# Official Journal C 22/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 22 |
| | |
| English edition | Information and Notices | Volume 5126 January 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 22

English edition

Information and Notices

Volume 5126 January 2008

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 022/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 8, 12.1.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 022/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 8, 12.1.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 022/02 | Joined Cases C-463/04 and C-464/04: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) — Federconsumatori, Adiconsum, ADOC, Ercole Pietro Zucca (C-463/04) and Associazione Azionariato Diffuso dell'AEM SpA, Filippo Cuccia, Giacomo Fragapane, Pietro Angelo Puggioni, Annamaria Sanchirico, Sandro Sartorio (C-464/04) v Comune di Milano (Article 56 EC — Free movement of capital — Restrictions — Privatised undertakings — National provision under which the Articles of association of a company limited by shares may confer on the State or a public body holding shares in that company the power to appoint directly one or more directors to the board) | 2 |
| 2008/C 022/03 | Case C-280/05: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Incompatibility with the common market — Duty to recover — Non-fulfilment) | 2 |
| 2008/C 022/04 | Case C-298/05: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Finanzgericht Münster (Germany)) — Columbus Container Services BVBA & Co. v Finanzamt Bielefeld-Innenstadt (Articles 43 EC and 56 EC — Taxes on revenue and wealth — Conditions for taxing the profits of an establishment situated in another Member State — Double taxation convention — Methods of exempting or offsetting tax) | 3 |
| 2008/C 022/05 | Case C-393/05: Judgment of the Court (First Chamber) of 29 November 2007 — Commission of the European Communities v Republic of Austria (Regulation (EEC) No 2092/91 — Organic production of agricultural products — Private inspection bodies — Requirement of an establishment or permanent infrastructure in the Member State where the services are provided — Justifications — Connection with the exercise of official authority — Article 55 EC — Consumer protection) | 3 |
| 2008/C 022/06 | Case C-404/05: Judgment of the Court (First Chamber) of 29 November 2007 — Commission of the European Communities v Federal Republic of Germany (Regulation (EEC) No 2092/91 — Organic production of agricultural products — Private inspection bodies — Requirement of an establishment or permanent infrastructure in the Member State where the services are provided — Justifications — Connection with the exercise of official authority — Article 55 EC — Consumer protection) | 4 |
| 2008/C 022/07 | Case C-456/05: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Article 43 EC — Psychotherapists admitted to practise — System of quotas — Derogating transitional rules — Proportionality — Admissibility) | 4 |
| 2008/C 022/08 | Case C-7/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Beatriz Salvador García, v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State) | 5 |
| 2008/C 022/09 | Case C-8/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Anna Herrero Romeu v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State) | 5 |
| 2008/C 022/10 | Case C-9/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Tomás Salazar Brier v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State) | 6 |
| 2008/C 022/11 | Case C-10/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Rafael de Bustamante Tello v Council of the European Union (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State) | 6 |
| 2008/C 022/12 | Case C-59/06 P: Judgment of the Court (Second Chamber) of 6 December 2007 — Luigi Marcuccio v Commission of the European Communities (Appeal — Officials — Employment in a non-Member State — Reassignment of post and post holder — Duty to respect the rights of the defence — Scope — Burden of proof) | 7 |
| 2008/C 022/13 | Case C-119/06: Judgment of the Court (Third Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Infringement of Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts — Award of a contract without a call for tenders — Award of the contract for healthcare transport services in Tuscany) | 7 |
| 2008/C 022/14 | Case C-176/06 P: Judgment of the Court (Second Chamber) of 29 November 2007 — Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwerke Uelzen GmbH v Commission of the European Communities, E.ON Kernkraft GmBH, RWE Power AG, EnBW Energie Baden-Württemberg AG, Vattenfall Europe Nuclear Energy GmbH, formerly Hamburgische Electricitäts-Werke AG (Appeal — Aid allegedly granted by the German authorities to nuclear power stations — Provisions for closure of power stations and disposal of radioactive waste — Inadmissibility of the action before the Court of First Instance — Absolute bar) | 8 |
| 2008/C 022/15 | Case C-262/06: Judgment of the Court (Second Chamber) of 22 November 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Deutsche Telekom AG v Bundesrepublik Deutschland (Telecommunications sector — Universal service and users' rights — Definition of obligations which are to be provisionally maintained — First paragraph of Article 27 of Directive 2002/21/EC (Framework Directive) and Article 16(1)(a) of Directive 2002/22/EC (Universal Service Directive) — Tariffs for the supply of voice telephony services — Requirement for administrative authorisation) | 8 |
| 2008/C 022/16 | Case C-300/06: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — Ursula Voß v Land Berlin (Article 141 EC — Principle of equal pay for men and women — Civil servants — Overtime — Indirect discrimination against women employed part-time) | 9 |
| 2008/C 022/17 | Case C-328/06: Judgment of the Court (Second Chamber) of 22 November 2007 (reference for a preliminary ruling from the Juzgado de lo Mercantil — Spain) — Alfredo Nieto Nuño v Leonci Monlleó Franquet (Trade marks — Directive 89/104/EEC — Article 4(2)(d) — Well-known marks in a Member State within the meaning of Article 6 bis of the Paris Convention — Knowledge of the trade mark — Geographical area) | 9 |
| 2008/C 022/18 | Case C-401/06: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Taxation — Sixth VAT Directive — Supply of services — Executor of a will — Place where the service is performed — Article 9(1) and (2)(e)) | 10 |
| 2008/C 022/19 | Case C-417/06 P: Judgment of the Court (Third Chamber) of 29 November 2007 — Italian Republic v Commission of the European Communities (Appeal — Admissibility — Structural Funds — Financing of Community initiatives — Amendment of indicative allocations — Enforcement of the final judgment) | 10 |
| 2008/C 022/20 | Case C-435/06: Judgment of the Court (First Chamber) of 27 November 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — C (Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility — Regulation (EC) No 2201/2003 — Substantive and temporal scope — Definition of civil matters — Decision concerning the taking into care and placement of children outside the family home — Public law measures for child protection) | 11 |
| 2008/C 022/21 | Case C-451/06: Judgment of the Court (Third Chamber) of 6 December 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria)) — Gabriele Walderdorff v Finanzamt Waldviertel (Sixth VAT Directive — Article 13B(b) — Exemption — Leasing and letting of immovable property — Letting of fishing rights) | 11 |
| 2008/C 022/22 | Case C-486/06: Judgment of the Court (Eighth Chamber) of 6 December 2007 (reference for a preliminary ruling) from the Hof van beroep te Antwerpen (Belgium)) — BVBA Van Landeghem v Belgische Staat (Common Customs Tariff — Combined Nomenclature — Tariff classification — Headings 8703 and 8704 — Pick-up type motor vehicle) | 12 |
| 2008/C 022/23 | Case C-508/06: Judgment of the Court (Eighth Chamber) of 29 November 2007 — Commission of the European Communities v Republic of Malta (Failure of a Member State to fulfil obligations — Directive 96/59/EC — Article 11 — Waste management — Disposal of polychlorinated biphenyls and polychlorinated terphenyls — Failure to communicate the required plans and outlines) | 12 |
| 2008/C 022/24 | Case C-516/06 P: Judgment of the Court (Second Chamber) of 6 December 2007 — Commission of the European Communities v Ferriere Nord SpA (Appeal — Competition — Commission decision — Fine — Enforcement — Regulation (EEC) No 2988/74 — Limitation period — Acts adversely affecting a party — Inadmissibility) | 13 |
| 2008/C 022/25 | Case C-6/07: Judgment of the Court (Sixth Chamber) of 29 November 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/74/EC — Protection of workers — Insolvency of employer) | 13 |
| 2008/C 022/26 | Case C-34/07: Judgment of the Court (Seventh Chamber) of 29 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/109/EC — Third-country nationals who are long-term residents — Failure to transpose within the prescribed period) | 14 |
| 2008/C 022/27 | Case C-57/07: Judgment of the Court (Seventh Chamber) of 6 December 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/86/EC — Right to family reunification — Non-transposition within the prescribed period) | 14 |
| 2008/C 022/28 | Case C-67/07: Judgment of the Court (Fifth Chamber) of 29 November 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2004/24/EC — Traditional herbal medicinal products — Community code — Failure to transpose within the prescribed period) | 15 |
| 2008/C 022/29 | Case C-68/07: Judgment of the Court (Third Chamber) of 29 November 2007 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo (Regulation (EC) No 2201/2003 — Articles 3, 6 and 7 — Jurisdiction — Recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility — Jurisdiction in divorce proceedings — Respondent not a national or a resident of a Member State — National rules providing for exorbitant jurisdiction) | 15 |
| 2008/C 022/30 | Case C-106/07: Judgment of the Court (Fifth Chamber) of 6 December 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2000/59/EC — Port reception facilities for ship-generated waste and cargo residues — Failure to have developed and implemented waste reception and handling plans for all ports) | 16 |
| 2008/C 022/31 | Case C-112/07: Judgment of the Court (Fifth Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2004/80/EC — Police and judicial cooperation in criminal matters — Compensation to crime victims — Failure to transpose within the prescribed period) | 16 |
| 2008/C 022/32 | Case C-258/07: Judgment of the Court (Seventh Chamber) of 6 December 2007 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Directive 2004/18/EC — Procedures for the award of public works contracts, public supply contracts and public service contracts — Non-transposition within the prescribed period) | 17 |
| 2008/C 022/33 | Case C-263/07: Judgment of the Court (Sixth Chamber) of 29 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Incorrect transposition — Directive 96/61/EC — Article 9(4) — Article 13(1) — Annex I — Integrated pollution prevention and control — Concepts of application of the best available techniques and periodic reconsideration of the conditions for an operating permit) | 17 |
| 2008/C 022/34 | Case C-457/06 P: Order of the Court of 4 October 2007 — Republic of Finland v Commission of the European Communities (Appeal — Action for annulment — Inadmissibility — Measure not having binding legal effects — European Communities' own resources — Infringement procedure — Article 11 of Regulation (EC, Euratom) No 1150/2000 — Interest for late payment — Negotiations for an agreement on a conditional payment — Refusal letter) | 18 |
| 2008/C 022/35 | Case C-495/06 P: Order of the Court of 25 October 2007 — Bart Nijs v Court of Auditors of the European Communities (Appeal — Promotion — 2003 promotion procedure — Staff report — Decision establishing the definitive version of the report — Decision to promote another official to the grade of Translator-reviser — Claim for compensation for damage — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 18 |
| 2008/C 022/36 | Case C-242/07 P: Order of the Court of 8 November 2007 — Kingdom of Belgium v Commission of the European Communities (Appeals — Time for appealing — Article 43(6) of the Rules of Procedure of the Court of First Instance — Original of the application lodged out of time — Inadmissibility — Concept of excusable error — Concept of unforeseeable circumstances) | 19 |
| 2008/C 022/37 | Case C-502/06 P: Appeal brought on 13 December 2006 by Carlos Correia de Matos against the order made by the Court of First Instance (First Chamber) on 27 September 2006 in Case T-440/05 Carlos Correia de Matos v European Parliament | 19 |
| 2008/C 022/38 | Case C-440/07 P: Appeal brought on 24 September 2007 by the Commission of the European Communities against the judgment delivered on 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission | 19 |
| 2008/C 022/39 | Case C-443/07 P: Appeal brought on 28 September 2007 by Clara Centeno Mediavilla, Delphine Fumey, Eva Gerhards, Iona M.S. Hamilton, Raymond Hill, Jean Huby, Patrick Klein, Domenico Lombardi, Thomas Miller, Miltiadis Moraitis, Ansa Norman Palmer, Nicola Robinson, François-Xavier Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von Nordheim Nielsen, and Michaël Zouridakis against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 11 July 2007 in Case T-58/05 Centeno Mediavilla and Others v Commission of the European Communities | 20 |
| 2008/C 022/40 | Case C-471/07: Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA v Belgian State — Intervener: Sanofi-Aventis Belgium SA | 21 |
| 2008/C 022/41 | Case C-472/07: Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Pfizer SA, Servier Benelux SA, Sanofi-Aventis Belgium SA v Belgian State | 22 |
| 2008/C 022/42 | Case C-473/07: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 25 October 2007 — Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA v Ministère de l'écologie, du développement et de l'aménagement durables — Intervener: Association France Nature Environnement | 22 |
| 2008/C 022/43 | Case C-475/07: Action brought on 25 October 2007 — Commission of the European Communities v Republic of Poland | 23 |
| 2008/C 022/44 | Case C-476/07: Reference for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 29 October 2007 — M.C.O. Congres v suxess GmbH | 23 |
| 2008/C 022/45 | Case C-478/07: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 25 October 2007 — Budějovický Budvar národní podnik v Rudolf Ammersin GmbH | 24 |
| 2008/C 022/46 | Case C-485/07: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 5 November 2007 — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen v H. Akdas and Others | 24 |
| 2008/C 022/47 | Case C-486/07: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 5 November 2007 — Agenzia per le Erogazioni in Agricoltura (AGEA) v Consorzio Agrario di Ravenna Soc. Coop. Arl | 25 |
| 2008/C 022/48 | Case C-489/07: Reference for a preliminary ruling from the Amtsgericht Lahr (Germany) lodged on 6 November 2007 — Pia Messner v Firma Stefan Krüger | 25 |
| 2008/C 022/49 | Case C-491/07: Reference for a preliminary ruling from the Landesgericht für Strafsachen Wien, Austria, lodged on 31 October 2007 — Criminal proceedings against Vladimir Turansky | 26 |
| 2008/C 022/50 | Case C-492/07: Action brought on 7 November 2007 — Commission of the European Communities v Republic of Poland | 26 |
| 2008/C 022/51 | Case C-495/07: Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 14 November 2007 — Silberquelle GmbH v Maselli-Strickmode GmbH | 26 |
| 2008/C 022/52 | Case C-497/07 P: Appeal brought on 16 November 2007 by Philip Morris Products SA against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-140/06 Philip Morris Products v OHIM | 27 |
| 2008/C 022/53 | Case C-498/07 P: Appeal brought on 16 November 2007 by Aceites del Sur-Coosur S.A. formerly Aceites del Sur S.A against the judgment delivered by the Court of First Instance (First Chamber) on 12 September 2007 in Case T-363/04 Koipe Corporacion S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 27 |
| 2008/C 022/54 | Case C-499/07: Reference for a preliminary ruling from the De Rechtbank van Eerste Aanleg te Brugge (Belgium) lodged on 16 November 2007 — Beleggen, Risicokapitaal, Beheer NV v Belgische Staat | 29 |
| 2008/C 022/55 | Case C-502/07: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 November 2007 — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy | 30 |
| 2008/C 022/56 | Case C-504/07: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 19 November 2007 — Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others v Council of Ministers and Others | 31 |
| 2008/C 022/57 | Case C-508/07 P: Appeal brought on 21 November 2007 by Cain Cellars, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 12 September 2007 in Case T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 32 |
| 2008/C 022/58 | Case C-510/07: Action brought on 21 November 2007 — Commission of the European Communities v Kingdom of Belgium | 32 |
| 2008/C 022/59 | Case C-511/07: Action brought on 21 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg | 33 |
| 2008/C 022/60 | Case C-515/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 22 November 2007 — Vereniging Noordelijke Land- en Tuinbouw Organisatie v Staatssecretaris van Financiën | 33 |
| 2008/C 022/61 | Case C-517/07: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 22 November 2007 — Afton Chemical Limited v The Commissioners of Her Majesty's Revenue & Customs | 34 |
| 2008/C 022/62 | Case C-520/07 P: Appeal brought on 22 November 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities | 34 |
| 2008/C 022/63 | Case C-523/07: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 23 November 2007 — A | 35 |
| 2008/C 022/64 | Case C-527/07: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 28 November 2007 — Generics (UK) Ltd, Regina v Licensing Authority (acting via the Medicines and Healthcare products Regulatory Agency) | 36 |
| 2008/C 022/65 | Case C-528/07 P: Appeal brought on 29 November 2007 by Association de la presse internationale ASBL (API) against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL (API) v Commission of the European Communities | 36 |
| 2008/C 022/66 | Case C-532/07 P: Appeal brought on 29 November 2007 by Commission of the European Communities against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL v Commission of the European Communities | 37 |
| 2008/C 022/67 | Case C-541/07: Action brought on 30 November 2007 — Commission of the European Communities v Hellenic Republic | 38 |
| 2008/C 022/68 | Case C-548/07: Action brought on 10 December 2007 — Commission of the European Communities v Hellenic Republic | 38 |
| 2008/C 022/69 | Case C-20/07: Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland | 39 |
| 2008/C 022/70 | Case C-145/07: Order of the President of the Court of 8 November 2007 — Commission of the European Communities v Kingdom of Sweden | 39 |
| 2008/C 022/71 | Case C-223/07: Order of the President of the Court of 8 November 2007 — Commission of the European Communities v Kingdom of Sweden | 39 |
| | Court of First Instance |
| 2008/C 022/72 | Case T-307/04: Judgment of the Court of First Instance of 12 December 2007 — Pagliacci v Commission (Officials — Open competition — Failure to include candidate's name on the reserve list — Breach of the notice of competition — Qualifications and professional experience required) | 40 |
| 2008/C 022/73 | Case T-66/05: Judgment of the Court of First Instance of 11 December 2007 — Sack v Commission (Civil service — Official — Action for annulment — Responsibility bonus — Duties of Head of unit — Equal treatment — Duty to state reasons — Language provisions) | 40 |
| 2008/C 022/74 | Case T-86/05: Judgment of the Court of First Instance of 12 December 2007 — K & L Ruppert Stiftung v OHIM — Lopes de Almeida Cunha and Others (CORPO livre) (Community trade mark — Opposition proceedings — Application for the figurative mark CORPO LIVRE — National and international word marks LIVRE — Proof of use of the earlier marks submitted out of time) | 40 |
| 2008/C 022/75 | Joined Cases T-101/05 and T-111/05: Judgment of the Court of First Instance of 12 December 2007 — BASF and UCB v Commission (Competition — Agreements, decisions and concerted practices in the vitamin products sector — Choline chloride (vitamin B4) — Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area — Fines — Deterrence — Repeat infringement — Cooperation during the administrative procedure — Single and continuous infringement) | 41 |
| 2008/C 022/76 | Case T-112/05: Judgment of the Court of First Instance of 12 December 2007 — Akzo Nobel and Others v Commission (Competition — Cartels in the vitamin products sector — Choline chloride (Vitamin B4) — Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area — Attributability of the infringement) | 41 |
| 2008/C 022/77 | Case T-113/05: Judgment of the Court of First Instance of 13 December 2007 — Angelidis v Parliament (Staff cases — Officials — Filling an A2 post — Rejection of candidature — Breach of essential procedural requirements — Action for annulment — Action for damages) | 42 |
| 2008/C 022/78 | Case T-308/05: Judgment of the Court of First Instance of 12 December 2007 — Italy v Commission (Structural funds — Co-financing — Regulations (EC) No 1260/1999 and (EC) No 448/2004 — Conditions concerning the eligibility of payments on account made by national bodies within the framework of State aid schemes — Proof of use of the funds by the final beneficiary — Actions for annulment — Challengeable act) | 42 |
| 2008/C 022/79 | Case T-10/06: Judgment of the Court of First Instance of 11 December 2007 — Portela & Companhia v OHIM — Torrens Cuadrado and Gilbert Sanz (Bial) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Bial — Earlier national word mark BIAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Proof of existence of the earlier mark — Coexistence of earlier marks — Plea amending subject matter of the proceedings — Evidence presented for the first time before the Court of First Instance — Costs incurred before the Opposition Division) | 43 |
| 2008/C 022/80 | Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06: Judgment of the Court of First Instance of 12 December 2007 — Ireland and Others v Commission (State aid — Directive 92/81/EEC — Excise duty on mineral oils — Mineral oils used as fuel for the production of alumina — Exemption granted by the French, Irish and Italian authorities — New aid — Existing aid — Obligation to state reasons — Finding of the Court of its own motion) | 43 |
| 2008/C 022/81 | Case T-117/06: Judgment of the Court of First Instance of 12 December 2007 — DeTeMedien v OHIM (suchen.de) (Community trade mark — Application for the Community word mark suchen.de — Absolute ground for refusal — Lack of distinctive character — Domain name — Article 7(1)(b) and (c) of Regulation (EC) No 40/94) | 44 |
| 2008/C 022/82 | Case T-134/06: Judgment of the Court of First Instance of 13 December 2007 — Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM) (Community trade mark — Opposition proceedings — Application for the Community word mark PAGESJAUNES.COM — Earlier national figurative mark LES PAGES JAUNES — Domain name pagesjaunes.com — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 44 |
| 2008/C 022/83 | Case T-242/06: Judgment of the Court of First Instance of 13 December 2007 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano) (Community trade mark — Opposition proceedings — Application for the Community figurative mark el charcutero artesano — Earlier national figurative mark El Charcutero — Relative ground for refusal — No likelihood of confusion — Absence of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 45 |
| 2008/C 022/84 | Case T-326/07 R: Order of the President of the Court of First Instance of 4 December 2007 — Cheminova and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency) | 45 |
| 2008/C 022/85 | Case T-414/07: Action brought on 19 November 2007 — Euro-Information v OHIM (Representation of a hand holding a card plus three triangles) | 45 |
| 2008/C 022/86 | Case T-421/07: Action brought on 22 November 2007 — Deutsche Post v Commission | 46 |
| 2008/C 022/87 | Case T-425/07: Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100) | 46 |
| 2008/C 022/88 | Case T-426/07: Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (300) | 47 |
| 2008/C 022/89 | Case T-427/07: Action brought on 16 November 2007 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino) | 47 |
| 2008/C 022/90 | Case T-428/07: Action brought on 22 November 2007 — Centre d'Étude et de Valorisation des Algues v Commission | 48 |
| 2008/C 022/91 | Case T-430/07: Action brought on 23 November 2007 — Bodegas Montebello v OHIM — Montebello (MONTEBELLO RHUM AGRICOLE) | 48 |
| 2008/C 022/92 | Case T-432/07: Action brought on 29 November 2007 — France v Commission | 49 |
| 2008/C 022/93 | Case T-433/07: Action brought on 22 November 2007 — Ryanair v Commission | 49 |
| 2008/C 022/94 | Case T-436/07 P: Appeal brought on 30 November 2007 by Nikos Giannopoulos against the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06, Giannopoulos v Council | 50 |
| 2008/C 022/95 | Case T-440/07: Action brought on 5 December 2007 — Huta Buczek v Commission | 50 |
| 2008/C 022/96 | Case T-271/06: Order of the Court of First Instance of 6 December 2007 — Microsoft v Commission | 51 |
| | European Union Civil Service Tribunal |
| 2008/C 022/97 | Case F-65/05: Judgment of the Civil Service Tribunal of 13 December 2007 — Wandschneider v Commission (Staff case — Officials — Appraisal — Career development report — Appraisal for the year 2003 — Action for annulment — Reasons — Manifest error of assessment) | 52 |
| 2008/C 022/98 | Case F-95/05: Judgment of the Civil Service Tribunal of 13 December 2007 — N v Commission of the European Communities (Staff case — Temporary agents — Recruitment — Post of head of administration — Non-member country — Unfavourable opinion of the medical service) | 52 |
| 2008/C 022/99 | Case F-130/05: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Soares v Commission (Staff case — Officials — Reconstitution of career — Absence of staff reports — Comparative examination of merits — Request under Article 90(1) of the Staff Regulations — Admissibility of the action — New and substantial fact) | 53 |
| 2008/C 022/00 | Case F-28/06: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Wandschneider v Commission (Staff case — Officials — Assessment — Career development report — Assessment year 2004 — Action for annulment — Grounds — Manifest error of assessment) | 53 |
| 2008/C 022/01 | Case F-42/06: Judgment of the Civil Service Tribunal of 13 December 2007 — Asa Sundholm v Commission of the European Communities (Staff case — Officials — Appraisal — Career development report — Appraisal for the year 2004 — Objectives of and criteria for appraisal — Damages) | 53 |
| 2008/C 022/02 | Case F-73/06: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Van Neyghem v Commission (Staff case — Officials — Open competition — Assessment of the written test — Time-limit for lodging a complaint — Admissibility — Duty to state reasons) | 54 |
| 2008/C 022/03 | Case F-108/06: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Basili v Commission (Staff case — Officials — Assessment — Career development report — Assessment year 2004 — Action for annulment — Staff representatives — Opinion of the ad hoc working party) | 54 |
| 2008/C 022/04 | Case F-27/07: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Sundholm v Commission (Staff case — Officials — Appraisal — Career development report — Appraisal year 2001/2002 — Absence on medical grounds — Enforcement of a judgment of the Court of First Instance — Article 233 EC) | 54 |
| 2008/C 022/05 | Case F-40/06: Order of the Civil Service Tribunal (First Chamber) of 6 December 2007 — Marcuccio v Commission (Staff cases — Officials — Request for information on personal effects dispatched from the place of employment to the place of residence — No need to adjudicate — Application for damages manifestly unfounded) | 55 |
| 2008/C 022/06 | Case F-23/07: Order of the Civil Service Tribunal (First Chamber) of 19 October 2007 — M v Agence européenne des médicaments (EMEA) (Staff cases — Officials — Invalidity — Invalidity Committee — Refusal to convene — Manifest inadmissibility) | 55 |
| 2008/C 022/07 | Case F-99/07: Action brought on 28 September 2007 — Bernard v Europol | 55 |
| 2008/C 022/08 | Case F-108/07: Action brought on 15 October 2007 — Bart Nijs v European Court of Auditors | 56 |
| 2008/C 022/09 | Case F-124/07: Action brought on 23 October 2007 — Behmer v Parliament | 56 |
| 2008/C 022/10 | Case F-126/07: Action brought on 30 October 2007 — Van Beers v Commission | 57 |
| 2008/C 022/11 | Case F-127/07: Action brought on 30 October 2007 — Coto Moreno v Commission | 57 |
| 2008/C 022/12 | Case F-3/07: Order of the Civil Service Tribunal of 5 December 2007 — Moschonaki v European Foundation for the Improvement of Living and Working Conditions (EUROFOUND) | 58 |
| 2008/C 022/13 | Case F-71/07: Order of the Civil Service Tribunal of 28 November 2007 — Karatzoglou v European Agency for Reconstruction (EAR) | 58 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 022/02

Joined Cases C-463/04 and C-464/04: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) — Federconsumatori, Adiconsum, ADOC, Ercole Pietro Zucca (C-463/04) and Associazione Azionariato Diffuso dell'AEM SpA, Filippo Cuccia, Giacomo Fragapane, Pietro Angelo Puggioni, Annamaria Sanchirico, Sandro Sartorio (C-464/04) v Comune di Milano (Article 56 EC — Free movement of capital — Restrictions — Privatised undertakings — National provision under which the Articles of association of a company limited by shares may confer on the State or a public body holding shares in that company the power to appoint directly one or more directors to the board)

2

2008/C 022/03

Case C-280/05: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Incompatibility with the common market — Duty to recover — Non-fulfilment)

2

2008/C 022/04

Case C-298/05: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Finanzgericht Münster (Germany)) — Columbus Container Services BVBA & Co. v Finanzamt Bielefeld-Innenstadt (Articles 43 EC and 56 EC — Taxes on revenue and wealth — Conditions for taxing the profits of an establishment situated in another Member State — Double taxation convention — Methods of exempting or offsetting tax)

3

2008/C 022/05

Case C-393/05: Judgment of the Court (First Chamber) of 29 November 2007 — Commission of the European Communities v Republic of Austria (Regulation (EEC) No 2092/91 — Organic production of agricultural products — Private inspection bodies — Requirement of an establishment or permanent infrastructure in the Member State where the services are provided — Justifications — Connection with the exercise of official authority — Article 55 EC — Consumer protection)

3

2008/C 022/06

Case C-404/05: Judgment of the Court (First Chamber) of 29 November 2007 — Commission of the European Communities v Federal Republic of Germany (Regulation (EEC) No 2092/91 — Organic production of agricultural products — Private inspection bodies — Requirement of an establishment or permanent infrastructure in the Member State where the services are provided — Justifications — Connection with the exercise of official authority — Article 55 EC — Consumer protection)

4

2008/C 022/07

Case C-456/05: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Article 43 EC — Psychotherapists admitted to practise — System of quotas — Derogating transitional rules — Proportionality — Admissibility)

4

2008/C 022/08

Case C-7/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Beatriz Salvador García, v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State)

5

2008/C 022/09

Case C-8/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Anna Herrero Romeu v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State)

5

2008/C 022/10

Case C-9/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Tomás Salazar Brier v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State)

6

2008/C 022/11

Case C-10/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Rafael de Bustamante Tello v Council of the European Union (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State)

6

2008/C 022/12

Case C-59/06 P: Judgment of the Court (Second Chamber) of 6 December 2007 — Luigi Marcuccio v Commission of the European Communities (Appeal — Officials — Employment in a non-Member State — Reassignment of post and post holder — Duty to respect the rights of the defence — Scope — Burden of proof)

7

2008/C 022/13

Case C-119/06: Judgment of the Court (Third Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Infringement of Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts — Award of a contract without a call for tenders — Award of the contract for healthcare transport services in Tuscany)

7

2008/C 022/14

Case C-176/06 P: Judgment of the Court (Second Chamber) of 29 November 2007 — Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwerke Uelzen GmbH v Commission of the European Communities, E.ON Kernkraft GmBH, RWE Power AG, EnBW Energie Baden-Württemberg AG, Vattenfall Europe Nuclear Energy GmbH, formerly Hamburgische Electricitäts-Werke AG (Appeal — Aid allegedly granted by the German authorities to nuclear power stations — Provisions for closure of power stations and disposal of radioactive waste — Inadmissibility of the action before the Court of First Instance — Absolute bar)

