# Official Journal C 60/11 M

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 60 |
| | |
| English edition | Information and Notices | Volume 4911 March 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 60

English edition

Information and Notices

Volume 4911 March 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 060/1 | Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-183/03 Federal Republic of Germany v Commission of the European Communities (EAGGF — Decision 2003/102/EC — Expenditure excluded from Community financing — Arable cultures sector) | 1 |
| 2006/C 060/2 | Judgment of the Court (Second Chamber) of 10 January 2006 in Case C-230/03: Reference for a preliminary ruling from the Bundesverwaltungsgericht Mehmet Sedef v Freie und Hansestadt Hamburg (EEC-Turkey Association — Freedom of movement for workers — Article 6 of Decision No 1/80 of the Association Council — Right to the extension of a residence permit — Conditions — Turkish national who was employed in the maritime shipping industry of a Member State for 15 years — Same employer for more than one year without interruption, but not up to the end of a period of three years — Periods of employment interrupted 17 times on account of the nature of the occupation) | 1 |
| 2006/C 060/3 | Judgment of the Court (Third Chamber) of 19 January 2006 in Case C-240/03 P: Comunità montana della Valnerina v Commission of the European Communities (Appeal — EAGGF — Withdrawal of financial aid — Article 24 of Regulation (EEC) No 4253/88 — Principle of proportionality — Statement of reasons — Rights of the defence — Cross-appeal — Designation of two persons to be responsible for the execution of a project — Claim on only one of them for repayment of all the aid — Discretionary power of the Commission — Objective limits of the proceedings before the Court of First Instance) | 2 |
| 2006/C 060/4 | Judgment of the Court (First Chamber) of 19 January 2006 in Case C-330/03: Reference for a preliminary ruling from the Tribunal Supremo:Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado (Freedom of movement for workers — Recognition of diplomas — Directive 89/48/EEC — Profession of engineer — Partial, restricted recognition of professional qualifications — Articles 39 EC and 43 EC) | 2 |
| 2006/C 060/5 | Judgment of the Court (First Chamber) of 12 January 2006 in Case C-494/03: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in Senior Engineering Investments BV v Staatssecretaris van Financiën (Directive 69/335 — Indirect taxes on the raising of capital — National rules taxing a (subsidiary) company by way of capital duty in respect of a contribution made by its parent company (the grandparent company) in favour of its subsidiary (a sub-subsidiary company) — Capital duty — Increase of capital — Payment to the share premium account — Increase in the assets of the company — Increase in the value of shares — Provision of services by a member — Payment made by a member of a member — Payment to a subsidiary — Real recipient — Levying of capital duty once only (in the Community) — Article 52 of the EC Treaty (now, after amendment, Article 43 EC) — Freedom of establishment — National practice exempting a (subsidiary) capital company from taxation only if its subsidiary (sub-subsidiary company) is also established in that Member State) | 3 |
| 2006/C 060/6 | Judgment of the Court (Grand Chamber) of 17 January 2006 in Case C-1/04 Reference for a preliminary ruling from the Bundesgerichtshof in Susanne Staubitz-Schreiber (Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Applicability in time — Court having jurisdiction) | 3 |
| 2006/C 060/7 | Judgment of the Court (Second Chamber) 12 January 2006 in Case C-132/04 Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Social policy — Protection of the safety and health of workers — Directive 89/391/EEC — Scope — Non-civilian personnel in public authorities — Armed forces and police — Included) | 4 |
| 2006/C 060/8 | Judgment of the Court (Sixth Chamber) of 12 January 2006 in Case C-139/04 Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Ambient air quality — Limit values) | 4 |
| 2006/C 060/9 | Judgment of the Court (First Chamber) of 12 January 2006 in Case C-173/04 P: Deutsche SiSi-Werke GmbH & Co. Betriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)(b) of Regulation (EC) No 40/94 — Three-dimensional shapes of stand-up pouches for fruit drinks and fruit juices — Absolute ground for refusal — Distinctive character) | 5 |
| 2006/C 060/0 | Judgment of the Court (First Chamber) of 19 January 2006 in Case C-244/04: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Article 49 EC — Freedom to provide services — Undertaking employing workers who are nationals of non-member States — Undertaking providing services in another Member State — Work visa regime) | 5 |
| 2006/C 060/1 | Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-246/04: Reference for a preliminary ruling from the Verwaltungsgerichtshof in Turn- und Sportunion Waldburg v Finanzlandesdirektion für Oberösterreich (Sixth VAT Directive — Article 13(B)(b) and (C)(a) — Exemption of leasing and letting of immovable property — Right of option in favour of taxable persons — Non-profit-making sports clubs — Conditions) | 6 |
| 2006/C 060/2 | Judgment of the Court (Third Chamber) of 19 January 2006 in Case C-265/04: Reference for a preliminary ruling from the Kammarrätten i Sundsvall in Margaretha Bouanich v Skatteverket (Direct taxation — Free movement of capital — Dividend tax — Share repurchase — Deductibility of the cost of acquisition of shares — Separate treatment of residents and non-residents — Agreement for the avoidance of double taxation) | 6 |
| 2006/C 060/3 | Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-311/04: Reference for a preliminary ruling from the Gerechtshof te Amsterdam in Algemene Scheeps Agentuur Dordrecht BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam (Common Customs Tariff — Tariff headings — Classification of consignments of rice — Additional Note 1(f) to Chapter 10 of the Combined Nomenclature — Validity — Post-clearance recovery of import duties — Article 220(2)(b) of the Community Customs Code — Interpretation — Good faith of the person liable for payment) | 7 |
| 2006/C 060/4 | Judgment of the Court (Grand Chamber) of 10 January 2006 in Case C-344/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division, The Queen on the application of International Air Transport Association, European Low Fares Airline Association v Department for Transport (Carriage by air — Regulation (EC) No 261/2004 — Articles 5, 6 and 7 — Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Validity — Interpretation of Article 234 EC) | 7 |
| 2006/C 060/5 | Judgment of the Court (First Chamber) of 12 January 2006 in Case C-361/04 P: Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso, Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Word mark PICARO — Opposition by the proprietor of the Community word mark PICASSO) | 8 |
| 2006/C 060/6 | Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-504/04: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin in Agrarproduktion Stabelow GmbH v Landrat des Landkreises Bad Doberan (Animal health — Prevention, control and eradication of certain transmissible spongiform encephalopathies — Slaughter of birth cohorts — Proportionality) | 8 |
| 2006/C 060/7 | Judgment of the Court (Fifth Chamber) of 12 January 2006 in Case C-37/05: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 85/337/EEC, as amended by Directive 97/11/EC — Assessment of the effects of projects on the environment — Consents granted without assessment) | 9 |
| 2006/C 060/8 | Judgment of the Court (Fifth Chamber) of 12 January 2006 in Case C-69/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Regulation (EC) No 659/1999 — State aid in the agricultural sector — Submission of annual reports during 2000 and 2001 — Guidelines for the assessment of State aid) | 9 |
| 2006/C 060/9 | Judgment of the Court (Sixth Chamber) of 12 January 2006 in Case C-85/05: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Community action in the field of water policy — Failure to transpose within the prescribed period ) | 10 |
| 2006/C 060/0 | Judgment of the Court (Sixth Chamber) of 19 January 2006 in Case C-90/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 79/1072/EEC — VAT — Refund — Taxable persons not established in the territory of the country) | 10 |
| 2006/C 060/1 | Judgment of the Court (Fifth Chamber) 12 January 2006 in Case C-107/05 Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Directive 2003/87/EC — Failure to transpose within the period prescribed) | 10 |
| 2006/C 060/2 | Judgment of the Court (Sixth Chamber) of 12 January 2006 in Case C-118/05: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Community policy in the field of water — Failure to transpose within the prescribed period) | 11 |
| 2006/C 060/3 | Judgment of the Court (Fifth Chamber) of 12 January 2006 in Case C-179/05 Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Regulation (EEC) No 2847/93 — Control system in the fisheries sector — Information on catches and fishing effort) | 11 |
| 2006/C 060/4 | Order of the Court (Sixth Chamber) of 17 November 2005 in Case C-121/04 P: Minoikes Grammes ANE (Minoan Lines SA) v Commission of the European Communities (Appeal — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Competition — Cartels — Agreements between undertakings — Proof of an undertaking's participation in meetings of undertakings with an anti-competitive purpose) | 12 |
| 2006/C 060/5 | Order of the Court (Fifth Chamber) of 23 September 2005 in Case C-357/04 P: Antonio Andolfi v Commission of the European Communities (Appeal — JOP Programme — Project to set up a joint Italo-Romanian company — Withdrawal of financial aid initially granted — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 12 |
| 2006/C 060/6 | Order of the Court (Second Chamber) of 1 December 2005 in Case C-447/04: Reference for a preliminary ruling from the Landesgericht Innsbruck in Autohaus Ostermann GmbH v VAV Versicherungs AG (Article 104(3) second subparagraph of the Rules of Procedure — Automobile civil liability insurance — Directive 2000/26/EC — Period for insurance undertaking to assess compensation claims) | 12 |
| 2006/C 060/7 | Order of the Court (Fourth Chamber) of 1 December 2005 in Case C-512/04 P Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Krafft SA (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Application for Community word mark VITAKRAFT — Opposition from the proprietor of national marks containing the word element krafft — Similarity between marks — Appeal manifestly inadmissible) | 13 |
| 2006/C 060/8 | Order of the Court (Third Chamber) of 24 November 2005 in Case C-5/05 SA: Maria Fernanda Gil do Nascimento and Others v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities) | 13 |
| 2006/C 060/9 | Order of the Court (Sixth Chamber) of 1 December 2005 in Case C-116/05: Reference for a preliminary ruling from the Tribunal de commerce de Nancy in Etablissements Dhumeaux et Cie SA, Société d'études et de commerce (SEC) v ALVBV SA, ALBV SA v Tragex Gel SA, Agence fédérale pour la sécurité de la chaîne alimentaire (AFSCA), formerly Institut d'expertise vétérinaire (IEV), ALBV SA v CIGMA International SA and ALBV SA v Jean Max Gustin in his capacity as administrator of Tragex Gel SA (Reference for a preliminary ruling — Inadmissibility) | 14 |
| 2006/C 060/0 | Order of the Court (Fifth Chamber) of 2 December 2005 in Case C-117/05: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat of the Landes Oberösterreich in Manfred Seidl v Bezirkshauptmannschaft Grieskirchen (Article 104(3), first subparagraph, of the Rules of Procedure — Freedom of movement for persons — Article 43 EC — Establishment of a driving school) | 14 |
| 2006/C 060/1 | Order of the Court (Fourth Chamber) of 13 December 2005 in Case C-177/05: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras in María Cristina Guerrero Pecino v Fondo de Garantía Salarial (Fogasa) (Reference for a preliminary ruling — First subparagraph of Article 104(3) of the Rules of Procedure — Social policy — Protection of workers in the event of the insolvency of their employer — Directive 80/987/EEC (amended by Directive 2002/74/EC) — Compensation agreed at the conciliation — Payment guaranteed by the guarantee institution — Payment subject to the adoption of a judicial decision) | 15 |
| 2006/C 060/2 | Case C-412/05 P: Appeal brought on 23 November 2005 by Alcon, INC against the judgment of the Court of First Instance (Third Chamber) of 22 September 2005 in Case T-130/03: Alcon, INC v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 15 |
| 2006/C 060/3 | Case C-430/05: Reference for a preliminary ruling from the Simvoulio tis Epikratias by order of that court of 31 August 2005 in Dionik Anonimi Etairia Emporias I/I, Logismikou & Parokhis Ipirision Mikhanografisis (Dionik A.E.) and Ioannis Mikhail Pikoulas v Epitropi Kefalaiagoras | 16 |
| 2006/C 060/4 | Case C-438/05: Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales), by Order of that court of 23 November 2005 in 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union v 1) Viking Line ABP 2) OU Viking Line Eesti | 16 |
| 2006/C 060/5 | Case C-442/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 3 November 2005 in Finanzamt Oschatz v Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien | 18 |
| 2006/C 060/6 | Case C-444/05: Reference for a preliminary ruling from the Diikitiko Protodikio Athinas by decision of that court of 30 December 2004 in Aikaterini Stamatelaki v Organismos Asfaliseos Eleftheron Epangelmation (O.A.E.E.) | 18 |
| 2006/C 060/7 | Case C-445/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 20 October 2005 in Werner Haderer v Finanzamt Wilmersdorf | 19 |
| 2006/C 060/8 | Case C-451/05: Reference for a preliminary ruling from the Cour de Cassation (France) by order of that court of 13 December 2005 in Elisa (Européenne et luxembourgeoise d'investissements SA) v Directeur général des Impôts, Direction des services généraux et de l'informatique and Ministère public | 19 |
| 2006/C 060/9 | Case C-453/05: Reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg by order of that court of 23 November 2005 in Volker Ludwig v Finanzamt Luckenwalde | 20 |
| 2006/C 060/0 | Case C-454/05P: Appeal brought on 22 December 2005 by the Republic of Austria against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04 | 20 |
| 2006/C 060/1 | Case C-455/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 1 December 2005 in Velvet & Steel Immobilien und Handels GmbH v Finanzamt Hamburg-Eimsbüttel | 21 |
| 2006/C 060/2 | Case C-457/05: Reference for a preliminary ruling from the Landgericht Wiesbaden by order of that court of 23 November 2005 in Schutzverband der Spirituosen-Industrie e.V. v Diageo Deutschland GmbH | 21 |
| 2006/C 060/3 | Case C-458/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 16 November 2005 in Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühlberger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur Savci, Elena Peter, Egon Schmäger, Mehmet Yaman, Dejan Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Schachenhofer, Herbert Weiss, Harald Kaineder, Ognen, Stajkovski and Jovica Vidovic v PPS Princess Personal Service GmbH | 22 |
| 2006/C 060/4 | Case C-460/05: Action brought on 23 December 2005 by the Republic of Poland against the European Parliament and the Council of the European Union | 22 |
| 2006/C 060/5 | Case C-462/05: Action brought on 22 December 2005 by the Commission of the European Communities against the Portuguese Republic | 23 |
| 2006/C 060/6 | Case C-465/05: Action brought on 23 December 2005 by the Commission of the European Communities against the Italian Republic | 24 |
| 2006/C 060/7 | Case C-2/06: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 21 November 2005 in Willy Kempter KG v Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung | 25 |
| 2006/C 060/8 | Case C-6/06 P: Appeal brought on 9 January 2006 by Cofradía de pescadores San Pedro de Bermeo and Others against the judgment of the Court of First Instance (Third Chamber) of 19 October 2005 in Case T-415/03 Cofradía de pescadores San Pedro de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic | 25 |
| 2006/C 060/9 | Case C-7/06 P: Appeal brought on 9 January 2006 by Beatriz Salvador García against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-205/02 Beatriz Salvador García v Commission of the European Communities | 26 |
| 2006/C 060/0 | Case C-8/06 P: Appeal brought on 9 January 2006 by Anna Herrero Romeu against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-298/02 Anna Herrero Romeu v Commission of the European Communities | 27 |
| 2006/C 060/1 | Case C-9/06 P: Appeal brought on 9 January 2006 by Tomás Salazar Brier against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-83/03 Tomás Salazar Brier v Commission of the European Communities | 27 |
| 2006/C 060/2 | Case C-10/06 P: Appeal brought on 9 January 2006 by Rafael De Bustamante Tello against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-368/03 Rafael De Bustamante Tello v Council of the European Union | 28 |
| 2006/C 060/3 | Case C-18/06: Action brought on 17 January 2006 by the Commission of the European Communities against the French Republic | 28 |
| 2006/C 060/4 | Case C-19/06: Action brought on 17 January 2006 by the Commission of the European Communities against the French Republic | 28 |
| 2006/C 060/5 | Case C-20/06: Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 29 |
| 2006/C 060/6 | Case C-21/06: Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 29 |
| 2006/C 060/7 | Case C-22/06: Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 30 |
| 2006/C 060/8 | Case C-39/06: Action brought on 24 January 2006 by Commission of the European Communities against the Federal Republic of Germany | 30 |
| 2006/C 060/9 | Case C-41/06: Action brought on 27 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 30 |
| 2006/C 060/0 | Case C-47/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 31 |
| 2006/C 060/1 | Case C-48/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 31 |
| 2006/C 060/2 | Case C-49/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 32 |
| 2006/C 060/3 | Removal from the register of Case C-8/04 | 32 |
| 2006/C 060/4 | Removal from the register of Case C-461/04 | 32 |
| 2006/C 060/5 | Removal from the register of Case C-468/04 | 32 |
| 2006/C 060/6 | Removal from the register of Case C-469/04 | 32 |
| 2006/C 060/7 | Removal from the register of Case C-58/05 | 33 |
| 2006/C 060/8 | Removal from the register of Case C-63/05 | 33 |
| 2006/C 060/9 | Removal from the register of Case C-121/05 P | 33 |
| 2006/C 060/0 | Removal from the register of Case C-136/05 | 33 |
| 2006/C 060/1 | Removal from the register of Case C-159/05 | 33 |
| 2006/C 060/2 | Removal from the register of Case C-163/05 | 33 |
| | COURT OF FIRST INSTANCE |
| 2006/C 060/3 | By orders of 15 December 2005, the Court of First Instance of the European Communities referred to the Civil Service Tribunal, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal, the cases listed in the first column of the table below | 34 |
| 2006/C 060/4 | Case T-262/04: Judgment of the Court of First Instance of 15 December 2005 — BIC v OHIM (Community trade mark — Three-dimensional trade mark in the shape of an electronic lighter — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94) | 38 |
| 2006/C 060/5 | Case T-263/04: Judgment of the Court of First Instance of 15 December 2005 — BIC v OHIM (Community trade mark — Three-dimensional trade mark in the shape of a lighter with a flint — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94) | 38 |
| 2006/C 060/6 | Case T- 397/02: Order of the Court of First Instance of 13 December 2005 — Arla Foods and Others v Commission (Regulation (EC) No 1829/2002 — Registration of a designation of origin Feta — Action for annulment — Capacity to bring proceedings — Inadmissibility) | 39 |
| 2006/C 060/7 | Case T-416/05: Action brought on 25 November 2005 — Olympic Airlines S.A. v Commission | 39 |
| 2006/C 060/8 | Case T-434/05: Action brought on 6 December 2005 — Gateway/OHIM | 40 |
| 2006/C 060/9 | Case T-435/05: Action brought on 5 December 2005 — Danjaq/OHIM | 41 |
| 2006/C 060/0 | Case T-441/05: Action brought on 16 December 2005 — IVG Immobilien AG v OHIM | 41 |
| 2006/C 060/1 | Case T-446/05: Action brought on 22 December 2005 — Aman & Söhne and Cousin Filterie v Commission | 42 |
| 2006/C 060/2 | Case T-449/05: Action brought on 22 December 2005 — Dikigorikos Sillogos Ioanninon v European Parliament and Council of the European Union | 42 |
| 2006/C 060/3 | Case T-452/05: Action brought on 27 December 2005 — Belgian Sewing Thread v Commission | 43 |
| 2006/C 060/4 | Case T-454/05: Action brought on 20 December 2005 — Sumimoto Chemical Agro Europe and Philagro France v Commission | 44 |
| 2006/C 060/5 | Case T-456/05: Action brought on 30 December 2005 — Gütermann v Commission | 45 |
| 2006/C 060/6 | Case T-457/05: Action brought on 30 December 2005 — Zwicky v Commission | 46 |
| 2006/C 060/7 | Case T-458/05: Action brought on 30 December 2005 — Tegometall International v OHIM | 46 |
| 2006/C 060/8 | Case T-459/05: Action brought on 30 December 2005 — MPDV Mikrolab v OHIM | 47 |
| 2006/C 060/9 | Case T-10/06: Action brought on 11 January 2006 — PORTELA & Ca, S.A. v OHIM | 47 |
| 2006/C 060/0 | Case T-11/06: Action brought on 19 January 2006 — Romana Tabacchi v Commission | 48 |
| 2006/C 060/1 | Case T-12/06: Action brought on 19 January 2006 — Deltafina v Commission | 49 |
| 2006/C 060/2 | Case T-19/06: Action brought on 20 January 2006 — Mindo v Commission | 49 |
| 2006/C 060/3 | Case T-25/06: Action brought on 24 January 2006 — Alliance One International v Commission | 50 |
| 2006/C 060/4 | Case T-34/06: Action brought on 24 January 2006 — Universal v Commission | 51 |
| 2006/C 060/5 | Case T -389/04: Order of the Court of First Instance of 16 January 2006 — Germany v Commission | 51 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 060/6 | Case F-118/05: Action brought on 12 December 2005 — Klopfer v Commission | 52 |
| 2006/C 060/7 | Case F-121/05: Action brought on 16 December 2005 –De Meerleer v Commission | 52 |
| 2006/C 060/8 | Case F-122/05: Action brought on 21 December 2005 — Economidis v Commission | 53 |
| 2006/C 060/9 | Case F-123/05: Action brought on 13 December 2005 — Jean-Marc Bracke v Commission of the European Communities | 53 |
| 2006/C 060/0 | Case F-125/05: Action brought on 19 December 2005 — Tsarnavas v Commission | 54 |
| 2006/C 060/1 | Case F-126/05: Action brought on 22 December 2005 — Borbély v Commission | 54 |
| 2006/C 060/2 | Case F-127/05: Action brought on 21 December 2005 — Nanbru v European Parliament | 55 |
| 2006/C 060/3 | Case F-128/05: Action brought on 20 December 2005 — Claude Adolf and Others v Commission of the European Communities | 56 |
| 2006/C 060/4 | Case F-129/05: Action brought on 23 December 2005 — Merglova v Commission | 56 |
| 2006/C 060/5 | Case F-130/05: Action brought on 31 December 2005 — Soares v Commission | 57 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 060/1

Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-183/03 Federal Republic of Germany v Commission of the European Communities (EAGGF — Decision 2003/102/EC — Expenditure excluded from Community financing — Arable cultures sector)

1

2006/C 060/2

Judgment of the Court (Second Chamber) of 10 January 2006 in Case C-230/03: Reference for a preliminary ruling from the Bundesverwaltungsgericht Mehmet Sedef v Freie und Hansestadt Hamburg (EEC-Turkey Association — Freedom of movement for workers — Article 6 of Decision No 1/80 of the Association Council — Right to the extension of a residence permit — Conditions — Turkish national who was employed in the maritime shipping industry of a Member State for 15 years — Same employer for more than one year without interruption, but not up to the end of a period of three years — Periods of employment interrupted 17 times on account of the nature of the occupation)

1

2006/C 060/3

Judgment of the Court (Third Chamber) of 19 January 2006 in Case C-240/03 P: Comunità montana della Valnerina v Commission of the European Communities (Appeal — EAGGF — Withdrawal of financial aid — Article 24 of Regulation (EEC) No 4253/88 — Principle of proportionality — Statement of reasons — Rights of the defence — Cross-appeal — Designation of two persons to be responsible for the execution of a project — Claim on only one of them for repayment of all the aid — Discretionary power of the Commission — Objective limits of the proceedings before the Court of First Instance)

2

2006/C 060/4

Judgment of the Court (First Chamber) of 19 January 2006 in Case C-330/03: Reference for a preliminary ruling from the Tribunal Supremo:Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado (Freedom of movement for workers — Recognition of diplomas — Directive 89/48/EEC — Profession of engineer — Partial, restricted recognition of professional qualifications — Articles 39 EC and 43 EC)

2

2006/C 060/5

Judgment of the Court (First Chamber) of 12 January 2006 in Case C-494/03: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in Senior Engineering Investments BV v Staatssecretaris van Financiën (Directive 69/335 — Indirect taxes on the raising of capital — National rules taxing a (subsidiary) company by way of capital duty in respect of a contribution made by its parent company (the grandparent company) in favour of its subsidiary (a sub-subsidiary company) — Capital duty — Increase of capital — Payment to the share premium account — Increase in the assets of the company — Increase in the value of shares — Provision of services by a member — Payment made by a member of a member — Payment to a subsidiary — Real recipient — Levying of capital duty once only (in the Community) — Article 52 of the EC Treaty (now, after amendment, Article 43 EC) — Freedom of establishment — National practice exempting a (subsidiary) capital company from taxation only if its subsidiary (sub-subsidiary company) is also established in that Member State)

3

2006/C 060/6

Judgment of the Court (Grand Chamber) of 17 January 2006 in Case C-1/04 Reference for a preliminary ruling from the Bundesgerichtshof in Susanne Staubitz-Schreiber (Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Applicability in time — Court having jurisdiction)

