/59)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 15 October 2004 by Angel Angelidis, residing in Luxembourg, represented by E. Boigelot, lawyer.

The applicant claims that the Court should:

| — | Annul the Parliament's decision of 16 July 2004 rejecting the complaint lodged by the applicant; |
| --- | --- |

—

Annul the Parliament's decision of 16 July 2004 rejecting the complaint lodged by the applicant;

| — | Annul the applicant's staff report for 2002; |
| --- | --- |

—

Annul the applicant's staff report for 2002;

| — | Order the Parliament to pay the applicant compensation for non-material harm, evaluated on an equitable basis at EUR 20,000, owing to the various substantial faults committed at various levels in the establishment of his staff reports and owing to the significant delay in definitively establishing those reports; |
| --- | --- |

—

Order the Parliament to pay the applicant compensation for non-material harm, evaluated on an equitable basis at EUR 20,000, owing to the various substantial faults committed at various levels in the establishment of his staff reports and owing to the significant delay in definitively establishing those reports;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The pleas in law on which the applicant relies are identical to those in Case T-416/03, (1) brought by the same applicant.

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(1)  
  OJ C 59 of 06.03.2004, p. 25.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/26 |
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18.12.2004

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Official Journal of the European Union

C 314/26

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Action brought on 20 October 2004 by Tramarin s.n.c. di Tramarin Andrea e Sergio against the Commission of the European Communities

(Case T-426/04)

(2004/C 314/60)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 October 2004 by Tramarin s.n.c. di Tramarin Andrea e Sergio, represented by Michele Arcangelo Calabrese, lawyer.

The applicant claims that the Court should:

| — | annul the part of Commission letter D/53186, D/(00)PI D/672, of 29 May 2000, described in the previous action; |
| --- | --- |

—

annul the part of Commission letter D/53186, D/(00)PI D/672, of 29 May 2000, described in the previous action;

| — | annul the decision of the Commission of 12 July 2000, granting authorisation without raising objections to State aid scheme No 715/99 — Italy — Measures in support of business in depressed areas of the country; |
| --- | --- |

—

annul the decision of the Commission of 12 July 2000, granting authorisation without raising objections to State aid scheme No 715/99 — Italy — Measures in support of business in depressed areas of the country;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant in the present case, in the same way as in Case T-98/04 S.I.M.S.A. and Others v Commission (1), challenges, in addition to the decision authorising State aid scheme No N 715/99, also challenged in that case, the decision contained in that part of the letter from the defendant of 29 May 2000, in reply to a proposal put forward by the Italian authorities to the Commission at a meeting in Brussels on 16 May 2000 that a transitional rule intended to prevent a lack of continuity between the preceding scheme and the new scheme be included in the State aid scheme constituted by Italian Law No 488/92 and by its implementing provisions, because of the expectation of initiatives taken by the category of undertakings which had not yet submitted the application in the first notice to be instituted under the new scheme, but which had already embarked upon an investment project, by which it requested those Italian authorities to withdraw that proposal.

In support of its claims, the applicant alleges an infringement of:

| — | essential procedural requirements, in failing to open the formal inquiry procedure laid down by Article 88(2) EC; |
| --- | --- |

—

essential procedural requirements, in failing to open the formal inquiry procedure laid down by Article 88(2) EC;

| — | Article 4(4) and 7(5) and the second and third paragraphs of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2); |
| --- | --- |

—

Article 4(4) and 7(5) and the second and third paragraphs of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2);

| — | the procedural guarantees in favour of persons interested in a State aid. |
| --- | --- |

—

the procedural guarantees in favour of persons interested in a State aid.

In particular, the applicant submits that the request to withdraw a proposal or the part of a proposal for a State aid scheme, if upheld by the Member State, has the same legal effect as a negative decision under Article 7(5) of Regulation (EC) No 659/99, with the significant difference that, whilst a negative decision is adopted at the end of a procedure full of procedural guarantees for the parties concerned, the request to withdraw, followed by the acquiescence by the Member State, allows the Commission to adopt decisions not to raise objections which in fact have the content of negative decisions, without however having the substantive form of negative decisions. Further, it allows the Commission to deal with those decisions pursuant to the publication rules laid down for decisions not to raise objections, thereby treating publication on its web site as sufficient, instead of applying the rules which would apply to a decision to open a formal inquiry: publication in full in the Official Journal of the European Communities, a request to submit observations and the duty to take account of those observations before adopting a reasoned negative decision.

As for the decision of 12 July 2000, it is alleged to be invalid for the same reasons as the letter of 29 May 2000, since it is the decision by which, if that letter is annulled, the infringements of the abovementioned guarantees take effect.

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(1)  
  OJ C 106 of 30.4.2004, p. 83.

(2)  
  OJ L 83 of 27.3.1999, p. 1.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/26 |
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Action brought on 19 October 2004 by the Italian Republic against the Commission of the European Communities

(Case T-431/04)

(2004/C 314/61)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 October 2004 by the Italian Republic, represented by Maurizio Fiorilli, Avvocato dello Stato.