8

2008/C 022/15

Case C-262/06: Judgment of the Court (Second Chamber) of 22 November 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Deutsche Telekom AG v Bundesrepublik Deutschland (Telecommunications sector — Universal service and users' rights — Definition of obligations which are to be provisionally maintained — First paragraph of Article 27 of Directive 2002/21/EC (Framework Directive) and Article 16(1)(a) of Directive 2002/22/EC (Universal Service Directive) — Tariffs for the supply of voice telephony services — Requirement for administrative authorisation)

8

2008/C 022/16

Case C-300/06: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — Ursula Voß v Land Berlin (Article 141 EC — Principle of equal pay for men and women — Civil servants — Overtime — Indirect discrimination against women employed part-time)

9

2008/C 022/17

Case C-328/06: Judgment of the Court (Second Chamber) of 22 November 2007 (reference for a preliminary ruling from the Juzgado de lo Mercantil — Spain) — Alfredo Nieto Nuño v Leonci Monlleó Franquet (Trade marks — Directive 89/104/EEC — Article 4(2)(d) — Well-known marks in a Member State within the meaning of Article 6 bis of the Paris Convention — Knowledge of the trade mark — Geographical area)

9

2008/C 022/18

Case C-401/06: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Taxation — Sixth VAT Directive — Supply of services — Executor of a will — Place where the service is performed — Article 9(1) and (2)(e))

10

2008/C 022/19

Case C-417/06 P: Judgment of the Court (Third Chamber) of 29 November 2007 — Italian Republic v Commission of the European Communities (Appeal — Admissibility — Structural Funds — Financing of Community initiatives — Amendment of indicative allocations — Enforcement of the final judgment)

10

2008/C 022/20

Case C-435/06: Judgment of the Court (First Chamber) of 27 November 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — C (Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility — Regulation (EC) No 2201/2003 — Substantive and temporal scope — Definition of civil matters — Decision concerning the taking into care and placement of children outside the family home — Public law measures for child protection)

11

2008/C 022/21

Case C-451/06: Judgment of the Court (Third Chamber) of 6 December 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria)) — Gabriele Walderdorff v Finanzamt Waldviertel (Sixth VAT Directive — Article 13B(b) — Exemption — Leasing and letting of immovable property — Letting of fishing rights)

11

2008/C 022/22

Case C-486/06: Judgment of the Court (Eighth Chamber) of 6 December 2007 (reference for a preliminary ruling) from the Hof van beroep te Antwerpen (Belgium)) — BVBA Van Landeghem v Belgische Staat (Common Customs Tariff — Combined Nomenclature — Tariff classification — Headings 8703 and 8704 — Pick-up type motor vehicle)

12

2008/C 022/23

Case C-508/06: Judgment of the Court (Eighth Chamber) of 29 November 2007 — Commission of the European Communities v Republic of Malta (Failure of a Member State to fulfil obligations — Directive 96/59/EC — Article 11 — Waste management — Disposal of polychlorinated biphenyls and polychlorinated terphenyls — Failure to communicate the required plans and outlines)

12

2008/C 022/24

Case C-516/06 P: Judgment of the Court (Second Chamber) of 6 December 2007 — Commission of the European Communities v Ferriere Nord SpA (Appeal — Competition — Commission decision — Fine — Enforcement — Regulation (EEC) No 2988/74 — Limitation period — Acts adversely affecting a party — Inadmissibility)

13

2008/C 022/25

Case C-6/07: Judgment of the Court (Sixth Chamber) of 29 November 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/74/EC — Protection of workers — Insolvency of employer)

13

2008/C 022/26

Case C-34/07: Judgment of the Court (Seventh Chamber) of 29 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/109/EC — Third-country nationals who are long-term residents — Failure to transpose within the prescribed period)

14

2008/C 022/27

Case C-57/07: Judgment of the Court (Seventh Chamber) of 6 December 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/86/EC — Right to family reunification — Non-transposition within the prescribed period)

14

2008/C 022/28

Case C-67/07: Judgment of the Court (Fifth Chamber) of 29 November 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2004/24/EC — Traditional herbal medicinal products — Community code — Failure to transpose within the prescribed period)

15

2008/C 022/29

Case C-68/07: Judgment of the Court (Third Chamber) of 29 November 2007 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo (Regulation (EC) No 2201/2003 — Articles 3, 6 and 7 — Jurisdiction — Recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility — Jurisdiction in divorce proceedings — Respondent not a national or a resident of a Member State — National rules providing for exorbitant jurisdiction)

15

2008/C 022/30

Case C-106/07: Judgment of the Court (Fifth Chamber) of 6 December 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2000/59/EC — Port reception facilities for ship-generated waste and cargo residues — Failure to have developed and implemented waste reception and handling plans for all ports)

16

2008/C 022/31

Case C-112/07: Judgment of the Court (Fifth Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2004/80/EC — Police and judicial cooperation in criminal matters — Compensation to crime victims — Failure to transpose within the prescribed period)

16

2008/C 022/32

Case C-258/07: Judgment of the Court (Seventh Chamber) of 6 December 2007 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Directive 2004/18/EC — Procedures for the award of public works contracts, public supply contracts and public service contracts — Non-transposition within the prescribed period)

17

2008/C 022/33

Case C-263/07: Judgment of the Court (Sixth Chamber) of 29 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Incorrect transposition — Directive 96/61/EC — Article 9(4) — Article 13(1) — Annex I — Integrated pollution prevention and control — Concepts of application of the best available techniques and periodic reconsideration of the conditions for an operating permit)

17

2008/C 022/34

Case C-457/06 P: Order of the Court of 4 October 2007 — Republic of Finland v Commission of the European Communities (Appeal — Action for annulment — Inadmissibility — Measure not having binding legal effects — European Communities' own resources — Infringement procedure — Article 11 of Regulation (EC, Euratom) No 1150/2000 — Interest for late payment — Negotiations for an agreement on a conditional payment — Refusal letter)

18

2008/C 022/35

Case C-495/06 P: Order of the Court of 25 October 2007 — Bart Nijs v Court of Auditors of the European Communities (Appeal — Promotion — 2003 promotion procedure — Staff report — Decision establishing the definitive version of the report — Decision to promote another official to the grade of Translator-reviser — Claim for compensation for damage — Appeal in part manifestly inadmissible and in part manifestly unfounded)

18

2008/C 022/36

Case C-242/07 P: Order of the Court of 8 November 2007 — Kingdom of Belgium v Commission of the European Communities (Appeals — Time for appealing — Article 43(6) of the Rules of Procedure of the Court of First Instance — Original of the application lodged out of time — Inadmissibility — Concept of excusable error — Concept of unforeseeable circumstances)

19

2008/C 022/37

Case C-502/06 P: Appeal brought on 13 December 2006 by Carlos Correia de Matos against the order made by the Court of First Instance (First Chamber) on 27 September 2006 in Case T-440/05 Carlos Correia de Matos v European Parliament

19

2008/C 022/38

Case C-440/07 P: Appeal brought on 24 September 2007 by the Commission of the European Communities against the judgment delivered on 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission

Schneider Electric SA

Commission

19

2008/C 022/39

Case C-443/07 P: Appeal brought on 28 September 2007 by Clara Centeno Mediavilla, Delphine Fumey, Eva Gerhards, Iona M.S. Hamilton, Raymond Hill, Jean Huby, Patrick Klein, Domenico Lombardi, Thomas Miller, Miltiadis Moraitis, Ansa Norman Palmer, Nicola Robinson, François-Xavier Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von Nordheim Nielsen, and Michaël Zouridakis against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 11 July 2007 in Case T-58/05 Centeno Mediavilla and Others v Commission of the European Communities

20

2008/C 022/40

Case C-471/07: Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA v Belgian State — Intervener: Sanofi-Aventis Belgium SA

21

2008/C 022/41

Case C-472/07: Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Pfizer SA, Servier Benelux SA, Sanofi-Aventis Belgium SA v Belgian State

22

2008/C 022/42

Case C-473/07: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 25 October 2007 — Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA v Ministère de l'écologie, du développement et de l'aménagement durables — Intervener: Association France Nature Environnement

22

2008/C 022/43

Case C-475/07: Action brought on 25 October 2007 — Commission of the European Communities v Republic of Poland

23

2008/C 022/44

Case C-476/07: Reference for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 29 October 2007 — M.C.O. Congres v suxess GmbH

23

2008/C 022/45

Case C-478/07: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 25 October 2007 — Budějovický Budvar národní podnik v Rudolf Ammersin GmbH

24

2008/C 022/46

Case C-485/07: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 5 November 2007 — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen v H. Akdas and Others

24

2008/C 022/47

Case C-486/07: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 5 November 2007 — Agenzia per le Erogazioni in Agricoltura (AGEA) v Consorzio Agrario di Ravenna Soc. Coop. Arl

25

2008/C 022/48

Case C-489/07: Reference for a preliminary ruling from the Amtsgericht Lahr (Germany) lodged on 6 November 2007 — Pia Messner v Firma Stefan Krüger

25

2008/C 022/49

Case C-491/07: Reference for a preliminary ruling from the Landesgericht für Strafsachen Wien, Austria, lodged on 31 October 2007 — Criminal proceedings against Vladimir Turansky

26

2008/C 022/50

Case C-492/07: Action brought on 7 November 2007 — Commission of the European Communities v Republic of Poland

26

2008/C 022/51

Case C-495/07: Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 14 November 2007 — Silberquelle GmbH v Maselli-Strickmode GmbH

26

2008/C 022/52

Case C-497/07 P: Appeal brought on 16 November 2007 by Philip Morris Products SA against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-140/06 Philip Morris Products v OHIM

Philip Morris Products

OHIM

27

2008/C 022/53

Case C-498/07 P: Appeal brought on 16 November 2007 by Aceites del Sur-Coosur S.A. formerly Aceites del Sur S.A against the judgment delivered by the Court of First Instance (First Chamber) on 12 September 2007 in Case T-363/04 Koipe Corporacion S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

27

2008/C 022/54

Case C-499/07: Reference for a preliminary ruling from the De Rechtbank van Eerste Aanleg te Brugge (Belgium) lodged on 16 November 2007 — Beleggen, Risicokapitaal, Beheer NV v Belgische Staat

29

2008/C 022/55

Case C-502/07: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 November 2007 — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

30

2008/C 022/56

Case C-504/07: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 19 November 2007 — Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others v Council of Ministers and Others

31

2008/C 022/57

Case C-508/07 P: Appeal brought on 21 November 2007 by Cain Cellars, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 12 September 2007 in Case T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Cain Cellars, Inc.

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

32

2008/C 022/58

Case C-510/07: Action brought on 21 November 2007 — Commission of the European Communities v Kingdom of Belgium

32

2008/C 022/59

Case C-511/07: Action brought on 21 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

33

2008/C 022/60

Case C-515/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 22 November 2007 — Vereniging Noordelijke Land- en Tuinbouw Organisatie v Staatssecretaris van Financiën

33

2008/C 022/61

Case C-517/07: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 22 November 2007 — Afton Chemical Limited v The Commissioners of Her Majesty's Revenue & Customs

34

2008/C 022/62

Case C-520/07 P: Appeal brought on 22 November 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities

34

2008/C 022/63

Case C-523/07: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 23 November 2007 — A

35

2008/C 022/64

Case C-527/07: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 28 November 2007 — Generics (UK) Ltd, Regina v Licensing Authority (acting via the Medicines and Healthcare products Regulatory Agency)

36

2008/C 022/65

Case C-528/07 P: Appeal brought on 29 November 2007 by Association de la presse internationale ASBL (API) against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL (API) v Commission of the European Communities

36

2008/C 022/66

Case C-532/07 P: Appeal brought on 29 November 2007 by Commission of the European Communities against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL v Commission of the European Communities

37

2008/C 022/67

Case C-541/07: Action brought on 30 November 2007 — Commission of the European Communities v Hellenic Republic

38

2008/C 022/68

Case C-548/07: Action brought on 10 December 2007 — Commission of the European Communities v Hellenic Republic

38

2008/C 022/69

Case C-20/07: Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland

39

2008/C 022/70

Case C-145/07: Order of the President of the Court of 8 November 2007 — Commission of the European Communities v Kingdom of Sweden

39

2008/C 022/71

Case C-223/07: Order of the President of the Court of 8 November 2007 — Commission of the European Communities v Kingdom of Sweden

39

Court of First Instance

2008/C 022/72

Case T-307/04: Judgment of the Court of First Instance of 12 December 2007 — Pagliacci v Commission (Officials — Open competition — Failure to include candidate's name on the reserve list — Breach of the notice of competition — Qualifications and professional experience required)

40

2008/C 022/73

Case T-66/05: Judgment of the Court of First Instance of 11 December 2007 — Sack v Commission (Civil service — Official — Action for annulment — Responsibility bonus — Duties of Head of unit — Equal treatment — Duty to state reasons — Language provisions)

40

2008/C 022/74

Case T-86/05: Judgment of the Court of First Instance of 12 December 2007 — K & L Ruppert Stiftung v OHIM — Lopes de Almeida Cunha and Others (CORPO livre) (Community trade mark — Opposition proceedings — Application for the figurative mark CORPO LIVRE — National and international word marks LIVRE — Proof of use of the earlier marks submitted out of time)

40

2008/C 022/75

Joined Cases T-101/05 and T-111/05: Judgment of the Court of First Instance of 12 December 2007 — BASF and UCB v Commission (Competition — Agreements, decisions and concerted practices in the vitamin products sector — Choline chloride (vitamin B4) — Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area — Fines — Deterrence — Repeat infringement — Cooperation during the administrative procedure — Single and continuous infringement)

41

2008/C 022/76

Case T-112/05: Judgment of the Court of First Instance of 12 December 2007 — Akzo Nobel and Others v Commission (Competition — Cartels in the vitamin products sector — Choline chloride (Vitamin B4) — Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area — Attributability of the infringement)

41

2008/C 022/77

Case T-113/05: Judgment of the Court of First Instance of 13 December 2007 — Angelidis v Parliament (Staff cases — Officials — Filling an A2 post — Rejection of candidature — Breach of essential procedural requirements — Action for annulment — Action for damages)

42

2008/C 022/78

Case T-308/05: Judgment of the Court of First Instance of 12 December 2007 — Italy v Commission (Structural funds — Co-financing — Regulations (EC) No 1260/1999 and (EC) No 448/2004 — Conditions concerning the eligibility of payments on account made by national bodies within the framework of State aid schemes — Proof of use of the funds by the final beneficiary — Actions for annulment — Challengeable act)

42

2008/C 022/79

Case T-10/06: Judgment of the Court of First Instance of 11 December 2007 — Portela & Companhia v OHIM — Torrens Cuadrado and Gilbert Sanz (Bial) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Bial — Earlier national word mark BIAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Proof of existence of the earlier mark — Coexistence of earlier marks — Plea amending subject matter of the proceedings — Evidence presented for the first time before the Court of First Instance — Costs incurred before the Opposition Division)

43

2008/C 022/80

Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06: Judgment of the Court of First Instance of 12 December 2007 — Ireland and Others v Commission (State aid — Directive 92/81/EEC — Excise duty on mineral oils — Mineral oils used as fuel for the production of alumina — Exemption granted by the French, Irish and Italian authorities — New aid — Existing aid — Obligation to state reasons — Finding of the Court of its own motion)

43

2008/C 022/81

Case T-117/06: Judgment of the Court of First Instance of 12 December 2007 — DeTeMedien v OHIM (suchen.de) (Community trade mark — Application for the Community word mark suchen.de — Absolute ground for refusal — Lack of distinctive character — Domain name — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

44

2008/C 022/82

Case T-134/06: Judgment of the Court of First Instance of 13 December 2007 — Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM) (Community trade mark — Opposition proceedings — Application for the Community word mark PAGESJAUNES.COM — Earlier national figurative mark LES PAGES JAUNES — Domain name pagesjaunes.com — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

44

2008/C 022/83

Case T-242/06: Judgment of the Court of First Instance of 13 December 2007 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano) (Community trade mark — Opposition proceedings — Application for the Community figurative mark el charcutero artesano — Earlier national figurative mark El Charcutero — Relative ground for refusal — No likelihood of confusion — Absence of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

el charcutero artesano

45

2008/C 022/84

Case T-326/07 R: Order of the President of the Court of First Instance of 4 December 2007 — Cheminova and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency)

45

2008/C 022/85

Case T-414/07: Action brought on 19 November 2007 — Euro-Information v OHIM (Representation of a hand holding a card plus three triangles)

45

2008/C 022/86

Case T-421/07: Action brought on 22 November 2007 — Deutsche Post v Commission

46

2008/C 022/87

Case T-425/07: Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100)

46

2008/C 022/88

Case T-426/07: Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (300)

47

2008/C 022/89

Case T-427/07: Action brought on 16 November 2007 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino)

47

2008/C 022/90

Case T-428/07: Action brought on 22 November 2007 — Centre d'Étude et de Valorisation des Algues v Commission

48

2008/C 022/91

Case T-430/07: Action brought on 23 November 2007 — Bodegas Montebello v OHIM — Montebello (MONTEBELLO RHUM AGRICOLE)

48

2008/C 022/92

Case T-432/07: Action brought on 29 November 2007 — France v Commission

49

2008/C 022/93

Case T-433/07: Action brought on 22 November 2007 — Ryanair v Commission

49

2008/C 022/94

Case T-436/07 P: Appeal brought on 30 November 2007 by Nikos Giannopoulos against the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06, Giannopoulos v Council

50

2008/C 022/95

Case T-440/07: Action brought on 5 December 2007 — Huta Buczek v Commission

50

2008/C 022/96

Case T-271/06: Order of the Court of First Instance of 6 December 2007 — Microsoft v Commission

51

European Union Civil Service Tribunal

2008/C 022/97

Case F-65/05: Judgment of the Civil Service Tribunal of 13 December 2007 — Wandschneider v Commission (Staff case — Officials — Appraisal — Career development report — Appraisal for the year 2003 — Action for annulment — Reasons — Manifest error of assessment)

52

2008/C 022/98

Case F-95/05: Judgment of the Civil Service Tribunal of 13 December 2007 — N v Commission of the European Communities (Staff case — Temporary agents — Recruitment — Post of head of administration — Non-member country — Unfavourable opinion of the medical service)

52

2008/C 022/99

Case F-130/05: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Soares v Commission (Staff case — Officials — Reconstitution of career — Absence of staff reports — Comparative examination of merits — Request under Article 90(1) of the Staff Regulations — Admissibility of the action — New and substantial fact)

53

2008/C 022/00

Case F-28/06: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Wandschneider v Commission (Staff case — Officials — Assessment — Career development report — Assessment year 2004 — Action for annulment — Grounds — Manifest error of assessment)

53

2008/C 022/01

Case F-42/06: Judgment of the Civil Service Tribunal of 13 December 2007 — Asa Sundholm v Commission of the European Communities (Staff case — Officials — Appraisal — Career development report — Appraisal for the year 2004 — Objectives of and criteria for appraisal — Damages)

53

2008/C 022/02

Case F-73/06: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Van Neyghem v Commission (Staff case — Officials — Open competition — Assessment of the written test — Time-limit for lodging a complaint — Admissibility — Duty to state reasons)

54

2008/C 022/03

Case F-108/06: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Basili v Commission (Staff case — Officials — Assessment — Career development report — Assessment year 2004 — Action for annulment — Staff representatives — Opinion of the ad hoc working party)

ad hoc

54

2008/C 022/04

Case F-27/07: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Sundholm v Commission (Staff case — Officials — Appraisal — Career development report — Appraisal year 2001/2002 — Absence on medical grounds — Enforcement of a judgment of the Court of First Instance — Article 233 EC)

54

2008/C 022/05

Case F-40/06: Order of the Civil Service Tribunal (First Chamber) of 6 December 2007 — Marcuccio v Commission (Staff cases — Officials — Request for information on personal effects dispatched from the place of employment to the place of residence — No need to adjudicate — Application for damages manifestly unfounded)

55

2008/C 022/06

Case F-23/07: Order of the Civil Service Tribunal (First Chamber) of 19 October 2007 — M v Agence européenne des médicaments (EMEA) (Staff cases — Officials — Invalidity — Invalidity Committee — Refusal to convene — Manifest inadmissibility)

55

2008/C 022/07

Case F-99/07: Action brought on 28 September 2007 — Bernard v Europol

55

2008/C 022/08

Case F-108/07: Action brought on 15 October 2007 — Bart Nijs v European Court of Auditors

56

2008/C 022/09

Case F-124/07: Action brought on 23 October 2007 — Behmer v Parliament

56

2008/C 022/10

Case F-126/07: Action brought on 30 October 2007 — Van Beers v Commission

57

2008/C 022/11

Case F-127/07: Action brought on 30 October 2007 — Coto Moreno v Commission

57

2008/C 022/12

Case F-3/07: Order of the Civil Service Tribunal of 5 December 2007 — Moschonaki v European Foundation for the Improvement of Living and Working Conditions (EUROFOUND)

58

2008/C 022/13

Case F-71/07: Order of the Civil Service Tribunal of 28 November 2007 — Karatzoglou v European Agency for Reconstruction (EAR)

58

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 26.1.2008 | EN | Official Journal of the European Union | C 22/1 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/1

---

(2008/C 22/01)

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

OJ C 8, 12.1.2008

Past publications

OJ C 315, 22.12.2007

OJ C 297, 8.12.2007

OJ C 283, 24.11.2007

OJ C 269, 10.11.2007

OJ C 247, 20.10.2007

OJ C 235, 6.10.2007

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 26.1.2008 | EN | Official Journal of the European Union | C 22/2 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/2

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Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) — Federconsumatori, Adiconsum, ADOC, Ercole Pietro Zucca (C-463/04) and Associazione Azionariato Diffuso dell'AEM SpA, Filippo Cuccia, Giacomo Fragapane, Pietro Angelo Puggioni, Annamaria Sanchirico, Sandro Sartorio (C-464/04) v Comune di Milano

(Joined Cases C-463/04 and C-464/04) (1)

(Article 56 EC - Free movement of capital - Restrictions - Privatised undertakings - National provision under which the Articles of association of a company limited by shares may confer on the State or a public body holding shares in that company the power to appoint directly one or more directors to the board)

(2008/C 22/02)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: Federconsumatori, Adiconsum, ADOC, Ercole Pietro Zucca (C-463/04) and Associazione Azionariato Diffuso dell'AEM SpA, Filippo Cuccia, Giacomo Fragapane, Pietro Angelo Puggioni, Annamaria Sanchirico, Sandro Sartorio (C-464/04),

Defendant: Comune di Milano

Interested parties: AEM SpA (C-463/04 and C-464/04), Edison SpA (C-463/04)

Re:

Reference for a preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Article 56 EC — National law allowing public entities to appoint directors or auditors in privatised undertakings — Application by a territorial entity which retains a substantial holding in the privatised undertaking.

Operative part of the judgment

Article 56 EC must be interpreted as precluding a national provision, such as Article 2449 of the Italian Civil Code, under which the Articles of association of a company limited by shares may confer on the State or a public body with a shareholding in that company the power to appoint directly one or more directors which, on its own or, as in the main proceedings, in conjunction with a provision such as Article 4 of Decree Law No 332 of 31 May 1994, which became, after amendment, Law No 474 of 30 July 1994, as amended by Law No 350 of 24 December 2003, which grants that State or public body the right to participate in the election on the basis of lists of the directors it has not appointed directly, is such as to enable that State or public body to obtain a power of control which is disproportionate to its shareholding in that company.

---

(1)  OJ C 249, 14.10.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/2 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/2

---

Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Italian Republic

(Case C-280/05) (1)

(Failure of a Member State to fulfil obligations - State aid - Incompatibility with the common market - Duty to recover - Non-fulfilment)

(2008/C 22/03)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, acting as Agent, and D. Del Gaizo, lawyer)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2, 3 and 4 of Commission Decision 2004/800/EC of 30 March 2004 declaring incompatible with the common market the aid scheme put into effect by Italy providing for urgent measures to assist employment in firms in financial difficulty, in special administration, and having at least 1 000 employees (Aid No CR 62/2003, ex NN 7/2003 — Italy) (OJ 2004 L 352, p. 10) — Failure to adopt, within the prescribed period, the measures necessary to recover the aid declared incompatible with the common market

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the measures necessary to recover from the beneficiaries the aid declared unlawful and incompatible with the common market by Commission Decision 2004/800/EC of 30 March 2004 on the State aid scheme put into effect by Italy providing for urgent measures to assist employment, the Italian Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the measures necessary to recover from the beneficiaries the aid declared unlawful and incompatible with the common market by Commission Decision 2004/800/EC of 30 March 2004 on the State aid scheme put into effect by Italy providing for urgent measures to assist employment, the Italian Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision;

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

2.

orders the Italian Republic to pay the costs.

---

(1)  OJ C 229, 17.9.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/3 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/3

---

Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Finanzgericht Münster (Germany)) — Columbus Container Services BVBA & Co. v Finanzamt Bielefeld-Innenstadt

(Case C-298/05) (1)

(Articles 43 EC and 56 EC - Taxes on revenue and wealth - Conditions for taxing the profits of an establishment situated in another Member State - Double taxation convention - Methods of exempting or offsetting tax)

(2008/C 22/04)

Language of the case: German

Referring court

Finanzgericht Münster

Parties to the main proceedings

Applicant: Columbus Container Services BVBA & Co.

Defendant: Finanzamt Bielefeld-Innenstadt

Re:

Reference for a preliminary ruling — Finanzgericht Münster — Interpretation of Articles 43 EC, 56 EC, 57 EC and 58 EC — Freedom of establishment and free movement of capital — Controlled-foreign-corporation income which is the designated passive income of a foreign permanent establishment of a party with unlimited liability to tax in Germany — National legislation offsetting the foreign tax on that income against national tax, contrary to the provisions of the double taxation convention with Belgium, which provides for use of the method of exemption from taxation

Operative part of the judgment

Articles 43 EC and 56 EC must be interpreted as not precluding tax legislation of a Member State under which the income of a resident national derived from capital invested in an establishment which has its registered office in another Member State is, notwithstanding the existence of a double taxation convention concluded with the Member State in which the establishment has its registered office, not exempted from national income tax but is subject to national taxation against which the tax levied in the other Member State is set off.

---

(1)  OJ C 271, 29.10.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/3 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/3

---

Judgment of the Court (First Chamber) of 29 November 2007 — Commission of the European Communities v Republic of Austria

(Case C-393/05) (1)

(Regulation (EEC) No 2092/91 - Organic production of agricultural products - Private inspection bodies - Requirement of an establishment or permanent infrastructure in the Member State where the services are provided - Justifications - Connection with the exercise of official authority - Article 55 EC - Consumer protection)

(2008/C 22/05)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and G. Braun, acting as Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 EC — Freedom to provide services — Requirement for inspection bodies in the field of organic production of agricultural products which are approved in another Member State to have a place of business or permanent infrastructure in Austria

Operative part of the judgment

The Court:

| 1. | Declares that, by requiring of private inspection bodies of organically-farmed products approved in another Member State that they maintain an establishment in Austria in order to be able to provide inspection services there, the Republic of Austria has failed to fulfil its obligations under Article 49 EC; |
| --- | --- |

1.

Declares that, by requiring of private inspection bodies of organically-farmed products approved in another Member State that they maintain an establishment in Austria in order to be able to provide inspection services there, the Republic of Austria has failed to fulfil its obligations under Article 49 EC;

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

2.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 10, 14.1.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/4 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/4

---

Judgment of the Court (First Chamber) of 29 November 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-404/05) (1)

(Regulation (EEC) No 2092/91 - Organic production of agricultural products - Private inspection bodies - Requirement of an establishment or permanent infrastructure in the Member State where the services are provided - Justifications - Connection with the exercise of official authority - Article 55 EC - Consumer protection)

(2008/C 22/06)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and G. Braun, Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and C.Schulze-Bahr, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 EC — Freedom to provide services — Requirement for inspection bodies in the field of organic production of agricultural products which are approved in another Member State to have a place of business or permanent infrastructure in Germany

Operative part of the judgment

The Court:

| 1. | Declares that, by requiring of private inspection bodies of organically-farmed products approved in another Member State that they maintain an establishment in Germany in order to be able to provide inspection services there, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC; |
| --- | --- |

1.

Declares that, by requiring of private inspection bodies of organically-farmed products approved in another Member State that they maintain an establishment in Germany in order to be able to provide inspection services there, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC;

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

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 10 of 14.1.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/4 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/4

---

Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-456/05) (1)

(Failure of a Member State to fulfil obligations - Article 43 EC - Psychotherapists admitted to practise - System of quotas - Derogating transitional rules - Proportionality - Admissibility)

(2008/C 22/07)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and S. Grünheid, Agents

Defendant: Federal Republic of Germany (represented by: M. Lumma and U. Forsthoff, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 43 EC — Transitional rules concerning the authorisation of psychotherapists which require previous activities carried out under the national sickness insurance scheme in order for authorisation to be obtained

Operative part of the judgment

The Court

| 1. | Declares that, by applying the transitional provisions or ‘established rights’, which permit psychotherapists to obtain authorisation or admission to practise independently of the applicable rules of the statutory sickness insurance scheme, solely to psychotherapists who have practised in a region of Germany under the German statutory sickness insurance schemes and by failing to take account of comparable or similar professional activity performed by psychotherapists in other Member States, the Federal Republic of Germany has failed to fulfil its obligations under Article 43 EC; |
| --- | --- |

1.