3

2006/C 060/7

Judgment of the Court (Second Chamber) 12 January 2006 in Case C-132/04 Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Social policy — Protection of the safety and health of workers — Directive 89/391/EEC — Scope — Non-civilian personnel in public authorities — Armed forces and police — Included)

4

2006/C 060/8

Judgment of the Court (Sixth Chamber) of 12 January 2006 in Case C-139/04 Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Ambient air quality — Limit values)

4

2006/C 060/9

Judgment of the Court (First Chamber) of 12 January 2006 in Case C-173/04 P: Deutsche SiSi-Werke GmbH & Co. Betriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)(b) of Regulation (EC) No 40/94 — Three-dimensional shapes of stand-up pouches for fruit drinks and fruit juices — Absolute ground for refusal — Distinctive character)

5

2006/C 060/0

Judgment of the Court (First Chamber) of 19 January 2006 in Case C-244/04: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Article 49 EC — Freedom to provide services — Undertaking employing workers who are nationals of non-member States — Undertaking providing services in another Member State — Work visa regime)

5

2006/C 060/1

Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-246/04: Reference for a preliminary ruling from the Verwaltungsgerichtshof in Turn- und Sportunion Waldburg v Finanzlandesdirektion für Oberösterreich (Sixth VAT Directive — Article 13(B)(b) and (C)(a) — Exemption of leasing and letting of immovable property — Right of option in favour of taxable persons — Non-profit-making sports clubs — Conditions)

6

2006/C 060/2

Judgment of the Court (Third Chamber) of 19 January 2006 in Case C-265/04: Reference for a preliminary ruling from the Kammarrätten i Sundsvall in Margaretha Bouanich v Skatteverket (Direct taxation — Free movement of capital — Dividend tax — Share repurchase — Deductibility of the cost of acquisition of shares — Separate treatment of residents and non-residents — Agreement for the avoidance of double taxation)

6

2006/C 060/3

Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-311/04: Reference for a preliminary ruling from the Gerechtshof te Amsterdam in Algemene Scheeps Agentuur Dordrecht BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam (Common Customs Tariff — Tariff headings — Classification of consignments of rice — Additional Note 1(f) to Chapter 10 of the Combined Nomenclature — Validity — Post-clearance recovery of import duties — Article 220(2)(b) of the Community Customs Code — Interpretation — Good faith of the person liable for payment)

7

2006/C 060/4

Judgment of the Court (Grand Chamber) of 10 January 2006 in Case C-344/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division, The Queen on the application of International Air Transport Association, European Low Fares Airline Association v Department for Transport (Carriage by air — Regulation (EC) No 261/2004 — Articles 5, 6 and 7 — Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Validity — Interpretation of Article 234 EC)

7

2006/C 060/5

Judgment of the Court (First Chamber) of 12 January 2006 in Case C-361/04 P: Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso, Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Word mark PICARO — Opposition by the proprietor of the Community word mark PICASSO)

8

2006/C 060/6

Judgment of the Court (Third Chamber) of 12 January 2006 in Case C-504/04: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin in Agrarproduktion Stabelow GmbH v Landrat des Landkreises Bad Doberan (Animal health — Prevention, control and eradication of certain transmissible spongiform encephalopathies — Slaughter of birth cohorts — Proportionality)

8

2006/C 060/7

Judgment of the Court (Fifth Chamber) of 12 January 2006 in Case C-37/05: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 85/337/EEC, as amended by Directive 97/11/EC — Assessment of the effects of projects on the environment — Consents granted without assessment)

9

2006/C 060/8

Judgment of the Court (Fifth Chamber) of 12 January 2006 in Case C-69/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Regulation (EC) No 659/1999 — State aid in the agricultural sector — Submission of annual reports during 2000 and 2001 — Guidelines for the assessment of State aid)

9

2006/C 060/9

Judgment of the Court (Sixth Chamber) of 12 January 2006 in Case C-85/05: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Community action in the field of water policy — Failure to transpose within the prescribed period )

10

2006/C 060/0

Judgment of the Court (Sixth Chamber) of 19 January 2006 in Case C-90/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 79/1072/EEC — VAT — Refund — Taxable persons not established in the territory of the country)

10

2006/C 060/1

Judgment of the Court (Fifth Chamber) 12 January 2006 in Case C-107/05 Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Directive 2003/87/EC — Failure to transpose within the period prescribed)

10

2006/C 060/2

Judgment of the Court (Sixth Chamber) of 12 January 2006 in Case C-118/05: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Community policy in the field of water — Failure to transpose within the prescribed period)

11

2006/C 060/3

Judgment of the Court (Fifth Chamber) of 12 January 2006 in Case C-179/05 Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Regulation (EEC) No 2847/93 — Control system in the fisheries sector — Information on catches and fishing effort)

11

2006/C 060/4

Order of the Court (Sixth Chamber) of 17 November 2005 in Case C-121/04 P: Minoikes Grammes ANE (Minoan Lines SA) v Commission of the European Communities (Appeal — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Competition — Cartels — Agreements between undertakings — Proof of an undertaking's participation in meetings of undertakings with an anti-competitive purpose)

12

2006/C 060/5

Order of the Court (Fifth Chamber) of 23 September 2005 in Case C-357/04 P: Antonio Andolfi v Commission of the European Communities (Appeal — JOP Programme — Project to set up a joint Italo-Romanian company — Withdrawal of financial aid initially granted — Appeal in part manifestly inadmissible and in part manifestly unfounded)

12

2006/C 060/6

Order of the Court (Second Chamber) of 1 December 2005 in Case C-447/04: Reference for a preliminary ruling from the Landesgericht Innsbruck in Autohaus Ostermann GmbH v VAV Versicherungs AG (Article 104(3) second subparagraph of the Rules of Procedure — Automobile civil liability insurance — Directive 2000/26/EC — Period for insurance undertaking to assess compensation claims)

12

2006/C 060/7

Order of the Court (Fourth Chamber) of 1 December 2005 in Case C-512/04 P Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Krafft SA (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Application for Community word mark VITAKRAFT — Opposition from the proprietor of national marks containing the word element krafft — Similarity between marks — Appeal manifestly inadmissible)

13

2006/C 060/8

Order of the Court (Third Chamber) of 24 November 2005 in Case C-5/05 SA: Maria Fernanda Gil do Nascimento and Others v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities)

13

2006/C 060/9

Order of the Court (Sixth Chamber) of 1 December 2005 in Case C-116/05: Reference for a preliminary ruling from the Tribunal de commerce de Nancy in Etablissements Dhumeaux et Cie SA, Société d'études et de commerce (SEC) v ALVBV SA, ALBV SA v Tragex Gel SA, Agence fédérale pour la sécurité de la chaîne alimentaire (AFSCA), formerly Institut d'expertise vétérinaire (IEV), ALBV SA v CIGMA International SA and ALBV SA v Jean Max Gustin in his capacity as administrator of Tragex Gel SA (Reference for a preliminary ruling — Inadmissibility)

14

2006/C 060/0

Order of the Court (Fifth Chamber) of 2 December 2005 in Case C-117/05: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat of the Landes Oberösterreich in Manfred Seidl v Bezirkshauptmannschaft Grieskirchen (Article 104(3), first subparagraph, of the Rules of Procedure — Freedom of movement for persons — Article 43 EC — Establishment of a driving school)

14

2006/C 060/1

Order of the Court (Fourth Chamber) of 13 December 2005 in Case C-177/05: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras in María Cristina Guerrero Pecino v Fondo de Garantía Salarial (Fogasa) (Reference for a preliminary ruling — First subparagraph of Article 104(3) of the Rules of Procedure — Social policy — Protection of workers in the event of the insolvency of their employer — Directive 80/987/EEC (amended by Directive 2002/74/EC) — Compensation agreed at the conciliation — Payment guaranteed by the guarantee institution — Payment subject to the adoption of a judicial decision)

15

2006/C 060/2

Case C-412/05 P: Appeal brought on 23 November 2005 by Alcon, INC against the judgment of the Court of First Instance (Third Chamber) of 22 September 2005 in Case T-130/03: Alcon, INC v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

15

2006/C 060/3

Case C-430/05: Reference for a preliminary ruling from the Simvoulio tis Epikratias by order of that court of 31 August 2005 in Dionik Anonimi Etairia Emporias I/I, Logismikou & Parokhis Ipirision Mikhanografisis (Dionik A.E.) and Ioannis Mikhail Pikoulas v Epitropi Kefalaiagoras

16

2006/C 060/4

Case C-438/05: Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales), by Order of that court of 23 November 2005 in 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union v 1) Viking Line ABP 2) OU Viking Line Eesti

16

2006/C 060/5

Case C-442/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 3 November 2005 in Finanzamt Oschatz v Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien

18

2006/C 060/6

Case C-444/05: Reference for a preliminary ruling from the Diikitiko Protodikio Athinas by decision of that court of 30 December 2004 in Aikaterini Stamatelaki v Organismos Asfaliseos Eleftheron Epangelmation (O.A.E.E.)

18

2006/C 060/7

Case C-445/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 20 October 2005 in Werner Haderer v Finanzamt Wilmersdorf

19

2006/C 060/8

Case C-451/05: Reference for a preliminary ruling from the Cour de Cassation (France) by order of that court of 13 December 2005 in Elisa (Européenne et luxembourgeoise d'investissements SA) v Directeur général des Impôts, Direction des services généraux et de l'informatique and Ministère public

19

2006/C 060/9

Case C-453/05: Reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg by order of that court of 23 November 2005 in Volker Ludwig v Finanzamt Luckenwalde

20

2006/C 060/0

Case C-454/05P: Appeal brought on 22 December 2005 by the Republic of Austria against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04

20

2006/C 060/1

Case C-455/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 1 December 2005 in Velvet & Steel Immobilien und Handels GmbH v Finanzamt Hamburg-Eimsbüttel

21

2006/C 060/2

Case C-457/05: Reference for a preliminary ruling from the Landgericht Wiesbaden by order of that court of 23 November 2005 in Schutzverband der Spirituosen-Industrie e.V. v Diageo Deutschland GmbH

21

2006/C 060/3

Case C-458/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 16 November 2005 in Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühlberger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur Savci, Elena Peter, Egon Schmäger, Mehmet Yaman, Dejan Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Schachenhofer, Herbert Weiss, Harald Kaineder, Ognen, Stajkovski and Jovica Vidovic v PPS Princess Personal Service GmbH

22

2006/C 060/4

Case C-460/05: Action brought on 23 December 2005 by the Republic of Poland against the European Parliament and the Council of the European Union

22

2006/C 060/5

Case C-462/05: Action brought on 22 December 2005 by the Commission of the European Communities against the Portuguese Republic

23

2006/C 060/6

Case C-465/05: Action brought on 23 December 2005 by the Commission of the European Communities against the Italian Republic

24

2006/C 060/7

Case C-2/06: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 21 November 2005 in Willy Kempter KG v Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung

25

2006/C 060/8

Case C-6/06 P: Appeal brought on 9 January 2006 by Cofradía de pescadores San Pedro de Bermeo and Others against the judgment of the Court of First Instance (Third Chamber) of 19 October 2005 in Case T-415/03 Cofradía de pescadores San Pedro de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic

25

2006/C 060/9

Case C-7/06 P: Appeal brought on 9 January 2006 by Beatriz Salvador García against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-205/02 Beatriz Salvador García v Commission of the European Communities

26

2006/C 060/0

Case C-8/06 P: Appeal brought on 9 January 2006 by Anna Herrero Romeu against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-298/02 Anna Herrero Romeu v Commission of the European Communities

27

2006/C 060/1

Case C-9/06 P: Appeal brought on 9 January 2006 by Tomás Salazar Brier against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-83/03 Tomás Salazar Brier v Commission of the European Communities

27

2006/C 060/2

Case C-10/06 P: Appeal brought on 9 January 2006 by Rafael De Bustamante Tello against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-368/03 Rafael De Bustamante Tello v Council of the European Union

28

2006/C 060/3

Case C-18/06: Action brought on 17 January 2006 by the Commission of the European Communities against the French Republic

28

2006/C 060/4

Case C-19/06: Action brought on 17 January 2006 by the Commission of the European Communities against the French Republic

28

2006/C 060/5

Case C-20/06: Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

29

2006/C 060/6

Case C-21/06: Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

29

2006/C 060/7

Case C-22/06: Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

30

2006/C 060/8

Case C-39/06: Action brought on 24 January 2006 by Commission of the European Communities against the Federal Republic of Germany

30

2006/C 060/9

Case C-41/06: Action brought on 27 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

30

2006/C 060/0

Case C-47/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

31

2006/C 060/1

Case C-48/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

31

2006/C 060/2

Case C-49/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

32

2006/C 060/3

Removal from the register of Case C-8/04

32

2006/C 060/4

Removal from the register of Case C-461/04

32

2006/C 060/5

Removal from the register of Case C-468/04

32

2006/C 060/6

Removal from the register of Case C-469/04

32

2006/C 060/7

Removal from the register of Case C-58/05

33

2006/C 060/8

Removal from the register of Case C-63/05

33

2006/C 060/9

Removal from the register of Case C-121/05 P

33

2006/C 060/0

Removal from the register of Case C-136/05

33

2006/C 060/1

Removal from the register of Case C-159/05

33

2006/C 060/2

Removal from the register of Case C-163/05

33

COURT OF FIRST INSTANCE

2006/C 060/3

By orders of 15 December 2005, the Court of First Instance of the European Communities referred to the Civil Service Tribunal, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal, the cases listed in the first column of the table below

34

2006/C 060/4

Case T-262/04: Judgment of the Court of First Instance of 15 December 2005 — BIC v OHIM (Community trade mark — Three-dimensional trade mark in the shape of an electronic lighter — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94)

38

2006/C 060/5

Case T-263/04: Judgment of the Court of First Instance of 15 December 2005 — BIC v OHIM (Community trade mark — Three-dimensional trade mark in the shape of a lighter with a flint — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94)

38

2006/C 060/6

Case T- 397/02: Order of the Court of First Instance of 13 December 2005 — Arla Foods and Others v Commission (Regulation (EC) No 1829/2002 — Registration of a designation of origin Feta — Action for annulment — Capacity to bring proceedings — Inadmissibility)

39

2006/C 060/7

Case T-416/05: Action brought on 25 November 2005 — Olympic Airlines S.A. v Commission

39

2006/C 060/8

Case T-434/05: Action brought on 6 December 2005 — Gateway/OHIM

40

2006/C 060/9

Case T-435/05: Action brought on 5 December 2005 — Danjaq/OHIM

41

2006/C 060/0

Case T-441/05: Action brought on 16 December 2005 — IVG Immobilien AG v OHIM

41

2006/C 060/1

Case T-446/05: Action brought on 22 December 2005 — Aman & Söhne and Cousin Filterie v Commission

42

2006/C 060/2

Case T-449/05: Action brought on 22 December 2005 — Dikigorikos Sillogos Ioanninon v European Parliament and Council of the European Union

42

2006/C 060/3

Case T-452/05: Action brought on 27 December 2005 — Belgian Sewing Thread v Commission

43

2006/C 060/4

Case T-454/05: Action brought on 20 December 2005 — Sumimoto Chemical Agro Europe and Philagro France v Commission

44

2006/C 060/5

Case T-456/05: Action brought on 30 December 2005 — Gütermann v Commission

45

2006/C 060/6

Case T-457/05: Action brought on 30 December 2005 — Zwicky v Commission

46

2006/C 060/7

Case T-458/05: Action brought on 30 December 2005 — Tegometall International v OHIM

46

2006/C 060/8

Case T-459/05: Action brought on 30 December 2005 — MPDV Mikrolab v OHIM

47

2006/C 060/9

Case T-10/06: Action brought on 11 January 2006 — PORTELA & Ca, S.A. v OHIM

a

47

2006/C 060/0

Case T-11/06: Action brought on 19 January 2006 — Romana Tabacchi v Commission

48

2006/C 060/1

Case T-12/06: Action brought on 19 January 2006 — Deltafina v Commission

49

2006/C 060/2

Case T-19/06: Action brought on 20 January 2006 — Mindo v Commission

49

2006/C 060/3

Case T-25/06: Action brought on 24 January 2006 — Alliance One International v Commission

50

2006/C 060/4

Case T-34/06: Action brought on 24 January 2006 — Universal v Commission

51

2006/C 060/5

Case T -389/04: Order of the Court of First Instance of 16 January 2006 — Germany v Commission

51

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 060/6

Case F-118/05: Action brought on 12 December 2005 — Klopfer v Commission

52

2006/C 060/7

Case F-121/05: Action brought on 16 December 2005 –De Meerleer v Commission

52

2006/C 060/8

Case F-122/05: Action brought on 21 December 2005 — Economidis v Commission

53

2006/C 060/9

Case F-123/05: Action brought on 13 December 2005 — Jean-Marc Bracke v Commission of the European Communities

53

2006/C 060/0

Case F-125/05: Action brought on 19 December 2005 — Tsarnavas v Commission

54

2006/C 060/1

Case F-126/05: Action brought on 22 December 2005 — Borbély v Commission

54

2006/C 060/2

Case F-127/05: Action brought on 21 December 2005 — Nanbru v European Parliament

55

2006/C 060/3

Case F-128/05: Action brought on 20 December 2005 — Claude Adolf and Others v Commission of the European Communities

56

2006/C 060/4

Case F-129/05: Action brought on 23 December 2005 — Merglova v Commission

56

2006/C 060/5

Case F-130/05: Action brought on 31 December 2005 — Soares v Commission

57

| | III   Notices |
| --- | --- |
| 2006/C 060/6 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 48, 25.2.2006 | 58 |

III   Notices

2006/C 060/6

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 48, 25.2.2006

Official Journal of the European Union

58

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 11.3.2006 | EN | Official Journal of the European Union | C 60/1 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/1

---

JUDGMENT OF THE COURT

(Third Chamber)

of 12 January 2006

in Case C-183/03 Federal Republic of Germany v Commission of the European Communities (1)

(EAGGF - Decision 2003/102/EC - Expenditure excluded from Community financing - Arable cultures sector)

(2006/C 60/01)

Language of the case: German

In Case C-183/03 Federal Republic of Germany (Agents: W.-D. Plessing and A. Tiemann) v Commission of the European Communities (Agents: M. Niejahr and G. Braun) — application for annulment under Article 230 EC, brought on 24 April 2003 — the Court (Third Chamber Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr (Rapporteur), A. Borg Barthet and A. Ó Caoimh, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

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

1.

Dismisses the action;

| 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 146 of 21.06.2003.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/1 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/1

---

JUDGMENT OF THE COURT

(Second Chamber)

of 10 January 2006

in Case C-230/03: Reference for a preliminary ruling from the Bundesverwaltungsgericht Mehmet Sedef v Freie und Hansestadt Hamburg (1)

(EEC-Turkey Association - Freedom of movement for workers - Article 6 of Decision No 1/80 of the Association Council - Right to the extension of a residence permit - Conditions - Turkish national who was employed in the maritime shipping industry of a Member State for 15 years - Same employer for more than one year without interruption, but not up to the end of a period of three years - Periods of employment interrupted 17 times on account of the nature of the occupation)

(2006/C 60/02)

Language of the case: German

In Case C-230/03: reference for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decision of 18 March 2003, received at the Court on 26 May 2003, in the proceedings between Mehmet Sedef and Freie und Hansestadt Hamburg, in the presence of Vertreter des Bundesinteresses beim Bundesverwaltungsgericht — the Court (Second Chamber) composed of C.W.A. Timmermans, President of the Chamber, C. Gulman, R. Schintgen (Rapporteur), G. Arestis and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 10 January 2006, in which it ruled:

Article 6 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council created by the agreement establishing an association between the European Economic Community and Turkey, is to be interpreted as meaning that:

| — | enjoyment of the rights conferred on a Turkish worker by the third indent of paragraph 1 of that article presupposes in principle that the person concerned has already fulfilled the conditions set out in the second indent of that paragraph; |
| --- | --- |

—

enjoyment of the rights conferred on a Turkish worker by the third indent of paragraph 1 of that article presupposes in principle that the person concerned has already fulfilled the conditions set out in the second indent of that paragraph;

| — | a Turkish worker who does not yet enjoy the right of free access to any paid employment of his choice under that third indent must be in legal employment without interruption in the host Member State unless he can rely on a legitimate reason of the type laid down in Article 6(2) to justify his temporary absence from the labour force; |
| --- | --- |

—

a Turkish worker who does not yet enjoy the right of free access to any paid employment of his choice under that third indent must be in legal employment without interruption in the host Member State unless he can rely on a legitimate reason of the type laid down in Article 6(2) to justify his temporary absence from the labour force;

| — | Article 6(2) of Decision No 1/80 covers interruptions in periods of legal employment, such as those at issue in the main proceedings, and the relevant national authorities cannot, in this case, dispute the right of the Turkish worker concerned to reside in the host Member State. |
| --- | --- |

—

Article 6(2) of Decision No 1/80 covers interruptions in periods of legal employment, such as those at issue in the main proceedings, and the relevant national authorities cannot, in this case, dispute the right of the Turkish worker concerned to reside in the host Member State.

---

(1)  OJ C 200 of 23.08.2003.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/2 |
| --- | --- | --- | --- |

11.3.2006

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Official Journal of the European Union

C 60/2

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JUDGMENT OF THE COURT

(Third Chamber)

of 19 January 2006

in Case C-240/03 P: Comunità montana della Valnerina v Commission of the European Communities (1)

(Appeal - EAGGF - Withdrawal of financial aid - Article 24 of Regulation (EEC) No 4253/88 - Principle of proportionality - Statement of reasons - Rights of the defence - Cross-appeal - Designation of two persons to be responsible for the execution of a project - Claim on only one of them for repayment of all the aid - Discretionary power of the Commission - Objective limits of the proceedings before the Court of First Instance)

(2006/C 60/03)

Language of the case: Italian

In Case C-240/03 P: APPEAL under Article 56 of the Statute of the Court of Justice brought on 28 May 2003, by Comunità montana della Valnerina, (Avvocati: P. De Caterini, E. Cappelli and A. Bandini), the other parties to the proceedings being: Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio, assisted by Avvocato A. Dal Ferro), and Italian Republic (Agent: I.M. Braguglia, assisted by Avvocato G. Aiello), the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr, A. Borg Barthet and A. Ó Caoimh (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 19 January 2006, in which it ruled:

| 1. | The appeal and cross-appeal are dismissed; |
| --- | --- |

1.

The appeal and cross-appeal are dismissed;

| 2. | The Comunità Montana della Valnerina shall pay the costs of the appeal; |
| --- | --- |

2.

The Comunità Montana della Valnerina shall pay the costs of the appeal;

| 3. | The Commission of the European Communities shall pay the costs of the cross-appeal. |
| --- | --- |

3.

The Commission of the European Communities shall pay the costs of the cross-appeal.

---

(1)  OJ C 200 of 23.08.2003.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/2 |
| --- | --- | --- | --- |

11.3.2006

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Official Journal of the European Union

C 60/2

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JUDGMENT OF THE COURT

(First Chamber)

of 19 January 2006

in Case C-330/03: Reference for a preliminary ruling from the Tribunal Supremo:Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado (1)

(Freedom of movement for workers - Recognition of diplomas - Directive 89/48/EEC - Profession of engineer - Partial, restricted recognition of professional qualifications - Articles 39 EC and 43 EC)

(2006/C 60/04)

Language of the case: Spanish

In Case C-330/03: Reference for a preliminary ruling under Article 234 EC from the Tribunal Supremo (Spain), made by decision of 21 July 2003, received at the Court on 29 July 2003, in the proceedings Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado, concerning Giuliano Mauro Imo, the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, E. Juhász and E. Levits (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 19 January 2006, in which it ruled as follows:

| 1. | When the holder of a diploma awarded in one Member State applies for permission to take up a regulated profession in another Member State, the competent authorities of that Member State are not precluded by Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration from partly allowing that application, if the holder of the diploma so requests, by limiting the scope of the permission to those activities which that diploma allows to be taken up in the Member State in which it was obtained. |
| --- | --- |

1.