The applicant claims that the Court should:

| — | annul the explanatory note to point 103 of Annex I to Commission Regulation No 1429/2004, relating to the fact that the name ‘Tocai friulano’ may be used only until 31 March 2007. |
| --- | --- |

—

annul the explanatory note to point 103 of Annex I to Commission Regulation No 1429/2004, relating to the fact that the name ‘Tocai friulano’ may be used only until 31 March 2007.

Pleas in law and main arguments:

The pleas in law and main arguments are the same as those put forward in Case T-417/04 Regione Autonoma del Friuli Venezia Giulia v Commission (1).

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(1)  Not yet published in the OJ.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/27 |
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Official Journal of the European Union

C 314/27

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Action brought on 15 November 2004 by Capgemini Nederland B.V. against the Commission of the European Communities

(Case T-447/04)

(2004/C 314/62)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 November 2004 by Capgemini Nederland B.V.,Utrecht, The Netherlands, represented by M. Meulenbelt and H. Speyart, lawyers.

The applicant claims that the Court should:

| — | Annul the Commission's decision, notified to the applicant by letter dated 13 September 2004, not to retain the applicant's offer in the context of the call for tender JAI-C3-2003-01; |
| --- | --- |

—

Annul the Commission's decision, notified to the applicant by letter dated 13 September 2004, not to retain the applicant's offer in the context of the call for tender JAI-C3-2003-01;

| — | Annul the Commission's decision to sign a contract with another tenderer; |
| --- | --- |

—

Annul the Commission's decision to sign a contract with another tenderer;

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

—

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

Pleas in law and main arguments

On 25 June 2003 the Commission published a Contract Notice for the development and installation of a large scale information system in the field of justice and home affairs, referred to as SIS II and VIS. The applicant submitted a bid. By letter dated 13 September 2004 the Commission notified the applicant of its decision not to retain its offer and to award the contract to another tenderer. In the same letter it informed the applicant that it would not be signing the contract with the successful tenderer before the expiry of a period of two weeks from the date of the letter. An exchange of correspondence between the applicant and the Commission followed, in the course of which the Commission confirmed its intention to award the contract to another tenderer. On 26 October 2004 the Commission published a press release stating that it had signed a contract with the successful tenderer.

By its application the applicant requests the annulment of both the Commission's decision to reject its offer as well as the decision to sign a contract with the successful tenderer. In support of the request to annul the decision rejecting the applicant's offer, the applicant invokes a number of alleged violations of Regulation 1605/2002 (1) (the Financial Regulation) and of Regulation 2342/2002 (2) laying down detailed rules for the implementation of the Financial Regulation. In this context the applicant submits that the method of price evaluation chosen by the Commission is unusual in that it is not based on a fixed price for the project but rather on price ratios between the price offered by each particular tenderer and the lowest price offered, calculated at the level of each of the 15 individual items included in the project, which all carry equal weight even though they are of greatly diverging sizes. Use of this method, according to the applicant, did not result in a fair and equitable outcome. The applicant further alleges that the Commission failed to react to abnormally low prices in the successful tenderer's offer, failed to take into account a corrigendum submitted by the applicant and failed to reject the successful tenderer's offer in spite of non-compliance with technical criteria. The applicant also claims that the commission violated the ‘best value for money’ principle since the total contract value for the successful tenderer is higher than that for the applicant.

In support of its request to annul the decision to sign a contract with the successful tenderer the applicant submits that by concluding that contract the Commission willingly deprived the applicant of an effective remedy. The applicant also invokes, in this context, a violation of Article 230 EC arguing that, by informing the applicant that it would only wait for two weeks before signing the contract with the successful tenderer, the Commission effectively shortened the two-month time limit for the introduction of an application set out in that article. Finally, the applicant argues that the Commission violated Article 103 of Regulation 1605/2002 by failing to suspend the procedure leading to the decision to sign the contract even though the applicant, by its letters, had drawn its attention to possible irregularities in the award procedure.

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(1)  OJ 2002, L 248 p. 1.

(2)  OJ 2002, L 357 p. 1.

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/28 |
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Removal from the Register of Case T-105/02 (1)

(2004/C 314/63)

(Language of the case: German)

By order of 21 October 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-105/02, Matratzen Concord GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

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(1)  
  OJ C 144 of 15.6.2002.

1

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| 18.12.2004 | EN | Official Journal of the European Union | C 314/28 |
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Official Journal of the European Union

C 314/28

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Removal from the Register of Case T-187/04 (1)

(2004/C 314/64)

(Language of the case: French)

By order of 13 October 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-187/04, DJ (*1) v Commission of the European Communities.

*1

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(1)  
  OJ C 201 of 7.8.2004.

1

(*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

*1

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III Notices

| 18.12.2004 | EN | Official Journal of the European Union | C 314/29 |
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(2004/C 314/65)

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

OJ C 300, 4.12.2004

Past publications

OJ C 273, 6.11.2004

OJ C 262, 23.10.2004

OJ C 251, 9.10.2004

OJ C 239, 25.9.2004

OJ C 228, 11.9.2004

OJ C 217, 28.8.2004

These texts are available on:

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

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

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

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

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