Declares that, by applying the transitional provisions or ‘established rights’, which permit psychotherapists to obtain authorisation or admission to practise independently of the applicable rules of the statutory sickness insurance scheme, solely to psychotherapists who have practised in a region of Germany under the German statutory sickness insurance schemes and by failing to take account of comparable or similar professional activity performed by psychotherapists in other Member States, the Federal Republic of Germany has failed to fulfil its obligations under Article 43 EC;

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

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 86, 8.4.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/5 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/5

---

Judgment of the Court (Fourth Chamber) of 29 November 2007 — Beatriz Salvador García, v Commission of the European Communities

(Case C-7/06 P) (1)

(Appeals - Officials - Remuneration - Expatriation allowance - Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations - Concept of ‘work done for another State’)

(2008/C 22/08)

Language of the case: Spanish

Parties

Appellants: Beatriz Salvador García, (represented by R. García-Gallardo Gil-Fournier, D. Dominguez Peréz, A. Sayagués Torres, abogados)

Other party to the proceedings: Commission of the European Communities (represented by: J. Currall, Agent, J. Gutierrez Gisbert, J. Rivas and M. Canal, abogados)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 Salvador García v Commission (T-205/02), dismissing an action for annulment of the Commission's decision of 27 March 2002 refusing to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

The Court

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

1.

Dismisses the appeal;

| 2. | Orders Ms Salvador García to pay the costs. |
| --- | --- |

2.

Orders Ms Salvador García to pay the costs.

---

(1)  OJ C 60, 11.3.2003.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/5 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/5

---

Judgment of the Court (Fourth Chamber) of 29 November 2007 — Anna Herrero Romeu v Commission of the European Communities

(Case C-8/06 P) (1)

(Appeals - Officials - Remuneration - Expatriation allowance - Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations - Concept of ‘work done for another State’)

(2008/C 22/09)

Language of the case: Spanish

Parties

Appellant: Anna Herrero Romeu (represented by: J.-R. García-Gallardo Gil-Fournier, D. Domínguez Peréz, A. Sayagéus Torres, abogados)

Other party to the proceedings: Commission of the European Communities (represented by: J. Currall, Agent, J. Rivas Andrés and M. Canal, abogados)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 Herrero Romeu v Commission (T-298/02), dismissing an action for annulment of the Commission's decision of 10 June 2002 refusing to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Ms Herrero Romeu to pay the costs. |
| --- | --- |

2.

Orders Ms Herrero Romeu to pay the costs.

---

(1)  OJ C 60, 11.3.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/6 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/6

---

Judgment of the Court (Fourth Chamber) of 29 November 2007 — Tomás Salazar Brier v Commission of the European Communities

(Case C-9/06 P) (1)

(Appeals - Officials - Remuneration - Expatriation allowance - Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations - Concept of ‘work done for another State’)

(2008/C 22/10)

Language of the case: Spanish

Referring court

Commission of the European Communities

Parties to the main proceedings

Applicant: Tomás Salazar Brier (represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, abogados)

Other party to the proceedings: Commission of the European Communities, (represented by J. Currall, acting as Agent, assisted by J. Gutiérrez Gisbert, J. Rivas Andrés and M. Canal, abogado)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 Salazar Brier v Commission of the European Communities (T-83/03), dismissing an action for annulment of the Commission's decision of 28 July 2003 impliedly refusing the applicant's complaint of 24 February 2003 and its express refusal, on 24 March 2003, to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

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

1.

Dismisses the appeal;

| 2. | Orders Mr Salazar Brier to pay the costs. |
| --- | --- |

2.

Orders Mr Salazar Brier to pay the costs.

---

(1)  OJ C 60 11.3.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/6 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/6

---

Judgment of the Court (Fourth Chamber) of 29 November 2007 — Rafael de Bustamante Tello v Council of the European Union

(Case C-10/06 P) (1)

(Appeals - Officials - Remuneration - Expatriation allowance - Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations - Concept of ‘work done for another State’)

(2008/C 22/11)

Language of the case: Spanish

Parties

Appellant: Rafael de Bustamante Tello (represented by: R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, abogados)

Other party to the proceedings: Council of the European Union (represented by: M. Simm and D. Canga Fano, Agents)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 Bustamante Tello v Council (T-368/03), dismissing an action for annulment of the Council's decision of 28 July 2003 refusing to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mr de Bustamante Tello to pay the costs. |
| --- | --- |

2.

Orders Mr de Bustamante Tello to pay the costs.

---

(1)  OJ C 60, 11.3.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/7 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/7

---

Judgment of the Court (Second Chamber) of 6 December 2007 — Luigi Marcuccio v Commission of the European Communities

(Case C-59/06 P) (1)

(Appeal - Officials - Employment in a non-Member State - Reassignment of post and post holder - Duty to respect the rights of the defence - Scope - Burden of proof)

(2008/C 22/12)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: L. Garofalo, avvocato)

Other party to the proceedings: Commission of the European Communities (represented by: J. Curral and C. Berardis-Kayser, Agents, A. Dal Ferro, avvocato)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 24 November 2005 in Case T-236/02 Marcuccio v Commission by which that Court dismissed an action seeking annulment of the Commission decision reassigning the appellant's post at the delegation of the Commission in Luanda (Angola) to the Commission's headquarters in Brussels and a claim for damages

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of 24 November 2005 in Case T-236/02 Marcuccio v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of 24 November 2005 in Case T-236/02 Marcuccio v Commission;

| 2. | Refers the case back to the Court of First Instance of the European Communities; |
| --- | --- |

2.

Refers the case back to the Court of First Instance of the European Communities;

| 3. | Reserves the costs. |
| --- | --- |

3.

Reserves the costs.

---

(1)  OJ C 96, 22.4.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/7 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/7

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Judgment of the Court (Third Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic

(Case C-119/06) (1)

(Failure of a Member State to fulfil obligations - Infringement of Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts - Award of a contract without a call for tenders - Award of the contract for healthcare transport services in Tuscany)

(2008/C 22/13)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: X. Lewis and D. Recchia, acting as Agents, and M. Mollina, avocat)

Defendant: Italian Republic (represented by: I. Braguglia, Agent, and G. Fiengo and S, Varone, avocats)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 11, 15 and 17 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Award of a contract without publication of the appropriate notice — Award of the contract for healthcare transport services in Tuscany

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

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

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(1)  OJ C 131 of 3.6.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/8 |
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26.1.2008

EN

Official Journal of the European Union

C 22/8

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Judgment of the Court (Second Chamber) of 29 November 2007 — Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwerke Uelzen GmbH v Commission of the European Communities, E.ON Kernkraft GmBH, RWE Power AG, EnBW Energie Baden-Württemberg AG, Vattenfall Europe Nuclear Energy GmbH, formerly Hamburgische Electricitäts-Werke AG

(Case C-176/06 P) (1)

(Appeal - Aid allegedly granted by the German authorities to nuclear power stations - Provisions for closure of power stations and disposal of radioactive waste - Inadmissibility of the action before the Court of First Instance - Absolute bar)

(2008/C 22/14)

Language of the case: German

Parties

Appellants: Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwerke Uelzen GmbH (represented by: D. Fouquet and P. Becker, Rechtsanwälte)

Other parties to the proceedings: Commission of the European Communities (represented by: V. Kreuschitz, Agent), E.ON Kernkraft GmBH, RWE Power AG, EnBW Energie Baden-Württemberg AG, Vattenfall Europe Nuclear Energy GmbH, formerly Hamburgische Electricitäts-Werke AG (represented by: U. Karpenstein and D. Sellner, Rechtsanwälte)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 26 January 2006 in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH and Others v Commission in which the Court dismissed the action seeking annulment of Commission Decision C(2001) 3967 final of 11 December 2001 declaring that the German tax exemption scheme applied to the reserves established by nuclear power stations for the purpose of disposal of their radioactive waste and the permanent closure of their plants does not constitute State aid as referred to in Article 87(1) EC — Obligation of the Commission to initiate the inter partes procedure provided for in Article 88(2) EC where there are difficulties of assessment or doubts

Operative part of the judgment

The Court:

| 1. | Annuls the judgment of the Court of First Instance of the European Communities of 26 January 2006 in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH and Others v Commission; |
| --- | --- |

1.

Annuls the judgment of the Court of First Instance of the European Communities of 26 January 2006 in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH and Others v Commission;

| 2. | Dismisses as inadmissible the action brought by Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH before the Court of First Instance of the European Communities seeking annulment of Commission Decision C(2001) 3967 final of 11 December 2001 declaring that the German tax exemption scheme applied to the reserves established by the operators of nuclear power stations for the purpose of the safe disposal of their radioactive waste and the permanent closure of their plants does not constitute State aid as referred to in Article 87(1) EC; |
| --- | --- |

2.

Dismisses as inadmissible the action brought by Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH before the Court of First Instance of the European Communities seeking annulment of Commission Decision C(2001) 3967 final of 11 December 2001 declaring that the German tax exemption scheme applied to the reserves established by the operators of nuclear power stations for the purpose of the safe disposal of their radioactive waste and the permanent closure of their plants does not constitute State aid as referred to in Article 87(1) EC;

| 3. | Orders Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH to pay the costs of the two sets of proceedings. |
| --- | --- |

3.

Orders Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH to pay the costs of the two sets of proceedings.

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(1)  OJ C 131 of 3.6.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/8 |
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26.1.2008

EN

Official Journal of the European Union

C 22/8

---

Judgment of the Court (Second Chamber) of 22 November 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Deutsche Telekom AG v Bundesrepublik Deutschland

(Case C-262/06) (1)

(Telecommunications sector - Universal service and users' rights - Definition of ‘obligations’ which are to be provisionally maintained - First paragraph of Article 27 of Directive 2002/21/EC (Framework Directive) and Article 16(1)(a) of Directive 2002/22/EC (Universal Service Directive) - Tariffs for the supply of voice telephony services - Requirement for administrative authorisation)

(2008/C 22/15)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Deutsche Telekom AG

Defendant: Bundesrepublik Deutschland

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of the first sentence of Article 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) and Article 16(1)(a) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Meaning of ‘obligations’ to be provisionally maintained by the Member States — Pre-existing requirement for authorisation of charges for the supply of voice telephony services to end-users by an undertaking with a dominant position

Operative part of the judgment

The first paragraph of Article 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Article 16(1)(a) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as meaning that a statutory requirement for the approval of tariffs for the supply of retail voice telephony services provided by undertakings with a dominant position in that market, such as that provided for in Paragraph 25 of the Law on Telecommunications (Telekommunikationsgesetz) of 25 July 1996, enacted by national law and preceding the regulatory framework resulting from those directives, together with administrative measures confirming that requirement, must be temporarily maintained.

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(1)  OJ C 212, 2.9.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/9 |
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26.1.2008

EN

Official Journal of the European Union

C 22/9

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Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — Ursula Voß v Land Berlin

(Case C-300/06) (1)

(Article 141 EC - Principle of equal pay for men and women - Civil servants - Overtime - Indirect discrimination against women employed part-time)

(2008/C 22/16)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Ursula Voß

Defendant: Land Berlin

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 141 of the EC Treaty — National legislation laying down, for both full-time and part-time workers, a reduction in the remuneration for overtime as against that received for normal working hours — Remuneration of a female part-time teacher, who is a civil servant, who works overtime (but not sufficient to bring the hours worked overall above the level of normal working hours for full-time civil servants), which is lower than that which would be received if the same number of hours were worked in the context of full-time employment — Indirect discrimination against female workers

Operative part of the judgment

Article 141 EC is to be interpreted as precluding national legislation on the remuneration of civil servants, such as that at issue in the main proceedings — which defines overtime, for both full-time civil servants and part-time civil servants, as hours worked over and above their normal working hours, and which remunerates those additional hours at a rate lower than the hourly rate applied to their normal working hours, so that part-time civil servants are less well paid than full-time civil servants in respect of hours which are worked over and above their normal working hours, but which are not sufficient to bring the number of hours worked overall above the level of normal working hours for full-time civil servants — where:

| — | in the group of workers subject to that legislation, a considerably higher percentage of women is affected as compared with the percentage of men so affected;
  and |
| --- | --- |

—

in the group of workers subject to that legislation, a considerably higher percentage of women is affected as compared with the percentage of men so affected;

and

| — | the difference in treatment is not justified by objective factors wholly unrelated to discrimination based on sex. |
| --- | --- |

—

the difference in treatment is not justified by objective factors wholly unrelated to discrimination based on sex.

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(1)  OJ C 96, 22.4.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/9 |
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26.1.2008

EN

Official Journal of the European Union

C 22/9

---

Judgment of the Court (Second Chamber) of 22 November 2007 (reference for a preliminary ruling from the Juzgado de lo Mercantil — Spain) — Alfredo Nieto Nuño v Leonci Monlleó Franquet

(Case C-328/06) (1)

(Trade marks - Directive 89/104/EEC - Article 4(2)(d) - ‘Well-known’ marks in a Member State within the meaning of Article 6 bis of the Paris Convention - Knowledge of the trade mark - Geographical area)

(2008/C 22/17)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil

Parties to the main proceedings

Applicant: Alfredo Nieto Nuño

Defendant: Leonci Monlleó Franquet

Re:

Reference for a preliminary ruling — Juzgado de lo Mercantil — Interpretation of Article 4 of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Meaning of ‘well known’ — Whether knowledge and use may be confined to a limited territory, such as an autonomous community, a region, an area or a city, depending on the goods or services concerned and the public for whom the mark is intended

Operative part of the judgment

Article 4(2)(d) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be interpreted as meaning that the earlier trade mark must be well known throughout the territory of the Member State of registration or in a substantial part of it.

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(1)  OJ C 237, 30.9.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/10 |
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26.1.2008

EN

Official Journal of the European Union

C 22/10

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Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-401/06) (1)

(Failure of a Member State to fulfil obligations - Taxation - Sixth VAT Directive - Supply of services - Executor of a will - Place where the service is performed - Article 9(1) and (2)(e))

(2008/C 22/18)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou, Agent)

Defendant: Federal Republic of Germany (represented by: M. Lumma, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Services supplied by executors for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier — Place of supply of services — Characterisation of activities of executors

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders the Commission of the European Communities to pay, in addition to its own costs, those of the Federal Republic of Germany. |
| --- | --- |

2.

Orders the Commission of the European Communities to pay, in addition to its own costs, those of the Federal Republic of Germany.

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(1)  OJ C 294, 2.12.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/10 |
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26.1.2008

EN

Official Journal of the European Union

C 22/10

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Judgment of the Court (Third Chamber) of 29 November 2007 — Italian Republic v Commission of the European Communities

(Case C-417/06 P) (1)

(Appeal - Admissibility - Structural Funds - Financing of Community initiatives - Amendment of indicative allocations - Enforcement of the final judgment)

(2008/C 22/19)

Language of the case: italian

Parties

Appellant: Italian Republic (represented by: I. Braguglia, Agent, D. Del Gaizo and G. Albenzio, avvocati dello Stato)

Other party to the proceedings: Commission of the European Communities (represented by: E. de March and L. Flynn, Agents, and A. Dal Ferro, avvocato)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 13 July 2006 in Case T-225/04 Italy v Commission dismissing the action for annulment of Commission Decision C(2003) 3971 final of 26 November 2003 establishing indicative allocations between the Member States of the commitment appropriations under Community initiatives for the period 1994-1999 and of all related prior measures.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the Italian Republic to pay its own costs and those of the Commission of the European Communities. |
| --- | --- |

2.

Orders the Italian Republic to pay its own costs and those of the Commission of the European Communities.

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(1)  OJ C 310 of 16.12.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/11 |
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26.1.2008

EN

Official Journal of the European Union

C 22/11

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Judgment of the Court (First Chamber) of 27 November 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — C

(Case C-435/06) (1)

(Judicial cooperation in civil matters - Jurisdiction, recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility - Regulation (EC) No 2201/2003 - Substantive and temporal scope - Definition of ‘civil matters’ - Decision concerning the taking into care and placement of children outside the family home - Public law measures for child protection)

(2008/C 22/20)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: C

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 1(1)(b) and (2)(d) and Article 64 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Material scope — Recognition and enforcement of an administrative decision, confirmed by a judicial decision, concerning the placement of children by the authorities outside the family home — Public law measures for protection of children

Operative part of the judgment

| 1. | Article 1(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, is to be interpreted to the effect that a single decision ordering a child to be taken into care and placed outside his original home in a foster family is covered by the term ‘civil matters’ for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection. |
| --- | --- |

1.

Article 1(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, is to be interpreted to the effect that a single decision ordering a child to be taken into care and placed outside his original home in a foster family is covered by the term ‘civil matters’ for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection.

| 2. | Regulation No 2201/2003, as amended by Regulation No 2116/2004, is to be interpreted as meaning that harmonised national legislation on the recognition and enforcement of administrative decisions on the taking into care and placement of persons, adopted in the context of Nordic Cooperation, may not be applied to a decision to take a child into care that falls within the scope of that regulation. |
| --- | --- |

2.

Regulation No 2201/2003, as amended by Regulation No 2116/2004, is to be interpreted as meaning that harmonised national legislation on the recognition and enforcement of administrative decisions on the taking into care and placement of persons, adopted in the context of Nordic Cooperation, may not be applied to a decision to take a child into care that falls within the scope of that regulation.

| 3. | Subject to the factual assessment which is a matter for the national court alone, Regulation No 2201/2003, as amended by Regulation No 2116/2004, is to be interpreted as applying ratione temporis in a case such as that in the main proceedings. |
| --- | --- |

3.

Subject to the factual assessment which is a matter for the national court alone, Regulation No 2201/2003, as amended by Regulation No 2116/2004, is to be interpreted as applying ratione temporis in a case such as that in the main proceedings.

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(1)  OJ C 326, 30.12.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/11 |
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26.1.2008

EN

Official Journal of the European Union

C 22/11

---

Judgment of the Court (Third Chamber) of 6 December 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria)) — Gabriele Walderdorff v Finanzamt Waldviertel

(Case C-451/06) (1)

(Sixth VAT Directive - Article 13B(b) - Exemption - Leasing and letting of immovable property - Letting of fishing rights)

(2008/C 22/21)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Wien

Parties to the main proceedings

Applicant: Gabriele Walderdorff

Defendant: Finanzamt Waldviertel

Re:

REFERENCE for a preliminary ruling — Unabhängiger Finanzsenat, Außenstelle Wien — Interpretation of Article 13B(b) of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemption from VAT —Supply of services connected with immovable property — Letting and granting for consideration of fishing rights.

Operative part of the judgment

Article 13B(b) of Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted to mean that the grant for consideration, under a contract of let for a period of 10 years, of the right to fish, by the landowner in waters owned by that person, and by the holder of fishing rights in publicly owned waters, does not constitute either a leasing or a letting of immovable property, inasmuch as that grant does not confer the right to occupy the immovable property concerned and to exclude any other person from it.

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(1)  OJ C 326, 30.12.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/12 |
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26.1.2008

EN

Official Journal of the European Union

C 22/12

---

Judgment of the Court (Eighth Chamber) of 6 December 2007 (reference for a preliminary ruling) from the Hof van beroep te Antwerpen (Belgium)) — BVBA Van Landeghem v Belgische Staat

(Case C-486/06) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Headings 8703 and 8704 - Pick-up type motor vehicle)

(2008/C 22/22)

Language of the case: French

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Applicant: BVBA Van Landeghem

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Hof van Beroep te Antwerpen (Belgium) — Interpretation of Council Regulation No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the common customs tariff (OJ 1987 L 256, p. 1) — Headings 8703 and 8704 — Classification of a ‘pick-up’ motor vehicle with an enclosed cabin for use as a passenger compartment and a load space not higher than 50 cm, a luxurious interior, ABS braking system, 4 to 8 litre petrol engine, four-wheel drive and luxurious sports rims

Operative part of the judgment

Pick-ups such as those at issue in the main proceedings which consist, on the one hand, of an enclosed cabin for use as a passenger compartment, there being, behind the driver's seat, folding or removable seats with three-point safety belts, and, on the other hand, of a load space which is separated from the cabin, is not higher than 50 centimetres, can be opened only at the rear and has no facilities for attaching a load, which have a luxurious full-option interior (including electrically adjustable leather seats, electrically operated mirrors and windows and a stereo with a CD player), and which are equipped with an anti-lock braking system (ABS), an automatic, 4 to 8-litre, very high-consumption petrol engine, four-wheel drive and luxurious (sports) rims, must be classified, according to their general appearance and the entirety of their characteristics, under heading 8703 of the Combined Nomenclature as set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff as amended by the annexes to Commission Regulation (EC) No 3115/94 of 20 December 1994, Commission Regulation (EC) No 3009/95 of 22 December 1995 and Commission Regulation (EC) No 1734/96 of 9 September 1996.

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(1)  OJ C 20, 27.1.2007.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/12 |
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26.1.2008

EN

Official Journal of the European Union

C 22/12

---

Judgment of the Court (Eighth Chamber) of 29 November 2007 — Commission of the European Communities v Republic of Malta

(Case C-508/06) (1)

(Failure of a Member State to fulfil obligations - Directive 96/59/EC - Article 11 - Waste management - Disposal of polychlorinated biphenyls and polychlorinated terphenyls - Failure to communicate the required plans and outlines)

(2008/C 22/23)

Language of the case: English

Parties

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

Defendant: Republic of Malta (represented by: S. Camilleri, L. Farrugia, Agents)

Re:

Failure of a Member State to fulfil obligations — Article 11 of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (OJ 1996 L 243, p. 31) — Failure to prepare and communicate to the Commission within the period laid down the plans, outlines and summaries of inventories prescribed by the directive

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to communicate the plans and outlines required under Article 11 of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Republic of Malta has failed to fulfil its obligations under Article 11 of the Directive, read in conjunction with Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded; |
| --- | --- |

1.

Declares that, by failing to communicate the plans and outlines required under Article 11 of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Republic of Malta has failed to fulfil its obligations under Article 11 of the Directive, read in conjunction with Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded;

| 2. | Orders the Republic of Malta to pay the costs. |
| --- | --- |

2.

Orders the Republic of Malta to pay the costs.

---

(1)  OJ C 56, 10.3.2007.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/13 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/13

---

Judgment of the Court (Second Chamber) of 6 December 2007 — Commission of the European Communities v Ferriere Nord SpA

(Case C-516/06 P) (1)

(Appeal - Competition - Commission decision - Fine - Enforcement - Regulation (EEC) No 2988/74 - Limitation period - Acts adversely affecting a party - Inadmissibility)

(2008/C 22/24)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: V. Di Bucci and F. Amato, Agents)

Other party to the proceedings: Ferriere Nord SpA (represented by: W. Viscardini and G. Donà, avvocati)

Re:

Appeal against the judgment of the Court of First Instance of 27 September 2006 in Case T-153/04 Ferriere Nord SpA v Commission by which the Court of First Instance annulled the Commission decisions notified by letter of 5 February 2004 and by facsimile of 13 April 2004 concerning the outstanding balance of the fine imposed on the applicant by Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.553 — Welded steel mesh)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T-153/04 Ferriere Nord v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T-153/04 Ferriere Nord v Commission;

| 2. | Declares the action for annulment brought by Ferriere Nord SpA against the decisions of the Commission of the European Communities notified by letter of 5 February 2004 and by fax of 13 April 2004 concerning the outstanding balance of the fine imposed on Ferriere Nord SpA by Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.553 — Welded steel mesh) inadmissible. |
| --- | --- |

2.

Declares the action for annulment brought by Ferriere Nord SpA against the decisions of the Commission of the European Communities notified by letter of 5 February 2004 and by fax of 13 April 2004 concerning the outstanding balance of the fine imposed on Ferriere Nord SpA by Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.553 — Welded steel mesh) inadmissible.

| 3. | Orders Ferriere Nord SpA to pay the costs of both sets of proceedings. |
| --- | --- |

3.

Orders Ferriere Nord SpA to pay the costs of both sets of proceedings.

---

(1)  OJ C 42, 24.2.2007.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/13 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/13

---

Judgment of the Court (Sixth Chamber) of 29 November 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-6/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/74/EC - Protection of workers - Insolvency of employer)

(2008/C 22/25)

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt within the prescribed period the provisions necessary to comply with Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002, amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 2002 L 270, p. 10)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002, amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002, amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 56 of 10.3.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/14 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/14

---

Judgment of the Court (Seventh Chamber) of 29 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-34/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/109/EC - Third-country nationals who are long-term residents - Failure to transpose within the prescribed period)

(2008/C 22/26)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande, acting as Agent)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt within the prescribed period the provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 69 of 24.3.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/14 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/14

---

Judgment of the Court (Seventh Chamber) of 6 December 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-57/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/86/EC - Right to family reunification - Non-transposition within the prescribed period)

(2008/C 22/27)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande, acting as Agent)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to have adopted, within the prescribed period, the measures necessary to comply with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

Operative part of the judgment

The Court:

| 1. | Declares that by not having adopted, within the prescribed period, the legislative, regulatory and administrative measures necessary to comply with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by not having adopted, within the prescribed period, the legislative, regulatory and administrative measures necessary to comply with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/15 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/15

---

Judgment of the Court (Fifth Chamber) of 29 November 2007 — Commission of the European Communities v French Republic

(Case C-67/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/24/EC - Traditional herbal medicinal products - Community code - Failure to transpose within the prescribed period)

(2008/C 22/28)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky, acting as Agent)

Defendant: French Republic (represented by: G. de Bergues abd R. Loosli-Surrans, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt within the prescribed period the provisions necessary to comply with Directive 2004/24/EC of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 85)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/24/EC of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use, the French Republic has failed to fulfil its obligations under Article 2 of that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/24/EC of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use, the French Republic has failed to fulfil its obligations under Article 2 of that directive;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 95 of 28.4.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/15 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/15

---

Judgment of the Court (Third Chamber) of 29 November 2007 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo

(Case C-68/07) (1)

(Regulation (EC) No 2201/2003 - Articles 3, 6 and 7 - Jurisdiction - Recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility - Jurisdiction in divorce proceedings - Respondent not a national or a resident of a Member State - National rules providing for exorbitant jurisdiction)

(2008/C 22/29)

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicant: Kerstin Sundelind Lopez

Defendant: Miguel Enrique Lopez Lizazo

Re:

Reference for a preliminary ruling — Högsta domstolen — Interpretation of Articles 3, 6 and 7 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Jurisdiction for divorce proceedings where the respondent is neither resident within a Member State nor a citizen of a Member State

Operative part of the judgment

Articles 6 and 7 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, as regards treaties with the Holy See, are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

---

(1)  OJ C 82, 14.4.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/16 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/16

---

Judgment of the Court (Fifth Chamber) of 6 December 2007 — Commission of the European Communities v French Republic

(Case C-106/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2000/59/EC - Port reception facilities for ship-generated waste and cargo residues - Failure to have developed and implemented waste reception and handling plans for all ports)

(2008/C 22/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: A. Bordes and K. Simonsson, acting as Agents)

Defendant: French Republic (represented by: G. de Bergues and A. Hare, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to have adopted, within the prescribed period, the measures necessary to comply with Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (OJ 2000 L 332, p. 81)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to develop and implement, within the prescribed period, waste reception and handling plans for all its ports, the French Republic has failed to fulfil its obligations under Articles 5(1) and 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues; |
| --- | --- |

1.

Declares that, by failing to develop and implement, within the prescribed period, waste reception and handling plans for all its ports, the French Republic has failed to fulfil its obligations under Articles 5(1) and 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/16 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/16

---

Judgment of the Court (Fifth Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic

(Case C-112/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/80/EC - Police and judicial cooperation in criminal matters - Compensation to crime victims - Failure to transpose within the prescribed period)

(2008/C 22/31)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and E. De Persio, acting as Agents)

Defendant: Italian Republic (represented by: I. Braguglia, Agent, and D. Del Gaizo, avocat)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt within the prescribed period the provisions necessary to comply with Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, the Italian Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, the Italian Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 117 of 26.5.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/17 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/17

---

Judgment of the Court (Seventh Chamber) of 6 December 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-258/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/18/EC - Procedures for the award of public works contracts, public supply contracts and public service contracts - Non-transposition within the prescribed period)

(2008/C 22/32)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: D. Kukovec and K. Nyberg, acting as Agents)

Defendant: Kingdom of Sweden (represented by: A. Falk, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to have adopted, within the prescribed period, the measures necessary to comply with Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)

Operative part of the judgment

The Court:

| 1. | Declares that by not having adopted, within the prescribed period, the legislative, regulatory and administrative measures necessary to comply with Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by not having adopted, within the prescribed period, the legislative, regulatory and administrative measures necessary to comply with Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Sweden to pay the costs.

---

(1)  OJ C 183, 4.8.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/17 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/17

---

Judgment of the Court (Sixth Chamber) of 29 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-263/07) (1)

(Failure of a Member State to fulfil obligations - Incorrect transposition - Directive 96/61/EC - Article 9(4) - Article 13(1) - Annex I - Integrated pollution prevention and control - Concepts of ‘application of the best available techniques’ and ‘periodic reconsideration of the conditions for an operating permit’)

(2008/C 22/33)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and J.-B. Laignelot, acting as Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Articles 9(4) and 13(1) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26) and of Annex I thereto — Concepts of application of the ‘best available techniques’ and ‘periodic reconsideration’ of the conditions for an operating permit

Operative part of the judgment

The Court:

| 1. | Declares that, by failing correctly to transpose Articles 9(4) and 13(1) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, and of Annex I thereto, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing correctly to transpose Articles 9(4) and 13(1) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, and of Annex I thereto, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 211 of 8.9.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/18 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/18

---

Order of the Court of 4 October 2007 — Republic of Finland v Commission of the European Communities

(Case C-457/06 P) (1)

(Appeal - Action for annulment - Inadmissibility - Measure not having binding legal effects - European Communities' own resources - Infringement procedure - Article 11 of Regulation (EC, Euratom) No 1150/2000 - Interest for late payment - Negotiations for an agreement on a conditional payment - Refusal letter)

(2008/C 22/34)

Language of the case: Finnish

Parties

Applicant: Republic of Finland (represented by: E. Bygglin, Agent)

Other party to the proceedings: Commission of the European Communities (represented by: G. Wilms and P. Aalto, Agents)

Re:

Appeal against the order of the Court of First Instance (Fourth Chamber) of 5 September 2006 in Case T-350/05 Finland v Commission dismissing as inadmissible an application for annulment of the Commission's decision of 8 July 2005 refusing to enter into negotiations with the Republic of Finland on the possibility of paying provisionally the customs duties on defence equipment claimed by the Commission in proceedings for failure to fulfil obligations — Acts against which an action may be brought

Operative part of the order

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the Republic of Finland to pay the costs. |
| --- | --- |

2.