When the holder of a diploma awarded in one Member State applies for permission to take up a regulated profession in another Member State, the competent authorities of that Member State are not precluded by Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration from partly allowing that application, if the holder of the diploma so requests, by limiting the scope of the permission to those activities which that diploma allows to be taken up in the Member State in which it was obtained.

| 2. | Articles 39 EC and 43 EC do not preclude a Member State from not allowing partial taking-up of a profession, where shortcomings in the education or training of the party concerned in relation to that required in the host Member State may be effectively made up for through the application of the compensatory measures provided for in Article 4(1) of Directive 89/48. However, Articles 39 EC and 43 EC do preclude a Member State from not allowing that partial taking-up when the party concerned so requests and the differences between the fields of activity are so great that in reality a full programme of education and training is required, unless the refusal for that partial taking-up is justified by overriding reasons based on the general interest, suitable for securing the attainment of the objective which they pursue and not going beyond what is necessary in order to attain that objective. |
| --- | --- |

2.

Articles 39 EC and 43 EC do not preclude a Member State from not allowing partial taking-up of a profession, where shortcomings in the education or training of the party concerned in relation to that required in the host Member State may be effectively made up for through the application of the compensatory measures provided for in Article 4(1) of Directive 89/48. However, Articles 39 EC and 43 EC do preclude a Member State from not allowing that partial taking-up when the party concerned so requests and the differences between the fields of activity are so great that in reality a full programme of education and training is required, unless the refusal for that partial taking-up is justified by overriding reasons based on the general interest, suitable for securing the attainment of the objective which they pursue and not going beyond what is necessary in order to attain that objective.

---

(1)  OJ C 226 of 20.9.2003.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/3 |
| --- | --- | --- | --- |

11.3.2006

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Official Journal of the European Union

C 60/3

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JUDGMENT OF THE COURT

(First Chamber)

of 12 January 2006

in Case C-494/03: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in Senior Engineering Investments BV v Staatssecretaris van Financiën (1)

(Directive 69/335 - Indirect taxes on the raising of capital - National rules taxing a (subsidiary) company by way of capital duty in respect of a contribution made by its parent company (the grandparent company) in favour of its subsidiary (a sub-subsidiary company) - Capital duty - Increase of capital - Payment ‘to the share premium account’ - Increase in the assets of the company - Increase in the value of shares - Provision of services by a member - Payment made by a member of a member - Payment to a subsidiary - ‘Real recipient’ - Levying of capital duty once only (in the Community) - Article 52 of the EC Treaty (now, after amendment, Article 43 EC) - Freedom of establishment - National practice exempting a (subsidiary) capital company from taxation only if its subsidiary (sub-subsidiary company) is also established in that Member State)

(2006/C 60/05)

Language of the case: Dutch

In Case C-494/03: Reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 21 November 2003, received at the Court on 24 November 2003, in the proceedings Senior Engineering Investments BV v Staatssecretaris van Financiën — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, N. Colneric, J.N. Cunha Rodrigues, M. Ilešič and E. Levits,, Judges; M. Poiares Maduro, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 12 January 2006, in which it ruled as follows:

In circumstances such as those of the main proceedings, Article 4(2)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, read in conjunction with Article 2(1) thereof and the sixth recital in its preamble, precludes a Member State from levying duty on a (subsidiary) capital company in respect of a contribution paid by its parent company (the grandparent company) to its subsidiary (a sub-subsidiary).

---

(1)  OJ C 21, 24.01.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/3 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/3

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JUDGMENT OF THE COURT

(Grand Chamber)

of 17 January 2006

in Case C-1/04 Reference for a preliminary ruling from the Bundesgerichtshof in Susanne Staubitz-Schreiber (1)

(Judicial cooperation in civil matters - Insolvency proceedings - Regulation (EC) No 1346/2000 - Applicability in time - Court having jurisdiction)

(2006/C 60/06)

Language of the case: German

In Case C-1/04 Reference for a preliminary ruling under Article 234 EC from the Bundesgerichtshof (Germany), made by decision of 27 November 2003, received at the Court on 2 January 2004, in the proceedings brought by Susanne Staubitz-Schreiber — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Malenovský, Presidents of Chambers, A. La Pergola, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, J. Klučka, U. Lõhmus and E. Levits, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, for the Registrar, gave a judgment on 17 January 2006, in which it ruled as follows:

Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the court of the Member State within the territory of which the centre of the debtor's main interests is situated at the time when the debtor lodges the request to open insolvency proceedings retains jurisdiction to open those proceedings if the debtor moves the centre of his main interests to the territory of another Member State after lodging the request but before the proceedings are opened.

---

(1)  OJ C 71, 20.03.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/4 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/4

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JUDGMENT OF THE COURT

(Second Chamber)

12 January 2006

in Case C-132/04 Commission of the European Communities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations - Social policy - Protection of the safety and health of workers - Directive 89/391/EEC - Scope - Non-civilian personnel in public authorities - Armed forces and police - Included)

(2006/C 60/07)

Language of the case: Spanish

In Case C-132/04 Commission of the European Communities (Agents: L. Escobar Guerrero and H. Kreppel) v Kingdom of Spain (Agent: M. Muñoz Pérez) — action under Article 226 EC for failure to fulfil obligations — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J. Makarczyk, R. Schintgen (Rapporteur), R. Silva Lapuerta and P. Kūris, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declared that, by failing to transpose in their entirety into its national legislation Article 2(1) and (2) and Article 4 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvement in the safety and health of workers at work as regards non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declared that, by failing to transpose in their entirety into its national legislation Article 2(1) and (2) and Article 4 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvement in the safety and health of workers at work as regards non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Ordered the Kingdom of Spain to pay the costs.

---

(1)  OJ C 106 of 30.04.2004

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/4 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/4

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 12 January 2006

in Case C-139/04 Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations - Ambient air quality - Limit values)

(2006/C 60/08)

Language of the case: Italian

In Case C-139/04 Commission of the European Communities (Agents: V. Valero Jordana and R. Amorosi) v Italian Republic (Agent: I.M. Braguglia) — action for failure to fulfil obligations under Article 226 EC — the Court (Sixth Chamber), composed of J.-P. Puissochet, acting for the President of the Sixth Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declares that, by failing to forward to the Commission of the European Communities for 2001 all necessary information concerning the substances subject to Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, as required under Article 11(1)(a)(i) and (ii) and (b) of Council Directive 96/62/EC of 27 September 1996 concerning ambient air quality assessment management, the Italian Republic has failed to fulfil its obligations under Article 11 of Directive 96/62 in conjunction with Article 4(1) of that directive and with Directive 1999/30 and Article 1 of Commission Decision 2001/839/EC of 8 November 2001 laying down a questionnaire to be used for annual reporting on ambient air quality assessment under Directives 96/62 and 1999/30; |
| --- | --- |

1.

Declares that, by failing to forward to the Commission of the European Communities for 2001 all necessary information concerning the substances subject to Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, as required under Article 11(1)(a)(i) and (ii) and (b) of Council Directive 96/62/EC of 27 September 1996 concerning ambient air quality assessment management, the Italian Republic has failed to fulfil its obligations under Article 11 of Directive 96/62 in conjunction with Article 4(1) of that directive and with Directive 1999/30 and Article 1 of Commission Decision 2001/839/EC of 8 November 2001 laying down a questionnaire to be used for annual reporting on ambient air quality assessment under Directives 96/62 and 1999/30;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 106 of 30.4.2004

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/5 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/5

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JUDGMENT OF THE COURT

(First Chamber)

of 12 January 2006

in Case C-173/04 P: Deutsche SiSi-Werke GmbH & Co. Betriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Appeal - Community trade mark - Article 7(1)(b) of Regulation (EC) No 40/94 - Three-dimensional shapes of stand-up pouches for fruit drinks and fruit juices - Absolute ground for refusal - Distinctive character)

(2006/C 60/09)

Language of the case: German

In Case C-173/04 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 6 April 2004 by Deutsche SiSi-Werke GmbH & Co. Betriebs KG, established in Eppelheim (Germany) (Lawyers: H. Eichmann, G. Barth, U. Blumenröder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke, U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle, Rechtsanwälte), the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider) — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, K. Lenaerts, E. Juhász and M. Ilešič (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; K.H. Sztranc, Administrator, for the Registrar, gave a judgment on 12 January 2006, in which it:

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

1.

Dismisses the appeal;

| 2. | Orders Deutsche SiSi-Werke GmbH & Co. Betriebs KG to pay the costs. |
| --- | --- |

2.

Orders Deutsche SiSi-Werke GmbH & Co. Betriebs KG to pay the costs.

---

(1)  OJ C 156, 12.6.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/5 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/5

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JUDGMENT OF THE COURT

(First Chamber)

of 19 January 2006

in Case C-244/04: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations - Article 49 EC - Freedom to provide services - Undertaking employing workers who are nationals of non-member States - Undertaking providing services in another Member State - Work visa regime)

(2006/C 60/10)

Language of the case: German

In Case C-244/04, Action for failure to fulfil obligations under Article 226 EC, brought on 8 June 2004, Commission of the European Communities (Agents: G. Braun and E. Traversa) v Federal Republic of Germany (Agents: C.-D. Quassowski and A. Tiemann), the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues, M. Ilešič and E. Levits (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 19 January 2006, in which it:

| 1. | Declares that, by not confining itself to making the posting of workers who are nationals of non-member States for the purpose of the provision of services in Germany subject to a simple prior declaration by the undertaking established in another Member State which intends to post such workers, and by requiring that they have been employed for at least a year by that undertaking, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC; |
| --- | --- |

1.

Declares that, by not confining itself to making the posting of workers who are nationals of non-member States for the purpose of the provision of services in Germany subject to a simple prior declaration by the undertaking established in another Member State which intends to post such workers, and by requiring that they have been employed for at least a year by that undertaking, 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 228 of 11.9.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/6 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/6

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JUDGMENT OF THE COURT

(Third Chamber)

of 12 January 2006

in Case C-246/04: Reference for a preliminary ruling from the Verwaltungsgerichtshof in Turn- und Sportunion Waldburg v Finanzlandesdirektion für Oberösterreich (1)

(Sixth VAT Directive - Article 13(B)(b) and (C)(a) - Exemption of leasing and letting of immovable property - Right of option in favour of taxable persons - Non-profit-making sports clubs - Conditions)

(2006/C 60/11)

Language of the case: German

In Case C-246/04: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof (Austria), made by decision of 26 May 2004, received at the Court on 10 June 2004, in the proceedings between Turn- und Sportunion Waldburg and Finanzlandesdirektion für Oberösterreich — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr, U. Lõhmus (Rapporteur) and A. Ó Caoimh, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it ruled:

| 1. | Member States, when giving their taxable persons the right to opt for taxation under Article 13(C) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, may make a distinction by reference to types of transactions or groups of taxable persons provided that they observe the general objectives and principles of the Sixth Directive, in particular the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for; |
| --- | --- |

1.

Member States, when giving their taxable persons the right to opt for taxation under Article 13(C) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, may make a distinction by reference to types of transactions or groups of taxable persons provided that they observe the general objectives and principles of the Sixth Directive, in particular the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for;

| 2. | It is for the national court to determine whether national legislation which, by exempting generally the transactions of non-profit-making sports clubs, restricts their right to opt for taxation of leasing and letting transactions exceeds the discretion conferred on the Member States, having regard in particular to the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for. |
| --- | --- |

2.

It is for the national court to determine whether national legislation which, by exempting generally the transactions of non-profit-making sports clubs, restricts their right to opt for taxation of leasing and letting transactions exceeds the discretion conferred on the Member States, having regard in particular to the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for.

---

(1)  OJ C 228, 11.9.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/6 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/6

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JUDGMENT OF THE COURT

(Third Chamber)

of 19 January 2006

in Case C-265/04: Reference for a preliminary ruling from the Kammarrätten i Sundsvall in Margaretha Bouanich v Skatteverket (1)

(Direct taxation - Free movement of capital - Dividend tax - Share repurchase - Deductibility of the cost of acquisition of shares - Separate treatment of residents and non-residents - Agreement for the avoidance of double taxation)

(2006/C 60/12)

Language of the case: Swedish

In Case C-265/04: Reference for a preliminary ruling under Article 234 EC from the Kammarrätten i Sundsvall (Sweden ), made by decision of 17 June 2004, received at the Court on 24 June 2004, in the proceedings Margaretha Bouanich v Skatteverket — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr, A. Borg Barthet and U. Lõhmus (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 19 January 2006, the operative part of which is as follows:

| 1. | Articles 56 EC and 58 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a payment in respect of a share repurchase to a non-resident shareholder in connection with a reduction in share capital is taxed as a dividend without there being a right to deduct the cost of acquisition of those shares, whereas the same payment made to a resident shareholder is taxed as a capital gain with a right to deduct the cost of acquisition. |
| --- | --- |

1.

Articles 56 EC and 58 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a payment in respect of a share repurchase to a non-resident shareholder in connection with a reduction in share capital is taxed as a dividend without there being a right to deduct the cost of acquisition of those shares, whereas the same payment made to a resident shareholder is taxed as a capital gain with a right to deduct the cost of acquisition.

| 2. | Articles 56 EC and 58 EC must be interpreted as precluding national legislation which derives from a double taxation agreement, such as the Agreement between the Government of the French Republic and the Government of the Kingdom of Sweden for the Avoidance of Double Taxation and the Prevention of Tax Evasion in respect of Taxes on Income and Wealth, signed on 27 November 1990, which fixes a lower ceiling on the taxation of dividends for non-resident shareholders than for resident shareholders, and, by interpreting that agreement in the light of the commentaries of the Organisation for Economic Cooperation and Development on its applicable model convention, permits the nominal value of such shares to be deducted from the share repurchase payment, except where, under such national legislation, non-resident shareholders are not treated less favourably than resident shareholders. It is for the national court to determine whether that is the case in the specific circumstances of the main proceedings. |
| --- | --- |

2.

Articles 56 EC and 58 EC must be interpreted as precluding national legislation which derives from a double taxation agreement, such as the Agreement between the Government of the French Republic and the Government of the Kingdom of Sweden for the Avoidance of Double Taxation and the Prevention of Tax Evasion in respect of Taxes on Income and Wealth, signed on 27 November 1990, which fixes a lower ceiling on the taxation of dividends for non-resident shareholders than for resident shareholders, and, by interpreting that agreement in the light of the commentaries of the Organisation for Economic Cooperation and Development on its applicable model convention, permits the nominal value of such shares to be deducted from the share repurchase payment, except where, under such national legislation, non-resident shareholders are not treated less favourably than resident shareholders. It is for the national court to determine whether that is the case in the specific circumstances of the main proceedings.

---

(1)  OJ C 228, 11.09.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/7 |
| --- | --- | --- | --- |

11.3.2006

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Official Journal of the European Union

C 60/7

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JUDGMENT OF THE COURT

(Third Chamber)

of 12 January 2006

in Case C-311/04: Reference for a preliminary ruling from the Gerechtshof te Amsterdam in Algemene Scheeps Agentuur Dordrecht BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam (1)

(Common Customs Tariff - Tariff headings - Classification of consignments of rice - Additional Note 1(f) to Chapter 10 of the Combined Nomenclature - Validity - Post-clearance recovery of import duties - Article 220(2)(b) of the Community Customs Code - Interpretation - Good faith of the person liable for payment)

(2006/C 60/13)

Language of the case: Dutch

In Case C-311/04: Reference for a preliminary ruling under Article 234 EC from the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal) (Netherlands), made by decision of 28 June 2004, received at the Court on 22 July 2004, in the proceedings Algemene Scheeps Agentuur Dordrecht BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it ruled as follows:

Examination of the first question raised has revealed no factor of such a kind as to affect the validity of Additional Note 1(f) to Chapter 10 of 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 Commission Regulation (EC) No 2388/2000 of 13 October 2000.

---

(1)  OJ C 239, 25.09.2004.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/7 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/7

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JUDGMENT OF THE COURT

(Grand Chamber)

of 10 January 2006

in Case C-344/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division, The Queen on the application of International Air Transport Association, European Low Fares Airline Association v Department for Transport (1)

(Carriage by air - Regulation (EC) No 261/2004 - Articles 5, 6 and 7 - Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights - Validity - Interpretation of Article 234 EC)

(2006/C 60/14)

Language of the case: English

In Case C-344/04: reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), made by decision of 14 July 2004, received at the Court on 12 August 2004, in the proceedings between The Queen, on the application of the International Air Transport Association and European Low Fares Airline Association, and the Department for Transport — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Schiemann and J. Malenovský (Rapporteur), Presidents of Chambers, C. Gulmann, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász, G. Arestis and A. Borg Barthet, Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 10 January 2006, the operative part of which is as follows:

| 1. | Where a court against whose decisions there is a judicial remedy under national law considers that one or more arguments for invalidity of a Community act which have been put forward by the parties or, as the case may be, raised by it of its own motion are well founded, it must stay proceedings and make a reference to the Court of Justice for a preliminary ruling on the act's validity. |
| --- | --- |

1.

Where a court against whose decisions there is a judicial remedy under national law considers that one or more arguments for invalidity of a Community act which have been put forward by the parties or, as the case may be, raised by it of its own motion are well founded, it must stay proceedings and make a reference to the Court of Justice for a preliminary ruling on the act's validity.

| 2. | Examination of the questions referred to the Court has revealed no factor of such a kind as to affect the validity of Articles 5, 6 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91. |
| --- | --- |

2.

Examination of the questions referred to the Court has revealed no factor of such a kind as to affect the validity of Articles 5, 6 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.

---

(1)  OJ C 251 of 09.10.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/8 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/8

---

JUDGMENT OF THE COURT

(First Chamber)

of 12 January 2006

in Case C-361/04 P: Claude Ruiz-Picasso, Paloma Ruiz-Picasso, Maya Widmaier-Picasso, Marina Ruiz-Picasso, Bernard Ruiz-Picasso v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Appeal - Community trade mark - Article 8(1)(b) of Regulation (EC) No 40/94 - Likelihood of confusion - Word mark PICARO - Opposition by the proprietor of the Community word mark PICASSO)

(2006/C 60/15)

Language of the case: German

In Case C-361/04 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 18 August 2004, by Claude Ruiz-Picasso, residing in Paris (France), Paloma Ruiz-Picasso, residing in London (United Kingdom), Maya Widmaier-Picasso, residing in Paris, Marina Ruiz-Picasso, residing in Geneva (Switzerland), Bernard Ruiz-Picasso, residing in Paris, (represented by C. Gielen, advocaat), the other parties to the proceedings being the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: G. Schneider and A. von Mühlendahl), defendant at first instance, and DaimlerChrysler AG (represented by S. Völker, Rechtsanwalt), intervener at first instance — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, K. Lenaerts and E. Juhász, Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 12 January 2006, in which it:

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

1.

Dismisses the appeal;

| 2. | Orders Mr Claude Ruiz-Picasso, Mrs Paloma Ruiz-Picasso, Mrs Maya Widmaier-Picasso, Mrs Marina Ruiz-Picasso and Mr Bernard Ruiz-Picasso to pay the costs. |
| --- | --- |

2.

Orders Mr Claude Ruiz-Picasso, Mrs Paloma Ruiz-Picasso, Mrs Maya Widmaier-Picasso, Mrs Marina Ruiz-Picasso and Mr Bernard Ruiz-Picasso to pay the costs.

---

(1)  OJ 262, 23.10.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/8 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/8

---

JUDGMENT OF THE COURT

(Third Chamber)

of 12 January 2006

in Case C-504/04: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin in Agrarproduktion Stabelow GmbH v Landrat des Landkreises Bad Doberan (1)

(Animal health - Prevention, control and eradication of certain transmissible spongiform encephalopathies - Slaughter of birth cohorts - Proportionality)

(2006/C 60/16)

Language of the case: German

In Case C-504/04: Reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Schwerin (Germany), made by decision of 9 January 2004, received at the Court on 8 December 2004, in the proceedings Agrarproduktion Stabelow GmbH v Landrat des Landkreises Bad Doberan — the Court (Third Chamber), composed of M.A. Rosas (Rapporteur), President of the Chamber, J. Malenovský, A. La Pergola, A. Borg Barthet and A.Ó Caoimh, Judges; M.Poiares Maduro, Advocate General; M.B. Fülöp, Administrator, for the Registrar, gave a judgment on 12 January 2006, in which it ruled as follows:

Examination of the question referred has not revealed anything capable of affecting, in the light of the principle of proportionality, the validity of Article 13(1), first sentence, (c), of Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies, as amended by Commission Regulation (EC) No 1326/2001 of 29 June 2001 laying down transitional measures to permit the changeover to Regulation No 999/2001 and amending Annexes VII and XI to that regulation, in conjunction with Annex VII(2)(a) and the third indent of Annex VII(1)(a) to that regulation.

---

(1)  OJ C 57, 5.3.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/9 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/9

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 12 January 2006

in Case C-37/05: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

(Failure of a Member State to fulfil obligations - Directive 85/337/EEC, as amended by Directive 97/11/EC - Assessment of the effects of projects on the environment - Consents granted without assessment)

(2006/C 60/17)

Language of the case: English

In Case C-37/05, Commission of the European Communities (Agent: M. van Beek, assisted by F. Louis and A. Capobianco, avocats) v United Kingdom of Great Britain and Northern Ireland (Agent: C. White) — Action under Article 226 EC for failure to fulfil obligations, brought on 31 January 2005 — the Court (Fifth Chamber), composed of J. Makarczyk (Rapporteur), President of the Chamber, R. Silva de Lapuerta and P. Kūris, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declares that, in failing to correctly transpose Articles 2(1) and 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, in failing to correctly transpose Articles 2(1) and 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

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

2.

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

---

(1)  OJ C 82, 2.4.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/9 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/9

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 12 January 2006

in Case C-69/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 659/1999 - State aid in the agricultural sector - Submission of annual reports during 2000 and 2001 - Guidelines for the assessment of State aid)

(2006/C 60/18)

Language of the case: French

In Case C-69/05 Commission of the European Communities (Agents: F. Clotuche-Duvieusart and A. Stobiecka-Kuik) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EEC for failure to fulfil obligations, brought on 11 February 2005 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, acting for the President of the Fifth Chamber, G. Arestis (Rapporteur) and J. Klučka, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declares that, by failing to communicate, before 1 July 2001 and no later than 30 June 2002, annual reports on all State aid schemes in the agricultural sector existing during 2000 and 2001, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 88(1) EC and Article 21 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC], as implemented by the Commission communication entitled ‘Community Guidelines for State aid in the agriculture sector’, published in the Official Journal of the European Communities of 1 February 2000; |
| --- | --- |

1.

Declares that, by failing to communicate, before 1 July 2001 and no later than 30 June 2002, annual reports on all State aid schemes in the agricultural sector existing during 2000 and 2001, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 88(1) EC and Article 21 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC], as implemented by the Commission communication entitled ‘Community Guidelines for State aid in the agriculture sector’, published in the Official Journal of the European Communities of 1 February 2000;

| 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 106 of 30.4.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/10 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/10

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 12 January 2006

in Case C-85/05: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2000/60/EC - Community action in the field of water policy - Failure to transpose within the prescribed period )

(2006/C 60/19)

Language of the case: Italian

In Case C-85/05 Commission of the European Communities (Agent: S. Pardo Quintillán and D. Recchia) v Italian Republic (Agent: I.M. Braguglia and G. Fiengo, avvocato dello Stato) — action under Article 226 EC for failure to fulfil obligations, brought on 18 February 2005 — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, 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 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, 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 93 of 16.4.2005

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/10 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/10

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 19 January 2006

in Case C-90/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 79/1072/EEC - VAT - Refund - Taxable persons not established in the territory of the country)

(2006/C 60/20)

Language of the case: French

In Case C-90/05 Commission of the European Communities (Agent: D. Triantafyllou) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action for annulment under Article 226 EC, brought on 18 February 2005 — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, A. La Pergola, U. Lõhmus (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 19 January 2006, in which it:

| 1. | Declares that, by not observing the six-month period for refunds of VAT to taxable persons not established within the country, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7(4) of Eight Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country; |
| --- | --- |

1.

Declares that, by not observing the six-month period for refunds of VAT to taxable persons not established within the country, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7(4) of Eight Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country;

| 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 82 of 2.4.2005

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/10 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/10

---

JUDGMENT OF THE COURT

(Fifth Chamber)

12 January 2006

in Case C-107/05 Commission of the European Communities v Republic of Finland (1)

(Failure of a Member State to fulfil obligations - Directive 2003/87/EC - Failure to transpose within the period prescribed)

(2006/C 60/21)

Language of the case: Finnish

In Case C-107/05 Commission of the European Communities (Agents: U. Wölker and P. Aalto) v Republic of Finland (Agent: A. Guimaraes-Purokoski) — action under Article 226 EC for failure to fulfil obligations — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, G. Arestis and J. Klucka (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declared that, by failing, with regard to the province of Åland, to adopt the laws regulations and administrative provisions necessary to comply with Directive 2003/87/EEC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, the Finnish Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declared that, by failing, with regard to the province of Åland, to adopt the laws regulations and administrative provisions necessary to comply with Directive 2003/87/EEC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, the Finnish Republic has failed to fulfil its obligations under that directive;

| 2. | Ordered the Finnish Republic to pay the costs. |
| --- | --- |

2.

Ordered the Finnish Republic to pay the costs.

---

(1)  OJ C 93 of 16.4.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/11 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/11

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 12 January 2006

in Case C-118/05: Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2000/60/EC - Community policy in the field of water - Failure to transpose within the prescribed period)

(2006/C 60/22)

Language of the case: Portuguese

In Case C-118/05, Action for failure to fulfil obligations under Article 226 EC, brought on 10 March 2005, Commission of the European Communities (Agents: A. Caeiros and S. Pardo Quintillán) v Portuguese Republic (Agent: L. Fernandes), the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, J.-P. Puissochet and A. Ó Caoimh, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Portuguese 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 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Portuguese Republic has failed to fulfil its obligations under that Directive;

| 2. | Orders the Portuguese Government to pay the costs. |
| --- | --- |

2.

Orders the Portuguese Government to pay the costs.

---

(1)  OJ C 106 of 30.04.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/11 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/11

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 12 January 2006

in Case C-179/05 Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil its obligations - Regulation (EEC) No 2847/93 - Control system in the fisheries sector - Information on catches and fishing effort)

(2006/C 60/23)

Language of the case: French

In Case C-179/05 Commission of the European Communities (Agent: M. Nolin) v French Republic (Agents: G. de Bergues and A. Colomb) — action for failure to fulfil obligations under Article 226 EC — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta and M. Kūris (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 12 January 2006, in which it:

| 1. | Declares that by failing to provide the information required under the first and third indents of Article 19i of Council Regulation 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) 2635/97 of 18 December 1997, the French Republic has failed to fulfil its obligations under that regulation; |
| --- | --- |

1.

Declares that by failing to provide the information required under the first and third indents of Article 19i of Council Regulation 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) 2635/97 of 18 December 1997, the French Republic has failed to fulfil its obligations under that regulation;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 155 of 25.06.2005

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/12 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/12

---

ORDER OF THE COURT

(Sixth Chamber)

of 17 November 2005

in Case C-121/04 P: Minoikes Grammes ANE (Minoan Lines SA) v Commission of the European Communities (1)

(Appeal - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Competition - Cartels - Agreements between undertakings - Proof of an undertaking's participation in meetings of undertakings with an anti-competitive purpose)

(2006/C 60/24)

Language of the case: Greek

In Case C-121/04 P: APPEAL under Article 56 of the Statute of the Court of Justice, brought on 1 March 2004, by Minoikes Grammes ANE (Minoan Lines SA)(represented by: I. Dryllerakis, E. Dryllerakis and N. Korogiannakis), the other party to the proceedings being: Commission of the European Communities (Agents: R. Lyal and T. Christoforou, assisted by A. Oikonomou), the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, J.-P. Puissochet (Rapporteur), and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 17 November 2005, in which it ruled:

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

1.

The appeal is dismissed;

| 2. | The Commission's cross-appeal is dismissed; |
| --- | --- |

2.

The Commission's cross-appeal is dismissed;

| 3. | Minoikes Grammes ANE (Minoan Lines SA) shall bear 90 % of the costs; |
| --- | --- |

3.

Minoikes Grammes ANE (Minoan Lines SA) shall bear 90 % of the costs;

| 4. | The Commission of the European Communities shall bear 10 % of the costs. |
| --- | --- |

4.

The Commission of the European Communities shall bear 10 % of the costs.

---

(1)  OJ C 106 of 30.04.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/12 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/12

---

ORDER OF THE COURT

(Fifth Chamber)

of 23 September 2005

in Case C-357/04 P: Antonio Andolfi v Commission of the European Communities (1)

(Appeal - JOP Programme - Project to set up a joint Italo-Romanian company - Withdrawal of financial aid initially granted - Appeal in part manifestly inadmissible and in part manifestly unfounded)

(2006/C 60/25)

Language of the case: Italian

In Case C-357/04 P: APPEAL under Article 56 of the Statute of the Court of Justice, brought on 17 August 2004, by Antonio Andolfi, residing in Rome (Italy), (Avvocato: S. Amato) the other party to the proceedings being: Commission of the European Communities (Agent: E. Montaguti), assisted by Avvocato: A. Dal Ferro), the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, C. Gulmann and P. Kūris (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, made an order on 23 September 2005, the operative part of which is as follows:

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

1.

The appeal is dismissed.

| 2. | Mr Andolfi shall pay the costs. |
| --- | --- |

2.

Mr Andolfi shall pay the costs.

---

(1)  OJ C 284 of 20.11.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/12 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/12

---

ORDER OF THE COURT

(Second Chamber)

of 1 December 2005

in Case C-447/04: Reference for a preliminary ruling from the Landesgericht Innsbruck in Autohaus Ostermann GmbH v VAV Versicherungs AG (1)

(Article 104(3) second subparagraph of the Rules of Procedure - Automobile civil liability insurance - Directive 2000/26/EC - Period for insurance undertaking to assess compensation claims)

(2006/C 60/26)

Language of the case: German

In Case C-447/04: reference for a preliminary ruling under Article 234 EC from the Landesgericht Innsbruck, (Austria), made by decision of 30 September 2004, received at the Court on 27 October 2004, in the proceedings between Autohaus Ostermann GmbH and VAV Versicherungs AG — the Court (Second Chamber), composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Schintgen, R. Silva de Lapuerta, G. Arestis and J. Klučka,, Judges; P. Léger, Advocate General; R. Grass, Registrar, made an order on 1 December 2005, the operative part of which is as follows:

Article 4(6) of Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (fourth motor insurance Directive) is to be interpreted as not precluding a national rule from allowing an injured party to bring a legal action against the insurance undertaking within the three-month period set down by that provision, after the setting of a reasonable period for payment.

---

(1)  OJ C 314, 18.12.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/13 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/13

---

ORDER OF THE COURT

(Fourth Chamber)

of 1 December 2005

in Case C-512/04 P Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Krafft SA (1)

(Appeal - Community trade mark - Article 8(1)(b) of Regulation (EC) No 40/94 - Likelihood of confusion - Application for Community word mark VITAKRAFT - Opposition from the proprietor of national marks containing the word element ‘krafft’ - Similarity between marks - Appeal manifestly inadmissible)

(2006/C 60/27)

Language of the case: German

In Case C-512/04 P: Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG, established in Bremen (Germany) (represented by U. Sander, Rechtsanwalt), the other parties to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (Agent: G. Schneider), Krafft SA, established in Andoain (Spain) (represented by P. Koch Moreno, abogada) — an appeal under Article 56 of the Statute of the Court of Justice, brought on 14 December 2004, the Court (Fourth Chamber), composed of K. Schiemann, President of the Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, made an order on 1 December 2005, the operative part of which is as follows

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

1.

The appeal is dismissed;

| 2. | Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG shall pay the costs, including those of the interim proceedings. |
| --- | --- |

2.

Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG shall pay the costs, including those of the interim proceedings.

---

(1)  OJ C 45 of 19.02.2005

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/13 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/13

---

ORDER OF THE COURT

(Third Chamber)

of 24 November 2005

in Case C-5/05 SA: Maria Fernanda Gil do Nascimento and Others v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 60/28)

Language of the case: Portuguese

In Case C-5/05 SA: Maria Fernanda Gil do Nascimento and Others (lawyer: J. Grilo Simões) against Commission of the European Communities (Agents: I. Martinez del Peral Cagigal and P. Guerra e Andrade) — application for authorisation to serve a garnishee order on the Commission of the European Communities, brought on 11 March 2005, the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, A. Borg Barthet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 24 November 2005, the operative part of which is as follows:

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

1.

There is no need to adjudicate on the matter.

| 2. | Ms Gil do Nascimento, Mr Sirolla, Ms Leão Pingo Barata, Mr Vera Pedro, Mr Fontes, Ms Florindo Mestre, Ms Coutinho Martins, Mr do Nascimento Neves, Mr Rodrigues Paula, Ms Teixeira dos Santos and the Commission of the European Communities shall bear their own costs. |
| --- | --- |

2.

Ms Gil do Nascimento, Mr Sirolla, Ms Leão Pingo Barata, Mr Vera Pedro, Mr Fontes, Ms Florindo Mestre, Ms Coutinho Martins, Mr do Nascimento Neves, Mr Rodrigues Paula, Ms Teixeira dos Santos and the Commission of the European Communities shall bear their own costs.

---

(1)  OJ C 106, 30.04.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/14 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/14

---

ORDER OF THE COURT

(Sixth Chamber)

of 1 December 2005

in Case C-116/05: Reference for a preliminary ruling from the Tribunal de commerce de Nancy in Etablissements Dhumeaux et Cie SA, Société d'études et de commerce (SEC) v ALVBV SA, ALBV SA v Tragex Gel SA, Agence fédérale pour la sécurité de la chaîne alimentaire (AFSCA), formerly Institut d'expertise vétérinaire (IEV), ALBV SA v CIGMA International SA and ALBV SA v Jean Max Gustin in his capacity as administrator of Tragex Gel SA (1)

(Reference for a preliminary ruling - Inadmissibility)

(2006/C 60/29)

Language of the case: French

In Case C-116/05: reference for a preliminary ruling under Article 234 EC from the Tribunal de commerce de Nancy (France), made by decision of 14 February 2005, received at the Court on 10 March 2005, in the proceedings between Etablissements Dhumeaux et Cie SA, Société d'études et de commerce (SEC) and ALVBV SA, between ALBV SA and Tragex Gel SA, Agence fédérale pour la sécurité de la chaîne alimentaire (AFSCA), formerly Institut d'expertise vétérinaire (IEV), between ALBV SA and CIGMA International SA and between ALBV SA and Jean Max Gustin in his capacity as administrator of Tragex Gel SA, the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, A. La Pergola (Rapporteur) and J.-P. Puissochet, Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, made an order on 1 December 2005, the operative part of which is as follows:

The reference for a preliminary ruling made by the Tribunal de commerce de Nancy by decision of 14 February 2005 is manifestly inadmissible.

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(1)  OJ C 115 of 14.05.2005.

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ORDER OF THE COURT

(Fifth Chamber)

of 2 December 2005

in Case C-117/05: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat of the Landes Oberösterreich in Manfred Seidl v Bezirkshauptmannschaft Grieskirchen (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - Freedom of movement for persons - Article 43 EC - Establishment of a driving school)

(2006/C 60/30)

Language of the case: German

In Case C-117/05: reference for a preliminary ruling under Article 234 EC from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria), made by decision of 4 March 2005, received at the Court on 10 March 2005, in the proceedings between Manfred Seidl and Bezirkshauptmannschaft Grieskirchen — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta (Rapporteur) and J. Klucka, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, made an order on 2 December 2005, the operative part of which is as follows:

Article 43 EC must be interpreted as precluding legislation of a Member State which prohibits the issue of a driving-school permit to a person who already holds a permit for the same purpose.

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(1)  OJ C 155, 25.06.2005

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ORDER OF THE COURT

(Fourth Chamber)

of 13 December 2005

in Case C-177/05: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras in María Cristina Guerrero Pecino v Fondo de Garantía Salarial (Fogasa) (1)

(Reference for a preliminary ruling - First subparagraph of Article 104(3) of the Rules of Procedure - Social policy - Protection of workers in the event of the insolvency of their employer - Directive 80/987/EEC (amended by Directive 2002/74/EC) - Compensation agreed at the conciliation - Payment guaranteed by the guarantee institution - Payment subject to the adoption of a judicial decision)

(2006/C 60/31)

Language of the case: Spanish

In Case C-177/05: reference for a preliminary ruling under Article 234 EC from the Juzgado de lo Social Único de Algeciras (Spain), made by decision of 30 March 2005, received at the Court on 20 April 2005, in the proceedings between María Cristina Guerrero Pecino and Fondo de Garantía Salarial (Fogasa) — the Court (Fourth Chamber), composed of K. Schiemann, President of the Chamber, N. Colneric (Rapporteur), and E. Juhász, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, made an order on 13 December 2005, the operative part of which is as follows:

Where, according to the relevant national legislation, compensation for unfair dismissal awarded by a judgment or administrative decision must be regarded, under national law, as severance pay on termination of employment relationships which falls within Article 3(1) of Council Directive 80/987/EEC of 20 October 1980 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, as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002, compensation of the same type, determined by a judicial conciliation procedure such as that at issue in the main proceedings, must also be regarded as severance pay within the meaning of that provision. The national court must leave unapplied domestic legislation which infringes the principle of equality by excluding that compensation from the notion of ‘severance pay’ within the meaning of that legislation.

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(1)  OJ C 155 of 25.06.2005.

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Appeal brought on 23 November 2005 by Alcon, INC against the judgment of the Court of First Instance (Third Chamber) of 22 September 2005 in Case T-130/03: Alcon, INC v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-412/05 P)

(2006/C 60/32)

Language of the case: English

An appeal against the judgment of the Court of First Instance (Third Chamber) of 22 September 2005 in Case T-130/03: Alcon, INC v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 23 November 2005 by Alcon, INC, Hünenberg (Switzerland) represented by Garrett Breen, Solicitor, Landwell Solicitors.

The applicant claims that the Court should:

| 1. | annul the contested decision; |
| --- | --- |

1.

annul the contested decision;

| 2. | if necessary, remit the case back to the Court of First Instance, and |
| --- | --- |

2.

if necessary, remit the case back to the Court of First Instance, and

| 3. | order Office for Harmonisation in the Internal Market (Trade Marks and Designs) and /or the intervener to pay the costs. |
| --- | --- |

3.

order Office for Harmonisation in the Internal Market (Trade Marks and Designs) and /or the intervener to pay the costs.

Pleas in law and main arguments

The applicant submits that there has been an error of law by the Court of First Instance and an infringement of Article 43(2) and (3) of Regulation No 40/94 (1) on the following grounds:

| 1. | The Court of First Instance erred in concluding that the submission of the Applicant alleging an infringement of Article 43(2) and (3) of Regulation No 40/94 relating to compliance with the conditions concerning genuine use of the earlier mark on the part of the Intervener was inadmissible as being a new plea within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance. The Applicant had always contested the prior use made by the Intervener of its mark and the distinction between the context of the use and the genuineness of the use is a distinction without a difference. It was not therefore a new plea. |
| --- | --- |

1.

The Court of First Instance erred in concluding that the submission of the Applicant alleging an infringement of Article 43(2) and (3) of Regulation No 40/94 relating to compliance with the conditions concerning genuine use of the earlier mark on the part of the Intervener was inadmissible as being a new plea within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance. The Applicant had always contested the prior use made by the Intervener of its mark and the distinction between the context of the use and the genuineness of the use is a distinction without a difference. It was not therefore a new plea.

| 2. | If, contrary to the foregoing, it was a new plea, it was justified as being based on matters of law which came to light in the course of the procedure, in accordance with the first paragraph of Article 48(2) of the Rules of Procedure. |
| --- | --- |

2.

If, contrary to the foregoing, it was a new plea, it was justified as being based on matters of law which came to light in the course of the procedure, in accordance with the first paragraph of Article 48(2) of the Rules of Procedure.

| 3. | The Court of First Instance further erred in law in concluding that even if the plea were admissible, the Court of First Instance was confined to reviewing the legality of the decision of the Board of Appeal of OHIM on the basis of the factual and legal decision as it was before the Board of Appeal. The Applicant contends that this is a misapplication of the legal position and that the Court of First Instance has in effect refused to apply its own jurisprudence concerning genuineness of use. |
| --- | --- |

3.

The Court of First Instance further erred in law in concluding that even if the plea were admissible, the Court of First Instance was confined to reviewing the legality of the decision of the Board of Appeal of OHIM on the basis of the factual and legal decision as it was before the Board of Appeal. The Applicant contends that this is a misapplication of the legal position and that the Court of First Instance has in effect refused to apply its own jurisprudence concerning genuineness of use.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, 14.01.1994, p. 1-36.

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Reference for a preliminary ruling from the Simvoulio tis Epikratias by order of that court of 31 August 2005 in Dionik Anonimi Etairia Emporias I/I, Logismikou & Parokhis Ipirision Mikhanografisis (Dionik A.E.) and Ioannis Mikhail Pikoulas v Epitropi Kefalaiagoras

(Case C-430/05)

(2006/C 60/33)

Language of the case: Greek

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, Greece) of 31 August 2005, received at the Court Registry on 2 December 2005, for a preliminary ruling in the proceedings between Dionik Anonimi Etairia Emporias I/I, Logismikou & Parokhis Ipirision Mikhanografisis (Dionik A.E.) and Ioannis Mikhail Pikoulas and the Epitropi Kefalaiagoras (Capital Market Commission) on the following question:

In the light of Article 21 of Directive 2001/34/EC of the European Parliament and of the Council on the admission of securities to official stock exchange listing and on information to be published on those securities (OJ 2001 L 184, p. 1), can a national legislature lay down, for cases where the information recorded in listing particulars proves to be inaccurate or misleading, administrative penalties imposable not only upon the persons expressly mentioned in those particulars as responsible but also upon the issuer of the securities being admitted to listing on a stock exchange and, indiscriminately, upon the members of its board of directors, regardless of whether the board members have been identified as responsible in the abovementioned sense?

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Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales), by Order of that court of 23 November 2005 in 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union v 1) Viking Line ABP 2) OU Viking Line Eesti

(Case C-438/05)

(2006/C 60/34)

Language of the case: English

Reference has been made to the Court of Justice of the European Communities by Order of the Court of Appeal (Civil Division) (England and Wales) of 23 November 2005, received at the Court Registry on 6 December 2005, for a preliminary ruling in the proceedings between 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union and 1) Viking Line ABP 2) OU Viking Line Eesti, on the following questions:

Scope of the free movement provisions

| 1) | Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State which has the effect of making it pointless for that undertaking to re-flag a vessel in another Member State, does that action fall outside the scope of Article 43 of the EC Treaty and/or Regulation 4055/86 (1) by virtue of the EC's social policy including, inter alia, Title XI of the EC Treaty and, in particular, by analogy with the Court's reasoning in Case C-67/96 Albany [1996] ECR I- 5751, paras 52-64? |
| --- | --- |

1)

Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State which has the effect of making it pointless for that undertaking to re-flag a vessel in another Member State, does that action fall outside the scope of Article 43 of the EC Treaty and/or Regulation 4055/86 (1) by virtue of the EC's social policy including, inter alia, Title XI of the EC Treaty and, in particular, by analogy with the Court's reasoning in Case C-67/96 Albany [1996] ECR I- 5751, paras 52-64?

Horizontal direct effect

| 2) | Do Article 43 of the EC Treaty and/or Regulation 4055/86 have horizontal direct effect so as to confer rights on a private undertaking which may be relied on against another private party and, in particular, a trade union or association of trade unions in respect of collective action by that union or association of unions? |
| --- | --- |

2)

Do Article 43 of the EC Treaty and/or Regulation 4055/86 have horizontal direct effect so as to confer rights on a private undertaking which may be relied on against another private party and, in particular, a trade union or association of trade unions in respect of collective action by that union or association of unions?

Existence of restrictions on free movement

| 3) | Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State, which has the effect of making it pointless for that undertaking to re-flag a vessel in another Member State, does that action constitute a restriction for the purposes of Article 43 of the EC Treaty and/or Regulation 4055/86? |
| --- | --- |

3)

Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State, which has the effect of making it pointless for that undertaking to re-flag a vessel in another Member State, does that action constitute a restriction for the purposes of Article 43 of the EC Treaty and/or Regulation 4055/86?

| 4) | Is a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86? |
| --- | --- |

4)

Is a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86?

| 5) | In determining whether collective action by a trade union or association of trade unions is a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86, is the subjective intention of the union taking the action relevant or must the national court determine the issue solely by reference to the objective effects of that action? |
| --- | --- |

5)

In determining whether collective action by a trade union or association of trade unions is a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86, is the subjective intention of the union taking the action relevant or must the national court determine the issue solely by reference to the objective effects of that action?

Establishment/ Services

| 6) | Where a parent company is established in Member State A and intends to undertake an act of establishment by reflagging a vessel to Member State B to be operated by an existing wholly owned subsidiary in Member State B which is subject to the direction and control of the parent company:






  a) | is threatened or actual collective action by a trade union or association of trade unions which would seek to render the above a pointless exercise capable of constituting a restriction on the parent company's right of establishment under Article 43, and |
| --- | --- | --- |

6)

Where a parent company is established in Member State A and intends to undertake an act of establishment by reflagging a vessel to Member State B to be operated by an existing wholly owned subsidiary in Member State B which is subject to the direction and control of the parent company:

a)

is threatened or actual collective action by a trade union or association of trade unions which would seek to render the above a pointless exercise capable of constituting a restriction on the parent company's right of establishment under Article 43, and

| b) | after reflagging of the vessel, is the subsidiary entitled to rely on Regulation 4055/86 in respect of the provision of services by it from Member State B to Member State A? |
| --- | --- |

b)

after reflagging of the vessel, is the subsidiary entitled to rely on Regulation 4055/86 in respect of the provision of services by it from Member State B to Member State A?

Justification

Direct discrimination

| 7) | If collective action by a trade union or association of trade unions is a directly discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86, can it, in principle, be justified on the basis of the public policy exception set out in Article 46 of the EC Treaty on the basis that:






  a) | the taking of collective action (including strike action) is a fundamental right protected by Community law; and/or |
| --- | --- | --- |

7)

If collective action by a trade union or association of trade unions is a directly discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86, can it, in principle, be justified on the basis of the public policy exception set out in Article 46 of the EC Treaty on the basis that:

a)

the taking of collective action (including strike action) is a fundamental right protected by Community law; and/or

| b) | the protection of workers? |
| --- | --- |

b)

the protection of workers?

ITF policy: objective justification

| 8) | Does the application of a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services, and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition? |
| --- | --- |

8)

Does the application of a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services, and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?

FSU's actions: objective justification

| 9) | Where: | a parent company in Member State A owns a vessel flagged in Member State A and provides ferry services between Member State A and Member State B using that vessel; |
| --- | --- | --- |

9)

Where:

a parent company in Member State A owns a vessel flagged in Member State A and provides ferry services between Member State A and Member State B using that vessel;

| | the parent company wishes to re-flag the vessel to Member State B to apply terms and conditions of employment which are lower than in Member State A; |
| --- | --- |

the parent company wishes to re-flag the vessel to Member State B to apply terms and conditions of employment which are lower than in Member State A;

| | the parent company in Member State A wholly owns a subsidiary in Member State B and that subsidiary is subject to its direction and control; |
| --- | --- |

the parent company in Member State A wholly owns a subsidiary in Member State B and that subsidiary is subject to its direction and control;

| | it is intended that the subsidiary will operate the vessel once it has been re-flagged in Member State B with a crew recruited in Member State B covered by a collective bargaining agreement negotiated with an ITF affiliated trade union in Member State B; |
| --- | --- |

it is intended that the subsidiary will operate the vessel once it has been re-flagged in Member State B with a crew recruited in Member State B covered by a collective bargaining agreement negotiated with an ITF affiliated trade union in Member State B;

| | the vessel will remain beneficially owned by the parent company and be bareboat chartered to the subsidiary; |
| --- | --- |

the vessel will remain beneficially owned by the parent company and be bareboat chartered to the subsidiary;

| | the vessel will continue to provide ferry services between Member State A and Member State B on a daily basis; |
| --- | --- |

the vessel will continue to provide ferry services between Member State A and Member State B on a daily basis;

| | a trade union established in Member State A takes collective action so as to require the parent and/or subsidiary to enter into a collective bargaining agreement with it which will apply terms and conditions acceptable to the union in Member State A to the crew of the vessel even after reflagging and which has the effect of making it pointless for the parent to re-flag the vessel to Member State B, |
| --- | --- |

a trade union established in Member State A takes collective action so as to require the parent and/or subsidiary to enter into a collective bargaining agreement with it which will apply terms and conditions acceptable to the union in Member State A to the crew of the vessel even after reflagging and which has the effect of making it pointless for the parent to re-flag the vessel to Member State B,

| | does that collective action strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition? |
| --- | --- |

does that collective action strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?

| 10) | Would it make any difference to the answer to 9) if the parent company provided an undertaking to a court on behalf of itself and all the companies within the same group that they will not by reason of the reflagging terminate the employment of any person employed by them (which undertaking did not require the renewal of short term employment contracts or prevent the redeployment of any employee on equivalent terms and conditions)? |
| --- | --- |

10)

Would it make any difference to the answer to 9) if the parent company provided an undertaking to a court on behalf of itself and all the companies within the same group that they will not by reason of the reflagging terminate the employment of any person employed by them (which undertaking did not require the renewal of short term employment contracts or prevent the redeployment of any employee on equivalent terms and conditions)?