Orders the Republic of Finland to pay the costs.

---

(1)  OJ C 326, 30.12.2006.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/18 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/18

---

Order of the Court of 25 October 2007 — Bart Nijs v Court of Auditors of the European Communities

(Case C-495/06 P) (1)

(Appeal - Promotion - 2003 promotion procedure - Staff report - Decision establishing the definitive version of the report - Decision to promote another official to the grade of Translator-reviser - Claim for compensation for damage - Appeal in part manifestly inadmissible and in part manifestly unfounded)

(2008/C 22/35)

Language of the case: French

Parties

Applicant: Bart Nijs (represented by: F. Rollinger, avocat)

Other party to the proceedings: Court of Auditors of the European Communities (represented by: T. Kennedy, Agent)

Re:

Appeal brought against the judgment of the Court of First Instance (Second Chamber) of 3 October 2006 in Case T-171/05 Bart Nijs v Court of Auditors, in which the Court of First Instance dismissed — in so far as it relied on grounds other than a failure to give reasons — the action seeking, first, annulment of the decision establishing the definitive version of the appellant's staff report for the 2003 reporting period, the decision allocating the appellant merit points for the 2003 reporting period and the decision not to promote him in 2004, and of the decision rejecting the complaint brought against those decisions and, secondly, an application for compensation in respect of the harm suffered

Operative part of the order

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mr Nijs to pay the costs. |
| --- | --- |

2.

Orders Mr Nijs to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/19 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/19

---

Order of the Court of 8 November 2007 — Kingdom of Belgium v Commission of the European Communities

(Case C-242/07 P) (1)

(Appeals - Time for appealing - Article 43(6) of the Rules of Procedure of the Court of First Instance - Original of the application lodged out of time - Inadmissibility - Concept of ‘excusable error’ - Concept of ‘unforeseeable circumstances’)

(2008/C 22/36)

Language of the case: French

Parties

Applicant: Kingdom of Belgium (represented by: L. Van den Broeck, Agent, J.-P. Buyle and C. Steyaert, avocats)

Other party to the proceedings: Commission of the European Communities (represented by: L. Flynn and A. Steiblytė, Agents)

Re:

Appeal brought against the order of the Court of First Instance (Fourth Chamber) of 15 March 2007 in Case T-5/07 Belgium v Commission, by which the Court of First Instance dismissed as inadmissible, because it was brought out of time, the appellant's action for annulment of the Commission's decision of 18 October 2006 refusing to reimburse it for a principal sum and interest paid by it in respect of debts to the European Social Fund — Time-limits for commencing proceedings and time-limits for lodging an original when a copy has earlier been sent by fax — Concepts of unforeseeable circumstances and excusable error

Operative part of the order

The Court orders:

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

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

2.

The Kingdom of Belgium is ordered to pay the costs.

---

(1)  OJ C 170, 21.7.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/19 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/19

---

Appeal brought on 13 December 2006 by Carlos Correia de Matos against the order made by the Court of First Instance (First Chamber) on 27 September 2006 in Case T-440/05 Carlos Correia de Matos v European Parliament

(Case C-502/06 P)

(2008/C 22/37)

Language of the case: Portuguese

Parties

Appellant: Carlos Correia de Matos

Other party to the proceedings: European Parliament

By order of 21 November 2007 the Court of Justice (Eighth Chamber) held that the appeal was inadmissible.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/19 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/19

---

Appeal brought on 24 September 2007 by the Commission of the European Communities against the judgment delivered on 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission

(Case C-440/07 P)

(2008/C 22/38)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: M. Petite and F. Arbault, Agents)

Other parties to the proceedings: Schneider Electric SA, Federal Republic of Germany, French Republic

Form of order sought

The appellant claims that the court should:

| — | set aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission;

| — | order Schneider Electric SA to pay all the Commission's costs. |
| --- | --- |

—

order Schneider Electric SA to pay all the Commission's costs.

Pleas in law and main arguments

Noting, first of all, that three cumulative conditions are necessary for the Community's non-contractual liability to be incurred, namely, respectively, a wrongful act or omission, that of actual and certain damage and a direct causal link between the wrongful act or omission and the damage, the applicant raises seven grounds in support of its appeal.

By its first ground of appeal, the Commission claims that, by finding, first, that the Commission ‘omitted’ to formulate the complaint of buttressing of the positions of Schneider and Legrand in its statement of objections of 3 August 2001 and, second, that such formulation presented ‘no particular technical difficulty’, the Court of First Instance disregarded the authority of a judgment delivered but still possibly subject to appeal, made materially incorrect findings, distorted the evidence submitted to its evaluation and failed in its duty to state reasons for its judgments.

By its second ground of appeal, the Commission maintains that the Court of First Instance erroneously described the facts, made an error of law and failed in its duty to state reasons in holding that the procedural error found in the judgment of 22 October 2002 in Case T-310/01 Schneider Electric v Commission was a ‘sufficiently serious’ breach of a rule of law the object of which was to confer rights on individuals.

By its third ground of appeal, the Commission alleges that the Court of First Instance made materially mistaken findings, distorted the evidence, erroneously described the facts in question and made an error of law in holding that there was a ‘sufficiently direct causal link’ between the wrongful act or omission and the second head of damage pleaded, namely the anticipated conclusion of Schneider's negotiations with Wendel-KKR on the transfer price of Legrand SA.

By its fourth ground of appeal, the Commission complains that the Court of First Instance was in breach of its duty to state reasons by reason of a contradiction in the grounds vitiating its reasoning concerning the causal link between the wrongful act or omission and the various heads of damage pleaded.

By its fifth ground of appeal, the Commission maintains that the Court of First Instance made materially incorrect findings of fact, distorted the evidence and made an error of law in not concluding that Schneider contributed to the entirety of the second head of damage pleaded. That undertaking failed in several respects in its duty to take reasonable care to avoid the damage or mitigate its extent, particularly by failing to bring an interlocutory application in regard to the obligation to transfer Legrand to which it claims to have been made subject and by having chosen to transfer that undertaking at a time when it was not, anyway, subject to any obligation to do so.

By its sixth ground of appeal, the Commission complains that the Court of First Instance made rulings beyond those sought, misapplied the rules governing the burden of proof and infringed the rights of the defence by identifying a head of damage which was not pleaded by the applicant undertaking.

By its seventh and last ground of appeal, the Commission alleges that the Court of First Instance made an error of law in awarding Schneider compensatory interest from the accrual of the second head of damage on 10 December 2002.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/20 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/20

---

Appeal brought on 28 September 2007 by Clara Centeno Mediavilla, Delphine Fumey, Eva Gerhards, Iona M.S. Hamilton, Raymond Hill, Jean Huby, Patrick Klein, Domenico Lombardi, Thomas Miller, Miltiadis Moraitis, Ansa Norman Palmer, Nicola Robinson, François-Xavier Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von Nordheim Nielsen, and Michaël Zouridakis against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 11 July 2007 in Case T-58/05 Centeno Mediavilla and Others v Commission of the European Communities

(Case C-443/07 P)

(2008/C 22/39)

Language of the case: French

Parties

Appellants: Isabel Clara Centeno Mediavilla, Delphine Fumey, Eva Gerhards, Iona M.S. Hamilton, Raymond Hill, Jean Huby, Patrick Klein, Domenico Lombardi, Thomas Millar, Miltiadis Moraitis, Ansa Norman Palmer, Nicola Robinson, François-Xavier Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von Nordheim Nielsen, and Michaël Zouridakis (represented by: G. Vandersanden and L. Levi, avocats)

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

Form of order sought

| — | set aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-58/05; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-58/05;

| — | consequently, deliver judgment in accordance with the form of order sought at first instance and, therefore,






  — | annul the grade classification granted to the appellants in the decisions relating to their recruitment in so far as that classification is based on Article 12(3) of Annex XIII to the new Staff Regulations; |
| --- | --- | --- |

—

consequently, deliver judgment in accordance with the form of order sought at first instance and, therefore,

—

annul the grade classification granted to the appellants in the decisions relating to their recruitment in so far as that classification is based on Article 12(3) of Annex XIII to the new Staff Regulations;

| — | restructure the appellants' career (including valuation of their experience in the grade as thus corrected, their rights to advancement to a higher step and their pension rights), on the basis of the grade at which they would have been appointed on the basis of the competition notice in pursuance of which they were placed on the list of suitable candidates, either to the grade mentioned on that competition notice or to the grade corresponding to its equivalent according to the classification in the new Staff Regulations (and the appropriate step in accordance with the rules applicable before 1 May 2004), as from the date of the decision to appoint them; |
| --- | --- |

—

restructure the appellants' career (including valuation of their experience in the grade as thus corrected, their rights to advancement to a higher step and their pension rights), on the basis of the grade at which they would have been appointed on the basis of the competition notice in pursuance of which they were placed on the list of suitable candidates, either to the grade mentioned on that competition notice or to the grade corresponding to its equivalent according to the classification in the new Staff Regulations (and the appropriate step in accordance with the rules applicable before 1 May 2004), as from the date of the decision to appoint them;

| — | award the appellants interest for late payment on the basis of the rate set by the European Central Bank on all sums corresponding to the difference between the salary corresponding to their classification in the decision to appoint them and the classification to which they ought to have been entitled, until the date on which the decision to classify them in their proper grade is taken; |
| --- | --- |

—

award the appellants interest for late payment on the basis of the rate set by the European Central Bank on all sums corresponding to the difference between the salary corresponding to their classification in the decision to appoint them and the classification to which they ought to have been entitled, until the date on which the decision to classify them in their proper grade is taken;

| — | order the defendant to pay all the costs incurred at first instance and on appeal. |
| --- | --- |

—

order the defendant to pay all the costs incurred at first instance and on appeal.

Grounds of appeal and main arguments

After stating, at the outset, that the Court of First Instance treated all the appellants in the same way in the contested judgment without taking into account the particular situation of each of them, and that it based its decision on the presumption, which they dispute, that the legality of their grade classification can be assessed only as from the date of their appointment, the appellants raise two grounds in support of their appeal.

By their first ground of appeal the appellants allege that the Court of First Instance was wrong in concluding that Article 12(3) of Annex XIII to the Staff Regulations is lawful. In that regard, they claim, first, that the Court of First Instance infringed Article 10 of the old Staff Regulations in so far as it assimilated the substitution of grades which took place in the present case to a ‘specific’ adaptation of the transitional provisions leading towards the new career structure, justifying the fact that the Staff Regulations Committee was not re-consulted, even though the consequences, in particular financial, of that substitution of grades for the situation of the persons concerned are considerable and amply justified consultation of that committee.

In support of that same ground of appeal, the appellants claim, second, an infringement of the principle of vested rights. Contrary to what was held by the Court of First Instance, the relevant question in the present case was not whether there was a vested right in being appointed, but a vested right in being classed in a certain grade in the event of appointment. Although it is not disputed that a competition notice and inclusion in a list of suitable candidates do not grant entitlement to recruitment, that notice and that inclusion do, however, create a right for the participants in the competition and, a fortiori, for those on the list of laureates, to be treated in accordance with the competition notice. That right constitutes the consideration for the obligation on the part of the appointing authority to respect the framework which it laid down for itself in the competition notice and which corresponds to the requirements of the posts to be filled and the interests of the service.

The appellants claim, third, that the Court of First Instance infringed the principle of equal treatment in making a distinction between the laureates of the competition who were appointed before 1 May 2004 and those who were appointed after that date since, in any case, the hypothetical nature of the appointment of the laureates of a competition does not infringe their right to rely, in the event of actual recruitment, on the classification criteria laid down in the competition notice and applicable, therefore, to the recruitment of all the laureates of that competition. In addition, the Court in no way carried out an examination of the possible justification for the difference in treatment made between the two categories of officials at issue.

The appellants claim, fourth, that the Court of First Instance infringed the principle of legitimate expectations and misinterpreted the evidence. The documents submitted to that court contain a large amount of information capable of substantiating the claim that the appellants actually received specific assurances that they would be recruited at the grade stipulated in the competition notice.

Finally, the appellants claim that the Court of First Instance misconstrued the scope of Articles 5, 7 and 31 of the Staff Regulations and, in that regard, also infringed the duty of the Community judicature to give reasons.

By their second ground of appeal, the appellants contest the judgment under appeal further in that it dismissed the actions brought against the decisions concerning their appointment on the ground that, although the defendant infringed its duty to provide pre-contract information, that inadequacy cannot, in itself, render the contested decisions unlawful. They claim, in that regard, the concurrent infringement of the principles of sound administration, transparency, legitimate expectations, good faith, equal treatment and equivalence between job and grade and the duty of care.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/21 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/21

---

Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA v Belgian State — Intervener: Sanofi-Aventis Belgium SA

(Case C-471/07)

(2008/C 22/40)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA

Defendant: Belgian State

Questions referred

| 1. | Is the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems (1) to be understood as meaning only review as to whether healthcare expenditure is manageable, or must it also extend to macro-economic conditions in the pharmaceutical industry sector whose products are liable to be made subject to a price freeze? |
| --- | --- |

1.

Is the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems (1) to be understood as meaning only review as to whether healthcare expenditure is manageable, or must it also extend to macro-economic conditions in the pharmaceutical industry sector whose products are liable to be made subject to a price freeze?

| 2. | May the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988, cited above, be based on a general trend or trends, such as, for example, ensuring balance in healthcare, or must it be based on more specific criteria? |
| --- | --- |

2.

May the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988, cited above, be based on a general trend or trends, such as, for example, ensuring balance in healthcare, or must it be based on more specific criteria?

---

(1)  OJ L 40 of 11.2.1989, p. 8.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/22 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/22

---

Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Pfizer SA, Servier Benelux SA, Sanofi-Aventis Belgium SA v Belgian State

(Case C-472/07)

(2008/C 22/41)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Pfizer SA, Servier Benelux SA, Sanofi-Aventis Belgium SA

Defendant: Belgian State

Questions referred

| 1. | Since the period for transposition of Council Directive of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems (89/105/EEC) (1) expired on 31 December 1989, must Article 4(1) of that directive be considered to be directly applicable in the domestic legal systems of the Member States? |
| --- | --- |

1.

Since the period for transposition of Council Directive of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems (89/105/EEC) (1) expired on 31 December 1989, must Article 4(1) of that directive be considered to be directly applicable in the domestic legal systems of the Member States?

| 2. | May Article 4(1) of Directive 89/105/EEC of 21 December 1988 be interpreted as meaning that the resumption for one year, after an absence of 18 months, of a general price freeze in respect of refundable medicinal products which had lasted eight years exempts the Member State from carrying out a review, when the freeze is resumed, of the macro-economic conditions affected by that freeze? |
| --- | --- |

2.

May Article 4(1) of Directive 89/105/EEC of 21 December 1988 be interpreted as meaning that the resumption for one year, after an absence of 18 months, of a general price freeze in respect of refundable medicinal products which had lasted eight years exempts the Member State from carrying out a review, when the freeze is resumed, of the macro-economic conditions affected by that freeze?

| 3. | Is the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988, cited above, to be understood as meaning only review as to whether healthcare expenditure is manageable, or must it also extend to macro-economic conditions in the pharmaceutical industry sector whose products are liable to be made subject to a price freeze? |
| --- | --- |

3.

Is the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988, cited above, to be understood as meaning only review as to whether healthcare expenditure is manageable, or must it also extend to macro-economic conditions in the pharmaceutical industry sector whose products are liable to be made subject to a price freeze?

| 4. | May the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988, cited above, be based on a general trend or trends, such as, for example, ensuring balance in healthcare, or must it be based on more specific criteria? |
| --- | --- |

4.

May the review of macro-economic conditions referred to in Article 4(1) of Council Directive 89/105/EEC of 21 December 1988, cited above, be based on a general trend or trends, such as, for example, ensuring balance in healthcare, or must it be based on more specific criteria?

---

(1)  OJ L 40 of 11.2.1989, p. 8.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/22 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/22

---

Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 25 October 2007 — Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA v Ministère de l'écologie, du développement et de l'aménagement durables — Intervener: Association France Nature Environnement

(Case C-473/07)

(2008/C 22/42)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicants: Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA

Defendant: Ministère de l'écologie, du développement et de l'aménagement durables

Questions referred

Must paragraph 6.6(a) of Annex I to Directive 96/61/EC (1), which applies to installations for the intensive rearing of poultry with more than 40 000 places, be interpreted:

| 1. | as including within its scope quails, partridges and pigeons; and, if so, |
| --- | --- |

1.

as including within its scope quails, partridges and pigeons; and, if so,

| 2. | as authorising a mechanism for calculating authorisation thresholds on the basis of a system of ‘animal-equivalents’, which gives weighting to the number of animals per place according to species so that account may be taken of the amount of nitrogen actually excreted by the various species? |
| --- | --- |

2.

as authorising a mechanism for calculating authorisation thresholds on the basis of a system of ‘animal-equivalents’, which gives weighting to the number of animals per place according to species so that account may be taken of the amount of nitrogen actually excreted by the various species?

---

(1)  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/23 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/23

---

Action brought on 25 October 2007 — Commission of the European Communities v Republic of Poland

(Case C-475/07)

(2008/C 22/43)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by W. Mölls and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by reason of the failure to adapt by 1 January 2006 its system of taxation of electricity to the requirements of Article 21(5) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (1), the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by reason of the failure to adapt by 1 January 2006 its system of taxation of electricity to the requirements of Article 21(5) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (1), the Republic of Poland has failed to fulfil its obligations under that directive;

| — | order the Republic of Poland to pay the costs. |
| --- | --- |

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The transitional period accorded to the Republic of Poland for implementing the directive expired on 1 January 2006.

---

(1)  OJ L 283 of 3.10.2003, p. 51.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/23 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/23

---

Reference for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 29 October 2007 — M.C.O. Congres v suxess GmbH

(Case C-476/07)

(2008/C 22/44)

Language of the case: German

Referring court

Landgericht Berlin

Parties to the main proceedings

Applicant: M.C.O. Congres

Defendant: suxess GmbH

Question referred

Is Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1), last amended by Directive 1999/85/EC of 22 October 1999 (OJ 1999 L 277, p. 34), to be interpreted as meaning that if services are supplied in connection with sports and cultural services under Article 259 A 4(a) of the Code Général des Impôts (General Tax Code) in the form of the grant to the person to whom the services are supplied of permission to advertise on surfaces, in premises where events take place and on t-shirts, then they are advertising services within the meaning of Article 9(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 with the result that the services are deemed to have been supplied at the place where the person to whom the services have been supplied has his place of business?

---

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

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/24 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/24

---

Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 25 October 2007 — Budějovický Budvar národní podnik v Rudolf Ammersin GmbH

(Case C-478/07)

(2008/C 22/45)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Budějovický Budvar národní podnik

Defendant: Rudolf Ammersin GmbH

Questions referred

| 1. | In its judgment of 18 November 2003 in Case C-216/01 the Court of Justice defined the requirements for the compatibility with Article 28 EC of the protection of a designation as a geographical indication which in the country of origin is the name neither of a place nor of a region, namely that such a designation must,






  — | according to the factual circumstances and |
| --- | --- | --- |

1.

In its judgment of 18 November 2003 in Case C-216/01 the Court of Justice defined the requirements for the compatibility with Article 28 EC of the protection of a designation as a geographical indication which in the country of origin is the name neither of a place nor of a region, namely that such a designation must,

—

according to the factual circumstances and

| — | perceptions in the country of origin, designate a region or a place in that State, |
| --- | --- |

—

perceptions in the country of origin, designate a region or a place in that State,

| — | and that its protection must be justified there on the basis of the criteria laid down in Article 30 EC. |
| --- | --- |

—

and that its protection must be justified there on the basis of the criteria laid down in Article 30 EC.

Do those requirements mean:

| 1.1. | that the designation as such fulfils a specific geographical indication function referring to a particular place or a particular region, or does it suffice that the designation is capable, in conjunction with the product bearing it, of informing consumers that the product bearing it comes from a particular place or a particular region in the country of origin; |
| --- | --- |

1.1.

that the designation as such fulfils a specific geographical indication function referring to a particular place or a particular region, or does it suffice that the designation is capable, in conjunction with the product bearing it, of informing consumers that the product bearing it comes from a particular place or a particular region in the country of origin;

| 1.2. | that the three conditions are conditions to be examined separately and to be satisfied cumulatively; |
| --- | --- |

1.2.

that the three conditions are conditions to be examined separately and to be satisfied cumulatively;

| 1.3. | that a consumer survey is to be carried out for ascertaining perceptions in the country of origin, and, if so, that that a low, medium or high degree of recognition and association is required; |
| --- | --- |

1.3.

that a consumer survey is to be carried out for ascertaining perceptions in the country of origin, and, if so, that that a low, medium or high degree of recognition and association is required;

| 1.4. | that the designation has actually been used as a geographical indication by several undertakings, not just one undertaking, in the country of origin and that use as a trade mark by a single undertaking precludes protection? |
| --- | --- |

1.4.

that the designation has actually been used as a geographical indication by several undertakings, not just one undertaking, in the country of origin and that use as a trade mark by a single undertaking precludes protection?

| 2. | Does the circumstance that a designation has not been notified or its registration applied for either within the six-month period provided for in [Commission] Regulation (EC) No 918/2004 [of 29 April 2004 introducing transitional arrangements for the protection of geographical indications and designations of origin for agricultural products and foodstuffs in connection with the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia] (1) or otherwise in the context of [Council] Regulation (EC) No 510/2006 [of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs] (2) mean that existing national protection, or in any case protection that has been extended bilaterally to another Member State, becomes void if the designation is a qualified geographical indication under the national law of the State of origin? |
| --- | --- |

2.

Does the circumstance that a designation has not been notified or its registration applied for either within the six-month period provided for in [Commission] Regulation (EC) No 918/2004 [of 29 April 2004 introducing transitional arrangements for the protection of geographical indications and designations of origin for agricultural products and foodstuffs in connection with the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia] (1) or otherwise in the context of [Council] Regulation (EC) No 510/2006 [of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs] (2) mean that existing national protection, or in any case protection that has been extended bilaterally to another Member State, becomes void if the designation is a qualified geographical indication under the national law of the State of origin?

| 3. | Does the circumstance that, in the context of the Treaty of Accession between the Member States of the European Union and a new Member State, the protection of several qualified geographical indications for a foodstuff has been claimed by that Member State in accordance with Regulation (EC) No 510/2006 mean that national protection, or in any case protection that has been extended bilaterally to another Member State, for another designation for the same product may no longer be maintained, and Regulation (EC) No 510/2006 has preclusive effect to that extent? |
| --- | --- |

3.

Does the circumstance that, in the context of the Treaty of Accession between the Member States of the European Union and a new Member State, the protection of several qualified geographical indications for a foodstuff has been claimed by that Member State in accordance with Regulation (EC) No 510/2006 mean that national protection, or in any case protection that has been extended bilaterally to another Member State, for another designation for the same product may no longer be maintained, and Regulation (EC) No 510/2006 has preclusive effect to that extent?

---

(1)  OJ L 163 of 30.4.2004, p. 88.

(2)  OJ L 93 of 31.3.2006, p. 12.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/24 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/24

---

Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 5 November 2007 — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen v H. Akdas and Others

(Case C-485/07)

(2008/C 22/46)

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

Defendants: H. Akdas and Others

Questions referred

| 1. | Having regard to the wording, objective and nature of Article 6(1) of Decision 3/80 (1) and to the objective and nature of the Association Agreement (2), does that provision contain a clear and accurately defined obligation whose fulfilment and effect does not require any supplementary measures, it therefore being appropriate for that provision to have direct effect? |
| --- | --- |

1.

Having regard to the wording, objective and nature of Article 6(1) of Decision 3/80 (1) and to the objective and nature of the Association Agreement (2), does that provision contain a clear and accurately defined obligation whose fulfilment and effect does not require any supplementary measures, it therefore being appropriate for that provision to have direct effect?

| 2. | If the answer to the first question is affirmative:






  2.1 | In the application of Article 6(1) of Decision 3/80, must account be taken in any way of the amendments to Regulation No 1408/71 (3), such as those which have been made since 19 September 1980 with respect to special benefits which are not based on the payment of premiums or contributions? |
| --- | --- | --- |

2.

If the answer to the first question is affirmative:

2.1

In the application of Article 6(1) of Decision 3/80, must account be taken in any way of the amendments to Regulation No 1408/71 (3), such as those which have been made since 19 September 1980 with respect to special benefits which are not based on the payment of premiums or contributions?

| 2.2 | In this connection, is Article 59 of the Additional Protocol (4) to the Association Agreement of significance? |
| --- | --- |

2.2

In this connection, is Article 59 of the Additional Protocol (4) to the Association Agreement of significance?

| 3. | Must Article 9 of the Association Agreement be interpreted as precluding the application of a Member State's legislation, such as Article 4a of the Netherlands TW, which results in an indirect distinction being made on grounds of nationality,






  — | firstly, because the number of nationals of countries other than the Netherlands, including a large group of Turkish nationals, who are not, or no longer, entitled to a supplementary benefit because they are no longer resident in the Netherlands, is higher than such persons having Dutch nationality, and |
| --- | --- | --- |

3.

Must Article 9 of the Association Agreement be interpreted as precluding the application of a Member State's legislation, such as Article 4a of the Netherlands TW, which results in an indirect distinction being made on grounds of nationality,

—

firstly, because the number of nationals of countries other than the Netherlands, including a large group of Turkish nationals, who are not, or no longer, entitled to a supplementary benefit because they are no longer resident in the Netherlands, is higher than such persons having Dutch nationality, and

| — | secondly, because the supplementary benefits of Turkish nationals resident in Turkey have been withdrawn since 1 July 2003, whereas the phasing out of the supplementary benefits of nationals of a Member State of the EU and of third countries, provided that they are resident in the territory of the EU, did not begin until 1 January 2007? |
| --- | --- |

—

secondly, because the supplementary benefits of Turkish nationals resident in Turkey have been withdrawn since 1 July 2003, whereas the phasing out of the supplementary benefits of nationals of a Member State of the EU and of third countries, provided that they are resident in the territory of the EU, did not begin until 1 January 2007?

---

(1)  Decision 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60).

(2)  Agreement establishing an Association between the European Economic Community and Turkey, which was signed in Ankara on 12 September 1963 by the Republic of Turkey on the one hand and the Member States of the EEC and the Community on the other hand and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 133, p. 1).

(3)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English special edition 1971 (II), p. 416).

(4)  Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 133, p. 17).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/25

---

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 5 November 2007 — Agenzia per le Erogazioni in Agricoltura (AGEA) v Consorzio Agrario di Ravenna Soc. Coop. Arl

(Case C-486/07)

(2008/C 22/47)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Agenzia per le Erogazioni in Agricoltura (AGEA)

Defendant: Consorzio Agrario di Ravenna Soc. Coop. Arl

Question referred

‘On the basis of the EEC regulations in force at the time of the facts of the case (1994 to 1995) on the sale of cereals held by intervention agencies, do the price reductions laid down in respect of the presence of a higher moisture content than that of the standard quality apply also to the sale of maize?’

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/25

---

Reference for a preliminary ruling from the Amtsgericht Lahr (Germany) lodged on 6 November 2007 — Pia Messner v Firma Stefan Krüger

(Case C-489/07)

(2008/C 22/48)

Language of the case: German

Referring court

Amtsgericht Lahr

Parties to the main proceedings

Applicant: Pia Messner

Defendants: Stefan Krüger, SFK Laptophandel

Question referred

Is Article 6(2) in conjunction with the second sentence of Article 6(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (1) to be interpreted as precluding a provision of national law which provides that, in the case of a revocation by a consumer within the revocation period, a seller may claim compensation for the value of the use of the consumer goods delivered?

---

(1)  OJ 1977 L 144, p. 19.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/26 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/26

---

Reference for a preliminary ruling from the Landesgericht für Strafsachen Wien, Austria, lodged on 31 October 2007 — Criminal proceedings against Vladimir Turansky

(Case C-491/07)

(2008/C 22/49)

Language of the case: German

Referring court

Landesgericht für Strafsachen Wien

Party to the main proceedings

Vladimir Turansky

Question referred

‘Is the bar on a second prosecution for the same acts (ne bis in idem principle) contained in Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders signed in Schengen (Luxembourg) on 19 June 1990 (1) to be interpreted as precluding the prosecution of a suspect in the Republic of Austria for the same acts in respect of which criminal proceedings in the Slovak Republic were discontinued after its accession to the European Union by means of a binding order of a police authority suspending the proceedings without further sanction taken after examination of the merits of the case?’

---

(1)  OJ L 239, 22.9.2000, p. 19.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/26 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/26

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Action brought on 7 November 2007 — Commission of the European Communities v Republic of Poland

(Case C-492/07)

(2008/C 22/50)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by A. Nijenhuis and K. Moyzesowicz, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by failing to ensure the proper incorporation into national law of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (1) and in particular Article 2(k) with reference to the definition of a subscriber, the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to ensure the proper incorporation into national law of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (1) and in particular Article 2(k) with reference to the definition of a subscriber, the Republic of Poland has failed to fulfil its obligations under that directive;

| — | order the Republic of Poland to pay the costs. |
| --- | --- |

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive expired on 30 April 2004.