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(1)  Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries.

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Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 3 November 2005 in Finanzamt Oschatz v Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien

(Case C-442/05)

(2006/C 60/35)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) of 3 November 2005, received at the Court Registry on 14 December 2005, for a preliminary ruling in the proceedings between Finanzamt Oschatz and Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien on the following question:

Does connection of the water distribution network to a property owner's installation (the so-called ‘household connection’) by a water supply undertaking for a separately calculated fee come under the heading of ‘the supply of water’ within the meaning of Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes (Annex D (2) and Annex H Category 2)?

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(1)  OJ L 145, p. 1.

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Reference for a preliminary ruling from the Diikitiko Protodikio Athinas by decision of that court of 30 December 2004 in Aikaterini Stamatelaki v Organismos Asfaliseos Eleftheron Epangelmation (O.A.E.E.)

(Case C-444/05)

(2006/C 60/36)

Language of the case: Greek

Reference has been made to the Court of Justice of the European Communities by decision of the Diikitiko Protodikio Athinas of 30 December 2004, received at the Court Registry on 14 December 2005, for a preliminary ruling in the proceedings between Aikaterini Stamatelaki and Organismos Asfaliseos Eleftheron Epangelmation (Insurance Institution for the Liberal Professions; O.A.E.E.), a legal person governed by public law, on the following questions:

| (A) | Does a national rule which excludes in all circumstances reimbursement by a domestic insurance body of the cost of treatment of a person insured with it in a private hospital abroad except in cases concerning children up to the age of 14, while on the other hand providing for the possibility of reimbursement of the relevant cost if the treatment in question takes place in a public hospital abroad, following authorisation which is granted provided that the insured person cannot obtain appropriate treatment without undue delay from a hospital that has entered into an agreement with his insurance body, constitute a restriction on the principle of freedom to provide services within the Community which is enshrined in Article 49 et seq. of the EC Treaty? |
| --- | --- |

(A)

Does a national rule which excludes in all circumstances reimbursement by a domestic insurance body of the cost of treatment of a person insured with it in a private hospital abroad except in cases concerning children up to the age of 14, while on the other hand providing for the possibility of reimbursement of the relevant cost if the treatment in question takes place in a public hospital abroad, following authorisation which is granted provided that the insured person cannot obtain appropriate treatment without undue delay from a hospital that has entered into an agreement with his insurance body, constitute a restriction on the principle of freedom to provide services within the Community which is enshrined in Article 49 et seq. of the EC Treaty?

| (B) | If the answer to the first question is in the affirmative, can that restriction be regarded as dictated by overriding reasons in the general interest, such as in particular the need to avoid the risk of seriously undermining the financial balance of the Greek social security system, or the maintenance of a balanced hospital and medical service open to all? |
| --- | --- |

(B)

If the answer to the first question is in the affirmative, can that restriction be regarded as dictated by overriding reasons in the general interest, such as in particular the need to avoid the risk of seriously undermining the financial balance of the Greek social security system, or the maintenance of a balanced hospital and medical service open to all?

| (C) | If the answer to the second question is in the affirmative, can a restriction of this nature be regarded as permissible in the sense that it is not contrary to the principle of proportionality, that is to say that it does not go beyond what is objectively necessary in order to attain the objective at which it is aimed and that the same result cannot be achieved by less restrictive rules? |
| --- | --- |

(C)

If the answer to the second question is in the affirmative, can a restriction of this nature be regarded as permissible in the sense that it is not contrary to the principle of proportionality, that is to say that it does not go beyond what is objectively necessary in order to attain the objective at which it is aimed and that the same result cannot be achieved by less restrictive rules?

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Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 20 October 2005 in Werner Haderer v Finanzamt Wilmersdorf

(Case C-445/05)

(2006/C 60/37)

Language of the case: Germany

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) (Germany) of 20 October 2005, received at the Court Registry on 14 December 2005, for a preliminary ruling in the proceedings between Werner Haderer and Finanzamt Wilmersdorf on the following question:

Is tuition for school or university given by a private teacher to be exempt from tax under Article 13A(1)(j) of Directive 77/388/EEC (1) only where the private teacher provides his tuition services directly to the pupils/students as recipients of those services — and therefore is paid by them — or is it sufficient for the private teacher to provide his tuition services to a school or university as recipient of those services?

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

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Reference for a preliminary ruling from the Cour de Cassation (France) by order of that court of 13 December 2005 in Elisa (Européenne et luxembourgeoise d'investissements SA) v Directeur général des Impôts, Direction des services généraux et de l'informatique and Ministère public

(Case C-451/05)

(2006/C 60/38)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Cour de Cassation (Court of Cassation, France) of 13 December 2005, received at the Court Registry on 19 December 2005, for a preliminary ruling in the proceedings between Elisa (Européenne et luxembourgeoise d'investissements SA) and the Directeur général des Impôts (Director-General of Taxes, General Services and Information Technology Directorate) Ministère public (State Council's Office) on the following questions:

| 1. | Do Articles 52 et seq. and 73b et seq. of the EC Treaty preclude legislation such as that laid down by Article 990D et seq. of the General Tax Code which grants legal persons having their effective centre of management in France entitlement to exemption from the tax on the commercial value of properties owned in France and which, as regards legal persons having their effective centre of management in the territory of another country, even if it is a Member State of the European Union, makes that entitlement conditional on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or on there being a requirement, under a treaty including a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than legal persons having their effective centre of management in France? |
| --- | --- |

1.

Do Articles 52 et seq. and 73b et seq. of the EC Treaty preclude legislation such as that laid down by Article 990D et seq. of the General Tax Code which grants legal persons having their effective centre of management in France entitlement to exemption from the tax on the commercial value of properties owned in France and which, as regards legal persons having their effective centre of management in the territory of another country, even if it is a Member State of the European Union, makes that entitlement conditional on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or on there being a requirement, under a treaty including a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than legal persons having their effective centre of management in France?

| 2. | Does a tax such as the tax at issue constitute a tax on capital within the meaning of Article 1 of the Council Directive of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation? (1) |
| --- | --- |

2.

Does a tax such as the tax at issue constitute a tax on capital within the meaning of Article 1 of the Council Directive of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation? (1)

| 3. | If so, do the obligations imposed on Member States concerning mutual assistance in the field of taxation by the Directive of 19 December 1977, cited above, preclude the implementation by the Member States, under a bilateral convention on administrative assistance in the field of taxation, of obligations of the same kind excluding a category of taxpayers such as Luxembourg holding companies? |
| --- | --- |

3.

If so, do the obligations imposed on Member States concerning mutual assistance in the field of taxation by the Directive of 19 December 1977, cited above, preclude the implementation by the Member States, under a bilateral convention on administrative assistance in the field of taxation, of obligations of the same kind excluding a category of taxpayers such as Luxembourg holding companies?

| 4. | Do Articles 52 et seq. and 73b et seq. of the EC Treaty oblige a Member State which has concluded with another country, whether or not a member of the European Union, a convention including a clause prohibiting discrimination in the field of taxation to accord a legal person having its effective centre of management in the territory of another Member State the same benefits as those provided for by that clause, when that legal person owns one or several properties in the territory of the first Member State and the second Member State is not linked to the first by an equivalent clause? |
| --- | --- |

4.

Do Articles 52 et seq. and 73b et seq. of the EC Treaty oblige a Member State which has concluded with another country, whether or not a member of the European Union, a convention including a clause prohibiting discrimination in the field of taxation to accord a legal person having its effective centre of management in the territory of another Member State the same benefits as those provided for by that clause, when that legal person owns one or several properties in the territory of the first Member State and the second Member State is not linked to the first by an equivalent clause?

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(1)  Council Directive 77/799 EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15).

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/20 |
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Reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg by order of that court of 23 November 2005 in Volker Ludwig v Finanzamt Luckenwalde

(Case C-453/05)

(2006/C 60/39)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht des Landes Brandenburg of 23 November 2005, received at the Court Registry on 20 December 2005, for a preliminary ruling between Volker Ludwig and Finanzamt Luckenwalde on the following questions:

| 1. | Is there negotiation within the meaning of Article 13B(d)(1) (1) of Directive 77/388/EEC, when a taxable person, in some circumstances represented by a subagent, negotiates credit for clients canvassed by it from various providers, with which it has previously negotiated general terms and conditions for its clients and from which it receives a commission for the negotiation of a product, even if, in the process, it investigates and analyses the financial situation of clients and their personal and financial needs, or is that service a dependent service ancillary to the principal service, which is a financial service not covered by Article 13B(1)(d)? |
| --- | --- |

1.

Is there negotiation within the meaning of Article 13B(d)(1) (1) of Directive 77/388/EEC, when a taxable person, in some circumstances represented by a subagent, negotiates credit for clients canvassed by it from various providers, with which it has previously negotiated general terms and conditions for its clients and from which it receives a commission for the negotiation of a product, even if, in the process, it investigates and analyses the financial situation of clients and their personal and financial needs, or is that service a dependent service ancillary to the principal service, which is a financial service not covered by Article 13B(1)(d)?

| 2. | Is it a precondition of the turnover tax exemption in respect of negotiation of credit under Article 13B(d)(1) of Directive 77/388/EEC that






  (a) | there is a direct contractual relationship between the negotiator, on the one hand, and the borrower and/or the lender on the other, and |
| --- | --- | --- |

2.

Is it a precondition of the turnover tax exemption in respect of negotiation of credit under Article 13B(d)(1) of Directive 77/388/EEC that

(a)

there is a direct contractual relationship between the negotiator, on the one hand, and the borrower and/or the lender on the other, and

| (b) | the negotiator establishes contact not only with the borrower, but also with the lender, and himself negotiates the details of the contract with the latter, |
| --- | --- |

(b)

the negotiator establishes contact not only with the borrower, but also with the lender, and himself negotiates the details of the contract with the latter,

or does the tax exemption also cover commission payments received by a taxable person from a main agent (for which he works as a subagent and in whose name he acts vis-à-vis its clients) in return for those clients entering into credit agreements with providers indicated by him, but without the subagent establishing contact with the lender?

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(1)  OJ L 145, p. 1.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/20 |
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Appeal brought on 22 December 2005 by the Republic of Austria against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04

(Case C-454/05P)

(2006/C 60/40)

Language of the case: German

An appeal against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04 was brought before the Court of Justice of the European Communities on 22 December 2005 by the Republic of Austria, represented by Dr. Harald Dossi, acting as Agent, with an address for service in Luxembourg.

The appellant claims that the Court should:

| 1. | set aside the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v Commission of the European Communities, (1) concerning annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, (2) |
| --- | --- |

1.

set aside the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v Commission of the European Communities, (1) concerning annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, (2)

| 2. | order Court of First Instance of the European Communities to pay the costs, |
| --- | --- |

2.

order Court of First Instance of the European Communities to pay the costs,

| 3. | annul the Commission's Decision, or in the alternative, refer the case back to the Court of First Instance for judgment. |
| --- | --- |

3.

annul the Commission's Decision, or in the alternative, refer the case back to the Court of First Instance for judgment.

Pleas in law and main arguments

The appellant contends that in adopting its contested judgment of 5 October 2005, the Court of First Instance made a procedural error which both prejudiced the interests of the Republic of Austria and violated Community law.

According to the appellant, the content of the contested judgment is concerned only with the constituent element of the ‘specific problem’; the other elements required under Article 95(5) EC were not examined further after the Court formed the view that there was no problem specific to the applicant Member State. The Court did not, however, examine the question of the ‘specific problem’ with the level of rigour that would have been appropriate to its importance for the outcome of the proceedings. This failure to make a proper assessment of the arguments on this point amounts, first, to a breach of the principle of the right to a fair hearing, and secondly, to a breach of the duty to provide reasons, which in each case constitutes a procedural irregularity.

The scientific risk assessment is above all of particular importance in the field of environmental protection, not least in the application of the precautionary principle, and requires, in the context of a procedure under Article 95(5) EC, a thorough examination of the scientific argumentation, particularly when there is even the slightest doubt as to whether the level of protection envisaged by a harmonisation measure is sufficient. However, neither the Commission nor, subsequently, the Court of First Instance analysed the content of the arguments advanced by the Republic of Austria or performed a thorough examination of the necessity of the notified measure for environmental protection. The decision of the Commission and the judgment of the Court are based on a study by the EFSA (European Food Safety Authority), which dealt only marginally — and in no way in specific relation to the Land Oberösterreich — with the key element of the Austrian submission, the question of the co-existence of genetically modified and non-modified cultures. At no point was there any examination, in the light of the precautionary principle, of the scientific evidence put forward.

Finally the applicant submits that the earlier case-law of the Court of Justice is not inconsistent with the need to conduct proceedings in which all parties are heard in a procedure under Article 95 EC and to this extent the legal view of the Court of First Instance constitutes a breach of Community law. Since failure to conduct such proceedings violates the right to a fair hearing, the contested decision of the Commission should therefore already have been annulled on this ground.

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(1)  OJ 2005 C 296 of 26 November 2005.

(2)  OJ 2003 L 230, p. 34.

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Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 1 December 2005 in Velvet & Steel Immobilien und Handels GmbH v Finanzamt Hamburg-Eimsbüttel

(Case C-455/05)

(2006/C 60/41)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg of 1 December 2005, received at the Court Registry on 23 December 2005, for a preliminary ruling in the proceedings between Velvet & Steel Immobilien und Handels GmbH and Finanzamt Hamburg-Eimsbüttel on the following question:

Is Article 13B(d)(2) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes to be interpreted, with respect to the concept of ‘Übernahme von Verbindlichkeiten’ (assumption of obligations), as meaning that only pecuniary obligations are to be subsumed under that concept or does that provision also include the assumption of other obligations, for example, service obligations?

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

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/21 |
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Reference for a preliminary ruling from the Landgericht Wiesbaden by order of that court of 23 November 2005 in Schutzverband der Spirituosen-Industrie e.V. v Diageo Deutschland GmbH

(Case C-457/05)

(2006/C 60/42)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landgericht Wiesbaden (Wiesbaden Regional Court) (Germany) of 23 November 2005, received at the Court Registry on 27 December 2005, for a preliminary ruling in the proceedings between Schutzverband der Spirituosen-Industrie e.V. and Diageo Deutschland GmbH on the following questions:

| 1. | Is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and Annex III, section 4, of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids (OJ 1975 L 42, p. 1), as most recently amended by the Act of Accession of 23 September 2003 (OJ 2003 L 236, p. 33), (‘Directive 75/106/EEC’) to be construed as meaning that products in packaging with a volume of 0.071 litre, which are lawfully manufactured and/or marketed in Ireland or the United Kingdom, may also be marketed in all of the other EC Member States? |
| --- | --- |

1.

Is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and Annex III, section 4, of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids (OJ 1975 L 42, p. 1), as most recently amended by the Act of Accession of 23 September 2003 (OJ 2003 L 236, p. 33), (‘Directive 75/106/EEC’) to be construed as meaning that products in packaging with a volume of 0.071 litre, which are lawfully manufactured and/or marketed in Ireland or the United Kingdom, may also be marketed in all of the other EC Member States?

| 2. | If Question 1 should be answered in the negative: is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and Annex III, section 4, of Directive 75/106/EEC compatible with the principle of free movement of goods in Articles 28 EC and 30 EC? |
| --- | --- |

2.

If Question 1 should be answered in the negative: is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and Annex III, section 4, of Directive 75/106/EEC compatible with the principle of free movement of goods in Articles 28 EC and 30 EC?

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/22 |
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C 60/22

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Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 16 November 2005 in Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühlberger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur Savci, Elena Peter, Egon Schmäger, Mehmet Yaman, Dejan Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Schachenhofer, Herbert Weiss, Harald Kaineder, Ognen, Stajkovski and Jovica Vidovic v PPS Princess Personal Service GmbH

(Case C-458/05)

(2006/C 60/43)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Oberster Gerichtshof of 16 November 2005, received at the Court Registry on 29 December 2005, for a preliminary ruling in the proceedings between Mohamed Jouini and Others and PPS Princess Personal Service GmbH on the following question:

Is there a transfer of a business or part of a business, within the meaning of Article 1 of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (1), where, in the course of collaboration between two temporary employment undertakings, without there being a defined organisational structure of the first temporary employment undertaking, a branch manager and a customer adviser and a manager transfer from the first temporary employment undertaking to the second temporary employment undertaking and carry out comparable work there and, also in collaboration between both undertakings, approximately a third of the hired-out employees and the respective clients (with requirements varying from three to 50 hired-out employees) transfer with them, in part or entirely?

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(1)  OJ L 82, p. 16.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/22 |
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Action brought on 23 December 2005 by the Republic of Poland against the European Parliament and the Council of the European Union

(Case C-460/05)

(2006/C 60/44)

Language of the case: Polish

An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 23 December 2005 by the Republic of Poland, represented by Jarosław Pietras.

The applicant claims that the Court should:

| 1. | Declare invalid Articles 33(2) and 43(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications; (1) |
| --- | --- |

1.

Declare invalid Articles 33(2) and 43(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications; (1)

| 2. | Conduct the case in Polish; |
| --- | --- |

2.

Conduct the case in Polish;

| 3. | Order the Council of the European Union and the European Parliament to pay the costs of the action. |
| --- | --- |

3.

Order the Council of the European Union and the European Parliament to pay the costs of the action.

Pleas in law and main arguments

The Government of the Republic of Poland contends that an essential procedural requirement was breached by virtue of the inadequacy of the reasons given for the wording, as adopted, of Articles 33(2) and 43(3) of Directive 2005/36/EC.

Those articles set out separate rules on the recognition of acquired rights which are to apply to Polish qualifications of nurses responsible for general care and midwives; those rules constitute a derogation from the rules relating to recognition of acquired rights specific to nurses responsible for general care and midwives which are in force in regard to qualifications obtained in the other Member States. The preamble to Directive 2005/36/EC does not set out any reasons for the adoption of the abovementioned derogating rules on the recognition of acquired rights specific to nurses responsible for general care and midwives such as can justify those rules on grounds of Polish professional qualifications.

The absence of reasons explaining why the aforementioned provisions were adopted amounts to a breach of Article 253 of the EC Treaty in view of the fact that, in the course of the legislative deliberations leading to the adoption of Directive 2005/36/EC, the provisions in question lost their character as measures benefiting from the status of rules which did not require to be separately reasoned. Notwithstanding the fact that their content was set out in the provisions of the Treaty of Accession, in the light of Article 9 of the Treaty of Accession and the course of the deliberations in respect of Directive 2005/36/EC, those measures do not benefit from a presumption that they were properly reasoned merely by virtue of the fact that their content was set out in that Treaty.

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(1)  OJ L 255 of 30.09.2005, p. 22.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/23 |
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Action brought on 22 December 2005 by the Commission of the European Communities against the Portuguese Republic

(Case C-462/05)

(2006/C 60/45)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 22 December 2005 by the Commission of the European Communities, represented by Richard Lyal and Margarida Afonso, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1) | declare that, by maintaining in force a reduced rate of value added tax of 5 % applicable to tolls on road crossings of the River Tagus in Lisbon, the Portuguese Republic has failed to fulfil its obligations under Articles 12 and 28 of the Sixth Directive; (1) |
| --- | --- |

1)

declare that, by maintaining in force a reduced rate of value added tax of 5 % applicable to tolls on road crossings of the River Tagus in Lisbon, the Portuguese Republic has failed to fulfil its obligations under Articles 12 and 28 of the Sixth Directive; (1)

| 2) | order the Portuguese Republic to pay the costs. |
| --- | --- |

2)

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

It is apparent from the Court of Justice's judgment in Case C-276/98 Commission v Portugal [1998] ECR I-1699, and it is furthermore impliedly accepted by the Portuguese authorities, that the Sixth Directive contains no provision whatsoever that might allow of the application of a reduced rate of 5 % to the services in question. The Portuguese authorities have none the less deferred indefinitely putting an end to that failure to fulfil obligations which has subsisted since 1 January 1995, falling back on a series of contradictory arguments, and also on equivocal declarations and frequent changes of position on the question whether Article 4(5) of the Sixth Directive is to find application.

After thorough examination of the arguments of and the various positions adopted by the Portuguese Government on this point during the pre-litigation stage of the procedure, the Commission takes the view that the conditions on which Article 4(5) of the Sixth Directive may be regarded as applicable to the services at issue have not been fulfilled.

It is clear from Article 12(3)(a) of the Sixth Directive that a reduced rate of value added tax may be applied only to transactions that, while taxable, consist of one of the categories specified in Annex H — which is not the case when the essence of the services is to make available to users a highway infrastructure through the payment of tolls.

The Commission takes the view that Article 28(2)(e) of the Sixth Directive, relied upon by the Portuguese authorities, entails an obligation not to continue to apply a reduced rate to transactions in respect of which the transition, regarded as desirable, to the field of application of the standard rate of tax has already been possible. As a matter of fact, to accept that a Member State can, as the Portuguese Government argues, again apply a reduced rate after a period of greater or lesser duration in which the standard rate applied would render unfeasible the gradual or progressive approximation of the rates and levels of value added tax judged necessary by the Community legislature.

In any event, even if the Court should not agree with the restrictive interpretation of Article 28(2)(e) of the Sixth Directive propounded by the Commission, it must still be held that the Portuguese legislation, in providing for the application of a reduced rate of 5 %, or in any case of less than 12 %, to tolls on road crossings of the River Tagus in Lisbon, is not compatible with that provision.

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(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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| 11.3.2006 | EN | Official Journal of the European Union | C 60/24 |
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Action brought on 23 December 2005 by the Commission of the European Communities against the Italian Republic

(Case C-465/05)

(2006/C 60/46)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 23 December 2005 by the Commission of the European Communities, represented by E. Traversa and E. Montaguti, acting as Agents.

The applicant claims that the Court should:

| 1. | declare that the Italian Republic has failed to fulfil its obligations under Article 43 EC and Article 49 EC, by providing that:






  — | the activity of private security guard can be exercised only after an oath of allegiance to the Italian Republic has been sworn; |
| --- | --- | --- |

1.

declare that the Italian Republic has failed to fulfil its obligations under Article 43 EC and Article 49 EC, by providing that:

—

the activity of private security guard can be exercised only after an oath of allegiance to the Italian Republic has been sworn;

| — | private security activities can be exercised only after the granting of an authorisation by the Prefect; |
| --- | --- |

—

private security activities can be exercised only after the granting of an authorisation by the Prefect;

| — | the said authorisation has limited territorial validity and the granting thereof is subject to consideration of the number and size of security undertakings already in operation in the territory in question; |
| --- | --- |

—

the said authorisation has limited territorial validity and the granting thereof is subject to consideration of the number and size of security undertakings already in operation in the territory in question;

| — | private security undertakings must have a place of business in each province in which they operate; |
| --- | --- |

—

private security undertakings must have a place of business in each province in which they operate;

| — | the personnel of the said undertakings must be individually authorised to perform security activities; |
| --- | --- |

—

the personnel of the said undertakings must be individually authorised to perform security activities;

| — | the security undertakings must have a minimum/maximum number of employees to be authorised; |
| --- | --- |

—

the security undertakings must have a minimum/maximum number of employees to be authorised;

| — | private security undertakings must lodge security at the local Cassa depositi e prestiti (Deposit and Loan Bank); |
| --- | --- |

—

private security undertakings must lodge security at the local Cassa depositi e prestiti (Deposit and Loan Bank);

| — | the prices for private security services are established pursuant to authorisation by the Prefect within specified limits. |
| --- | --- |

—

the prices for private security services are established pursuant to authorisation by the Prefect within specified limits.