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(1)  OJ L 108 of 24.4.2002, p. 33.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/26 |
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26.1.2008

EN

Official Journal of the European Union

C 22/26

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Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 14 November 2007 — Silberquelle GmbH v Maselli-Strickmode GmbH

(Case C-495/07)

(2008/C 22/51)

Language of the case: German

Referring court

Oberster Patent- und Markensenat

Parties to the main proceedings

Applicant: Silberquelle GmbH

Defendant: Maselli-Strickmode GmbH

Question referred

Are Articles 10(1) and 12(1) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (Trade Mark Directive) (1) to be interpreted as meaning that a trade mark is being put to genuine use if it is used for goods (here: alcohol-free drinks) which the proprietor of the trade mark gives, free of charge, to purchasers of his other goods (here: textiles) after conclusion of the purchase contract?

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(1)  OJ 1989 L 40, p. l.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/27 |
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26.1.2008

EN

Official Journal of the European Union

C 22/27

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Appeal brought on 16 November 2007 by Philip Morris Products SA against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-140/06 Philip Morris Products v OHIM

(Case C-497/07 P)

(2008/C 22/52)

Language of the case: French

Parties

Appellant: Philip Morris Products SA (represented by: T. van Innis and C. S. Moreau, lawyers)

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

Form of order sought

| — | Set aside the judgment under appeal; |
| --- | --- |

—

Set aside the judgment under appeal;

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

—

Order the Office to pay the costs.

Pleas in law and main arguments

By its appeal, the appellant claims that the Court of First Instance infringed Articles 4 and 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1). In this respect, it complains, first, that the Court of First Instance based its assessment on a bias against the category of marks in which the mark applied for falls. In finding that consumers are not in the habit of making assumptions about the origin of goods on the basis of their shape or of the shape of their packaging, the Court of First Instance made a factual finding which has no scientific foundation whatsoever and misconstrues the human perception of signs in general, and of shapes in particular.

Second, the appellant complains that the Court of First Instance carried out an incorrect legal analysis of the relevant public's perception of the mark. That error arises, on the one hand, from the fact that the Court envisaged use of the mark only through its incorporation into a packet of cigarettes, although the shape of packaging for a given product can be perceived by the public in a multitude of other forms, such as graphic or three-dimensional representations of the mark in advertising material. The error of assessment arises, on the other hand, from the fact that the Court of First Instance reduced the concept of a mark to its part which is perceptible by a prospective purchaser at the moment immediately prior to his purchase, whilst the public concerned by a mark is composed of all those who may be faced with it in the course of normal use of the mark, which occurs both during the advertising of the product before it has been purchased and during use or consumption of the product after it has been purchased.

The appellant claims, thirdly and lastly, that the grounds of the judgment under appeal are contradictory.

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(1)  OJ 1994 L 11, p. 1.

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Official Journal of the European Union

C 22/27

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Appeal brought on 16 November 2007 by Aceites del Sur-Coosur S.A. formerly Aceites del Sur S.A against the judgment delivered by the Court of First Instance (First Chamber) on 12 September 2007 in Case T-363/04 Koipe Corporacion S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-498/07 P)

(2008/C 22/53)

Language of the case: Spanish

Parties

Appellant: Aceites del Sur-Coosur S.A., formerly Aceites del Sur S.A. (represented by: J.-M Otero Lastres, lawyer)

Other parties to the proceedings: Koipe Corporacion S.L and Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | declare that the appeal against the judgment of the Court of First Instance (First Chamber) of 12 September 2007 in Case T-363/04 for infringement of Community law was lodged in good time and in due form; |
| --- | --- |

—

declare that the appeal against the judgment of the Court of First Instance (First Chamber) of 12 September 2007 in Case T-363/04 for infringement of Community law was lodged in good time and in due form;

| — | uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance in its entirety in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure; |
| --- | --- |

—

uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance in its entirety in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure;

| — | give final judgment if the state of the proceedings so permits; |
| --- | --- |

—

give final judgment if the state of the proceedings so permits;

| — | alternatively, if the state of the proceedings does not so permit, refer the case back to the Court of First Instance for judgment in accordance with the binding criteria established by the Court of Justice and, if necessary, state which of the effects of the judgment set aside must be regarded as final for the parties to the proceedings and, in accordance with Article 112 of the Rules of Procedure, order the applicant, now the respondent, to pay the costs. |
| --- | --- |

—

alternatively, if the state of the proceedings does not so permit, refer the case back to the Court of First Instance for judgment in accordance with the binding criteria established by the Court of Justice and, if necessary, state which of the effects of the judgment set aside must be regarded as final for the parties to the proceedings and, in accordance with Article 112 of the Rules of Procedure, order the applicant, now the respondent, to pay the costs.

Pleas in law and main arguments

This appeal against the judgment of the First Chamber of the Court of First Instance of 12 September 2007 is based on the two grounds set out below:

1.   Infringement of Article 8(1) and (2)(a)(i) and (ii) of Regulation No 40/94 (1)

The first infringement of Community Law committed by the judgment appealed is the fact that it held to be ‘irrelevant’ the question of which of the marks put forward by CARBONELL to oppose the application for the Community trade mark LA ESPAÑOLA No 236588 satisfy the condition of being ‘earlier’ marks.

If it had applied Article 8(1) and (2)(a)(i) and (ii) of Regulation No 40/94, the judgment should have excluded KOIPE's Community mark CARBONELL No 338681 from the opposing marks on the ground that that Community registration is not an earlier mark within the meaning of Article 8(2)(a)(i) of Regulation No 40/94. If it had acted in that way the only earlier marks of KOIPE which could oppose the application for registration of the Community mark LA ESPAÑOLA No 236588 would be CARBONELL's Spanish trade marks No 994364, No 1238745 and No 1698613.

Delimited in that way, the earlier marks enforceable against the application for registration of the Community mark LA ESPAÑOLA No 236588 would, for the purposes of Article 8(1)(b), be earlier marks protected in Spanish territory. Therefore, the existence of the likelihood of confusion between the Community mark LA ESPAÑOLA No 236588 and KOIPE's earlier opposing marks would relate solely to the public on Spanish territory, which is where KOIPE's earlier marks are protected, and not the public on the whole of Community territory, as those marks do not include any Community marks.

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

Article 8(1)(b) of Regulation No 40/94 governs the relative ground of refusal of an application for registration of a Community trade mark on the ground that there is a likelihood of confusion between the Community mark applied for and one or more earlier opposing marks. Therefore, the judgment appealed infringed that rule for the two reasons set out below:

Part One

The consequences of the improper delimitation of the earlier marks which are enforceable against the application of the application for Community trade mark LA ESPAÑOLA No 236588

The starting point for the first infringement of Article 8(1)(b) complained of is the improper delimitation of the ‘earlier’ marks enforceable against the Community trade mark application and relates to the consequences that that improper delimitation of the earlier opposing marks had on the way in which the judgment appealed applied Article 8(1)(b) to the dispute which is the subject of these proceedings.

From all of the submissions in Part One it may be concluded that the judgment appealed infringed Article 8(1)(b) of Regulation No 40/94 because:

| — | It did not find CARBONELL's marks No 994364, No 1238745 and No 1698613 to be the only earlier opposing marks. |
| --- | --- |

—

It did not find CARBONELL's marks No 994364, No 1238745 and No 1698613 to be the only earlier opposing marks.

| — | CARBONELL's later Community mark No 338681 was not expressly excluded from the opposing marks. |
| --- | --- |

—

CARBONELL's later Community mark No 338681 was not expressly excluded from the opposing marks.

| — | As a consequence of the two preceding submissions ‘the public in the territory in which the earlier marks were protected’ was not correctly delimited, the earlier marks being exclusively Spanish marks the public in the relevant territory was the Spanish consumer of olive oil. |
| --- | --- |

—

As a consequence of the two preceding submissions ‘the public in the territory in which the earlier marks were protected’ was not correctly delimited, the earlier marks being exclusively Spanish marks the public in the relevant territory was the Spanish consumer of olive oil.

| — | Although in some paragraphs the Court refers to the ‘Spanish market for olive oil’, its assessment of that information was made in a partial and limited manner, since that information was taken into account only in determining the distinctive character of the figurative elements of the signs at issue. |
| --- | --- |

—

Although in some paragraphs the Court refers to the ‘Spanish market for olive oil’, its assessment of that information was made in a partial and limited manner, since that information was taken into account only in determining the distinctive character of the figurative elements of the signs at issue.

| — | Consequently, the Court did not take account of that information either in its overall assessment of the similarity of the signs (since the Court does not mention the ‘Spanish market for olive oil’ in assessing, for example, the distinctive character of the verbal components of the signs at issue) or in weighing up other factors which were also relevant in the case in order to give a ruling on whether there was a likelihood of confusion between the signs at issue. |
| --- | --- |

—

Consequently, the Court did not take account of that information either in its overall assessment of the similarity of the signs (since the Court does not mention the ‘Spanish market for olive oil’ in assessing, for example, the distinctive character of the verbal components of the signs at issue) or in weighing up other factors which were also relevant in the case in order to give a ruling on whether there was a likelihood of confusion between the signs at issue.

Part Two

Effect of the improper delimitation of the opposing marks on the scope of the public of the territory in which the earlier mark is protected. Incorrect determination and subsequent assessment of the relevant factors for the determination of the likelihood of confusion.

The reasoning put forward by the appellant to substantiate the infringement of Article 8(1)(b) complained of in the Second part is based on two grounds. First, the submissions set out above relating to the improper delimitation of the ‘earlier opposing marks’ and its influence on the scope ‘of the public of the territory in which the earlier mark is protected’. Second, an incorrect determination and subsequent assessment of all the factors that should have been taken into account in order to determine whether there was a likelihood of confusion between Community mark applied for LA ESPAÑOLA No 236588 and CARBONELL's earlier opposing Spanish marks No 994364, No 1238745 and No 1698613.

The arguments on which the appellant bases its opinion that the judgment under appeal infringed Article 8(1)(b) by its improper application are as follows:

| — | The judgment appealed examined the marks at issue not on the basis of the criterion of a ‘global assessment’ or ‘overall impression’, but took a separate, successive and ‘analytical’ approach to the constituent elements of compound marks thereby infringing Article 8(1)(b) and the Community case-law interpreting it.
  The judgment appealed failed to do what it ought to have done from the beginning, which was to examine the marks using a ‘global assessment’ and the ‘overall impression’ made by them. Instead, the judgment appealed used an analytical approach from the outset and made a separate and successive examination of the figurative elements on one hand (paragraphs 75 to 87) and the verbal components on the other (paragraphs 88 to 93), giving decisive weight to the figurative elements, denying any importance to the verbal components. It is true that the judgment appealed did mention the criterion of the global assessment and overall impression (paragraph 99), but it is also true that it is not sufficient to mention and repeat a judicial criterion in order to act correctly it is important to follow it and apply it correctly to the case. That was not done in the judgment appealed. In order to assess the similarity of the signs at issue, the judgment appealed failed to apply the primary and principal criterion of a global assessment and overall impression, and applied an analytical criterion, deriving first of all from a breakdown of the marks into their figurative and verbal components and then a separate assessment, first of the two figurative components of the signs at issue and then of the verbal component of LA ESPAÑOLA, omitting any reference to the other verbal element of the opposing marks, the name CARBONELL.
  Second, the judgment appealed also infringed Article 8(1)(b), because it did not assess two relevant elements in the case such as earlier coexistence over a long period and notoriety which were extremely relevant in order to determine the likelihood of confusion between the Community mark applied for LA ESPAÑOLA No 236588 and the earlier opposing Spanish marks CARBONELL. |
| --- | --- |

—

The judgment appealed examined the marks at issue not on the basis of the criterion of a ‘global assessment’ or ‘overall impression’, but took a separate, successive and ‘analytical’ approach to the constituent elements of compound marks thereby infringing Article 8(1)(b) and the Community case-law interpreting it.

The judgment appealed failed to do what it ought to have done from the beginning, which was to examine the marks using a ‘global assessment’ and the ‘overall impression’ made by them. Instead, the judgment appealed used an analytical approach from the outset and made a separate and successive examination of the figurative elements on one hand (paragraphs 75 to 87) and the verbal components on the other (paragraphs 88 to 93), giving decisive weight to the figurative elements, denying any importance to the verbal components. It is true that the judgment appealed did mention the criterion of the global assessment and overall impression (paragraph 99), but it is also true that it is not sufficient to mention and repeat a judicial criterion in order to act correctly it is important to follow it and apply it correctly to the case. That was not done in the judgment appealed. In order to assess the similarity of the signs at issue, the judgment appealed failed to apply the primary and principal criterion of a global assessment and overall impression, and applied an analytical criterion, deriving first of all from a breakdown of the marks into their figurative and verbal components and then a separate assessment, first of the two figurative components of the signs at issue and then of the verbal component of LA ESPAÑOLA, omitting any reference to the other verbal element of the opposing marks, the name CARBONELL.

Second, the judgment appealed also infringed Article 8(1)(b), because it did not assess two relevant elements in the case such as earlier coexistence over a long period and notoriety which were extremely relevant in order to determine the likelihood of confusion between the Community mark applied for LA ESPAÑOLA No 236588 and the earlier opposing Spanish marks CARBONELL.

| — | The perception of the average Spanish consumer of olive oil and the supposed likelihood of confusion between the marks at issue.
  The judgment appealed, while it alludes to the profile of the average consumer elaborated by Community case-law, does not use that consumer model but constitutes the profile of the average Spanish consumer of olive oil as a consumer who is closer to the model of the average consumer used in German case-law: ‘a careless and rash consumer’ than the model European consumer chosen by Community case-law who is ‘reasonably well-informed and reasonably observant and circumspect’ (judgments LLOYD, paragraph 26, and PICASSO, paragraph 38). In addition, the judgment appealed commits another no less serious error which is to ‘take account of a lower level of attention’ by consumers with regard to marks of olive oil, instead of taking account of the level attention normally paid to olive oil by the average Spanish consumer who is reasonably well-informed and reasonably observant and circumspect. |
| --- | --- |

—

The perception of the average Spanish consumer of olive oil and the supposed likelihood of confusion between the marks at issue.

The judgment appealed, while it alludes to the profile of the average consumer elaborated by Community case-law, does not use that consumer model but constitutes the profile of the average Spanish consumer of olive oil as a consumer who is closer to the model of the average consumer used in German case-law: ‘a careless and rash consumer’ than the model European consumer chosen by Community case-law who is ‘reasonably well-informed and reasonably observant and circumspect’ (judgments LLOYD, paragraph 26, and PICASSO, paragraph 38). In addition, the judgment appealed commits another no less serious error which is to ‘take account of a lower level of attention’ by consumers with regard to marks of olive oil, instead of taking account of the level attention normally paid to olive oil by the average Spanish consumer who is reasonably well-informed and reasonably observant and circumspect.

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(1)  Council Regulation of 20 December 1993 on the Community trade mark.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/29 |
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Official Journal of the European Union

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Reference for a preliminary ruling from the De Rechtbank van Eerste Aanleg te Brugge (Belgium) lodged on 16 November 2007 — Beleggen, Risicokapitaal, Beheer NV v Belgische Staat

(Case C-499/07)

(2008/C 22/54)

Language of the case: Dutch

Referring court

Rechtbank van Eerste Aanleg te Brugge (Belgium)

Parties to the main proceedings

Applicant: Beleggen, Risicokapitaal, Beheer NV

Defendant: Belgische Staat

Questions referred

| 1. | Must Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (1), in particular Article 4(1) thereof, be construed as precluding a situation in which a Member State applies the exemption relating to distributed profits which are received by a company of that State from its subsidiary in another Member State, except when the subsidiary is liquidated, by first including in full the distributed profits in the taxable basis and then deducting 95 % of those profits from the taxable basis but limiting the deduction to the amount of profits made in the taxable period in which the distribution of profits took place (after certain statutorily defined deductions) (Article 205(2) WIB 1992 in conjunction with Article 77 KB/WIB 1992), with the result that, if the profits made in the relevant taxable period are smaller than the amount of the aforementioned distributed profits, this does not give rise to a transferable loss? |
| --- | --- |

1.

Must Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (1), in particular Article 4(1) thereof, be construed as precluding a situation in which a Member State applies the exemption relating to distributed profits which are received by a company of that State from its subsidiary in another Member State, except when the subsidiary is liquidated, by first including in full the distributed profits in the taxable basis and then deducting 95 % of those profits from the taxable basis but limiting the deduction to the amount of profits made in the taxable period in which the distribution of profits took place (after certain statutorily defined deductions) (Article 205(2) WIB 1992 in conjunction with Article 77 KB/WIB 1992), with the result that, if the profits made in the relevant taxable period are smaller than the amount of the aforementioned distributed profits, this does not give rise to a transferable loss?

| 2. | If so, must Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, in particular Article 4(1) thereof, then be construed as obliging this Member State to make the distribution of profits which a company of this Member State receives from its subsidiary of another Member State deductible in full from the amount of profits made in the taxable period and to make any resulting loss transferable to a later taxable period? |
| --- | --- |

2.

If so, must Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, in particular Article 4(1) thereof, then be construed as obliging this Member State to make the distribution of profits which a company of this Member State receives from its subsidiary of another Member State deductible in full from the amount of profits made in the taxable period and to make any resulting loss transferable to a later taxable period?

| 3. | If the aforementioned Directive 90/435/EEC must be construed as meaning that the Belgian rule is contrary to Article 4(1) with regard to distributed profits received by the Belgian parent company from a subsidiary established in the EU, must it then be determined that the aforementioned provision of the Directive is also incompatible with the application of the Belgian rule to distributed profits received by a Belgian parent company from a Belgian subsidiary where, as in the present case, the Belgian legislature, in transposing the Directive into Belgian law, has chosen to apply the same treatment to purely internal situations and to those governed by the Directive and has therefore aligned the Belgian legislation with the Directive also for purely internal situations? |
| --- | --- |

3.

If the aforementioned Directive 90/435/EEC must be construed as meaning that the Belgian rule is contrary to Article 4(1) with regard to distributed profits received by the Belgian parent company from a subsidiary established in the EU, must it then be determined that the aforementioned provision of the Directive is also incompatible with the application of the Belgian rule to distributed profits received by a Belgian parent company from a Belgian subsidiary where, as in the present case, the Belgian legislature, in transposing the Directive into Belgian law, has chosen to apply the same treatment to purely internal situations and to those governed by the Directive and has therefore aligned the Belgian legislation with the Directive also for purely internal situations?

| 4. | Does Article 43 EC preclude the application of a legislative rule of a Member State under which, for the purposes of assessment to corporation tax, the exemption of the distributed profits received during a taxable period by a company from its subsidiary established in another Member State is limited in the first Member State to the amount of the profit made in the taxable period during which the profits were distributed (after certain statutorily defined deductions), whereas a full exemption of the distributed profits would be possible if that company had set up a permanent establishment in that other Member State? |
| --- | --- |

4.

Does Article 43 EC preclude the application of a legislative rule of a Member State under which, for the purposes of assessment to corporation tax, the exemption of the distributed profits received during a taxable period by a company from its subsidiary established in another Member State is limited in the first Member State to the amount of the profit made in the taxable period during which the profits were distributed (after certain statutorily defined deductions), whereas a full exemption of the distributed profits would be possible if that company had set up a permanent establishment in that other Member State?

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(1)  OJ L 225, p. 6.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/30 |
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Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 November 2007 — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

(Case C-502/07)

(2008/C 22/55)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

Questions referred

| 1. | Do the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC (1) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes, in conjunction with Articles 2, 10(1)(a) and 10(2) of Sixth Council Directive 77/388/EEC (2) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, rule out the possibility of imposing an obligation on a taxable person for the purpose of tax on goods and services to pay an additional tax liability within the terms of Article 109(5) and (6) of the Ustawa o Podatku od Towarów i Usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. No 54, pos 535 with amendments) in the event that it is established that the taxable person for the purpose of tax on goods and services indicated in the tax declaration submitted an amount of the tax difference to be repaid or the input tax to be repaid which is greater than the amount due? |
| --- | --- |

1.

Do the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC (1) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes, in conjunction with Articles 2, 10(1)(a) and 10(2) of Sixth Council Directive 77/388/EEC (2) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, rule out the possibility of imposing an obligation on a taxable person for the purpose of tax on goods and services to pay an additional tax liability within the terms of Article 109(5) and (6) of the Ustawa o Podatku od Towarów i Usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. No 54, pos 535 with amendments) in the event that it is established that the taxable person for the purpose of tax on goods and services indicated in the tax declaration submitted an amount of the tax difference to be repaid or the input tax to be repaid which is greater than the amount due?

| 2. | Can ‘special measures’ within the terms of Article 27(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, consist, having regard to their character and purpose, in the possibility of imposing on a taxable person for the purpose of tax on goods and services an additional tax liability fixed by a decision of the tax authority where it is established that the taxable person has declared an overstated amount of the tax difference to be repaid or an overstated amount of input tax to be repaid? |
| --- | --- |

2.

Can ‘special measures’ within the terms of Article 27(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, consist, having regard to their character and purpose, in the possibility of imposing on a taxable person for the purpose of tax on goods and services an additional tax liability fixed by a decision of the tax authority where it is established that the taxable person has declared an overstated amount of the tax difference to be repaid or an overstated amount of input tax to be repaid?

| 3. | Does the power provided for by Article 33 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, encompass the right to introduce the additional tax liability laid down in Article 109(5) and (6) of the Ustawa o Podatku od Towarów i Usług of 11 March 2004 (Dz. U. No 54, pos 535 with amendments)? |
| --- | --- |

3.

Does the power provided for by Article 33 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, encompass the right to introduce the additional tax liability laid down in Article 109(5) and (6) of the Ustawa o Podatku od Towarów i Usług of 11 March 2004 (Dz. U. No 54, pos 535 with amendments)?

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(1)  OJ, English Special Edition 1967, p. 14.

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

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/31 |
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Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 19 November 2007 — Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others v Council of Ministers and Others

(Case C-504/07)

(2008/C 22/56)

Language of the case: Portugese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others

Defendant: Council of Ministers and Others

Questions referred

| (a) | In the light of Articles 73, 87 and 88 of the Treaty and of Regulation No 1191/69 (1), may the national authorities impose public service obligations on a public undertaking entrusted with the provision of public passenger transport in a municipality? |
| --- | --- |

(a)

In the light of Articles 73, 87 and 88 of the Treaty and of Regulation No 1191/69 (1), may the national authorities impose public service obligations on a public undertaking entrusted with the provision of public passenger transport in a municipality?

| (b) | If the answer is affirmative, must the national authorities pay compensation in respect of those obligations? |
| --- | --- |

(b)

If the answer is affirmative, must the national authorities pay compensation in respect of those obligations?

| (c) | Must the national authorities, where they are not obliged to hold a tendering procedure for the award of a concession for the operation of a transport network, extend the compensation obligation to all the undertakings which are regarded, under domestic law and within the same area, as offering public passenger transport? |
| --- | --- |

(c)

Must the national authorities, where they are not obliged to hold a tendering procedure for the award of a concession for the operation of a transport network, extend the compensation obligation to all the undertakings which are regarded, under domestic law and within the same area, as offering public passenger transport?

| (d) | If the answer is affirmative, what criterion must apply to the payment of compensation?' |
| --- | --- |

(d)

If the answer is affirmative, what criterion must apply to the payment of compensation?'

| (e) | In the case of undertakings providing passenger transport by bus which, by virtue of a public concession, carry on their activity on an exclusive basis within specified urban districts, but also carry on that activity in competition with private operators outside the urban areas covered by such exclusivity, does the grant by the State, year by year, of aid intended to cover the constant operating deficits of such undertakings amount to State aid prohibited by Article 87(1) EC, where:






  (i) | it is not possible to ascertain on the basis of reliable data from the relevant accounts the difference between the costs imputable to the part of the activity of those undertakings in the area covered by the concession and the corresponding income and consequently it is not possible to calculate the additional cost deriving from the performance of public service obligations which, under the terms of the concession, may attract State aid? |
| --- | --- | --- |

(e)

In the case of undertakings providing passenger transport by bus which, by virtue of a public concession, carry on their activity on an exclusive basis within specified urban districts, but also carry on that activity in competition with private operators outside the urban areas covered by such exclusivity, does the grant by the State, year by year, of aid intended to cover the constant operating deficits of such undertakings amount to State aid prohibited by Article 87(1) EC, where:

(i)

it is not possible to ascertain on the basis of reliable data from the relevant accounts the difference between the costs imputable to the part of the activity of those undertakings in the area covered by the concession and the corresponding income and consequently it is not possible to calculate the additional cost deriving from the performance of public service obligations which, under the terms of the concession, may attract State aid?

| (ii) | the supply of transport services by the said undertakings may, as a result, be maintained or increased, which entails the consequence that the opportunities for other undertakings established in this or in another Member State to provide their transport services may be diminished? |
| --- | --- |

(ii)

the supply of transport services by the said undertakings may, as a result, be maintained or increased, which entails the consequence that the opportunities for other undertakings established in this or in another Member State to provide their transport services may be diminished?

| (iii) | and notwithstanding the provisions of Article 73 of the Treaty? |
| --- | --- |

(iii)

and notwithstanding the provisions of Article 73 of the Treaty?

| (f) | Having regard to the conditions which the Court of Justice lays down regarding the present Article 87(1) (formerly 92(1)), in particular in its judgment of 24 July 2003 in Case C-280/00 Altmark
   (2), for classification of State aid (‘First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.’), what is the meaning and scope of the expressions (i) conferring of an advantage (ii) which distorts competition, in a situation in which the beneficiaries have exclusive rights for public passenger transport services in the cities of Lisbon and Oporto but also operate links to those cities, in areas where other operators are also active? In other words, what criteria must we apply in order to be able to conclude that the conferring of an advantage distorts competition? In that connection, is it relevant to ascertain the percentage of costs which, as far as the undertakings are concerned, is attributable to transport services operating outside the area of exclusivity? In short, is it necessary that the aid has repercussions on the activity carried on outside the exclusivity area (Lisbon and Oporto) in clearly significant terms? |
| --- | --- |

(f)

Having regard to the conditions which the Court of Justice lays down regarding the present Article 87(1) (formerly 92(1)), in particular in its judgment of 24 July 2003 in Case C-280/00 Altmark
   (2), for classification of State aid (‘First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.’), what is the meaning and scope of the expressions (i) conferring of an advantage (ii) which distorts competition, in a situation in which the beneficiaries have exclusive rights for public passenger transport services in the cities of Lisbon and Oporto but also operate links to those cities, in areas where other operators are also active? In other words, what criteria must we apply in order to be able to conclude that the conferring of an advantage distorts competition? In that connection, is it relevant to ascertain the percentage of costs which, as far as the undertakings are concerned, is attributable to transport services operating outside the area of exclusivity? In short, is it necessary that the aid has repercussions on the activity carried on outside the exclusivity area (Lisbon and Oporto) in clearly significant terms?

| (g) | Is the intervention by the Commission provided for in Articles 76 and 88 of the Treaty the only legal way of enforcing the Treaty rules on State aid or does the effectiveness of Community law additionally require, in particular, the possibility of direct application of those rules by the national courts at the request of those private individuals who consider themselves to be adversely affected by the grant of a subsidy or aid contrary to the competition rules? |
| --- | --- |

(g)

Is the intervention by the Commission provided for in Articles 76 and 88 of the Treaty the only legal way of enforcing the Treaty rules on State aid or does the effectiveness of Community law additionally require, in particular, the possibility of direct application of those rules by the national courts at the request of those private individuals who consider themselves to be adversely affected by the grant of a subsidy or aid contrary to the competition rules?

---

(1)  Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ English Special Edition: Series I Chapter 1969(I), p. 276).

(2)  C-280/00, [2003] ECR I-7810.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/32 |
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Appeal brought on 21 November 2007 by Cain Cellars, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 12 September 2007 in Case T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-508/07 P)

(2008/C 22/57)

Language of the case: German

Parties

Appellant: Cain Cellars, Inc. (represented by: J. Albrecht, lawyer)

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

Form of order sought

| — | Annul the contested judgment of the Court of First Instance of 12 September 2007 in Case T-304/05; |
| --- | --- |

—

Annul the contested judgment of the Court of First Instance of 12 September 2007 in Case T-304/05;

| — | Declare that the ground for refusal in Article 7(1)(b) CTR does not preclude registration of the trade mark sought; |
| --- | --- |

—

Declare that the ground for refusal in Article 7(1)(b) CTR does not preclude registration of the trade mark sought;

| — | Order OHIM to pay the costs of the proceedings before the Board of Appeal of OHIM, before the Court of First Instance and of this appeal. |
| --- | --- |

—

Order OHIM to pay the costs of the proceedings before the Board of Appeal of OHIM, before the Court of First Instance and of this appeal.

Pleas in law and main arguments

Summary of the grounds of appeal raised by the appellant in the appeal against the judgment of the Court of First Instance of the European Communities of 12 September 2007 in Case T-304/05

First ground of appeal

Breach of Article 7(1)(b) of Regulation (EC) No 40/94:

The appellant complains that in its examination of the facts material to the assessment of the distinctiveness of the device of a pentagon as a trade mark, the Court of First Instance did not have regard to essential circumstances and the relevant legal viewpoints and principles, in that it assessed the appellant's device of a pentagon on a purely theoretical and abstract basis and ignored the factually-oriented bases of assessment of the question of the distinctiveness of the representation of a pentagon, in particular its uniqueness in the extensive wine sector. The Court classified the sign as a simple ‘geometric shape’ and inferred a priori and in an abstract manner the lack of any distinctiveness of this category of simple signs.