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

2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The activity of private security guard does not constitute direct and specific participation in the exercise of official authority. The exception laid down in Articles 45 EC and 55 EC, to the right of establishment and freedom to provide services, cannot therefore be extended to such activity.

| 1) | The obligation to swear an oath constitutes an obstacle which is neither justified or proportionate having regard to the purpose, and the type of professional activity, of private security guards. The formal oath makes establishment in and, in general, access to the Italian market in private security services more difficult for Community undertakings, to the extent of completely dissuading occasional providers of such services from providing them. |
| --- | --- |

1)

The obligation to swear an oath constitutes an obstacle which is neither justified or proportionate having regard to the purpose, and the type of professional activity, of private security guards. The formal oath makes establishment in and, in general, access to the Italian market in private security services more difficult for Community undertakings, to the extent of completely dissuading occasional providers of such services from providing them.

| 2) | The requirement of a licence for anyone wishing to provide private security services in Italy, without taking into account analogous obligations to which the provider of such services is already subject in the Member State in which he is established, constitutes an unjustified obstacle to the freedom to provide services. |
| --- | --- |

2)

The requirement of a licence for anyone wishing to provide private security services in Italy, without taking into account analogous obligations to which the provider of such services is already subject in the Member State in which he is established, constitutes an unjustified obstacle to the freedom to provide services.

| 3) | A Community undertaking in the same sector which intends to establish itself in Italy and operate in a territory of a certain size must obtain as many licences as provinces in which it intends to carry out its activities (there are 104 provinces in Italy). The competent authority (Prefect) may decline to grant such licences having regard to the number and size of undertakings already operating on the said territory. |
| --- | --- |

3)

A Community undertaking in the same sector which intends to establish itself in Italy and operate in a territory of a certain size must obtain as many licences as provinces in which it intends to carry out its activities (there are 104 provinces in Italy). The competent authority (Prefect) may decline to grant such licences having regard to the number and size of undertakings already operating on the said territory.

| 4) | An undertaking which intends to establish itself in Italy must arrange to have as many premises as licences obtained and provinces covered, even though this is not required for the carrying out of services. Moreover, to lay down an obligation of this kind concerning premises is equivalent to denying the freedom to provide services given that it requires a person providing such services on a transfrontier basis to have an establishment in Italy. |
| --- | --- |

4)

An undertaking which intends to establish itself in Italy must arrange to have as many premises as licences obtained and provinces covered, even though this is not required for the carrying out of services. Moreover, to lay down an obligation of this kind concerning premises is equivalent to denying the freedom to provide services given that it requires a person providing such services on a transfrontier basis to have an establishment in Italy.

| 5) | In the case of occasional provision of security services, Italian law always requires each employee to be individually authorised to exercise his activity in Italy and does not take into account any control measures to which each sworn private security guard is already subject in his Member State of origin. |
| --- | --- |

5)

In the case of occasional provision of security services, Italian law always requires each employee to be individually authorised to exercise his activity in Italy and does not take into account any control measures to which each sworn private security guard is already subject in his Member State of origin.

| 6) | The licences granted by the Prefect may contain a requirement relating to a minimum/maximum number of employees. Failure to respect such limits entails revocation of the licence. Such provisions constitute an obstacle to freedom of establishment and freedom to provide services, which is liable in particular to completely preclude access to the market for small undertakings. |
| --- | --- |

6)

The licences granted by the Prefect may contain a requirement relating to a minimum/maximum number of employees. Failure to respect such limits entails revocation of the licence. Such provisions constitute an obstacle to freedom of establishment and freedom to provide services, which is liable in particular to completely preclude access to the market for small undertakings.

| 7) | The obligation to lodge security at the Deposit and Loan Bank imposed on private security undertakings by the Italian law does not take account of obligations that are comparable, as regards their purpose, to which the service provider is already subject in the Member State in which it is established. |
| --- | --- |

7)

The obligation to lodge security at the Deposit and Loan Bank imposed on private security undertakings by the Italian law does not take account of obligations that are comparable, as regards their purpose, to which the service provider is already subject in the Member State in which it is established.

| 8) | Restrictions on the freedom to set charges constitute a further obstacle to freedom of establishment and freedom to provide services. In fact, a new service provider which tries to enter a given market must endeavour to stand out from its competitors and the price of the services is an important factor in procuring clients. |
| --- | --- |

8)

Restrictions on the freedom to set charges constitute a further obstacle to freedom of establishment and freedom to provide services. In fact, a new service provider which tries to enter a given market must endeavour to stand out from its competitors and the price of the services is an important factor in procuring clients.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/25 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/25

---

Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 21 November 2005 in Willy Kempter KG v Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung

(Case C-2/06)

(2006/C 60/47)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg of 21 November 2005, received at the Court Registry on 4 January 2006, for a preliminary ruling in the proceedings between Willy Kempter KG and Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung (Main Customs Office Hamburg-Jonas, Export Refunds Section) on the following questions:

| 1. | Is the review and amendment of a final administrative decision in order to take account of the interpretation of the relevant Community law carried out by the Court of Justice of the European Communities in the meantime subject to the requirement that the party concerned relied on Community law when contesting the administrative decision before the national courts? |
| --- | --- |

1.

Is the review and amendment of a final administrative decision in order to take account of the interpretation of the relevant Community law carried out by the Court of Justice of the European Communities in the meantime subject to the requirement that the party concerned relied on Community law when contesting the administrative decision before the national courts?

| 2. | Is an application for the review and amendment of a final administrative decision which is contrary to Community law subject to a restriction in time for overriding reasons of Community law, apart from the conditions set out in Case C-453/00 Kühne & Heitz [2004] ECR I-837? |
| --- | --- |

2.

Is an application for the review and amendment of a final administrative decision which is contrary to Community law subject to a restriction in time for overriding reasons of Community law, apart from the conditions set out in Case C-453/00 Kühne & Heitz [2004] ECR I-837?

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/25 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/25

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Appeal brought on 9 January 2006 by Cofradía de pescadores ‘San Pedro’ de Bermeo and Others against the judgment of the Court of First Instance (Third Chamber) of 19 October 2005 in Case T-415/03 Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic

(Case C-6/06 P)

(2006/C 60/48)

Language of the case: Spanish

An appeal against the judgment of the Court of First Instance (Third Chamber) of 19 October 2005 in Case T-415/03 Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic, was brought before the Court of Justice of the European Communities on 9 January 2006 by Cofradía de pescadores ‘San Pedro’ de Bermeo and Others, represented by E. Garayar Gutiérrez, G. Martínez-Villaseñor, A. García Castillo and M. Troncoso Ferrer, abogados.

The appellants claim that the Court should:

| (1) | Declare the present appeal admissible; |
| --- | --- |

(1)

Declare the present appeal admissible;

| (2) | Therefore, set aside in its entirety the judgment of the Court of First Instance of 19 October 2005 in Case T-415/03; |
| --- | --- |

(2)

Therefore, set aside in its entirety the judgment of the Court of First Instance of 19 October 2005 in Case T-415/03;

| (3) | Consider the forms of order sought by the appellants at first instance, namely that it should:






  — | Declare that the Community incurred non-contractual liability for removing part of the share of the Total Allowable Catch for anchovy allocated to Spain and the fleet authorised to fish for anchovy in ICES area VIII during the years 1996 to 2001, by the transfer, authorised by the Council of the European Union in Regulations Nos 3074/95 (1), 390/97 (2), 45/98 (3), 48/1999 (4) and 2848/2000 (5), of Portugal's quota in ICES area IX to be fished by France in ICES area VIII, in breach of: Article 161(1)(f) of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic to the European Communities and of the principle of relative stability; and of the principles of legal certainty and legitimate expectations. |
| --- | --- | --- |

(3)

Consider the forms of order sought by the appellants at first instance, namely that it should:

—

Declare that the Community incurred non-contractual liability for removing part of the share of the Total Allowable Catch for anchovy allocated to Spain and the fleet authorised to fish for anchovy in ICES area VIII during the years 1996 to 2001, by the transfer, authorised by the Council of the European Union in Regulations Nos 3074/95 (1), 390/97 (2), 45/98 (3), 48/1999 (4) and 2848/2000 (5), of Portugal's quota in ICES area IX to be fished by France in ICES area VIII, in breach of: Article 161(1)(f) of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic to the European Communities and of the principle of relative stability; and of the principles of legal certainty and legitimate expectations.

| — | Order the Community, represented by the Council, to compensate the appellants for the certain and actual loss suffered as a consequence of the Council's acts, loss which includes both damage sustained and loss of profit, as referred to in this appeal and its annexes; |
| --- | --- |

—

Order the Community, represented by the Council, to compensate the appellants for the certain and actual loss suffered as a consequence of the Council's acts, loss which includes both damage sustained and loss of profit, as referred to in this appeal and its annexes;

| — | Order the Community, represented by the Council, to pay any default interest. |
| --- | --- |

—

Order the Community, represented by the Council, to pay any default interest.

| (4) | Order the Council to pay the costs of the proceedings. |
| --- | --- |

(4)

Order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

The appellants have brought their appeal against the judgment of the Court of First Instance of 19 October 2005 because that Court dismissed their action for a declaration of non-contractual liability which they had brought against the Council of the European Union to obtain compensation for the loss suffered as a result of the Council's authorisation of the transfer to the French Republic of part of the anchovy quota allocated to the Portuguese Republic.

The appellants consider that the Court of First Instance erred in law in its assessment of whether there had been a sufficiently serious breach of a higher-ranking rule of law and of the principles of legal certainty and the protection of legitimate expectations. In the view of the appellants, and contrary to what was held by the Court of First Instance, the Council did not have the discretion attributed to it by that Court, and approved the transfer of the fishing quotas in breach of the rules governing procedure and competence laid down for it by the Act of Accession of the Kingdom of Spain and Regulations Nos 685/95 (6) and 3760/92 (7).

The appellants consider that the Court of First Instance also erred in law in denying that the principle of relative stability could confer rights on individuals. If that were the case, it would render the Common Fisheries Policy meaningless and infringe the appellants' right to effective legal protection, in breach of what the Court of First Instance itself has held.

Lastly, the appellants allege that the Court of First Instance infringed their rights of defence, since not only did it fail to take account of the reports produced at the proceedings when the damage suffered as a consequence of the Council's acts was being assessed, it also rejected as not having been submitted at the appropriate time a request for measures of enquiry, which by definition the appellants could only make in the course of the proceedings.

For all these reasons, the appellants claim that the Court of Justice of the European Communities should declare the ruling given by the Court of First Instance in its judgment of 19 October 2005 to be in breach of the law and declare that the Community incurred extra-contractual liability by effecting between 1995 and 2000 a transfer of fishing quotas from Portugal to France which the Court of Justice itself had already declared to be in breach of the law.

---

(1)  Council Regulation of 22 December 1995 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1996 and certain conditions under which they may be fished OJ 1995 L 330, p. 1.

(2)  Council Regulation of 20 December 1996 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1997 and certain conditions under which they may be fished OJ 1997 L 66, p. 1.

(3)  Council Regulation of 19 December 1997 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1998 and certain conditions under which they may be fished OJ 1998 L 12, p. 1.

(4)  Council Regulation of 18 December 1998 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1999 and certain conditions under which they may be fished OJ 1999 L 13, p. 1.

(5)  Council Regulation of 15 December 2000 fixing for 2001 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required OJ 2000 L 334, p. 1.

(6)  Council Regulation of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources OJ 1995 L 71, p. 5.

(7)  Council Regulation of 20 December 1992 establishing a Community system for fisheries and aquaculture OJ 1992 L 389, p. 1.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/26 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/26

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Appeal brought on 9 January 2006 by Beatriz Salvador García against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-205/02 Beatriz Salvador García v Commission of the European Communities

(Case C-7/06 P)

(2006/C 60/49)

Language of the case: Spanish

An appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-205/02 Beatriz Salvador García v Commission of the European Communities was brought before the Court of Justice of the European Communities on 9 January 2006 by Beatriz Salvador García, represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, lawyers.

The applicant claims that the Court of Justice should:

| (1) | Declare this appeal admissible; |
| --- | --- |

(1)

Declare this appeal admissible;

| (2) | Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005 and, if appropriate, refer the case back to the Court of First Instance; |
| --- | --- |

(2)

Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005 and, if appropriate, refer the case back to the Court of First Instance;

| (3) | Order the Commission of the European Communities to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance. |
| --- | --- |

(3)

Order the Commission of the European Communities to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance.

Pleas in law and main arguments

This appeal is based on a single plea: infringement by the CFI of Community law in paragraphs 36 to 59 of the judgment under appeal. In particular, the appellant takes the view that the CFI incorrectly interpreted the term ‘circumstances arising from work done for another State’ used in the second indent of Article 4(1)(a) of Annex VII of the Staff Regulations.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/27 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/27

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Appeal brought on 9 January 2006 by Anna Herrero Romeu against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-298/02 Anna Herrero Romeu v Commission of the European Communities

(Case C-8/06 P)

(2006/C 60/50)

Language of the case: Spanish

An appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-298/02 Anna Herrero Romeu v Commission of the European Communities was brought before the Court of Justice of the European Communities on 9 January 2006 by Anna Herrero Romeu, represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, lawyers.

The applicant claims that the Court of Justice should:

| (1) | Declare this appeal admissible; |
| --- | --- |

(1)

Declare this appeal admissible;

| (2) | Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005; |
| --- | --- |

(2)

Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005;

| (3) | Order the Commission of the European Communities to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance. |
| --- | --- |

(3)

Order the Commission of the European Communities to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance.

Pleas in law and main arguments

This appeal is based on a single plea: infringement by the CFI of Community law in paragraphs 23 to 44 of the judgment under appeal. In particular, the appellant takes the view that the CFI incorrectly interpreted the term ‘circumstances arising from work done for another State’ used in the second indent of Article 4(1)(a) of Annex VII of the Staff Regulations.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/27 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/27

---

Appeal brought on 9 January 2006 by Tomás Salazar Brier against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-83/03 Tomás Salazar Brier v Commission of the European Communities

(Case C-9/06 P)

(2006/C 60/51)

Language of the case: Spanish

An appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-83/03 Tomás Salazar Brier v Commission of the European Communities was brought before the Court of Justice of the European Communities on 9 January 2006 by Tomás Salazar Brier, represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, lawyers.

The applicant claims that the Court of Justice should:

| (1) | Declare this appeal admissible; |
| --- | --- |

(1)

Declare this appeal admissible;

| (2) | Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005 and, if appropriate, refer the case back to the Court of First Instance; |
| --- | --- |

(2)

Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005 and, if appropriate, refer the case back to the Court of First Instance;

| (3) | Order the Commission of the European Communities to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance. |
| --- | --- |

(3)

Order the Commission of the European Communities to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance.

Pleas in law and main arguments

This appeal is based on a single plea: infringement by the CFI of Community law in paragraphs 26 to 48 of the judgment under appeal. In particular, the appellant takes the view that the CFI incorrectly interpreted the term ‘circumstances arising from work done for another State’ used in the second indent of Article 4(1)(a) of Annex VII of the Staff Regulations.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/28 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/28

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Appeal brought on 9 January 2006 by Rafael De Bustamante Tello against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-368/03 Rafael De Bustamante Tello v Council of the European Union

(Case C-10/06 P)

(2006/C 60/52)

Language of the case: Spanish

An appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 in Case T-368/03 Rafael De Bustamante Tello v Council of the European Union was brought before the Court of Justice of the European Communities on 9 January 2006 by Rafael De Bustamante Tello, represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, lawyers.

The applicant claims that the Court of Justice should:

| (1) | Declare this appeal admissible; |
| --- | --- |

(1)

Declare this appeal admissible;

| (2) | Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005; |
| --- | --- |

(2)

Annul the judgment of the First Chamber of the Court of First Instance of 25 October 2005;

| (3) | Order the Council to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance. |
| --- | --- |

(3)

Order the Council to pay all the costs of the proceedings before the Court of Justice and of those before the Court of First Instance.

Pleas in law and main arguments

This appeal is based on a single plea: infringement by the CFI of Community law in paragraphs 24 to 45 of the judgment under appeal. In particular, the appellant takes the view that the CFI incorrectly interpreted the term ‘circumstances arising from work done for another State’ used in the second indent of Article 4(1)(a) of Annex VII of the Staff Regulations.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/28 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/28

---

Action brought on 17 January 2006 by the Commission of the European Communities against the French Republic

(Case C-18/06)

(2006/C 60/53)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 17 January 2006 by the Commission of the European Communities, represented by Michel Nolin, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/103/EC of 7 October 2004 on identity and plant health checks of plants, plant products or other objects, listed in Part B of Annex V to Council Directive 2000/29/EC, which may be carried out at a place other than the point of entry into the Community or at a place close by and specifying the conditions related to these checks (1) or, in any event, by not communicating the provisions in question to the Commission, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/103/EC of 7 October 2004 on identity and plant health checks of plants, plant products or other objects, listed in Part B of Annex V to Council Directive 2000/29/EC, which may be carried out at a place other than the point of entry into the Community or at a place close by and specifying the conditions related to these checks (1) or, in any event, by not communicating the provisions in question to the Commission, the French Republic has failed to fulfil its obligations under that directive;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired on 31 December 2004.

---

(1)  OJ L 313 of 12.10.2004, p. 16.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/28 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/28

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Action brought on 17 January 2006 by the Commission of the European Communities against the French Republic

(Case C-19/06)

(2006/C 60/54)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 17 January 2006 by the Commission of the European Communities, represented by Michel Nolin, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/89/EC of 28 November 2002 amending Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1) or, in any event, by not communicating the provisions in question to the Commission, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/89/EC of 28 November 2002 amending Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1) or, in any event, by not communicating the provisions in question to the Commission, the French Republic has failed to fulfil its obligations under that directive;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2002/89 expired on 31 December 2004.

---

(1)  OJ L 355 of 30.12.2002, p. 45.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/29 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/29

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Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-20/06)

(2006/C 60/55)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 17 January 2006 by the Commission of the European Communities, represented by Michel Nolin, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/102/EC of 5 October 2004 amending Annexes II, III, IV and V to Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/102/EC of 5 October 2004 amending Annexes II, III, IV and V to Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2004/102 expired on 28 February 2005.

---

(1)  OJ 2004 L 309, p. 9

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/29 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/29

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Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-21/06)

(2006/C 60/56)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 17 January 2006 by the Commission of the European Communities, represented by Michel Nolin, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/103/EC of 7 October 2004 on identity and plant health checks of plants, plant products or other objects, listed in Part B of Annex V to Council Directive 2000/29/EC, which may be carried out at a place other than the point of entry into the Community or at a place close by and specifying the conditions related to these checks (1) or, in any event, by not communicating the provisions in question to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/103/EC of 7 October 2004 on identity and plant health checks of plants, plant products or other objects, listed in Part B of Annex V to Council Directive 2000/29/EC, which may be carried out at a place other than the point of entry into the Community or at a place close by and specifying the conditions related to these checks (1) or, in any event, by not communicating the provisions in question to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired on 31 December 2004.

---

(1)  OJ L 313 of 12.10.2004, p. 16.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/30 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/30

---

Action brought on 17 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-22/06)

(2006/C 60/57)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 17 January 2006 by the Commission of the European Communities, represented by Michel Nolin, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/105/EC of 15 October 2004 determining the models of official phytosanitary certificates or phytosanitary certificates for re-export accompanying plants, plant products or other objects from third countries and listed in Council Directive 2000/29/EC (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/105/EC of 15 October 2004 determining the models of official phytosanitary certificates or phytosanitary certificates for re-export accompanying plants, plant products or other objects from third countries and listed in Council Directive 2000/29/EC (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2004/105 expired on 31 December 2004.

---

(1)  OJ 2004 L 319, p. 9

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/30 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/30

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Action brought on 24 January 2006 by Commission of the European Communities against the Federal Republic of Germany

(Case C-39/06)

(2006/C 60/58)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 24 January 2006 by the Commission of the European Communities, represented by K. Gross and T. Scharf, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that by not taking all the measures necessary to recover the aid granted, the Federal Republic of Germany has failed to fulfil its obligations under Article 249 EC and Articles 1, 2 and 3 of the Commission Decision in the State aid procedure C-62/00 (ex NN 142/99) of 30 October 2002, in the form of the corrected decision of 13 May 2003 (2003/643/EC) (1) on the State aid implemented by Germany for Kahla Porzellan GmbH and Kahla/Thüringen Porzellan GmbH; |
| --- | --- |

1.

declare that by not taking all the measures necessary to recover the aid granted, the Federal Republic of Germany has failed to fulfil its obligations under Article 249 EC and Articles 1, 2 and 3 of the Commission Decision in the State aid procedure C-62/00 (ex NN 142/99) of 30 October 2002, in the form of the corrected decision of 13 May 2003 (2003/643/EC) (1) on the State aid implemented by Germany for Kahla Porzellan GmbH and Kahla/Thüringen Porzellan GmbH;

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

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

According to the European Commission, the Federal Government failed to sufficiently implement the Commission's decision in the State aid procedure C-62/00 (ex NN 142/99) of 30 October 2002 in the form of the corrected decision of 13 May 2003 (2003/643/EC).

By means of the decision, a number of items of State aid granted by Germany to Kahla Porzellan GmbH in the years from 1991 to 1993 and to Kahla/Thüringen Porzellan GmbH in the years from 1993 to 1999 were declared to be incompatible with the common market. At the same time the decision ordered that they be recovered, including interest.

The fact that Decision 2003/643/EC is being contested in Case T-20/03 is irrelevant as regards the obligation to execute the decision, as the bringing of the action has no suspensory effect.

As the Federal Republic has not yet fully implemented Decision 2003/643/EC, despite repeated written demands on the part of the Commission, the Commission has brought an action under the second paragraph of Article 88(2) of the EC Treaty.

---

(1)  OJ 2003 L 227, p. 12.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/30 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/30

---

Action brought on 27 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-41/06)

(2006/C 60/59)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 27 January 2006 by the Commission of the European Communities, represented by B. Stromsky and B. Schima, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2002/31/EC of 22 March 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household air-conditioners (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that dircetive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2002/31/EC of 22 March 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household air-conditioners (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that dircetive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2002/31 expired on 31 December 2002.

---

(1)  OJ L 86 of 03.04.2002, p. 26

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/31 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/31

---

Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-47/06)

(2006/C 60/60)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 30 January 2006 by the Commission of the European Communities, represented by C. O'Reilly, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for asylum seekers, (1) or, in any event, by not informing the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for asylum seekers, (1) or, in any event, by not informing the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2003/9/EC expired on 6 February 2005.

---

(1)  OJ L 31 of 06.02.2003, p. 18.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/31 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/31

---

Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-48/06)

(2006/C 60/61)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 30 January 2006 by the Commission of the European Communities, represented by C. O'Reilly, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, (1) and, in any event, by not informing the Commission of their adoption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, (1) and, in any event, by not informing the Commission of their adoption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for implementing Directive 2002/90/EC expired on 4 December 2004.

---

(1)  OJ L 328 of 5.12.2002, p. 17.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/32 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/32

---

Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-49/06)

(2006/C 60/62)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 30 January 2006 by the Commission of the European Communities, represented by N. Yerrell, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles, (1) or, in any event, by not informing the Commission of their adoption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles, (1) or, in any event, by not informing the Commission of their adoption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for implementing Directive 1999/37/EC expired on 1 June 2004.

---

(1)  OJ L 138 of 1.6.1999, p. 57

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/32 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/32

---

Removal from the register of Case C-8/04 (1)

(2006/C 60/63)

(Language of the case: Dutch)

By order of 15 December 2005, the President of the Fourth Chamber of the Court of Justice of the European Communities has ordered the removal from the register of Case C-8/04 (Reference for a preliminary ruling Gerechtshof te 's-Hertogenbosch): E. Bujara v Inspecteur der Belastingdienst Limburg.

---

(1)  OJ C 59, 06.03.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/32 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/32

---

Removal from the register of Case C-461/04 (1)

(2006/C 60/64)

(Language of the case: Dutch)

By order of 16 November 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-461/04: Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 314 of 18.12.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/32 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/32

---

Removal from the register of Case C-468/04 (1)

(2006/C 60/65)

(Language of the case: Greek)

By order of 15 November 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-468/04: Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 314 of 18.12.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/32 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/32

---

Removal from the register of Case C-469/04 (1)

(2006/C 60/66)

(Language of the case: Greek)

By order of 16 November 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-469/04: Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 314 of 18.12.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/33 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/33

---

Removal from the register of Case C-58/05 (1)

(2006/C 60/67)

Language of the case: Swedish

By order of 22 November 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-58/05: Commission of the European Communities v Kingdom of Sweden.

---

(1)  OJ C 93 of 16.04.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/33 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/33

---

Removal from the register of Case C-63/05 (1)

(2006/C 60/68)

(Language of the case: Greek)

By order of 14 December 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-63/05: Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 82, 02. 04. 2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/33 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/33

---

Removal from the register of Case C-121/05 P (1)

(2006/C 60/69)

(Language of the case: German)

By order of 14 December 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-121/05 P: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v Deutsche Post EURO EXPRESS GmbH.

---

(1)  OJ C 143, 11.06.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/33 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/33

---

Removal from the register of Case C-136/05 (1)

(2006/C 60/70)

(Language of the case: French)

By order of 7 December 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-136/05: Commission of the European Communities v Grand Duchy of Luxembourg.

---

(1)  OJ C 115 of 14.05.2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/33 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/33

---

Removal from the register of Case C-159/05 (1)

(2006/C 60/71)

(Language of the case: French)

By order of 8 December 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-159/05: Commission of the European Communities v Grand Duchy of Luxembourg.

---

(1)  OJ C 132, 28. 05. 2005.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/33 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/33

---

Removal from the register of Case C-163/05 (1)

(2006/C 60/72)

(Language of the case: Portuguese)

By order of 10 November 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-163/05: Commission of the European Communities v Portuguese Republic.

---

(1)  OJ C 132 of 28.05.2005.

---

COURT OF FIRST INSTANCE

| 11.3.2006 | EN | Official Journal of the European Union | C 60/34 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/34

---

By orders of 15 December 2005, the Court of First Instance of the European Communities referred to the Civil Service Tribunal, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal, (1) the cases listed in the first column of the table below

(2006/C 60/73)

These cases have been entered in the Register of the Civil Service Tribunal under the numbers given in the last column below.

| Number of the case transferred by the Court of First Instance | Names of the parties | Notice in the Official Journal of registration of the case | Number of entry in the Register of the Civil Service Tribunal |
| --- | --- | --- | --- |
| OJ | of |
| T-408/04 | Kröppelin v Council | C | 300 | 4/12/2004 | F-2/05 |
| T-419/04 | Schmit v Commission | C | 6 | 8/01/2005 | F-3/05 |
| T-438/04 | Huober v Council | C | 6 | 8/01/2005 | F-4/05 |
| T-22/05 | Violetti and Others v Commission | C | 82 | 2/04/2005 | F-5/05 |
| T-54/05 | Kröppelin v Council | C | 193 | 6/08/2005 | F-6/05 |
| T-84/05 | Schmit v Commission | C | 106 | 30/04/2005 | F-7/05 |
| T-114/05 | Block and Others v Commission | C | 115 | 14/05/2005 | F-8/05 |
| T-116/05 | Lacombe v Council | C | 115 | 14/05/2005 | F-9/05 |
| T-120/05 | Knaul and Others v Commission | C | 115 | 14/05/2005 | F-10/05 |
| T-123/05 | Chassagne v Commission | C | 115 | 14/05/2005 | F-11/05 |
| T-124/05 | Tas v Commission | C | 132 | 28/05/2005 | F-12/05 |
| T-126/05 | Corvoisier and Others v ECB | C | 132 | 28/05/2005 | F-13/05 |
| T-130/05 | Albert-Bousquet and Others v Commission | C | 132 | 28/05/2005 | F-14/05 |
| T-131/05 | Andres and Others v ECB | C | 132 | 28/05/2005 | F-15/05 |
| T-132/05 | Falcione v Commission | C | 143 | 11/06/2005 | F-16/05 |
| T-145/05 | de Brito Sequeira Carvalho v Commission | C | 155 | 25/06/2005 | F-17/05 |
| T-147/05 | Garcia Resusta v Commission | C | 155 | 25/06/2005 | F-18/05 |
| T-153/05 | Sanchez Ferriz v Commission | C | 155 | 25/06/2005 | F-19/05 |
| T-160/05 | Johansson and Others v Commission | C | 171 | 9/07/2005 | F-20/05 |
| T-164/05 | De Geest v Council | C | 171 | 9/07/2005 | F-21/05 |
| T-165/05 | Neophytou v Commission | C | 155 | 25/06/2005 | F-22/05 |
| T-169/05 | Giraudy v Commission | C | 171 | 9/07/2005 | F-23/05 |
| T-170/05 | Amm and Others v Parliament | C | 171 | 9/07/2005 | F-24/05 |
| T-180/05 | Landgren v European Training Foundation | C | 182 | 23/07/2005 | F-1/05 |
| T-184/05 | Mc Sweeney and Armstrong v Commission | C | 182 | 23/07/2005 | F-25/05 |
| T-188/05 | De Bry v Commission | C | 182 | 23/07/2005 | F-26/05 |
| T-191/05 | Le Maire v Commission | C | 182 | 23/07/2005 | F-27/05 |
| T-192/05 | Callewaert and Others v Commission | C | 193 | 6/08/2005 | F-28/05 |
| T-196/05 | Vivier v Commission | C | 193 | 6/08/2005 | F-29/05 |
| T-197/05 | Sundholm v Commission | C | 193 | 6/08/2005 | F-30/05 |
| T-200/05 | Cwik v Commission | C | 193 | 6/08/2005 | F-31/05 |
| T-201/05 | Perez Santander v Council | C | 193 | 6/08/2005 | F-32/05 |
| T-202/05 | Ogou v Commission | C | 193 | 6/08/2005 | F-33/05 |
| T-204/05 | Lebedef and Others v Commission | C | 193 | 6/08/2005 | F-34/05 |
| T-206/05 | Colombani v Commission | C | 193 | 6/08/2005 | F-35/05 |
| T-207/05 | Schulze v Commission | C | 193 | 6/08/2005 | F-36/05 |
| T-208/05 | Brown v Commission | C | 193 | 6/08/2005 | F-37/05 |
| T-213/05 | Delplancke and Governatori v Commission | C | 193 | 6/08/2005 | F-38/05 |
| T-215/05 | Beau v Commission | C | 205 | 20/08/2005 | F-39/05 |
| T-219/05 | Andreasen v Commission | C | 205 | 20/08/2005 | F-40/05 |
| T-220/05 | Jacobs v Commission | C | 205 | 20/08/2005 | F-41/05 |
| T-222/05 | Rossi Ferreras v Commission | C | 217 | 3/09/2005 | F-42/05 |
| T-224/05 | Chassagne v Commission | C | 205 | 20/08/2005 | F-43/05 |
| T-225/05 | Strack v Commission | C | 205 | 20/08/2005 | F-44/05 |
| T-226/05 | Lantzoni v Court of Justice | C | 205 | 20/08/2005 | F-45/05 |
| T-227/05 | Ranguelova v Commission | C | 205 | 20/08/2005 | F-46/05 |
| T-228/05 | Vega Bordell v Parliament | C | 229 | 17/09/2005 | F-47/05 |
| T-232/05 | Hutchings v Commission | C | 229 | 17/09/2005 | F-48/05 |
| T-234/05 | Bethuyne and Others v Commission | C | 205 | 20/08/2005 | F-49/05 |
| T-235/05 | Siffert v Court of Justice | C | 205 | 20/08/2005 | F-50/05 |
| T-249/05 | Duyster v Commission | C | 217 | 3/09/2005 | F-51/05 |
| T-252/05 | Q v Commission | C | 229 | 17/09/2005 | F-52/05 |
| T-253/05 | Fernandez Tunon v Commission | C | 229 | 17/09/2005 | F-53/05 |
| T-256/05 | Ehrhardt v Parliament | C | 229 | 17/09/2005 | F-54/05 |
| T-258/05 | Voigt v Commission | C | 229 | 17/09/2005 | F-55/05 |
| T-260/05 | Strobl v Commission | C | 229 | 17/09/2005 | F-56/05 |
| T-261/05 | Sliggers v Commission | C | 229 | 17/09/2005 | F-57/05 |
| T-265/05 | Maes v Commission | C | 229 | 17/09/2005 | F-58/05 |
| T-267/05 | De Smedt v Commission | C | 229 | 17/09/2005 | F-59/05 |
| T-268/05 | Vande Velde v Commission | C | 229 | 17/09/2005 | F-60/05 |
| T-269/05 | Dalmasso v Commission | C | 229 | 17/09/2005 | F-61/05 |
| T-270/05 | Ghem v Commission | C | 229 | 17/09/2005 | F-62/05 |
| T-271/05 | Arana de la Cal v Commission | C | 229 | 17/09/2005 | F-63/05 |
| T-272/05 | Veramme v Commission | C | 229 | 17/09/2005 | F-64/05 |
| T-282/05 | Sequeira Wandschneider v Commission | C | 229 | 17/09/2005 | F-65/05 |
| T-283/05 | Baraldi and Others v Commission | C | 229 | 17/09/2005 | F-66/05 |
| T-284/05 | Michail v Commission | C | 229 | 17/09/2005 | F-67/05 |
| T-285/05 | Lippert v Parliament | C | 229 | 17/09/2005 | F-68/05 |
| T-287/05 | Bengoa Geisler and Others v Court of Justice | C | 229 | 17/09/2005 | F-69/05 |
| T-288/05 | Mische v Commission | C | 229 | 17/09/2005 | F-70/05 |
| T-289/05 | Milella and Campanella v Commission | C | 229 | 17/09/2005 | F-71/05 |
| T-291/05 | Fardoom and Ashbrook v Commission | C | 229 | 17/09/2005 | F-72/05 |
| T-292/05 | Johansen v Court of Auditors | C | 229 | 17/09/2005 | F-73/05 |
| T-293/05 | Caldarone v Commission | C | 229 | 17/09/2005 | F-74/05 |
| T-294/05 | Colombani v Commission | C | 229 | 17/09/2005 | F-75/05 |
| T-302/05 | Torijano Montero v Council | C | 281 | 12/11/2005 | F-76/05 |
| T-305/05 | Balabanis and Le Dour v Commission | C | 271 | 29/10/2005 | F-77/05 |
| T-311/05 | Rounis v Commission | C | 271 | 29/10/2005 | F-78/05 |
| T-314/05 | Arko and Others v Commission | C | 281 | 12/11/2005 | F-79/05 |
| T-318/05 | De Geest v Council | C | 281 | 12/11/2005 | F-80/05 |
| T-320/05 | Maccanti v EESC | C | 281 | 12/11/2005 | F-81/05 |
| T-327/05 | Thierry v Commission | C | 281 | 12/11/2005 | F-82/05 |
| T-333/05 | Ezerniece Liljeberg and Others v Commission | C | 281 | 12/11/2005 | F-83/05 |
| T-334/05 | Neirinck v Commission | C | 281 | 12/11/2005 | F-84/05 |
| T-335/05 | Sørensen v Commission | C | 296 | 26/11/2005 | F-85/05 |
| T-336/05 | De Soeten v Council | C | 296 | 26/11/2005 | F-86/05 |
| T-349/05 | Ott and Others v Commission | C | 315 | 10/12/2005 | F-87/05 |
| T-353/05 | Kubanski v Commission | C | 281 | 12/11/2005 | F-88/05 |
| T-355/05 | Vandaele v Commission | C | 315 | 10/12/2005 | F-89/05 |
| T-356/05 | Zelenková v Parliament | C | 296 | 26/11/2005 | F-90/05 |
| T-359/05 | Frankin and Others v Commission | C | 315 | 10/12/2005 | F-91/05 |
| T-361/05 | Genette v Commission | C | 315 | 10/12/2005 | F-92/05 |
| T-365/05 | Mische v Parliament | C | 315 | 10/12/2005 | F-93/05 |
| T-374/05 | Schierhorst v Commission | C | 10 | 14/01/2006 | F-94/05 |
| T-377/05 | Seegmuller v Commission | C | 10 | 14/01/2006 | F-95/05 |
| T-378/05 | Marenco v Commission | C | 10 | 14/01/2006 | F-96/05 |
| T-380/05 | Buendía Sierra v Commission | C | 10 | 14/01/2006 | F-97/05 |
| T-381/05 | Di Bucci v Commission | C | 10 | 14/01/2006 | F-98/05 |
| T-386/05 | Wilms v Commission | C | 10 | 14/01/2006 | F-99/05 |
| T-387/05 | Chatziioannidou v Commission | C | 10 | 14/01/2006 | F-100/05 |
| T-388/05 | Grünheid v Commission | C | 10 | 14/01/2006 | F-101/05 |
| T-389/05 | Eistrup v Parliament | C | 10 | 14/01/2006 | F-102/05 |
| T-393/05 | Pickering v Commission | C | 10 | 14/01/2006 | F-103/05 |
| T-394/05 | Valero Jordana v Commission | C | 10 | 14/01/2006 | F-104/05 |
| T-399/05 | Wils v Parliament | C | 10 | 14/01/2006 | F-105/05 |
| T-400/05 | T v Commission | C | 22 | 28/01/2006 | F-106/05 |
| T-401/05 | Toth v Commission | C | 22 | 28/01/2006 | F-107/05 |
| T-406/05 | Cavallaro v Commission | C | 10 | 14/01/2006 | F-108/05 |
| T-408/05 | Marcuccio v Commission | C | 22 | 28/01/2006 | F-109/05 |
| T-410/05 | Eerola v Commission | C | 48 | 25/02/2006 | F-110/05 |
| T-413/05 | Sanchez Ferriz v Commission | C | 48 | 25/02/2006 | F-111/05 |
| T-419/05 | Bain and Others v Commission | C | 48 | 25/02/2006 | F-112/05 |
| T-421/05 | Kay v Commission | C | 48 | 25/02/2006 | F-113/05 |
| T-422/05 | Combescot v Commission | C | 22 | 28/01/2006 | F-114/05 |
| T-427/05 | Vienne and Others v Parliament | C | 22 | 28/01/2006 | F-115/05 |
| T-431/05 | Cerafogli and Poloni v ECB | C | 48 | 25/02/2006 | F-116/05 |
| T-433/05 | Sanchez Ferriz v Commission | C | 36 | 11/02/2006 | F-117/05 |

Number of the case transferred by the Court of First Instance

Names of the parties

Notice in the Official Journal of registration of the case

Number of entry in the Register of the Civil Service Tribunal

OJ

of

T-408/04

Kröppelin v Council

C

300

4/12/2004

F-2/05

T-419/04

Schmit v Commission

C

6

8/01/2005

F-3/05

T-438/04

Huober v Council

C

6

8/01/2005

F-4/05

T-22/05

Violetti and Others v Commission

C

82

2/04/2005

F-5/05

T-54/05

Kröppelin v Council

C

193

6/08/2005

F-6/05

T-84/05

Schmit v Commission

C

106

30/04/2005

F-7/05

T-114/05

Block and Others v Commission

C

115

14/05/2005

F-8/05

T-116/05

Lacombe v Council

C

115

14/05/2005

F-9/05

T-120/05

Knaul and Others v Commission

C

115

14/05/2005

F-10/05

T-123/05

Chassagne v Commission

C

115

14/05/2005

F-11/05

T-124/05

Tas v Commission

C

132

28/05/2005

F-12/05

T-126/05

Corvoisier and Others v ECB

C

132

28/05/2005

F-13/05

T-130/05

Albert-Bousquet and Others v Commission

C

132

28/05/2005

F-14/05

T-131/05

Andres and Others v ECB

C

132

28/05/2005

F-15/05

T-132/05

Falcione v Commission

C

143

11/06/2005

F-16/05

T-145/05

de Brito Sequeira Carvalho v Commission

C

155

25/06/2005

F-17/05

T-147/05

Garcia Resusta v Commission

C

155

25/06/2005

F-18/05

T-153/05

Sanchez Ferriz v Commission

C

155

25/06/2005

F-19/05

T-160/05

Johansson and Others v Commission

C

171

9/07/2005

F-20/05

T-164/05

De Geest v Council

C

171

9/07/2005

F-21/05

T-165/05

Neophytou v Commission

C

155

25/06/2005

F-22/05

T-169/05

Giraudy v Commission

C

171

9/07/2005

F-23/05

T-170/05

Amm and Others v Parliament

C

171

9/07/2005

F-24/05

T-180/05

Landgren v European Training Foundation

C

182

23/07/2005

F-1/05

T-184/05

Mc Sweeney and Armstrong v Commission

C

182

23/07/2005

F-25/05

T-188/05

De Bry v Commission

C

182

23/07/2005

F-26/05

T-191/05

Le Maire v Commission

C

182

23/07/2005

F-27/05

T-192/05

Callewaert and Others v Commission

C

193

6/08/2005

F-28/05

T-196/05

Vivier v Commission

C

193

6/08/2005

F-29/05

T-197/05

Sundholm v Commission

C

193

6/08/2005

F-30/05

T-200/05

Cwik v Commission

C

193

6/08/2005

F-31/05

T-201/05

Perez Santander v Council

C

193

6/08/2005

F-32/05

T-202/05

Ogou v Commission

C

193

6/08/2005

F-33/05

T-204/05

Lebedef and Others v Commission

C

193

6/08/2005

F-34/05

T-206/05

Colombani v Commission

C

193

6/08/2005

F-35/05

T-207/05

Schulze v Commission

C

193

6/08/2005

F-36/05

T-208/05

Brown v Commission

C

193

6/08/2005

F-37/05

T-213/05

Delplancke and Governatori v Commission

C

193

6/08/2005

F-38/05

T-215/05

Beau v Commission

C

205

20/08/2005

F-39/05

T-219/05

Andreasen v Commission

C

205

20/08/2005

F-40/05

T-220/05

Jacobs v Commission

C

205

20/08/2005

F-41/05

T-222/05

Rossi Ferreras v Commission

C

217

3/09/2005

F-42/05

T-224/05

Chassagne v Commission

C

205

20/08/2005

F-43/05

T-225/05

Strack v Commission

C

205

20/08/2005

F-44/05

T-226/05

Lantzoni v Court of Justice

C

205

20/08/2005

F-45/05

T-227/05

Ranguelova v Commission

C

205

20/08/2005

F-46/05

T-228/05

Vega Bordell v Parliament

C

229

17/09/2005

F-47/05

T-232/05

Hutchings v Commission

C

229

17/09/2005

F-48/05

T-234/05

Bethuyne and Others v Commission

C

205

20/08/2005

F-49/05

T-235/05

Siffert v Court of Justice

C

205

20/08/2005

F-50/05

T-249/05

Duyster v Commission

C

217

3/09/2005

F-51/05

T-252/05

Q v Commission

C

229

17/09/2005

F-52/05

T-253/05

Fernandez Tunon v Commission

C

229

17/09/2005

F-53/05

T-256/05

Ehrhardt v Parliament

C

229

17/09/2005

F-54/05

T-258/05

Voigt v Commission

C

229

17/09/2005

F-55/05

T-260/05

Strobl v Commission

C

229

17/09/2005

F-56/05

T-261/05

Sliggers v Commission

C

229

17/09/2005

F-57/05

T-265/05

Maes v Commission

C

229

17/09/2005

F-58/05

T-267/05

De Smedt v Commission

C

229

17/09/2005

F-59/05

T-268/05

Vande Velde v Commission

C

229

17/09/2005

F-60/05

T-269/05

Dalmasso v Commission

C

229

17/09/2005

F-61/05

T-270/05

Ghem v Commission

C

229

17/09/2005

F-62/05

T-271/05

Arana de la Cal v Commission

C

229

17/09/2005

F-63/05

T-272/05

Veramme v Commission

C

229

17/09/2005

F-64/05

T-282/05

Sequeira Wandschneider v Commission

C

229

17/09/2005

F-65/05

T-283/05

Baraldi and Others v Commission

C

229

17/09/2005

F-66/05

T-284/05

Michail v Commission

C

229

17/09/2005

F-67/05

T-285/05

Lippert v Parliament

C

229

17/09/2005

F-68/05

T-287/05

Bengoa Geisler and Others v Court of Justice

C

229

17/09/2005

F-69/05

T-288/05

Mische v Commission

C

229

17/09/2005

F-70/05

T-289/05

Milella and Campanella v Commission

C

229

17/09/2005

F-71/05

T-291/05

Fardoom and Ashbrook v Commission

C

229

17/09/2005

F-72/05

T-292/05

Johansen v Court of Auditors

C

229

17/09/2005

F-73/05

T-293/05

Caldarone v Commission

C

229

17/09/2005

F-74/05

T-294/05

Colombani v Commission

C

229

17/09/2005

F-75/05

T-302/05

Torijano Montero v Council

C

281

12/11/2005

F-76/05

T-305/05

Balabanis and Le Dour v Commission

C

271

29/10/2005

F-77/05

T-311/05

Rounis v Commission

C

271

29/10/2005

F-78/05

T-314/05

Arko and Others v Commission

C

281

12/11/2005

F-79/05

T-318/05

De Geest v Council

C

281

12/11/2005

F-80/05

T-320/05

Maccanti v EESC

C

281

12/11/2005

F-81/05

T-327/05

Thierry v Commission

C

281

12/11/2005

F-82/05

T-333/05

Ezerniece Liljeberg and Others v Commission

C

281

12/11/2005

F-83/05

T-334/05

Neirinck v Commission

C

281

12/11/2005

F-84/05

T-335/05

Sørensen v Commission

C

296

26/11/2005

F-85/05

T-336/05

De Soeten v Council

C

296

26/11/2005

F-86/05

T-349/05

Ott and Others v Commission

C

315

10/12/2005

F-87/05

T-353/05

Kubanski v Commission

C

281

12/11/2005

F-88/05

T-355/05

Vandaele v Commission

C

315

10/12/2005

F-89/05

T-356/05

Zelenková v Parliament

C

296

26/11/2005

F-90/05

T-359/05

Frankin and Others v Commission

C

315

10/12/2005

F-91/05

T-361/05

Genette v Commission

C

315

10/12/2005

F-92/05

T-365/05

Mische v Parliament

C

315

10/12/2005

F-93/05

T-374/05

Schierhorst v Commission

C

10

14/01/2006

F-94/05

T-377/05

Seegmuller v Commission

C

10

14/01/2006

F-95/05

T-378/05

Marenco v Commission

C

10

14/01/2006

F-96/05

T-380/05

Buendía Sierra v Commission

C

10

14/01/2006

F-97/05

T-381/05

Di Bucci v Commission

C

10

14/01/2006

F-98/05

T-386/05

Wilms v Commission

C

10

14/01/2006

F-99/05

T-387/05

Chatziioannidou v Commission

C

10

14/01/2006

F-100/05

T-388/05

Grünheid v Commission

C

10

14/01/2006

F-101/05

T-389/05

Eistrup v Parliament

C

10

14/01/2006

F-102/05

T-393/05

Pickering v Commission

C

10

14/01/2006

F-103/05

T-394/05

Valero Jordana v Commission

C

10

14/01/2006

F-104/05

T-399/05

Wils v Parliament

C

10

14/01/2006

F-105/05

T-400/05

T v Commission

C

22

28/01/2006

F-106/05

T-401/05

Toth v Commission

C

22

28/01/2006

F-107/05

T-406/05

Cavallaro v Commission

C

10

14/01/2006

F-108/05

T-408/05

Marcuccio v Commission

C

22

28/01/2006

F-109/05

T-410/05

Eerola v Commission

C

48

25/02/2006

F-110/05

T-413/05

Sanchez Ferriz v Commission

C

48

25/02/2006

F-111/05

T-419/05

Bain and Others v Commission

C

48

25/02/2006

F-112/05

T-421/05

Kay v Commission

C

48

25/02/2006

F-113/05

T-422/05

Combescot v Commission

C

22

28/01/2006

F-114/05

T-427/05

Vienne and Others v Parliament

C

22

28/01/2006

F-115/05

T-431/05

Cerafogli and Poloni v ECB

C

48

25/02/2006

F-116/05

T-433/05

Sanchez Ferriz v Commission

C

36

11/02/2006

F-117/05

---

(1)  OJ L 333, 9.11.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/38 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/38

---

Judgment of the Court of First Instance of 15 December 2005 — BIC v OHIM

(Case T-262/04) (1)

(Community trade mark - Three-dimensional trade mark in the shape of an electronic lighter - Absolute ground for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Distinctive character acquired by use - Article 7(3) of Regulation (EC) No 40/94)

(2006/C 60/74)

Language of the case: French

Parties

Applicant: BIC SA (Clichy, France) (represented by: M.-P Escande and A. Guillemin, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Action

brought against the decision of the Fourth Chamber of the Board of Appeal of OHIM of 6 April 2004 (Case R 468/2003-4), in relation to the registration as a Community trade mark of a three-dimensional trade mark in the shape of an electronic lighter

Operative part of the judgment

The Court:

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

1.

Dismisses the application.