Second ground of appeal

Breach of Article 67(3) of the Rules of Procedure of the Court of First Instance:

| (a) | Under Article 67(3) of the Rules of Procedure of the Court of First Instance, the Court takes into consideration only documents which have been made available to the lawyers and agents of the parties and on which they have been given an opportunity of expressing their views. In paragraph 34, the judgment under appeal refers to documents which were submitted by OHIM for the first time with its response and on which the applicant had no opportunity of expressing its views (the written procedure was closed after submission of the response). The judgment is thus based on inadmissible evidence. The appellant's lack of opportunity of giving its views constitutes a breach of the principle of the right to a fair hearing. |
| --- | --- |

(a)

Under Article 67(3) of the Rules of Procedure of the Court of First Instance, the Court takes into consideration only documents which have been made available to the lawyers and agents of the parties and on which they have been given an opportunity of expressing their views. In paragraph 34, the judgment under appeal refers to documents which were submitted by OHIM for the first time with its response and on which the applicant had no opportunity of expressing its views (the written procedure was closed after submission of the response). The judgment is thus based on inadmissible evidence. The appellant's lack of opportunity of giving its views constitutes a breach of the principle of the right to a fair hearing.

| (b) | Finally, the appellant alleges that the illustrations of goods produced in the oral procedure, to which OHIM consented, to prove the distinctiveness of the mark, which were particularly important to the question of the distinctiveness of the mark applied for, were not mentioned in the judgment under appeal and were not referred to in the findings of the Court regarding the question of distinctiveness. This also constitutes a breach of the principle of the right to a fair hearing. |
| --- | --- |

(b)

Finally, the appellant alleges that the illustrations of goods produced in the oral procedure, to which OHIM consented, to prove the distinctiveness of the mark, which were particularly important to the question of the distinctiveness of the mark applied for, were not mentioned in the judgment under appeal and were not referred to in the findings of the Court regarding the question of distinctiveness. This also constitutes a breach of the principle of the right to a fair hearing.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/32 |
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Action brought on 21 November 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-510/07)

(2008/C 22/58)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and B. Schima, Agents)

Defendant: Kingdom of Belgium

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to adopt all such laws, regulations or administrative provisions as may be appropriate to maintain within the Community at all times the level of stocks of petroleum products in the second category of petroleum products listed in Article 2, the Kingdom of Belgium has failed to fulfil its obligations under Article 1(1) of Council Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products (1); |
| --- | --- |

—

declare that, by failing to adopt all such laws, regulations or administrative provisions as may be appropriate to maintain within the Community at all times the level of stocks of petroleum products in the second category of petroleum products listed in Article 2, the Kingdom of Belgium has failed to fulfil its obligations under Article 1(1) of Council Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products (1);

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains that the defendant has frequently not complied with the obligation to stock petroleum products under Directive 68/414/EEC, as amended and then codified by Council Directive 2006/67/EC of 24 July 2006 (2), as regards the products in the second category under that directive, namely gas oil, diesel oil, kerosene and jet-fuel of the kerosene type. The Commission points out, particularly, in that regard, that a sometimes considerable discrepancy exists between the figures relating to internal consumption of the products in question provided by the defendant in its monthly returns and the data available to the Commission via Eurostat.

---

(1)  OJ English Special Edition, Series I, Chapter 1968 II, p. 586.

(2)  OJ 2006 L 217, p. 8.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/33 |
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Action brought on 21 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-511/07)

(2008/C 22/59)

Language of the case: French

Parties

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

Defendant: Grand Duchy of Luxembourg

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to communicate the information required under Article 3(1)(f) of Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (1), in conjunction with Articles 2 and 4(1)(b) and (d) of Commission Decision No 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 280/2004/EC (2), the Grand Duchy of Luxembourg has failed to fulfil its obligations under those provisions; |
| --- | --- |

—

declare that, by failing to communicate the information required under Article 3(1)(f) of Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (1), in conjunction with Articles 2 and 4(1)(b) and (d) of Commission Decision No 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 280/2004/EC (2), the Grand Duchy of Luxembourg has failed to fulfil its obligations under those provisions;

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

—

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

By its action, the Commission accuses the defendant of not fully implementing the obligations contained in Decision No 280/2004/EC, read in conjunction with Decision No 2005/166/EC. First, the defendant has failed to provide in its annual report the information relating to the methods and to the types of activity data and emissions factors used in the Community's principal sources. Second, the Grand Duchy of Luxembourg has not communicated to the Commission a general uncertainty assessment affecting the elements of the Luxembourg national inventory report.

---

(1)  OJ 2004 L 49, p. 1.

(2)  OJ 2005 L 55, p. 57.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/33 |
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Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 22 November 2007 — Vereniging Noordelijke Land- en Tuinbouw Organisatie v Staatssecretaris van Financiën

(Case C-515/07)

(2008/C 22/60)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Vereniging Noordelijke Land- en Tuinbouw Organisatie

Respondent: Staatssecretaris van Financiën

Questions referred

| 1. | Are Articles 6(2) and 17(1), (2) and (6) of the Sixth VAT Directive (1) to be interpreted as permitting a taxable person to allocate wholly to his business not only capital goods but all goods and services used both for business purposes and for purposes other than business purposes and to deduct immediately and in full the VAT due on the acquisition of those goods and services? |
| --- | --- |

1.

Are Articles 6(2) and 17(1), (2) and (6) of the Sixth VAT Directive (1) to be interpreted as permitting a taxable person to allocate wholly to his business not only capital goods but all goods and services used both for business purposes and for purposes other than business purposes and to deduct immediately and in full the VAT due on the acquisition of those goods and services?

| 2. | If the answer to Question 1 is affirmative, does the application of Article 6(2) of the Sixth Directive to services and goods other than capital goods mean that VAT is collected once during the tax period over which the deduction in respect of those services and goods is enjoyed, or must collection also occur in ensuing periods and, if so, how is the taxable amount to be determined in respect of goods and services which the taxable person does not write off? |
| --- | --- |

2.

If the answer to Question 1 is affirmative, does the application of Article 6(2) of the Sixth Directive to services and goods other than capital goods mean that VAT is collected once during the tax period over which the deduction in respect of those services and goods is enjoyed, or must collection also occur in ensuing periods and, if so, how is the taxable amount to be determined in respect of goods and services which the taxable person does not write off?

---

(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/34 |
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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 22 November 2007 — Afton Chemical Limited v The Commissioners of Her Majesty's Revenue & Customs

(Case C-517/07)

(2008/C 22/61)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Afton Chemical Limited

Defendant: The Commissioners of Her Majesty's Revenue & Customs

Questions referred

| 1. | Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under Article 2(3) of Directive 92/81/EC? |
| --- | --- |

1.

Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under Article 2(3) of Directive 92/81/EC?

| 2. | If the answer to the first question is affirmative, do such additives fall within the scope of the exemption under Article 8(1) of Directive 92/81/EC (1)? |
| --- | --- |

2.

If the answer to the first question is affirmative, do such additives fall within the scope of the exemption under Article 8(1) of Directive 92/81/EC (1)?

| 3. | Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under the second paragraph of Article 2(3) of Directive 2003/96/EC (2)? |
| --- | --- |

3.

Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under the second paragraph of Article 2(3) of Directive 2003/96/EC (2)?

| 4. | If the answer to the third question is affirmative, are such additives excluded from the scope of Directive 2003/96/EC by virtue of the first indent of Article 4(b) of that Directive? |
| --- | --- |

4.

If the answer to the third question is affirmative, are such additives excluded from the scope of Directive 2003/96/EC by virtue of the first indent of Article 4(b) of that Directive?

| 5. | Is the duty imposed by the UK on the above fuel additives precluded by Community law and in particular, by Article 3 of Directive 92/12/EEC (3)? |
| --- | --- |

5.

Is the duty imposed by the UK on the above fuel additives precluded by Community law and in particular, by Article 3 of Directive 92/12/EEC (3)?

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(1)  OJ L 316, p. 12.

(2)  OJ L 283, p. 51.

(3)  OJ L 76, p. 1.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/34 |
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Appeal brought on 22 November 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities

(Case C-520/07 P)

(2008/C 22/62)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by: K. Gross, B. Martenczuk)

Other party to the proceedings: MTU Friedrichshafen GmbH

Form of order sought

| — | Annul the contested judgment of the Court of First Instance delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities, |
| --- | --- |

—

Annul the contested judgment of the Court of First Instance delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities,

| — | give a final decision in the case and dismiss the application as unfounded; |
| --- | --- |

—

give a final decision in the case and dismiss the application as unfounded;

| — | order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-196/02. |
| --- | --- |

—

order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-196/02.

Pleas in law and main arguments

The Court of First Instance erred in assuming that it was not possible to make a decision on the basis of the available information for the purpose of establishing the actual beneficiary of the aid. Establishing the actual beneficiary is normally an integral part of Commission decisions ordering recovery of unlawful aid. Making this determination is indeed necessary to ensure efficient recovery of unlawful aid. Excluding the possibility of establishing the actual beneficiary of aid on the basis of the available information is thus not compatible with Article 13(1) of Regulation (EC) No 659/1999.

Secondly, the Court was wrong to assume that the Commission decision was based on a mere presumption which did not meet the requirements of a decision on the basis of the available information. On the one hand, where a decision is made on the basis of the information available no absolute certainty is required. On the other, the Commission decision was based on the information sent by SKL-M's insolvency administrator as to the development costs of the know-how. The Commission thus had sufficient evidence to allow it to conclude that the transfer of the know-how to MTU represented an advantage for that undertaking.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/35 |
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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 23 November 2007 — A

(Case C-523/07)

(2008/C 22/63)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: A

Questions referred

| 1. | (a) | Does Council Regulation (EC) No 2201/2003 (1) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (the Brussels IIa Regulation) apply to the enforcement, such as in the present case, of a public-law decision made in connection with child protection, as a single decision, concerning the immediate taking into care of a child and his or her placement outside the home, in its entirety, |
| --- | --- | --- |

1.

(a)

Does Council Regulation (EC) No 2201/2003 (1) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (the Brussels IIa Regulation) apply to the enforcement, such as in the present case, of a public-law decision made in connection with child protection, as a single decision, concerning the immediate taking into care of a child and his or her placement outside the home, in its entirety,

| (b) | or, having regard to the provision in Article 1(2)(d) of the regulation, only to the part of the decision relating to the placement outside the home? |
| --- | --- |

(b)

or, having regard to the provision in Article 1(2)(d) of the regulation, only to the part of the decision relating to the placement outside the home?

| 2. | How is the concept of habitual residence in Article 8(1) of the regulation, like the associated Article 13(1), to be interpreted in Community law, bearing in mind in particular the situation in which a child has a permanent residence in one Member State but is staying in another Member State, carrying on a peripatetic life there? |
| --- | --- |

2.

How is the concept of habitual residence in Article 8(1) of the regulation, like the associated Article 13(1), to be interpreted in Community law, bearing in mind in particular the situation in which a child has a permanent residence in one Member State but is staying in another Member State, carrying on a peripatetic life there?

| 3. | (a) | If it is considered that the child's habitual residence is not in the latter Member State, on what conditions may an urgent measure (taking into care) nevertheless be taken in that Member State on the basis of Article 20(1) of the regulation? |
| --- | --- | --- |

3.

(a)

If it is considered that the child's habitual residence is not in the latter Member State, on what conditions may an urgent measure (taking into care) nevertheless be taken in that Member State on the basis of Article 20(1) of the regulation?

| (b) | Is a protective measure within the meaning of Article 20(1) of the regulation solely a measure which can be taken under national law, and are the provisions of national law concerning that measure binding when the article is applied? |
| --- | --- |

(b)

Is a protective measure within the meaning of Article 20(1) of the regulation solely a measure which can be taken under national law, and are the provisions of national law concerning that measure binding when the article is applied?

| (c) | Must the case, after the taking of the protective measure, be transferred of the court's own motion to the court of the Member State with jurisdiction? |
| --- | --- |

(c)

Must the case, after the taking of the protective measure, be transferred of the court's own motion to the court of the Member State with jurisdiction?

| 4. | If the court of a Member State has no jurisdiction at all, must it dismiss the case as inadmissible or transfer it to the court of the other Member State? |
| --- | --- |

4.

If the court of a Member State has no jurisdiction at all, must it dismiss the case as inadmissible or transfer it to the court of the other Member State?

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(1)  OJ L 338, p. 1.

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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 28 November 2007 — Generics (UK) Ltd, Regina v Licensing Authority (acting via the Medicines and Healthcare products Regulatory Agency)

(Case C-527/07)

(2008/C 22/64)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Generics (UK) Ltd, Regina

Defendant: Licensing Authority (acting via the Medicines and Healthcare products Regulatory Agency)

Questions referred

| (1) | Where a medicinal product falling outside the scope of the Annex to Regulation 2309/93 (1) has been placed on the market in a Member State, (Austria) under its national authorisation procedure prior to the accession of that Member State to the EEA or the EC and:






  (a) | that Member State has subsequently acceded to the EEA and then the EC, and as part of the conditions of its accession it has transposed into its national law the authorisation provisions of Directive 65/65 (now Directive 2001/83 (2)), no transitional provisions applying in this respect; |
| --- | --- | --- |

(1)

Where a medicinal product falling outside the scope of the Annex to Regulation 2309/93 (1) has been placed on the market in a Member State, (Austria) under its national authorisation procedure prior to the accession of that Member State to the EEA or the EC and:

(a)

that Member State has subsequently acceded to the EEA and then the EC, and as part of the conditions of its accession it has transposed into its national law the authorisation provisions of Directive 65/65 (now Directive 2001/83 (2)), no transitional provisions applying in this respect;

| (b) | the product in question has remained on the market in that Member State for some years after its accession to the EEA and the EC; |
| --- | --- |

(b)

the product in question has remained on the market in that Member State for some years after its accession to the EEA and the EC;

| (c) | following the accession of that Member State to the EEA and the EE, the marketing authorisation for the product in question has been varied by adding a new indication, and the variation was considered by the authorities of that Member State to be consistent with the requirements of Community law; |
| --- | --- |

(c)

following the accession of that Member State to the EEA and the EE, the marketing authorisation for the product in question has been varied by adding a new indication, and the variation was considered by the authorities of that Member State to be consistent with the requirements of Community law;

| (d) | the dossier of the product in question was not updated in accordance with Directive 65/65 (now Directive 2001/83) after that Member State's accession to the EEA and the EC; and |
| --- | --- |

(d)

the dossier of the product in question was not updated in accordance with Directive 65/65 (now Directive 2001/83) after that Member State's accession to the EEA and the EC; and

| (e) | a product containing the same active ingredient has subsequently been authorised under Article 6 of Directive 2001/83 and placed on the market in the EC; |
| --- | --- |

(e)

a product containing the same active ingredient has subsequently been authorised under Article 6 of Directive 2001/83 and placed on the market in the EC;

is the medicinal product to be considered to be ‘a reference medicinal product which is or has been authorised under Article 6 ... in a Member State’ within the meaning of Article 10(1) of Directive 2001/83, and if so which of the above conditions is/are decisive in this respect?

| (2) | In circumstances where the competent authority of a reference Member State erroneously refuses an application for a marketing authorisation made under Article 10(1) of Directive 2001/83 in the context of the decentralised procedure provided for in that Directive, on the ground that the medicinal product referred to in Question 1 above was not a ‘reference medicinal product’ within the meaning of Article 10(1), what guidance, if any, does the Court of Justice think it appropriate to provide as to which circumstances the national court ought to take into consideration when it comes to determine whether the breach of Community law is a sufficiently serious breach within the meaning of the judgment in Brasserie du Pecheur and Factortame? |
| --- | --- |

(2)

In circumstances where the competent authority of a reference Member State erroneously refuses an application for a marketing authorisation made under Article 10(1) of Directive 2001/83 in the context of the decentralised procedure provided for in that Directive, on the ground that the medicinal product referred to in Question 1 above was not a ‘reference medicinal product’ within the meaning of Article 10(1), what guidance, if any, does the Court of Justice think it appropriate to provide as to which circumstances the national court ought to take into consideration when it comes to determine whether the breach of Community law is a sufficiently serious breach within the meaning of the judgment in Brasserie du Pecheur and Factortame?

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(1)  OJ L 214 p. 1.

(2)  OJ L 311 p. 67.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/36 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/36

---

Appeal brought on 29 November 2007 by Association de la presse internationale ASBL (API) against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL (API) v Commission of the European Communities

(Case C-528/07 P)

(2008/C 22/65)

Language of the case: English

Parties

Appellant: Association de la presse internationale ASBL (API) (represented by: S. Völcker, Rechtsanwalt, F. Louis, avocat and C. O'Daly, Solicitor)

Other parties to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities in Case T-36/04, API v Commission, of 12 September 2007 in so far as the Court of First Instance upheld the Commission's right not to disclose the Commission's pleadings in cases where an oral hearing was yet to be held; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities in Case T-36/04, API v Commission, of 12 September 2007 in so far as the Court of First Instance upheld the Commission's right not to disclose the Commission's pleadings in cases where an oral hearing was yet to be held;

| — | annul the parts of Commission Decision D(2003) 30621 of 20 November 2003 not previously annulled by the Court of First Instance in Case T-36/04, or in the alternative refer the case back to the Court of First Instance for further adjudication in the light of the judgment of the Court of Justice; and |
| --- | --- |

—

annul the parts of Commission Decision D(2003) 30621 of 20 November 2003 not previously annulled by the Court of First Instance in Case T-36/04, or in the alternative refer the case back to the Court of First Instance for further adjudication in the light of the judgment of the Court of Justice; and

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

—

order the Commission to pay costs.

Pleas in law and main arguments

The Appellant submits that the contested judgment should be set aside on the following grounds:

| 1. | First, the Court of First Instance erroneously interpreted Article 4(2) 2nd indent of the Regulation (the ‘court proceedings exception’) when it held that the Commission need not carry out a concrete assessment as to whether to give access to its written pleadings before the oral hearing. This interpretation (i) is contrary to well-established principles for interpreting the court proceedings exception that are recognised elsewhere in the Judgment; (ii) is premised on a non-existent right by the Commission to defend its interests ‘free from all external influences’; (iii) relies on manifestly incorrect legal arguments when invoking the ‘equality of arms principle’; (iv) erroneously dismisses the significance of other jurisdictions' rules that allow access to pleadings before the hearing; and (v) wrongly relies on the need to protect the effet utile of the Community courts' in camera procedures. |
| --- | --- |

1.

First, the Court of First Instance erroneously interpreted Article 4(2) 2nd indent of the Regulation (the ‘court proceedings exception’) when it held that the Commission need not carry out a concrete assessment as to whether to give access to its written pleadings before the oral hearing. This interpretation (i) is contrary to well-established principles for interpreting the court proceedings exception that are recognised elsewhere in the Judgment; (ii) is premised on a non-existent right by the Commission to defend its interests ‘free from all external influences’; (iii) relies on manifestly incorrect legal arguments when invoking the ‘equality of arms principle’; (iv) erroneously dismisses the significance of other jurisdictions' rules that allow access to pleadings before the hearing; and (v) wrongly relies on the need to protect the effet utile of the Community courts' in camera procedures.

| 2. | Second, the Court of First Instance misinterpreted the term ‘overriding public interest’ in Article 4(2) in fine of the Regulation by holding that, when written pleadings submitted to the courts are in issue, the general public interest in the content of proceedings before the Community courts is not capable of overriding any interest protected by the court proceedings exception. |
| --- | --- |

2.

Second, the Court of First Instance misinterpreted the term ‘overriding public interest’ in Article 4(2) in fine of the Regulation by holding that, when written pleadings submitted to the courts are in issue, the general public interest in the content of proceedings before the Community courts is not capable of overriding any interest protected by the court proceedings exception.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/37 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/37

---

Appeal brought on 29 November 2007 by Commission of the European Communities against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL v Commission of the European Communities

(Case C-532/07 P)

(2008/C 22/66)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: C. Docksey and P. Aalto, Agents)

Other party to the proceedings: Association de la presse internationale ASBL (API)

Form of order sought

The appellant claims that the Court should:

| — | quash the contested judgment in part insofar as it annulled the decision of the Commission refusing access to documents requested by API as from the date of the hearing concerning all actions save infringement proceedings; |
| --- | --- |

—

quash the contested judgment in part insofar as it annulled the decision of the Commission refusing access to documents requested by API as from the date of the hearing concerning all actions save infringement proceedings;

| — | give final judgment in the matters that are the subject of this appeal; |
| --- | --- |

—

give final judgment in the matters that are the subject of this appeal;

| — | order the Applicant in Case T-36/04 to pay the costs of the Commission arising from that case and from the present appeal. |
| --- | --- |

—

order the Applicant in Case T-36/04 to pay the costs of the Commission arising from that case and from the present appeal.

Pleas in law and main arguments

The Commission respectfully submits that, first, the Court of First Instance has erred in law by interpreting court proceedings exception to the effect that the institutions must consider requests for access to written pleadings in non-infringement actions on a case by case basis as from the date of the hearing. In this respect the Commission respectfully submits that the conclusions of the Court of First Instance are inconsistent with its reasoning, that the CFI did not take into account the interest in the proper administration of justice or the interest of other persons mentioned in the procedure, and that the CFI only considered the rights and obligations of one of the parties. Whilst court documents submitted by the institutions are not excluded from the scope of Regulation 1049/2001 (1), the conclusion reached by the CFI has no basis in Community legislation or in the case law of the Court of Justice.

Second, the CFI has erred in law by interpreting the investigations exception to the effect that the Commission must consider requests for access to written pleadings in infringement proceedings under Article 226 EC on a case by case basis as from the date of the judgement, including actions which have been decided but not yet been resolved, thus weakening the ability of the Commission as guardian of the Treaties to ensure respect by Member States of their obligations under Community law.

Third, the CFI has erred in law by interpreting the court proceedings exception to the effect that the institutions must consider requests for access to their written pleadings on a case by case basis in actions which have been decided but which are related to pending actions, thus weakening their ability to defend their interests before the Community Courts and weakening the ability of the Commission as guardian of the Treaties to seek to enforce Community law.

---

(1)  OJ L 145, p. 43.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/38 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/38

---

Action brought on 30 November 2007 — Commission of the European Communities v Hellenic Republic

(Case C-541/07)

(2008/C 22/67)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by prohibiting in Decree 12078/1343 of 3 March 2004 of the Minister for Transport, as interpreted on the basis of Circular 45007/4795 of 28 July 2004 issued by the Directorate for Road Safety and the Environment, window films which are manufactured and/or sold lawfully on the market of other Member States of the European Union from being placed on vehicle windows generally, the Hellenic Republic has failed to fulfil its obligations under Articles 28 and 30 of the EC Treaty; |
| --- | --- |

—

declare that, by prohibiting in Decree 12078/1343 of 3 March 2004 of the Minister for Transport, as interpreted on the basis of Circular 45007/4795 of 28 July 2004 issued by the Directorate for Road Safety and the Environment, window films which are manufactured and/or sold lawfully on the market of other Member States of the European Union from being placed on vehicle windows generally, the Hellenic Republic has failed to fulfil its obligations under Articles 28 and 30 of the EC Treaty;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | Following a complaint, the Commission examined the Greek legislation which prohibits the placing of window films on vehicle windscreens and on their windows generally. |
| --- | --- |

1.

Following a complaint, the Commission examined the Greek legislation which prohibits the placing of window films on vehicle windscreens and on their windows generally.

| 2. | The Commission takes the view that that prohibition does not fall within the field of application of Directive 92/22/EEC, as amended by Directive 2001/92/EC, and must be examined in the context of Articles 28 and 30 in the absence of harmonisation at Community level. |
| --- | --- |

2.

The Commission takes the view that that prohibition does not fall within the field of application of Directive 92/22/EEC, as amended by Directive 2001/92/EC, and must be examined in the context of Articles 28 and 30 in the absence of harmonisation at Community level.

| 3. | That prohibition constitutes a measure having equivalent effect to a quantitative restriction on the free movement of goods that is contrary to Article 28 EC, given that it constitutes in practice an obstacle to trade in Greece in such films which are lawfully manufactured and in circulation in other Member States. |
| --- | --- |

3.

That prohibition constitutes a measure having equivalent effect to a quantitative restriction on the free movement of goods that is contrary to Article 28 EC, given that it constitutes in practice an obstacle to trade in Greece in such films which are lawfully manufactured and in circulation in other Member States.

| 4. | The Commission also observes that the Greek authorities have not succeeded in adducing sufficient evidence as to the justification for the measure and as to the simultaneous observance of proportionality. |
| --- | --- |

4.

The Commission also observes that the Greek authorities have not succeeded in adducing sufficient evidence as to the justification for the measure and as to the simultaneous observance of proportionality.

| 5. | More specifically, it has not been proved that criteria exist for establishing, on the carrying out of checks, whether the films in question meet certain minimum conditions, in accordance with the submissions of the Greek authorities. |
| --- | --- |

5.

More specifically, it has not been proved that criteria exist for establishing, on the carrying out of checks, whether the films in question meet certain minimum conditions, in accordance with the submissions of the Greek authorities.

| 6. | Consequently, the Commission considers that the legislation in question constitutes an infringement of Article 28 EC that cannot be justified on the basis of Article 30 EC or by overriding reasons relating to the public interest within the meaning of the Court of Justice's case-law. |
| --- | --- |

6.

Consequently, the Commission considers that the legislation in question constitutes an infringement of Article 28 EC that cannot be justified on the basis of Article 30 EC or by overriding reasons relating to the public interest within the meaning of the Court of Justice's case-law.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/38 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/38

---

Action brought on 10 December 2007 — Commission of the European Communities v Hellenic Republic

(Case C-548/07)

(2008/C 22/68)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and M. van Beek)

Defendant: Hellenic Republic

Form of order sought

| — | declare that the Hellenic Republic has failed to fulfil its obligations under Directive 96/34/EC (1) on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC and, more specifically, under Clauses 1(2), 2(1), 2(3)(b), 2(3)(e) and (f), 2(4) and 2(6) of the agreement annexed to that directive; |
| --- | --- |

—

declare that the Hellenic Republic has failed to fulfil its obligations under Directive 96/34/EC (1) on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC and, more specifically, under Clauses 1(2), 2(1), 2(3)(b), 2(3)(e) and (f), 2(4) and 2(6) of the agreement annexed to that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | The Commission, after examining all the Greek legislation for the transposition into Greek law of Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, found that certain clauses of that framework agreement confirmed by the directive were still transposed deficiently and incorrectly in relation to workers in the merchant navy. |
| --- | --- |

1.

The Commission, after examining all the Greek legislation for the transposition into Greek law of Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, found that certain clauses of that framework agreement confirmed by the directive were still transposed deficiently and incorrectly in relation to workers in the merchant navy.

| 2. | More specifically, the relevant Greek legislation which ratifies collective agreements in the field has a restricted scope since it does not apply to workers on all merchant vessels. |
| --- | --- |

2.

More specifically, the relevant Greek legislation which ratifies collective agreements in the field has a restricted scope since it does not apply to workers on all merchant vessels.

| 3. | In addition, in order for the foregoing workers to be recognised as having the right to parental leave, it is necessary under the Greek legislation for the following conditions, which are additional to those set out in the directive, to apply:






  — | 12 months' previous service on the same vessel; |
| --- | --- | --- |

3.

In addition, in order for the foregoing workers to be recognised as having the right to parental leave, it is necessary under the Greek legislation for the following conditions, which are additional to those set out in the directive, to apply:

—

12 months' previous service on the same vessel;

| — | employment of at least 30 persons on that vessel; |
| --- | --- |

—

employment of at least 30 persons on that vessel;

| — | proof that the other parent is working; |
| --- | --- |

—

proof that the other parent is working;

| — | classification of the return from parental leave as a new seaman's contract and a required new period of work of a minimum of 6 or 7 months; |
| --- | --- |

—

classification of the return from parental leave as a new seaman's contract and a required new period of work of a minimum of 6 or 7 months;

| — | assumption of the costs of the sending of a replacement by the navy; |
| --- | --- |

—

assumption of the costs of the sending of a replacement by the navy;

| — | application of the national legislation in question only to seamen's contracts which commence after the entry into force of the collective agreements; |
| --- | --- |

—

application of the national legislation in question only to seamen's contracts which commence after the entry into force of the collective agreements;

| — | classification of commercial obligations as grounds of force majeure justifying not granting parental leave. |
| --- | --- |

—

classification of commercial obligations as grounds of force majeure justifying not granting parental leave.

| 4. | Finally, the Commission states that there is no mention in either the collective agreements or the ministerial decrees ratifying them of the question of the protection of workers from dismissal on the grounds of applying for or taking parental leave. |
| --- | --- |

4.

Finally, the Commission states that there is no mention in either the collective agreements or the ministerial decrees ratifying them of the question of the protection of workers from dismissal on the grounds of applying for or taking parental leave.

| 5. | Therefore, the Commission considers that the Hellenic Republic has failed to fulfil its obligations under Directive 96/34/EC and, more specifically, under Clauses 1(2), 2(1), 2(3)(b), 2(3)(e) and (f), 2(4) and 2(6) of the framework agreement on parental leave annexed to that directive. |
| --- | --- |

5.

Therefore, the Commission considers that the Hellenic Republic has failed to fulfil its obligations under Directive 96/34/EC and, more specifically, under Clauses 1(2), 2(1), 2(3)(b), 2(3)(e) and (f), 2(4) and 2(6) of the framework agreement on parental leave annexed to that directive.

---

(1)  OJ L 145, 19.6.1996, p. 4.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/39 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/39

---

Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland

(Case C-20/07) (1)

(2008/C 22/69)

Language of the case: English

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 56, 10.3.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/39 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/39

---

Order of the President of the Court of 8 November 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-145/07) (1)

(2008/C 22/70)

Language of the case: Swedish

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 95, 28.4.2007.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/39 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/39

---

Order of the President of the Court of 8 November 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-223/07) (1)

(2008/C 22/71)

Language of the case: Swedish

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 140, 23.6.2007.

---

Court of First Instance

| 26.1.2008 | EN | Official Journal of the European Union | C 22/40 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/40

---

Judgment of the Court of First Instance of 12 December 2007 — Pagliacci v Commission

(Case T-307/04) (1)

(Officials - Open competition - Failure to include candidate's name on the reserve list - Breach of the notice of competition - Qualifications and professional experience required)

(2008/C 22/72)

Language of the case: French

Parties

Applicant: Carlo Pagliacci (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers, initially, and F. Schiaudone, lawyer, subsequently)

Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and H. Tserepa-Lacombe, Agents)

Re:

Action for annulment of the decision of the selection board of competition COM/A/1/02, which gave the applicant insufficient points in the tests for his name to be included in the list of successful candidates.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the section board of competition COM/A/1/02 which gave Mr Carlo Pagliacci insufficient points in the tests for his name to be included in the list of successful candidates; |
| --- | --- |

1.

Annuls the decision of the section board of competition COM/A/1/02 which gave Mr Carlo Pagliacci insufficient points in the tests for his name to be included in the list of successful candidates;

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 262, 14.5.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/40 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/40

---

Judgment of the Court of First Instance of 11 December 2007 — Sack v Commission

(Case T-66/05) (1)

(Civil service - Official - Action for annulment - Responsibility bonus - Duties of ‘Head of unit’ - Equal treatment - Duty to state reasons - Language provisions)

(2008/C 22/73)

Language of the case: German

Parties

Applicant: Jörn Sack (Berlin, Germany) (represented by: U. Lehmann-Brauns and D. Mahlo, lawyers)

Defendant: Commission of the European Communities (represented by: V. Joris and H. Krämer, acting as Agents, and B. Wägenbaur, lawyer)

Re:

Action for annulment of the decisions relating to the fixing of the applicant's monthly salary for the months of May 2004 to February 2005, application for a fresh calculation of that salary and action for annulment of the express decision to reject the applicant's claim, notified to him on 26 November 2004.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 106, 30.4.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/40 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/40

---

Judgment of the Court of First Instance of 12 December 2007 — K & L Ruppert Stiftung v OHIM — Lopes de Almeida Cunha and Others (CORPO livre)

(Case T-86/05) (1)

(Community trade mark - Opposition proceedings - Application for the figurative mark CORPO LIVRE - National and international word marks LIVRE - Proof of use of the earlier marks submitted out of time)

(2008/C 22/74)

Language of the case: German

Parties

Applicant: K & L Ruppert Stiftung & Co. Handels-KG (Weilheim, Germany) (represented by: D. Spohn and A. Kockläuner, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)

Other parties to the proceedings before the Board of Appeal of OHIM: Natália Cristina Lopes de Almeida Cunha (Vila Nova de Gaia, Portugal); Cláudia Couto Simões, (Vila Nova de Gaia); and Marly Lima Jatobá (Vila Nova de Gaia)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 December 2004 (Case R 328/2004-1), relating to opposition proceedings between K & L Ruppert Stiftung & Co. Handels-KG and Natália Cristina Lopes de Almeida Cunha, Cláudia Couto Simões and Marly Lima Jatobá

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicant, K & L Ruppert Stiftung & Co. Handels-KG, to pay the costs. |
| --- | --- |

2.

Orders the applicant, K & L Ruppert Stiftung & Co. Handels-KG, to pay the costs.

---

(1)  OJ C 155, 25.6.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/41 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/41

---

Judgment of the Court of First Instance of 12 December 2007 — BASF and UCB v Commission

(Joined Cases T-101/05 and T-111/05) (1)

(Competition - Agreements, decisions and concerted practices in the vitamin products sector - Choline chloride (vitamin B4) - Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area - Fines - Deterrence - Repeat infringement - Cooperation during the administrative procedure - Single and continuous infringement)

(2008/C 22/75)

Languages of the case: English and French

Parties

Applicants: BASF AG (Ludwigshafen, Germany) (represented by: N. Levy, Barrister, J. Temple Lang, Solicitor, and C. Feddersen, Lawyer) and UCB SA (Brussels, Belguim) (represented by J. Bourgeois, J.-F. Bellis and M. Favart, Lawyers)

Defendant: Commission of the European Communities (represented by: in Case T-101/05 A. Whelan and F. Amato and in Case T-111/05 initially O. Beynet and F. Amato, and subsequently X. Lewis and F. Amato, Agents)

Re:

Application for annulment or reduction of the fines imposed on the applicants by the Commission Decision of 9 December 2004 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.533 — Choline chloride) (summary published in OJ 2005 L 190, p. 22).

Operative part of the judgment

The Court:

| 1. | Disjoins Case T-112/05 Akzo Nobel and Others v Commission from Cases T-101/05 and T-111/05 for the purposes of the judgment; |
| --- | --- |

1.

Disjoins Case T-112/05 Akzo Nobel and Others v Commission from Cases T-101/05 and T-111/05 for the purposes of the judgment;

| 2. | Annuls Article 1(b) and (f) of Commission Decision 2005/566/EC of 9 December 2004 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.533 — Choline Chloride) in so far as it makes a finding of infringement against BASF AG and UCB SA during the period before 29 November 1994 in BASF's case and before 14 March 1994 in UCB's case; |
| --- | --- |

2.

Annuls Article 1(b) and (f) of Commission Decision 2005/566/EC of 9 December 2004 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.533 — Choline Chloride) in so far as it makes a finding of infringement against BASF AG and UCB SA during the period before 29 November 1994 in BASF's case and before 14 March 1994 in UCB's case;

| 3. | In Case T-101/05, sets the fine imposed on BASF at EUR 35,024 million; |
| --- | --- |

3.

In Case T-101/05, sets the fine imposed on BASF at EUR 35,024 million;

| 4. | In Case T-111/05, sets the fine imposed on UCB at EUR 1,870 million; |
| --- | --- |

4.

In Case T-111/05, sets the fine imposed on UCB at EUR 1,870 million;

| 5. | Dismisses the remainder of the applications; |
| --- | --- |

5.

Dismisses the remainder of the applications;

| 6. | In Case T-101/05, orders the parties to bear their own costs; |
| --- | --- |

6.

In Case T-101/05, orders the parties to bear their own costs;

| 7. | In Case T-111/05, orders the Commission, in addition to bearing its own costs, to pay 90 % of the costs incurred by UCB. |
| --- | --- |

7.

In Case T-111/05, orders the Commission, in addition to bearing its own costs, to pay 90 % of the costs incurred by UCB.

---

(1)  OJ C 115, 14.5.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/41 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/41

---

Judgment of the Court of First Instance of 12 December 2007 — Akzo Nobel and Others v Commission

(Case T-112/05) (1)

(Competition - Cartels in the vitamin products sector - Choline chloride (Vitamin B4) - Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area - Attributability of the infringement)

(2008/C 22/76)

Language of the case: English

Parties

Applicants: Akzo Nobel (Arnhem, Netherlands), Akzo Nobel Nederland BV (Arnhem), Akzo Nobel Chemicals International BV (Amersfoort, Netherlands), Akzo Nobel Chemicals BV (Amersfoort), Akzo Nobel Functional Chemicals BV (Amersfoort) (represented by: initially C. Swaak and J. de Gou, and subsequently C. Swaak, M. van der Woude and M. Mollica, Lawyers)

Defendant: Commission of the European Communities (represented by: A. Whelan and F. Amato, Agents)

Re:

Application for annulment of Commission Decision 2005/566/EC of 9 December 2004 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E 2/37.533 — Choline chloride) (summary published in OJ 2005 L 190, p. 22).

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

| 2. | Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV to pay the costs. |
| --- | --- |

2.

Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV to pay the costs.

---

(1)  OJ C 143, 11.6.2005.

---

| 26.1.2008 | EN | Official Journal of the European Union | C 22/42 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/42

---

Judgment of the Court of First Instance of 13 December 2007 — Angelidis v Parliament

(Case T-113/05) (1)

(Staff cases - Officials - Filling an A2 post - Rejection of candidature - Breach of essential procedural requirements - Action for annulment - Action for damages)

(2008/C 22/77)

Language of the case: French

Parties

Applicant: Angel Angelidis (Luxembourg, Luxembourg) (represented by: É. Boigelot, lawyer)

Defendant: European Parliament (represented by: A. Bencomo Weber, J. F. de Wachter and A. Lukošiūtė, agents)

Re:

First, application for annulment of the decision of the European Parliament to reject the candidature of the applicant for the post of Director of the ‘Budgetary Affairs’ Directorate of the Directorate-General for Committees responsible for the internal policies of the Parliament and to appoint another candidate to the post and, second, an application for damages to compensate for the damage allegedly suffered by the applicant as a result of the rejection of his candidature.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Bureau of the European Parliament of 25 February 2004 appointing Mr Alfredo De Feo to the position of Director of Budgetary Affairs of the Directorate-General for Committees responsible for the internal policies of the European Parliament. |
| --- | --- |

1.

Annuls the decision of the Bureau of the European Parliament of 25 February 2004 appointing Mr Alfredo De Feo to the position of Director of Budgetary Affairs of the Directorate-General for Committees responsible for the internal policies of the European Parliament.

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

2.

Dismisses the remainder of the action;

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

3.

Orders the Parliament to pay the costs.

---

(1)  OJ C 115, 14.5.2005.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/42 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/42

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Judgment of the Court of First Instance of 12 December 2007 — Italy v Commission

(Case T-308/05) (1)

(Structural funds - Co-financing - Regulations (EC) No 1260/1999 and (EC) No 448/2004 - Conditions concerning the eligibility of payments on account made by national bodies within the framework of State aid schemes - Proof of use of the funds by the final beneficiary - Actions for annulment - Challengeable act)

(2008/C 22/78)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: initially by A. Cingolo, and subsequently by P. Gentili, avvocati dello Stato)

Defendant: Commission of the European Communities (represented by: L. Flynn and M. Velardo, Agents, assisted by G. Faedo, avocat)

Re:

Annulment of the Commission decisions allegedly contained in Commission letters No 5272 of 7 June 2005, No 5453 of 8 June 2005, Nos 5726 and 5728 of 17 June 2005 and No 5952 of 23 June 2005.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 257, 15.10.2005.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/43 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/43

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Judgment of the Court of First Instance of 11 December 2007 — Portela & Companhia v OHIM — Torrens Cuadrado and Gilbert Sanz (Bial)

(Case T-10/06) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark Bial - Earlier national word mark BIAL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Proof of existence of the earlier mark - Coexistence of earlier marks - Plea amending subject matter of the proceedings - Evidence presented for the first time before the Court of First Instance - Costs incurred before the Opposition Division)

(2008/C 22/79)

Language of the case: Portuguese

Parties

Applicant: Portela & Companhia, SA (S. Mamede do Coronado, Portugal) (represented by: J. Conceição Pimenta, Lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves, Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Juan Torrens Cuadrado and Josep Gilbert Sanz (Gava, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 September 2005 (Case R 897/2004-1) concerning opposition proceedings between (a) Juan Torrens Cuadrado and Josep Gilbert Sanz and (b) Portela & Companhia, SA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 September 2005 (Case R 897/2004-1) in so far as it orders the applicant to pay the sum of EUR 600 towards the costs incurred by Mr Torrens Cuadrado and Mr Gilbert Sanz for the opposition proceedings. |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 September 2005 (Case R 897/2004-1) in so far as it orders the applicant to pay the sum of EUR 600 towards the costs incurred by Mr Torrens Cuadrado and Mr Gilbert Sanz for the opposition proceedings.

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

2.

Dismisses the remainder of the application.

| 3. | Orders Portela & Companhia, SA to pay, in addition to its own costs, half the costs incurred by OHIM. |
| --- | --- |

3.

Orders Portela & Companhia, SA to pay, in addition to its own costs, half the costs incurred by OHIM.

---

(1)  OJ C 60, 11.3.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/43 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/43

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Judgment of the Court of First Instance of 12 December 2007 — Ireland and Others v Commission

(Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06) (1)

(State aid - Directive 92/81/EEC - Excise duty on mineral oils - Mineral oils used as fuel for the production of alumina - Exemption granted by the French, Irish and Italian authorities - New aid - Existing aid - Obligation to state reasons - Finding of the Court of its own motion)

(2008/C 22/80)

Languages of the case: English, French and Italian

Parties

Applicant in Case T-50/06: Ireland (represented by: D. O'Hagan, Agent, and P. McGarry, Barrister)

Applicant in Case T-56/06: French Republic (represented by: G. de Bergues and S. Ramet, Agents)

Applicant in Case T-60/06: Italian Republic (represented by: G. Aiello, avvocato dello Stato)

Applicant in Case T-62/06: Eurallumina SpA (Portoscuso, Italy) (represented by: L. Martin Alegi, R. Denton and M. Garcia, Solicitors)

Applicant in Case T-69/06: Aughinish Alumina Ltd (Askeaton, Ireland) (represented by: J. Handoll and C. Waterson, Solicitors)

Defendant: Commission of the European Communities (represented by V. Di Bucci, N. Khan, P. Stancanelli and K. Walkerová, acting as Agents)

Re:

Actions for annulment of Commission Decision 2006/323/EC of 7 December 2005 on the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, implemented by France, Ireland and Italy respectively (OJ 2006 L 119, p. 12)

Operative part of the judgment

The Court:

| 1. | Joins Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 for the purposes of the judgment; |
| --- | --- |

1.

Joins Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 for the purposes of the judgment;

| 2. | Annuls Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy; |
| --- | --- |

2.

Annuls Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy;

| 3. | Dismisses the remainder of the action in Case T-62/06; |
| --- | --- |

3.

Dismisses the remainder of the action in Case T-62/06;

| 4. | Orders the Commission to bear its own costs and to pay those of the applicants, including the costs of the interim proceedings in Case T-69/06 R. |
| --- | --- |

4.

Orders the Commission to bear its own costs and to pay those of the applicants, including the costs of the interim proceedings in Case T-69/06 R.

---

(1)  OJ C 86, 8.4.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/44 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/44

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Judgment of the Court of First Instance of 12 December 2007 — DeTeMedien v OHIM (suchen.de)

(Case T-117/06) (1)

(Community trade mark - Application for the Community word mark suchen.de - Absolute ground for refusal - Lack of distinctive character - Domain name - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

(2008/C 22/81)

Language of the case: German

Parties

Applicant: DeTeMedien Deutsche Telekom Medien GmbH ((Frankfurt am Main, Germany) (represented initially by J. Fesenmair and I. Gehring, and subsequently by J. Fesenmair and T.M. Müller, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 30 January 2006 (Case R 287/2005-1) concerning an application for registration of the word sign suchen.de as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders DeTeMedien Deutsche Telekom Medien GmbH to pay the costs. |
| --- | --- |

2.

Orders DeTeMedien Deutsche Telekom Medien GmbH to pay the costs.

---

(1)  OJ C 143, 17.6.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/44 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/44

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Judgment of the Court of First Instance of 13 December 2007 — Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM)

(Case T-134/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark PAGESJAUNES.COM - Earlier national figurative mark LES PAGES JAUNES - Domain name ‘pagesjaunes.com’ - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 22/82)

Language of the case: French

Parties

Applicant: Xentral LLC (Florida, United States) (represented by: A. Bertrand, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Pages jaunes SA (Sèvres, France) (represented by: C. Bertheux Scotte, B. Potot and B. Corne, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 15 February 2006 (Case R 708/2005-1) in respect of opposition proceedings between Pages Jaunes SA and Xentral LLC.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Xentral LLC to pay the costs. |
| --- | --- |

2.

Orders Xentral LLC to pay the costs.

---

(1)  OJ C 165, 15.7.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/45 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/45

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Judgment of the Court of First Instance of 13 December 2007 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano)

(Case T-242/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark el charcutero artesano - Earlier national figurative mark El Charcutero - Relative ground for refusal - No likelihood of confusion - Absence of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 22/83)

Language of the case: Spanish

Parties

Applicant: Miguel Cabrera Sánchez (Móstoles, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. García Murillo, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Industrias Cárnicas Valle, SA (Madrid, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 15 June 2006 (Case R 790/2005-1) relating to opposition proceedings between Miguel Cabrera Sánchez and Industrias Cárnicas Valle, SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Miguel Cabrera Sánchez to bear his own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). |
| --- | --- |

2.

Orders Miguel Cabrera Sánchez to bear his own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

---

(1)  OJ C 261, 28.10.2006.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/45 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/45

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Order of the President of the Court of First Instance of 4 December 2007 — Cheminova and Others v Commission

(Case T-326/07 R)

(Application for interim relief - Directive 91/414/EEC - Application for suspension of operation of a measure - Admissibility - No urgency)

(2008/C 22/84)

Language of the case: English

Parties

Applicants: Cheminova A/S (Harboøre, Denmark), Cheminova Agro Italia Srl (Rome, Italy), Cheminova Bulgaria EOOD (Sofia, Bulgaria), Agrodan, SA (Madrid, Spain) and Lodi SAS (Grand Fougeray, France) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by: B. Doherty and L. Parpala, Agents)

Re:

Application for suspension of the operation of Commission Decision 2007/389/EC of 6 June 2007 concerning the non-inclusion of malathion in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 146, p. 19) pending the full resolution of the dispute in the main proceedings

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/45 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/45

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Action brought on 19 November 2007 — Euro-Information v OHIM (Representation of a hand holding a card plus three triangles)

(Case T-414/07)

(2008/C 22/85)

Language of the case: French

Parties

Applicant: Européene de traitement de l'Information (Euro-Information) (Strasbourg, France) (represented by P. Greffe and M. Chaminade, lawyers)

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

Form of order sought

| — | annulment of the decision of the First Board of Appeal of OHIM of 6 September 2007 in Case R 290/2007-1, in so far as it refused the registration of the Community trade mark No 5 225 776 in respect of goods and services claimed in Classes 9, 35, 36, 38 and 42; |
| --- | --- |

—

annulment of the decision of the First Board of Appeal of OHIM of 6 September 2007 in Case R 290/2007-1, in so far as it refused the registration of the Community trade mark No 5 225 776 in respect of goods and services claimed in Classes 9, 35, 36, 38 and 42;

| — | registration of the Community trade mark No 5 225 776 in respect of all the goods and services claimed. |
| --- | --- |

—

registration of the Community trade mark No 5 225 776 in respect of all the goods and services claimed.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark comprising a representation of a hand holding a card followed by three black triangles for goods and services in Classes 9, 35, 36, 38 and 42 (Application No 5 225 776)

Decision of the Examiner: Partial refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant states that, contrary to the finding of the Board of Appeal of OHIM in the contested decision, the elements comprising the trade mark, the registration of which was partially refused, are distinctive and arbitrary in respect of the goods and services claimed and, consequently, their combination must be also considered to be distinctive and arbitrary.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/46 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/46

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Action brought on 22 November 2007 — Deutsche Post v Commission

(Case T-421/07)

(2008/C 22/86)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J. Sedemund and T. Lübbig, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of the Commission of the European Communities of 12 September 2007‘State aid C 36/07 (ex NN 25/07) — State aid to Deutsche Post AG, invitation to submit comments pursuant to Article 88(2) of the EC Treaty’; |
| --- | --- |

—

Annul the decision of the Commission of the European Communities of 12 September 2007‘State aid C 36/07 (ex NN 25/07) — State aid to Deutsche Post AG, invitation to submit comments pursuant to Article 88(2) of the EC Treaty’;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of the decision of the Commission to institute the proceedings under Article 88(2) EC with regard to State aid C 26/07 (ex NN 25/07). That decision was notified to Germany by letter of 12 September 2007 (OJ 2007 C 245, p. 21). The proceedings begun by that decision are intended as a supplementary investigation into the proceedings which were instituted on 23 October 1999 by the Commission and in which the Commission issued a negative decision on 19 June 2002 (OJ 2002 L 247, p 27). In that negative decision, the Commission found that Deutsche Post's prices for its Haus-zu-Haus-Paketdienst (house to house parcel service) were below the service-specific supplementary costs and that that aggressive discount policy was not part of its public supply obligations.

In support of its claim, the applicant submits that the contested decision infringes basic procedural principles. In particular, there is an infringement of the principle of the protection of legitimate expectations, since the Commission had for years been aware of the predominant facts of the case and on 19 June 2002 issued a final decision relating thereto. In addition, the right of the Federal Republic of Germany and the applicant to participate has been infringed in that they were not given the opportunity to take a position on the contested decision before it was issued. Finally, it is submitted in that regard that there is a breach of Regulation (EC) No 659/1999 (1), since it follows from the scheme of that provision that a negative decision, such as that of 19 June 2002, is final and that the defendant cannot make facts which are subject to a final ruling the subject-matter of a renewed aid verification procedure.

Further, the applicant submits that the defendant has infringed the duty to state reasons under Article 253 EC and Article 6(1) of Regulation No 659/1999, since the contested decision does not make it clear which measures the Commission seeks to classify as State aid and, moreover, the decision contains no legal description.

Finally, it is alleged that there is an infringement of Article 87(1) EC and Article 88 EC, since the measures referred to in the contested decision ought not to be classified as State aid.

---

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

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/46 |
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26.1.2008

EN

Official Journal of the European Union

C 22/46

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Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100)

(Case T-425/07)

(2008/C 22/87)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Częstochowa, Poland) (represented by D. Rzążewska, legal adviser)

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

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2007 in Case R 1274/2006-4 in its entirety; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2007 in Case R 1274/2006-4 in its entirety;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘100’ for goods and services in Classes 16, 28 and 41 (Application No 3 875 408).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1) since, in the applicant's submission, the sign ‘100’ is neither descriptive nor devoid of distinctive character in relation to the goods and services indicated.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/47 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/47

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Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (300)

(Case T-426/07)

(2008/C 22/88)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Częstochowa, Poland) (represented by D. Rzążewska, legal adviser)

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

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2007 in Case R 1275/2006-4 in its entirety; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2007 in Case R 1275/2006-4 in its entirety;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘300’ for goods and services in Classes 16, 28 and 41 (Application No 3 875 416).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1) since, in the applicant's submission, the sign ‘300’ is neither descriptive nor devoid of distinctive character in relation to the goods and services indicated.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/47 |
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26.1.2008

EN

Official Journal of the European Union

C 22/47

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Action brought on 16 November 2007 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino)

(Case T-427/07)

(2008/C 22/89)

Language in which the application was lodged: Spanish

Parties

Applicant: Mirto Corporación Empresarial, S.L. (Madrid, Spain) (represented by: E. Armijo Chávarri, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Maglificio Barbara Srl

Form of order sought

| — | Annul the Decision of the Second Board of Appeal of OHIM of 28 August 2007 in Case R 875/2006-2 and order expressly that OHIM pay the costs. |
| --- | --- |

—

Annul the Decision of the Second Board of Appeal of OHIM of 28 August 2007 in Case R 875/2006-2 and order expressly that OHIM pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Maglificio Barbara Srl

Community trade mark concerned: Figurative mark ‘Mirtillino’ for goods in Classes 3, 18 and 25 (application No 3 252 467)

Proprietor of the mark or sign cited in the opposition proceedings: Creaciones Mirto, S.A.; the applicant following transfer of the marks at issue in the opposition proceedings.

Mark or sign cited in opposition: Word mark ‘MIRTO’ (Community trade mark No 1 653 351) for goods in Classes 3, 18 and 25 and a number of other national word and figurative marks ‘MIRTO’.

Decision of the Opposition Division: Partly upheld the opposition.

Decision of the Board of Appeal: Annulment of the decision under appeal and dismissal of the opposition.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) since there is a likelihood of confusion between the conflicting marks.

---

(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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| 26.1.2008 | EN | Official Journal of the European Union | C 22/48 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/48

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Action brought on 22 November 2007 — Centre d'Étude et de Valorisation des Algues v Commission

(Case T-428/07)

(2008/C 22/90)

Language of the case: French

Parties

Applicant: Centre d'Étude et Valorisation des Algues SA (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | as the principal claim, find procedural irregularity and breach of the principle that both parties should be heard and therefore annul Commission debit note No 3240908670 of 20 September 2007 and order the Commission to repay the debit note at issue to CEVA; |
| --- | --- |

—

as the principal claim, find procedural irregularity and breach of the principle that both parties should be heard and therefore annul Commission debit note No 3240908670 of 20 September 2007 and order the Commission to repay the debit note at issue to CEVA;

| — | in the alternative, find that the errors found in the audit report are not sufficiently serious for Article 3.5 of Annex II to the contract to be applied; annul Commission debit note No 3240908670 of 20 September 2007 in so far as it claims full repayment of the sums paid to CEVA under the SEAHEALTH contract; and order the Commission to repay the debit note at issue in favour of CEVA; |
| --- | --- |

—

in the alternative, find that the errors found in the audit report are not sufficiently serious for Article 3.5 of Annex II to the contract to be applied; annul Commission debit note No 3240908670 of 20 September 2007 in so far as it claims full repayment of the sums paid to CEVA under the SEAHEALTH contract; and order the Commission to repay the debit note at issue in favour of CEVA;

| — | in the further alternative, appoint an expert of the Court of First Instance's own choice with the task of: taking up again CEVA's method of calculating the time spent on projects; comparing that method with the SEAHEALTH contract and with the actual costs submitted in the cost statements; stating, as a percentage, the difference between the total errors in the registration of work time as presented to the Commission and the total registration of that work time according to the calculation method applicable from that time on at CEVA; carrying out an assessment of the direct working time needed to carry out CEVA's tasks in the context of the SEAHEALTH contract; and stating whether that effective working time could have amounted to fewer than the 7 092,88 hours claimed by CEVA. |
| --- | --- |

—

in the further alternative, appoint an expert of the Court of First Instance's own choice with the task of: taking up again CEVA's method of calculating the time spent on projects; comparing that method with the SEAHEALTH contract and with the actual costs submitted in the cost statements; stating, as a percentage, the difference between the total errors in the registration of work time as presented to the Commission and the total registration of that work time according to the calculation method applicable from that time on at CEVA; carrying out an assessment of the direct working time needed to carry out CEVA's tasks in the context of the SEAHEALTH contract; and stating whether that effective working time could have amounted to fewer than the 7 092,88 hours claimed by CEVA.

Pleas in law and main arguments

By this action, the applicant seeks annulment of the debit note by which the Commission ordered the repayment in full of the advances paid to the applicant in relation to the SEAHEALTH contract No QLK1-CT-2002-02433, concerning the project ‘Food, Nutrition and Health’ which was part of the ‘Quality of Life and Management of Living Resources’ key action (1).

In support of its application, it relies on a plea in law alleging breach of the rights of the defence inasmuch as the Commission, in breach of the principle that both parties should be heard, based its order for repayment on the timesheets and conclusions of OLAF of which the applicant had no knowledge.

In the alternative, the applicant challenges the Commission's application of Article 3.5 of Annex II and its finding that the facts in this case were sufficiently serious for it to rely on the concept of serious financial irregularities justifying full repayment of the advances.

---

(1)  Fifth framework programme of the European Community for research, technological development and demonstration activities (1998-2002).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/48 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/48

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Action brought on 23 November 2007 — Bodegas Montebello v OHIM — Montebello (MONTEBELLO RHUM AGRICOLE)

(Case T-430/07)

(2008/C 22/91)

Language in which the application was lodged: Spanish

Parties

Applicant: Bodegas Montebello, S.A. (Montilla, Spain) (represented by: T. Andrade Boué, M.I. Lehmann Novo, and A. Hernández Lehmann, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Montebello (limited company) (Guadalupe, France)

Form of order sought

| — | annulment of OHIM's decision of 7 September 2007 in Case R 223/2007-2; |
| --- | --- |

—

annulment of OHIM's decision of 7 September 2007 in Case R 223/2007-2;

| — | rejection of Community trade mark No 2.666.386; |
| --- | --- |

—

rejection of Community trade mark No 2.666.386;

| — | order OHIM to pay the costs including those of the intervener. |
| --- | --- |

—

order OHIM to pay the costs including those of the intervener.

Pleas in law and main arguments

Applicant for a Community trade mark: Montebello (limited company)

Community trade mark concerned: figurative mark ‘MONTEBELLO Rhum Agricole’ (application No 2.266.386) for goods in Class 33 (alcoholic beverages, except beers).

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

Mark or sign cited in opposition: Spanish word mark ‘MONTEBELLO’ (No 1.148.196) for goods in Class 33.

Decision of the Opposition Division: opposition upheld.

Decision of the Board of Appeal: decision of the Opposition Division upheld and annulled.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/49 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/49

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Action brought on 29 November 2007 — France v Commission

(Case T-432/07)

(2008/C 22/92)

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues and A.-L. During, Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission Decision 2007/647/EC of 3 October 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (1), in so far as it excludes certain expenditure incurred by the applicant for producers' organisations in the fruit and vegetable sector in respect of the financial years 2003 and 2004; |
| --- | --- |

—

annul Commission Decision 2007/647/EC of 3 October 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (1), in so far as it excludes certain expenditure incurred by the applicant for producers' organisations in the fruit and vegetable sector in respect of the financial years 2003 and 2004;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of the contested decision on the ground that the Commission wrongly interpreted and applied Article 11 of Council Regulation No 2200/96 (2) in finding that the French Government had failed to observe the conditions laid down in that provision for the recognition of producers' organisations in the fruit and vegetable sector.

---

(1)  Notified under document number C(2007) 4477, OJ 2007 L 261, p. 28.

(2)  Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297, p. 1)

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/49 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/49

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Action brought on 22 November 2007 — Ryanair v Commission

(Case T-433/07)

(2008/C 22/93)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | To declare in accordance with Article 232 EC that the Commission has failed to act pursuant to its obligations under the EC Treaty by not having defined a position with respect to the applicant's complaint lodged with the Commission on 22 December 2006 followed by a letter of formal notice of 2 August 2007; |
| --- | --- |

—

To declare in accordance with Article 232 EC that the Commission has failed to act pursuant to its obligations under the EC Treaty by not having defined a position with respect to the applicant's complaint lodged with the Commission on 22 December 2006 followed by a letter of formal notice of 2 August 2007;

| — | to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible; |
| --- | --- |

—

to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible;

| — | to take such further action as the Court may deem appropriate. |
| --- | --- |

—

to take such further action as the Court may deem appropriate.

Pleas in law and main arguments

The applicant claims that the Commission has failed to act by not having defined its position, after having been invited to do so, under Article 232 EC, on the basis of the applicant's complaint filed on 22 December 2006, regarding unlawful aid granted by Greece to Olympic Airlines and Olympic Airways Services (‘OA/OAS’) following an arbitration ruling of the Greek Supreme Court, ordering the Greek State to pay OA/OAS EUR 563 million for allegedly unpaid services and the cost of relocation to Athens' new airport.

The applicant puts forward that the difference between the amounts owed by the Greek State to OA/OAS as approximately assessed in Commission Decision 2003/372/EC (1) and the compensation for damages awarded to OA/OAS by the ruling of 20 December 2006 constitutes an advantage within the meaning of state aid rules, granted to the company. The grant of such advantage is attributable, according to the applicant, to the Greek State because the arbitration Court has acted as an organ of the State.

The applicant further submits that the Commission was under a duty to carry out a diligent and impartial examination of the complaint received in order to either adopt a decision declaring that the State measures did not amount to aid within the meaning of Article 87(1) EC, or that those measures were to be classified as aid within the meaning of the said provision but were compatible with the common market under Article 87(2) and (3) EC, or to initiate a procedure under Article 88(2) EC.

The applicant further submits that the period of seven months which elapsed between the applicant's complaint and its letter of formal notice was unreasonably long, and the inaction of the Commission during that period constitutes failure to act within the meaning of Article 232 EC.

---

(1)  Commission Decision 2003/372/EC of 11 December 2002 on aid granted by Greece to Olympic Airways (notified under document number C(2002) 4831) (OJ, L 132, p. 1).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/50 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/50

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Appeal brought on 30 November 2007 by Nikos Giannopoulos against the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06, Giannopoulos v Council

(Case T-436/07 P)

(2008/C 22/94)

Language of the case: French

Parties

Appellant: Nikos Giannopoulos (Wezembeek-Oppem, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, Lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

| — | declare the present appeal admissible; |
| --- | --- |

—

declare the present appeal admissible;

| — | annul the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06; |
| --- | --- |

—

annul the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06;

| — | uphold the claims for annulment and for compensation submitted by the appellant at first instance; |
| --- | --- |

—

uphold the claims for annulment and for compensation submitted by the appellant at first instance;

| — | order the defendant at first instance to pay all the costs of the proceedings at first instance and on appeal. |
| --- | --- |

—

order the defendant at first instance to pay all the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

In support of his appeal, the appellant puts forward pleas in law alleging failures to state reasons and manifest errors of assessment in the response given by the Civil Service Tribunal in relation to the first plea in law, alleging breach of Article 31(2) of the Staff Regulations, which the appellant put forward in the proceedings at first instance.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/50 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/50

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Action brought on 5 December 2007 — Huta Buczek v Commission

(Case T-440/07)

(2008/C 22/95)

Language of the case: Polish

Parties

Applicant: Huta Buczek sp. z o.o. (Sosnowiec, Poland) (represented by: D. Szlachetko-Reiter, legal adviser)

Defendant: Commission of the European Communities

Form of order sought

| — | declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek; |
| --- | --- |

—

declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek;

| — | in the alternative, declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as the Commission orders recovery to be effected from the company Huta Buczek sp. z o.o.; |
| --- | --- |

—

in the alternative, declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as the Commission orders recovery to be effected from the company Huta Buczek sp. z o.o.;

| — | declare invalid Articles 4 and 5 of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as those provisions concern the effecting of recovery from Huta Buczek sp. z o.o.; |
| --- | --- |

—

declare invalid Articles 4 and 5 of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as those provisions concern the effecting of recovery from Huta Buczek sp. z o.o.;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of its heads of claim, the applicant puts forward the following pleas in law:

| — | Breach of Articles 88(2) EC and 87(1) EC by reason of what the applicant considers to be an erroneous assumption that a situation consisting in the existence of public-law arrears on the part of the company Technologie Buczek S.A. constitutes aid that is contrary to the common market. The applicant submits that such an assertion on the part of the Commission results from an erroneous assumption that the public-law authorities had desisted from enforcement proceedings against the company Technologie Buczek S.A. The breach of Articles 88(2) EC and 87(1) EC has also resulted, the applicant argues, from the fact that the Polish State was ordered to secure recovery of aid declared incompatible with the common market, even though Poland did not grant aid in the amount indicated in the decision to either the company Technologie Buczek S.A. or the group Technologie Buczek, and from the fact that the amount of aid to be returned was fixed at an arbitrary level without any foundation in law or economic justification. The applicant further submits that Articles 88(2) EC and 87(1) EC were infringed by reason of the fact that the Polish State was ordered to secure reimbursement of aid from the company Huta Buczek sp. z o.o. notwithstanding the fact that there was no basis for assuming that that company could have been the actual beneficiary of aid granted to the company Technologie Buczek S.A and despite the fact that that aid was not granted to it, and by reason of the acknowledgement that the only actual beneficiaries of the alleged aid were the companies Huta Buczek sp. z o.o. and Buczek Automotive sp. z o.o., even though they benefited only from a portion of the assets of the company Technologie Buczek S.A. |
| --- | --- |

—

Breach of Articles 88(2) EC and 87(1) EC by reason of what the applicant considers to be an erroneous assumption that a situation consisting in the existence of public-law arrears on the part of the company Technologie Buczek S.A. constitutes aid that is contrary to the common market. The applicant submits that such an assertion on the part of the Commission results from an erroneous assumption that the public-law authorities had desisted from enforcement proceedings against the company Technologie Buczek S.A. The breach of Articles 88(2) EC and 87(1) EC has also resulted, the applicant argues, from the fact that the Polish State was ordered to secure recovery of aid declared incompatible with the common market, even though Poland did not grant aid in the amount indicated in the decision to either the company Technologie Buczek S.A. or the group Technologie Buczek, and from the fact that the amount of aid to be returned was fixed at an arbitrary level without any foundation in law or economic justification. The applicant further submits that Articles 88(2) EC and 87(1) EC were infringed by reason of the fact that the Polish State was ordered to secure reimbursement of aid from the company Huta Buczek sp. z o.o. notwithstanding the fact that there was no basis for assuming that that company could have been the actual beneficiary of aid granted to the company Technologie Buczek S.A and despite the fact that that aid was not granted to it, and by reason of the acknowledgement that the only actual beneficiaries of the alleged aid were the companies Huta Buczek sp. z o.o. and Buczek Automotive sp. z o.o., even though they benefited only from a portion of the assets of the company Technologie Buczek S.A.

| — | Infringement of the principle of proper administrative procedure laid down in Article 253 EC and Article 41 of the Charter of Fundamental Rights on the grounds of: lack of appropriate reasoning for the decision such as to allow the applicant to determine why the decision was adopted and, consequently, the issue of a decision that was essentially incomprehensible to the applicant and incomprehensible by reason of the erroneous and inadequate determination of the factual circumstances material to the case. |
| --- | --- |

—

Infringement of the principle of proper administrative procedure laid down in Article 253 EC and Article 41 of the Charter of Fundamental Rights on the grounds of: lack of appropriate reasoning for the decision such as to allow the applicant to determine why the decision was adopted and, consequently, the issue of a decision that was essentially incomprehensible to the applicant and incomprehensible by reason of the erroneous and inadequate determination of the factual circumstances material to the case.

| — | Breach of the third paragraph of Article 5 EC and infringement of the principle of proportionality resulting therefrom by reason of the imposition on the company Huta Buczek sp. z o.o. of the obligation to reimburse the aid, even though, in the view of the applicant, such action is neither appropriate nor necessary in order to attain the objectives set out in the Treaty, including in particular the fact that it is not based on any need to cancel aid that is incompatible with the common market. |
| --- | --- |

—

Breach of the third paragraph of Article 5 EC and infringement of the principle of proportionality resulting therefrom by reason of the imposition on the company Huta Buczek sp. z o.o. of the obligation to reimburse the aid, even though, in the view of the applicant, such action is neither appropriate nor necessary in order to attain the objectives set out in the Treaty, including in particular the fact that it is not based on any need to cancel aid that is incompatible with the common market.

| — | Infringement of the principle of legal certainty by reason of the following: imposition, on a party which entered into a contract with an individual in arrears of payment towards public authorities, of the obligation to return aid which that party never received and from which it never benefited; determination, in a manner which the applicant considers to be arbitrary, of the extent to which persons within the group Technologie Buczek S.A. benefited from the aid allegedly distributed; infringement of the right to property by reason of the order to secure recovery of part of the State aid from a person who did not receive any aid whatsoever and was also not the actual beneficiary; misuse of powers by reason of the publication of a decision for a purpose other than to cancel aid incompatible with the common market. |
| --- | --- |

—

Infringement of the principle of legal certainty by reason of the following: imposition, on a party which entered into a contract with an individual in arrears of payment towards public authorities, of the obligation to return aid which that party never received and from which it never benefited; determination, in a manner which the applicant considers to be arbitrary, of the extent to which persons within the group Technologie Buczek S.A. benefited from the aid allegedly distributed; infringement of the right to property by reason of the order to secure recovery of part of the State aid from a person who did not receive any aid whatsoever and was also not the actual beneficiary; misuse of powers by reason of the publication of a decision for a purpose other than to cancel aid incompatible with the common market.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/51 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/51

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Order of the Court of First Instance of 6 December 2007 — Microsoft v Commission

(Case T-271/06) (1)

(2008/C 22/96)

Language of the case: English

The President of the Court of First Instance (Seventh Chamber) has ordered that the case be removed from the register.

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(1)  OJ C 294, 2.12.2006.

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European Union Civil Service Tribunal

| 26.1.2008 | EN | Official Journal of the European Union | C 22/52 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/52

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Judgment of the Civil Service Tribunal of 13 December 2007 — Wandschneider v Commission

(Case F-65/05) (1)

(Staff case - Officials - Appraisal - Career development report - Appraisal for the year 2003 - Action for annulment - Reasons - Manifest error of assessment)

(2008/C 22/97)

Language of the case: French

Parties

Applicant: Paolo Sequeira Wandschneider (Brussels, Belgium) (represented originally by G. Vandersanden and C. Ronzi, lawyers, and then by G. Vandersanden, C. Ronzi and L. Levi, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and H. Tserepa-Lacombe, Agents)

Re:

Annulment of the applicant's career development report for the appraisal year 2003 and also a claim for damages

Operative part of the judgment

The Tribunal:

| 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 229 of 17.9.2005, p. 32 (Case originally registered before the Court of First Instance of the European Communities under number T-282/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/52 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/52

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Judgment of the Civil Service Tribunal of 13 December 2007 — N v Commission of the European Communities

(Case F-95/05) (1)

(Staff case - Temporary agents - Recruitment - Post of head of administration - Non-member country - Unfavourable opinion of the medical service)

(2008/C 22/98)

Language of the case: French

Parties

Applicant: N (Brussels) (originally represented by K.H. Hagenaar, lawyer, then by J. van Drooghenbroeck and T. Demaseure, lawyers, and finally by I. Kletzlen, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and K. Herrmann, Agents)

Re:

Annulment of the Commission's decision not to recruit the applicant as a temporary agent to the post of head of administration in Guinea Conakry as a result of the unfavourable opinion of the medical service and a claim for damages

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the Director of Directorate K ‘External service’ of Directorate-General ‘External Relations’ of the Commission of the European Communities of 15 April 2005, informing the applicant that she would not be recruited as head of administration of the delegation in Guinea; |
| --- | --- |

1.

Annuls the decision of the Director of Directorate K ‘External service’ of Directorate-General ‘External Relations’ of the Commission of the European Communities of 15 April 2005, informing the applicant that she would not be recruited as head of administration of the delegation in Guinea;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

3.

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

---

(1)  OJ C 10 of 14.1.2006, p. 2 (Case originally registered at the Court of First Instance of the European Communities under T-377/05 and transferred to the European Union Civil Service Tribunal by order of 15 December 2005).

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/53 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/53

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Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Soares v Commission

(Case F-130/05) (1)

(Staff case - Officials - Reconstitution of career - Absence of staff reports - Comparative examination of merits - Request under Article 90(1) of the Staff Regulations - Admissibility of the action - New and substantial fact)

(2008/C 22/99)

Language of the case: French

Parties

Applicant: Carlos Alberto Soares (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and K. Herrmann)

Re:

Annulment of the decision of the appointing authority of 19 September 2005 rejecting the applicant's claim for a favourable reconstitution of his career.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 60 of 11.3.2006, p. 57.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/53 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/53

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Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Wandschneider v Commission

(Case F-28/06) (1)

(Staff case - Officials - Assessment - Career development report - Assessment year 2004 - Action for annulment - Grounds - Manifest error of assessment)

(2008/C 22/100)

Language of the case: French

Parties

Applicant: Paolo Sequeira Wandschneider (Brussels, Belgium) (represented: initially by G. Vandersanden and C. Ronzi, lawyers, then by G. Vandersanden, C. Ronzi and L. Levi, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and C. Berardis-Kayser, agents)

Re:

Annulment of the applicant's career development report for the assessment year 2004 and, secondly, a claim for damages.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 121 of 20.5.2006, p. 19.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/53 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/53

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Judgment of the Civil Service Tribunal of 13 December 2007 — Asa Sundholm v Commission of the European Communities

(Case F-42/06) (1)

(Staff case - Officials - Appraisal - Career development report - Appraisal for the year 2004 - Objectives of and criteria for appraisal - Damages)

(2008/C 22/101)

Language of the case: French

Parties

Applicant(s): Asa Sundholm (Brussels, Belgium) (represented by represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal)

Defendant: Commission of the European Communities (represented by C. Berardis-Kayser and M. Velardo, Agents.)

Re:

Annulment of the applicant's career development report for the year 2004 and a claim for damages

Operative part of the judgment

The Tribunal:

| 1. | Annuls Ms Sundholm's career development report for the period from 1 January to 31 December 2004; |
| --- | --- |

1.

Annuls Ms Sundholm's career development report for the period from 1 January to 31 December 2004;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

3.

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

---

(1)  OJ C 131 of 3.6.2006, p. 54.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/54 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/54

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Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Van Neyghem v Commission

(Case F-73/06) (1)

(Staff case - Officials - Open competition - Assessment of the written test - Time-limit for lodging a complaint - Admissibility - Duty to state reasons)

(2008/C 22/102)

Language of the case: French

Parties

Applicant: Kris Van Neyghem (Vissenaken, Belgium) (represented: initially by S. Rodrigues, A. Jaume and C. Bernard-Glanz, lawyers, then by S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities (represented by: V. Joris and M. Velardo)

Re:

Annulment of the EPSO decision of 1 June 2005 not to admit the applicant to the oral test of Competition EPSO/A/19/04 by reason of the insufficient result of his written test, and, secondly, a claim for damages.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 190 of 12.8.2006, p. 37.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/54 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/54

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Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Basili v Commission

(Case F-108/06) (1)

(Staff case - Officials - Assessment - Career development report - Assessment year 2004 - Action for annulment - Staff representatives - Opinion of the ad hoc working party)

(2008/C 22/103)

Language of the case: French

Parties

Applicant: Tamara Diomede Basili (Brussels, Belgium) (represented: initially by T. Bontinck and J. Feld, lawyers, then by T. Bontinck, lawyer)

Defendant: Commission of the European Communities (represented by: D. Martin and H. Kraemer, agents)

Re:

Annulment of the career development report notified to the applicant on 10 November 2005, in so far as it did not take into account the opinion of the ‘ad hoc working party and the staff representatives' suggestions for promotion’.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 261 of 28.10.2006, p. 37.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/54 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/54

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Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 — Sundholm v Commission

(Case F-27/07) (1)

(Staff case - Officials - Appraisal - Career development report - Appraisal year 2001/2002 - Absence on medical grounds - Enforcement of a judgment of the Court of First Instance - Article 233 EC)

(2008/C 22/104)

Language of the case: French

Parties

Applicant: Asa Sundholm (Auderghem, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal)

Defendant: Commission of the European Communities (represented by C. Berardis-Kayser and M. Velardo, Agents)

Re:

Annulment of the applicant's career development report for the period from 1 July 2001 to 31 December 2002, made in compliance with the judgment of the Court of First Instance of 20 April 2005 in Case T-86/04 Sundholm v Commission. Claim for damages.

Operative part of the judgment

The Tribunal:

| 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 117 of 29.5.2007, p. 37.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/55 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/55

---

Order of the Civil Service Tribunal (First Chamber) of 6 December 2007 — Marcuccio v Commission

(Case F-40/06) (1)

(Staff cases - Officials - Request for information on personal effects dispatched from the place of employment to the place of residence - No need to adjudicate - Application for damages manifestly unfounded)

(2008/C 22/105)

Language of the case: Italian

Parties

Applicant:Luigi Marcuccio (Tricase, Italy) (represented by: V. Messa, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, agents, and A. Dal Ferro, lawyer)

Re:

First, application for annulment of the implied decision rejecting the applicant's request for a copy of the consignment note relating to the dispatch of his personal effects from Angola to Italy and, second, an application for damages.

Operative part of the order

| 1. | There is no need to adjudicate on the claims for annulment; |
| --- | --- |

1.

There is no need to adjudicate on the claims for annulment;

| 2. | The claims for compensation are rejected as manifestly unfounded; |
| --- | --- |

2.

The claims for compensation are rejected as manifestly unfounded;

| 3. | Mr Marcuccio shall bear his own costs and all the costs incurred by the Commission of the European Communities. |
| --- | --- |

3.

Mr Marcuccio shall bear his own costs and all the costs incurred by the Commission of the European Communities.

---

(1)  OJ C 143, 17.6.2006, p. 37.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/55 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/55

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Order of the Civil Service Tribunal (First Chamber) of 19 October 2007 — M v Agence européenne des médicaments (EMEA)

(Case F-23/07) (1)

(Staff cases - Officials - Invalidity - Invalidity Committee - Refusal to convene - Manifest inadmissibility)

(2008/C 22/106)

Language of the case: French

Parties

Applicant: M (London, United Kingdom) (represented by: S. Orlandi, A. Cohen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Agence européenne des médicaments (EMEA) (represented by: V. Salvatore and S. Vanlievendael, agents)

Re:

Application for annulment of the decision of the EMEA of 25 October 2006 rejecting the application brought by the applicant for an Invalidity Committee to be convened — Application for damages.

Operative part of the order

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

1.

The action is dismissed as inadmissible;

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 117, 26.5.2007, p. 35.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/55 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/55

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Action brought on 28 September 2007 — Bernard v Europol

(Case F-99/07)

(2008/C 22/107)

Language of the case: Dutch

Parties

Applicant: Marjorie Bernard (Woerden, Netherlands) (represented by: P. de Casparis, lawyer)

Defendant: European Police Office (Europol)

Form of order sought

| — | Annul the decision of 26 June 2007, notified on 28 June 2007, concerning the complaint, and the assessments of 5 February 2007 and 25 July 2007; |
| --- | --- |

—

Annul the decision of 26 June 2007, notified on 28 June 2007, concerning the complaint, and the assessments of 5 February 2007 and 25 July 2007;

| — | Order Europol:






  — | to grant the applicant an increase in monthly salary with effect from 1 September 2006, together with interest; |
| --- | --- | --- |

—

Order Europol:

—

to grant the applicant an increase in monthly salary with effect from 1 September 2006, together with interest;

| — | to pay damages in the amount of EUR 7 500 net; |
| --- | --- |

—

to pay damages in the amount of EUR 7 500 net;

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

—

Order Europol to pay the costs.

Pleas in law and main arguments

The present proceedings relate to the assessment of the applicant's work during the period from 1 September 2005 to 31 August 2006. The applicant's work was assessed as a ‘2’, which corresponds to the criterion ‘does not entirely meet the standard required’.

The applicant made a complaint concerning the assessment and the lack of any decision regarding the award of an increase in monthly salary and, in that context, she relied on the assessment guidelines in force in Europol. The applicant submits that the assessment is manifestly incorrect.

The applicant submits in particular that her complaints were declared unfounded by a decision of 26 June 2007 and alleges breach of the principle of the duty to state reasons since no reasons were stated for that decision. Nevertheless, the Director of Europol points out that the assessment was withdrawn and that a fresh assessment was to be made. That assessment took place on 25 July 2007.

The present action therefore relates to the decision made on the complaint and the assessment of 25 July 2007.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/56 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/56

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Action brought on 15 October 2007 — Bart Nijs v European Court of Auditors

(Case F-108/07)

(2008/C 22/108)

Language of the case: French

Parties

Applicant(s): Bart Nijs (Bereldange, Luxembourg) (represented by: F. Rollinger, lawyer)

Defendant: European Court of Auditors

Form of order sought

| — | annul the decision of the European Court of Auditors to renew the mandate of the Secretary General of the Court of Auditors for a further period of six years from 1 July 2007 |
| --- | --- |

—

annul the decision of the European Court of Auditors to renew the mandate of the Secretary General of the Court of Auditors for a further period of six years from 1 July 2007

| — | in the alternative, annul the two measures allegedly constituting ‘decisions of the appointing authority’ of 8 December 2006 implementing the judgment of the Court of First Instance of 3 October 2006 in Case T-171/05, and of 12 July 2007, rejecting the applicant's complaint of 12 March 2007 |
| --- | --- |

—

in the alternative, annul the two measures allegedly constituting ‘decisions of the appointing authority’ of 8 December 2006 implementing the judgment of the Court of First Instance of 3 October 2006 in Case T-171/05, and of 12 July 2007, rejecting the applicant's complaint of 12 March 2007

Pleas in law and main arguments

In support of his action, the applicant relies in particular on the following facts: (i) the Secretary General of the Court of Auditors acted unlawfully; rather than referring the matter to the Anti-Fraud Office, he expressly refused to take measures or to examine the question when he had been informed, with documentary evidence, of the existence of a fraud to the detriment of the invalidity pensions system; (ii) an official exercised his powers in an unlawful manner; (iii) promotion decisions and their dates were repeatedly not published; (iv) the staff committee elections of 2004 and 2006 were unlawful for a number of reasons; (v) there were many instances of misuse of the promotion procedure, of usurpation of the power to appoint allowed to a head of unit, and of personal interests likely to compromise the independence of the appointing authority in nearly all its decisions; (vi) the ‘decisions of the appointing authority’ emanated from the personal interests of all the applicant's hierarchical superiors, from the concealment of the call to a colleague to exercise superior functions on an interim basis, and from failure to refer the matter to the Anti-Fraud Office; (vii) the appointing authority based the contested decisions on the same series of manifest errors as the intial decisions, which they confirm, relying on a judgment that does not have the force of res judicata and without refuting any of the applicant's arguments; (viii) the committees also involved in the assessment and promotion procedure were not informed of the compromised independence of the applicant's hierarchical superiors.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/56 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/56

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Action brought on 23 October 2007 — Behmer v Parliament

(Case F-124/07)

(2008/C 22/109)

Language of the case: French

Parties

Applicant: Joachim Behmer (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

| — | Annul the decision of the appointing authority of the European Parliament awarding two promotion points to the applicant for 2005; |
| --- | --- |

—

Annul the decision of the appointing authority of the European Parliament awarding two promotion points to the applicant for 2005;

| — | Annul the decision of the appointing authority not to promote the applicant to grade AD 13 in 2006; |
| --- | --- |

—

Annul the decision of the appointing authority not to promote the applicant to grade AD 13 in 2006;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official at the European Parliament in grade AD 12, alleges above all the unlawfulness of the decisions of the appointing authority, firstly, to award the applicant two promotion points for 2005 and, secondly, not to promote him to grade AD 13 in 2006.

The applicant submits that there was a manifest error of assessment, breach of the duty to state reasons, breach of point I.6 of the implementing measures relating to the attribution of promotion points and promotion and breach of the general principles that recruited officials are entitled to reasonable career prospects and of equal treatment.

In particular, he submits that there is infringement of Article 45 and Article 110(1) of the Staff Regulations, and puts forward pleas of illegality and of breach of the principle of the protection of legitimate expectations.

Finally, the applicant claims that he suffered discrimination because of his activities representing the staff, in breach of Article 1d and of Article 24b of the Staff Regulations, of the sixth paragraph of Article 1 of Annex II to the Staff Regulations and of Article 17 of the framework agreement of 12 July 1990 between the European Parliament and the trade unions or professional organisations of the staff of the institution.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/57 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/57

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Action brought on 30 October 2007 — Van Beers v Commission

(Case F-126/07)

(2008/C 22/110)

Language of the case: French

Parties

Applicant: Isabelle Van Beers (Woluwe-St-Etienne, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of the appointing authority rejecting the applicant's application under the attestation procedure for 2006; |
| --- | --- |

—

Annul the decision of the appointing authority rejecting the applicant's application under the attestation procedure for 2006;

| — | Declare Article 4(2) of the general implementing provisions (GIP) of Article 45a of the Staff Regulations unlawful, inasmuch as it has the effect either of excluding from consideration the true level of the tasks carried out by a candidate for attestation or of maintaining a distinction between the former grades C* and B* since 30 April 2006; |
| --- | --- |

—

Declare Article 4(2) of the general implementing provisions (GIP) of Article 45a of the Staff Regulations unlawful, inasmuch as it has the effect either of excluding from consideration the true level of the tasks carried out by a candidate for attestation or of maintaining a distinction between the former grades C* and B* since 30 April 2006;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official in grade AST 6, lodged an application under the attestation procedure for 2006. On 29 March 2007, the appointing authority definitively confirmed its decision of 22 February 2007, after an appeal by the applicant against that decision, not to admit her application under the attestation procedure for 2006.

In support of her action, the applicant claims, firstly, that there has been a manifest error of assessment.

She submits, furthermore, that Article 4(2) of the GIP of Article 45a of the Staff Regulations is unlawful.

In particular, the applicant alleges breach of the principles of equal treatment, of non-discrimination and of proportionality, breach of the principle of sound administration and the principle that recruited officials are entitled to reasonable career prospects, as well as the principle of the protection of legitimate expectations.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/57 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/57

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Action brought on 30 October 2007 — Coto Moreno v Commission

(Case F-127/07)

(2008/C 22/111)

Language of the case: French

Parties

Applicant: Juana Maria Coto Moreno (Gaborone, Botswana) (represented by: K. Lemmens and C. Doutrelepont, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of 12 February 2007 by which the selection board for competition EPSO/AD/28/05 refused to include the applicant in the reserve list for that competition, and consequently:






  — | award her damages and interest of EUR 25 000 as compensation for non-material loss; |
| --- | --- | --- |

—

Annul the decision of 12 February 2007 by which the selection board for competition EPSO/AD/28/05 refused to include the applicant in the reserve list for that competition, and consequently:

—

award her damages and interest of EUR 25 000 as compensation for non-material loss;

| — | award her damages to cover legal fees estimated at EUR 8 000 as shown in the attached document; |
| --- | --- |

—

award her damages to cover legal fees estimated at EUR 8 000 as shown in the attached document;

| — | declare, principally, that the competent authorities must adopt all appropriate measures fairly to compensate for the disadvantage caused by the annulled measure, that is to say the inclusion of the applicant in the reserve list or |
| --- | --- |

—

declare, principally, that the competent authorities must adopt all appropriate measures fairly to compensate for the disadvantage caused by the annulled measure, that is to say the inclusion of the applicant in the reserve list or

| — | award the applicant, failing such inclusion, in the alternative, compensation by way of damages and interest for her material loss in the amount of EUR 384 000; |
| --- | --- |

—

award the applicant, failing such inclusion, in the alternative, compensation by way of damages and interest for her material loss in the amount of EUR 384 000;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant participated in the EPSO/AD/28/05 competition. The competition selection board refused to include the applicant in the reserve list for that competition by decision of 12 February 2007, which the applicant seeks to have annulled.

In support of her action, the applicant raises four pleas in law:

The first plea alleges, principally, a manifest error of appraisal either alone or in conjunction with a failure to state reasons and/or breach of the principle patere legem quam ipse fecisti. The selection board, whose position in that regard is ambiguous, took the view that the applicant gave ‘sufficient’ answers which nevertheless had weak points. That was manifestly not the case, particularly as the applicant answered in accordance with the Commission rules.

The second plea alleges, also principally, breach of the notice of competition and of the principle of equality either alone or in conjunction with compliance with the principle of reasonableness.

The third plea, also principally, alleges breach of the duty to state reasons in that the applicant clearly asked the selection board why an answer which she gave in the oral test was considered incorrect or at least insufficient. The applicant has not received any response despite the duty to state reasons.

Finally and in the alternative, the applicant alleges a manifest error of appraisal either alone or in conjunction with the principle of equality and the principle of proportionality. The mark awarded was, in addition, disproportionate in relation to the results (she was given the mark of 25/50) and is in breach of the principle of equality since the applicant was treated like any other candidate who gave answers considered sufficient, not only with regard to knowledge but also with regard to other criteria.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/58 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/58

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Order of the Civil Service Tribunal of 5 December 2007 — Moschonaki v European Foundation for the Improvement of Living and Working Conditions (EUROFOUND)

(Case F-3/07) (1)

(2008/C 22/112)

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register.

---

(1)  OJ C 56, 10.3.2007, p. 43.

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| 26.1.2008 | EN | Official Journal of the European Union | C 22/58 |
| --- | --- | --- | --- |

26.1.2008

EN

Official Journal of the European Union

C 22/58

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Order of the Civil Service Tribunal of 28 November 2007 — Karatzoglou v European Agency for Reconstruction (EAR)

(Case F-71/07) (1)

(2008/C 22/113)

Language of the case: English

The President of the First Chamber has ordered that the case be removed from the register.

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(1)  OJ C 269, 10.11.2007, p. 70.

---