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 251, 9.10.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/38 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/38

---

Judgment of the Court of First Instance of 15 December 2005 — BIC v OHIM

(Case T-263/04) (1)

(Community trade mark - Three-dimensional trade mark in the shape of a lighter with a flint - Absolute grounds for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Distinctive character acquired by use - Article 7(3) of Regulation (EC) No 40/94)

(2006/C 60/75)

Language of the case: French

Parties

Applicant(s): BIC SA (Clichy, France) (represented by: M.-P. Escande and A. Guillemin, Lawyers)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Action

brought against the decision of the Fourth Chamber of the Board of Appeal of OHIM of 6 April 2004 (Case R 469/2003-4), in relation to the registration as a Community trade mark of a three-dimensional trade mark in the shape of a lighter with a flint

Operative part of the judgment

The Court:

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

1.

Dismisses the application.

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 251, 9.10.2004.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/39 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/39

---

Order of the Court of First Instance of 13 December 2005 — Arla Foods and Others v Commission

(Case T- 397/02) (1)

(Regulation (EC) No 1829/2002 - Registration of a designation of origin ‘Feta’ - Action for annulment - Capacity to bring proceedings - Inadmissibility)

(2006/C 60/76)

Language of the case: Danish

Parties

Applicants: Arla Foods AMBA (Viby, Denmark), Løgismose A/S (Broby, Denmark), Nordex Food A/S (Dronninglund, Denmark), Sinai Landmejeri (Broby), Andelsmejeriet Sædager (Hobro, Denmark), Søvind Mejeri (Horsens, Denmark), Steensgaard Herregårdsmejeri (Millinge, Denmark), Mejeriet Grambogård I/S (Tommerup, Denmark) and Kirkeby Cheese Export (Svendborg, Denmark), (represented by G. Lett, lawyer)

Defendant: Commission of the European Communities (represented by H. Støvlbæk, J. Iglesias Buhigues and A.-M. Rouchaud-Joët, Agents)

Interveners in support of the applicants: United Kingdom of Great Britain and Northern Ireland (represented by P. Ormond, Agent)

Intervener: in support of the defendant: Hellenic Republic (represented by V. Kontolaimos, I. Chalkias and M. Tassopoulou, Agents) and Syndesmos Ellinikon Viomichanion Galaktokomikon Proïonton (SEV-GAP) (represented by N. Korogiannakis, lawyer)

Application for

annulment of Commission Regulation (EC) No 1829/2002 of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’ (OJ 2002 L 277 p. 10)

Operative part of the Order

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

1.

The action is dismissed as inadmissible.

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

2.

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

| 3. | The Hellenic Republic, the United Kingdom of Geat Britain and Northern Ireland and Syndesmos Ellinikon Viomichanion Galaktokomikon Proïonton (SEV-GAP) shall bear their own costs. |
| --- | --- |

3.

The Hellenic Republic, the United Kingdom of Geat Britain and Northern Ireland and Syndesmos Ellinikon Viomichanion Galaktokomikon Proïonton (SEV-GAP) shall bear their own costs.

---

(1)  OJ C 70, 22.3.2003.

---

| 11.3.2006 | EN | Official Journal of the European Union | C 60/39 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/39

---

Action brought on 25 November 2005 — Olympic Airlines S.A. v Commission

(Case T-416/05)

(2006/C 60/77)

Language of the case: Greek

Parties

Applicant: Olympic Airlines S.A. (Athens, Greece) (represented by: V. Christianos)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Article 1(1) and (4) and Article 2 of Decision C 11/2004 in so far as they concern the applicant; |
| --- | --- |

—

annul Article 1(1) and (4) and Article 2 of Decision C 11/2004 in so far as they concern the applicant;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In the context of the privatisation of the Greek State airline company, Olympic Airways, the applicant was put into operation. It constitutes a new company, and undertook flight operations, while Olympic Airways — Services S.A. (‘OA’), as the old company was renamed, retained all the other activities, principally ground handling, maintenance and repair of aircraft. By the contested decision, the Commission found that State aid had been paid by Greece to the applicant and OA, that aid being incompatible with the Treaty inter alia on the ground of:

payment on the part of the applicant for the subleasing of aircraft of rental lower than the lease payment under the principal leasing agreement, at the expense of the Hellenic Republic and OA;

| — | overvaluing of the applicant's assets at the time that it was set up; |
| --- | --- |

—

overvaluing of the applicant's assets at the time that it was set up;

| — | the Hellenic Republic's display of unceasing tolerance towards OA as regards tax debts and social security contributions. |
| --- | --- |

—

the Hellenic Republic's display of unceasing tolerance towards OA as regards tax debts and social security contributions.

| — | In its application, the applicant challenges, first, the part of the decision relating to the aircraft rental which it pays. It maintains that there is no State aid and that consequently the contested decision infringes Article 87(1) EC. According to the applicant, the Commission did not examine OA's choice to sublease aircraft on the basis of the criterion of a private businessman, nor did it examine whether the applicant obtained any benefit which it would not have obtained on the basis of market conditions. Moreover, it committed a manifest error of assessment in comparing the rental paid by the applicant with that paid by OA under the principal leasing agreement, rather than with that which the applicant would have to pay if it turned to another lessor. |
| --- | --- |

—

In its application, the applicant challenges, first, the part of the decision relating to the aircraft rental which it pays. It maintains that there is no State aid and that consequently the contested decision infringes Article 87(1) EC. According to the applicant, the Commission did not examine OA's choice to sublease aircraft on the basis of the criterion of a private businessman, nor did it examine whether the applicant obtained any benefit which it would not have obtained on the basis of market conditions. Moreover, it committed a manifest error of assessment in comparing the rental paid by the applicant with that paid by OA under the principal leasing agreement, rather than with that which the applicant would have to pay if it turned to another lessor.

The applicant relies on similar arguments as regards the part of the contested decision that concerns the case of aircraft under the leasing system. Specifically on that point, the applicant relies inter alia again on manifest error of assessment and on the fact that the Commission wrongly considered that the applicant had entered into leasing agreements, whereas, it maintains, it had entered only into subleasing operation agreements.

The applicant also relies on a defective statement of reasons, as regards all the above findings of the Commission.

As regards the part of the decision which leads to the conclusion that the applicant constitutes OA's successor, the applicant claims that the Commission has made an error of assessment, since it did not take account of the fact that OA's activity continued, that there is no interdependence between the two companies and that a privatisation process is underway. The applicant also relies on a defective statement of reasons, because the Commission did not examine the criterion of the commercial logic of the operation, which, in the applicant's view, required the splitting off of the flights branch of OA, the creation of a new company and, subsequently, sale to the private sector

In connection with the finding in the contested decision of ‘unceasing tolerance’ on the part of Greece towards OA, the applicant claims infringement of Community law as regards the definition of State aid, because the Commission did not examine the conduct of Greece in the light of the criterion of a private creditor. It also claims that there are defects in the statement of reasons required and infringement of the principle of proportionality, in so far as the contested decision requires the applicant to return all unlawful aid granted up to the time it was split off, despite the fact that those amounts related to all the activities of the old company, most of which OA continues to carry out, while the applicant merely provides air transport services.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/40 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/40

---

Action brought on 6 December 2005 — Gateway/OHIM

(Case T-434/05)

(2006/C 60/78)

Language in which the application was lodged: English

Parties

Applicant: Gateway Inc. (Irvine, USA) [represented by: C. Jones, P. Massey, Solicitors]

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

Other party to the proceedings before the Board of Appeal: Fujitsu Siemens Computers GmbH (Munich, Germany)

Form of order sought

| — | Order that Decision No 1068/2004 of the First Board of Appeal of the Office of 14 September 2005 (Case R 1068/2004-1) be annulled and that the applicant's opposition to Community trade mark application No 2 190 627 in opposition proceedings No B 502 148 be allowed in its entirety, and; |
| --- | --- |

—

Order that Decision No 1068/2004 of the First Board of Appeal of the Office of 14 September 2005 (Case R 1068/2004-1) be annulled and that the applicant's opposition to Community trade mark application No 2 190 627 in opposition proceedings No B 502 148 be allowed in its entirety, and;

| — | Order that the Office pay the applicant's costs. |
| --- | --- |

—

Order that the Office pay the applicant's costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Fujitsu Siemens Computers GmbH

Community trade mark concerned: The word mark ‘ACTIVY Media Gateway’ for goods and services in classes 9, 35, 38 and 42 — application No 2 190 627

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

Mark or sign cited: The national and Community word marks and figurative marks ‘GATEWAY’, ‘GATEWAY 2000’, ‘GATEWAY.NET’, ‘GATEWAY PROFILE’ and ‘GATEWAY ASTRO’ for goods and services in classes 9, 16, 35, 36, 37 and 38

Decision of the Opposition Division: Opposition rejected in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Council Regulation No 40/94 as the Board of Appeal defined the relevant consumers wrongly and erred in the assessment of the trade mark applied for. Further the applicant claims that the Board of Appeal disregarded the reputation and well-known character of the earlier marks and that, contrary to what the Board of Appeal held, the earlier marks are similar to the mark applied for.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/41 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/41

---

Action brought on 5 December 2005 — Danjaq/OHIM

(Case T-435/05)

(2006/C 60/79)

Language in which the application was lodged: English

Parties

Applicant: Danjaq LLC (Santa Monica, USA) [represented by: L. Berg, S. Skrein, Solicitors and G. Hobbs, G. Hollingworth, Barristers]

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

Other party to the proceedings before the Board of Appeal: Mission Productions GmbH (Munich, Germany)

Form of order sought

| — | Annul the decision of the Board of Appeal in case number R 1118/2004-1; |
| --- | --- |

—

Annul the decision of the Board of Appeal in case number R 1118/2004-1;

| — | allow the opponent's opposition to Community trade mark application number 2 256 378, or alternatively remit the opposition to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the Court, |
| --- | --- |

—

allow the opponent's opposition to Community trade mark application number 2 256 378, or alternatively remit the opposition to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the Court,

| — | award the opponent its costs of the proceedings. |
| --- | --- |

—

award the opponent its costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: Mission Productions GmbH

Community trade mark concerned: The word mark ‘Dr. No’ for goods in classes 9, 12, 18, 25 and 32 — application No 2 256 378

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

Mark or sign cited: The earlier well-known mark, earlier non-registered mark and earlier sign used in the course of trade ‘Dr. No’ and ‘Dr. NO’ for films, DVDs, comic books, music recordings, books, posters and action figures (toys)

Decision of the Opposition Division: Opposition rejected in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(2)(c) of Council Regulation No 40/94 as the Board of Appeal misinterpreted Article 6 bis of the Paris Convention by holding that use within the Community had to be proved by the applicant.

Infringement of Article 8(1)(a) and (b) of Council Regulation No 40/94 since there is a likelihood of confusion between the conflicting trade marks as the conflicting marks and several of the goods covered by these marks are identical.

Infringement of Articles 8(4) and 73 of Council Regulation No 40/94 and Rules 50(2) and 52(1) of Commission Regulation No 2868/95 because the Board of Appeal failed to consider the opposition under Article 8(4) of Council Regulation No 40/94 and should have recognised that the applicant was the proprietor of numerous earlier rights and that it had used the marks cited in the opposition in the course of trade.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/41 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/41

---

Action brought on 16 December 2005 — IVG Immobilien AG v OHIM

(Case T-441/05)

(2006/C 60/80)

Language in which the application was lodged: German

Parties

Applicant: IVG Immobilien AG (Bonn, Germany) (represented by A. Okonek and U. Karpenstein, lawyers)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of OHIM of 1 September 2005 in Case R 559/2004-4 concerning Community trade mark application No 2 927 788 and order the defendant to register the ‘I’ mark for all goods and services applied for; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 1 September 2005 in Case R 559/2004-4 concerning Community trade mark application No 2 927 788 and order the defendant to register the ‘I’ mark for all goods and services applied for;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative ‘I’ mark for services in Classes 35, 36, 37, 39, 42 and 43 — Application No 2 927 788

Decision of the Examiner: Dismissal of the application for all services applied for

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94, on the ground that the Board of Appeal overestimated the requirements for the distinctive character of letters. In addition it is incorrect that the stylised graphic representation of the large 'I' in Königsblau is without evocative force for the relevant public.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/42 |
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Action brought on 22 December 2005 — Aman & Söhne and Cousin Filterie v Commission

(Case T-446/05)

(2006/C 60/81)

Language of the case: German

Parties

Applicants: Aman & Söhne GmbH & Co. KG (Bönnigheim, Germany) and Cousin Filterie S.A.S. (Wervicq, France) (represented by: A. Röhling and M. Dietrich)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

| — | annul the contested decision in so far as it relates to the applicants; |
| --- | --- |

—

annul the contested decision in so far as it relates to the applicants;

| — | in the alternative, reduce the amount of the fine imposed on the applicants to an appropriate amount; |
| --- | --- |

—

in the alternative, reduce the amount of the fine imposed on the applicants to an appropriate amount;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are challenging Commission Decision C(2005) 3452 final of 14 September 2005 in Case 38.337 — PO/Thread (supplemented by the defendant's decision C(2005) 3765 of 13 October 2005). In the contested decision fines were imposed on the applicants for infringement of Article 81 EC and Article 53 of the EEA Agreement.

In support of their application the applicants rely on six pleas in law.

First, they allege infringement of the first sentence of Article 7(1) of Regulation No 1/2003 (1). In this connection they submit that the Commission erred in law in Article 1 of the contested decision in assuming three separate infringements of Article 81(1) EC and Article 53(1) of the EEA Agreement. In reality there was one single infringement within the terms of Article 7(1) of Regulation No 1/2003. Furthermore, the defendant erred in establishing the duration of the infringement.

In their second plea in law the applicants submit that there has been an infringement of Article 15(2) of Regulation No 17/1962 (2) or of Article 23(2) of Regulation No 1/2003. In their opinion the Commission infringed those provisions in imposing fines exceeding ten percent of the total worldwide turnover of the Amann Group.

Furthermore, the contested decision of the Commission infringes the principles of equal treatment and proportionality.

Fourthly, Aman & Söhne GmbH & Co. KG alleges the incorrect application of the Guidelines regarding industrial sewing threads due to wrongful differentiation in establishing the initial amount, incorrect calculation as regards the duration of the infringement and wrongful failure to take account of extenuating circumstances.

The applicants submit incorrect application of the Guidelines regarding the automobile industry as their fifth plea in law. That infringement by the Commission, they submit, lies in incorrect calculation of the basic amount and failure to take account of the fact that the infringement was not implemented.

Lastly, the applicants submit that the defendant infringed the right to a fair hearing pursuant to Article 27(1) of Regulation No 1/2003 and the applicants' rights of defence under Article 27(2) of Regulation No 1/2003.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/42 |
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Action brought on 22 December 2005 — Dikigorikos Sillogos Ioanninon v European Parliament and Council of the European Union

(Case T-449/05)

(2006/C 60/82)

Language of the case: Greek

Parties

Applicant: Dikigorikos Sillogos Ioanninon (Ioannina Lawyers' Association) (Ioannina, Greece) (represented by: Sotirios Athanasiou)

Defendants: European Parliament and Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1), as regards Articles 11(c)(i) and (ii), 11(d), 12, 13, 50(3) thereof; |
| --- | --- |

—

annul Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1), as regards Articles 11(c)(i) and (ii), 11(d), 12, 13, 50(3) thereof;

| — | order the European Parliament and the Council to pay the costs. |
| --- | --- |

—

order the European Parliament and the Council to pay the costs.

Pleas in law and main arguments

The applicant Lawyers' Association, taking the view that the contested directive concerns it directly and individually as the competent national authority responsible for assessing the professional qualifications of those seeking registration as members, seeks by its action the annulment of certain provisions of that directive. In its opinion, those provisions equate a higher level of professional qualifications with the level directly below and allow a Member State to proceed, by its national provisions, to equate evidence of formal legal qualifications at university level with evidence of formal legal qualifications obtained at a lower educational level and to grant the same professional rights to holders of post-secondary level qualifications as to holders of university qualifications in law, albeit without their satisfying the requirements laid down by the home Member State.

In support of its application, the applicant maintains that, in issuing the contested directive, the Community institutions went far beyond the limits of their competence and encroached upon the constitutional responsibilities of the Hellenic Republic as regards the organisation and structure of university-level education. In the same context, the applicant also alleges infringement of the principles of subsidiarity, proportionality, proximity, cohesion, avoidance of misuse and mutual respect between constitutional and Community authorities. It also alleges infringement of Article 6 EU in so far as it considers that, by the contested directive, the fundamental rights to free education, freedom to choose and exercise a profession and effective use of a recognised educational qualification have been infringed.

The applicant further relies on infringement of the Community acquis and consequently a conflict between the contested directive and Articles 2 and 3 EU. Lastly it alleges that insufficient and contradictory reasons were given for the contested measure.

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(1)  OJ L 255 of 30.09.2005, p. 22.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/43 |
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Action brought on 27 December 2005 — Belgian Sewing Thread v Commission

(Case T-452/05)

(2006/C 60/83)

Language of the case: Dutch

Parties

Applicant: Belgian Sewing Thread N.V. (represented by: H. Gilliams, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that Court should:

| (a) | in the action for annulment:






  — | annul Article 1 of the Decision insofar as it finds that the applicant participated in the infringement established therein to the same extent as the other undertakings involved in the infringement, and Article 2 of the Decision insofar as it imposes a fine on the applicant; |
| --- | --- | --- |

(a)

in the action for annulment:

—

annul Article 1 of the Decision insofar as it finds that the applicant participated in the infringement established therein to the same extent as the other undertakings involved in the infringement, and Article 2 of the Decision insofar as it imposes a fine on the applicant;

| — | in the alternative, annul or substantially reduce the fine imposed on the applicant in Article 2 of the Decision; |
| --- | --- |

—

in the alternative, annul or substantially reduce the fine imposed on the applicant in Article 2 of the Decision;

| — | order the Commission to pay the costs of the proceedings; |
| --- | --- |

—

order the Commission to pay the costs of the proceedings;

| (b) | in the action for compensation:






  — | find that the Commission is liable under Articles 235 and 288 EC; |
| --- | --- | --- |

(b)

in the action for compensation:

—

find that the Commission is liable under Articles 235 and 288 EC;

| — | order the Commission to pay all the damage suffered and yet to be suffered by the applicant as result of the Commission's publication of the applicant's internal price lists; |
| --- | --- |

—

order the Commission to pay all the damage suffered and yet to be suffered by the applicant as result of the Commission's publication of the applicant's internal price lists;

| — | order the Commission to pay interest on the damages, at 8 % per annum with effect from the moment when the Commission was at fault; |
| --- | --- |

—

order the Commission to pay interest on the damages, at 8 % per annum with effect from the moment when the Commission was at fault;

| — | order the Commission, pending the outcome of an expert's report, to pay in advance compensation of EUR 705 812; |
| --- | --- |

—

order the Commission, pending the outcome of an expert's report, to pay in advance compensation of EUR 705 812;

| — | 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

First of all, the applicant contests the Commission's decision of 14 September 2005 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case 38.337 — PO/Thread) insofar as it finds that the applicant participated in the infringement established there to the same extent as the other undertakings involved in the infringement, and seeks the annulment or at least a substantial reduction of the fine imposed on it.

The applicant states that the infringement committed by it was wrongly classified as very serious. The Commission thereby infringed the principle of fairness and proportionality, Article 23(3) of Regulation 1/2003 (1), and also the obligation to state reasons and the rights of the defence. According to the applicant, the Commission failed to take into account the fact that the applicant had not played any role whatsoever in the conception and organisation of the infringement, did not participate in the meetings in question with a view to making agreements restrictive of competition, and the fact that the applicant never implemented the agreements.

The applicant also challenges its placement in the second category for determination of the basic amount, and the size of the basic amount imposed. According to the applicant, the Commission overrated the possibility of the applicant having a real impact on competition, both in an absolute sense in comparison with the impact of the other undertakings involved but also in the light of the applicant's precarious financial situation and the limited size of the market. It also submits in that connection that the Commission infringed the principle of fairness and proportionality, Article 23(3) of Regulation 1/2003, the Guidelines on the method of setting fines and the obligation to state reasons.

According to the applicant, the Commission also wrongly assessed attenuating circumstances in relation to the applicant and infringed the Guidelines on the method of setting fines and the obligation to state reasons. The Commission ought to have taken into account as attenuating circumstances the fact that the applicant did not implement the agreements made and that it had played a very limited and passive role.

According to the applicant, a much too small a reduction in the fine imposed was granted to it on account of its cooperation with the investigation, in breach of the obligation to state reasons, the principle of equality and proportionality and the Leniency Notice.

Finally, the applicant seeks compensation for the damage suffered by it as result of the Commission's infringement of the principle of the protection of legitimate expectations and the obligation of secrecy, by publishing the applicant's internal price lists.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/44 |
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Action brought on 20 December 2005 — Sumimoto Chemical Agro Europe and Philagro France v Commission

(Case T-454/05)

(2006/C 60/84)

Language of the case: English

Parties

Applicants: Sumitomo Chemical Agro Europe SAS (Lyon, France) and Philagro France SAS (Lyon, France) [represented by: K. Van Maldegem, C. Mereu, lawyers]

Defendant: Commission of the European Communities

Form of order sought

| — | Order the annulment of Commission Decision D/430967; or, in the alternative, |
| --- | --- |

—

Order the annulment of Commission Decision D/430967; or, in the alternative,

| — | order the defendant to comply with its obligations under Community law and propose the inclusion of procymidone in Annex I to the PPPD for all uses/crops, as requested by the applicants; |
| --- | --- |

—

order the defendant to comply with its obligations under Community law and propose the inclusion of procymidone in Annex I to the PPPD for all uses/crops, as requested by the applicants;

| — | order the defendant to compensate the applicants in the provisional amount of 1 (one) Euro for damages suffered as a result of Commission Decision D/430967, or, in the alternative, as a result of the defendant's failure to comply with its obligations under Community law by failing to respond to the applicants, as well as any applicable interests, pending the exact calculation and determination of the exact amount; |
| --- | --- |

—

order the defendant to compensate the applicants in the provisional amount of 1 (one) Euro for damages suffered as a result of Commission Decision D/430967, or, in the alternative, as a result of the defendant's failure to comply with its obligations under Community law by failing to respond to the applicants, as well as any applicable interests, pending the exact calculation and determination of the exact amount;

| — | order the defendant to pay all costs and expenses in these proceedings. |
| --- | --- |

—

order the defendant to pay all costs and expenses in these proceedings.

Pleas in law and main arguments

Council Directive 91/414 (1) concerning the placing of plant protection products on the market (known as the ‘plant protection products directive’ or ‘PPPD’) provides that Member States shall not authorise a product unless it is inscribed in Annex I of the Directive. The applicants have repeatedly contacted the Commission with a view to ensuring that procymidone, the active substance contained in their plant protection products, should be included in Annex I.

By letter of the 20 October 2005, which constitutes the contested Decision, the Commission informed the first applicant that possible inclusion of procymidone in Annex I would, at most, cover the supported uses that have been the subject of EU evaluation; it further makes such inclusion conditional on the submission of a proposal for highly detailed conditions of use and risk mitigation measures.

The applicants request the annulment of that Decision, criticizing the proposed limited authorisation of procymidone, which would lead to it being registered only for two crops, namely plums and cucumbers, as well as the requirement for highly detailed conditions of use. According to the applicant, these requirements violated the PPPD which only refers to broad use categories, such as insecticides, growth regulators or herbicides, leaving it to the Member States to assess use in relation to specific crops. In the same context the applicants allege that the requirement for detailed conditions is neither allowed under the PPPD nor scientifically justified.

The applicants further submit that the contested Decision errs when it states that studies submitted after the fixed deadlines cannot be examined because, according to the applicants, all procymidone data were timely submitted. They also consider that the contested Decision violates Articles 95(3) and 152(1) EC by refusing to consider studies submitted in time and found satisfactory by the evaluators.

The applicants also invoke violations of the PPPD, of Regulation 3600/92 (2), of the principles of sound administration, of subsidiarity and proportionality, of legitimate expectations and legal certainty, of the excellence and independence of scientific advice, of equal treatment and ‘estoppel’ and of the duty to state reasons.

Should the court consider that the contested letter is not an act which can be challenged under Article 230(4) EC, the applicants submit that their action is still admissible under Article 232 EC against the Commission's failure to act upon their administrative complaint and formal request. In addition and independently of the actions for annulment and failure to act, the applicants claim compensation for damages suffered as a direct consequence of the contested letter.

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(1)  OJ L 230, 19/08/1991, p. 1.

(2)  Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8 (2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market, OJ L 366, 15/12/1992, p. 10

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/45 |
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Action brought on 30 December 2005 — Gütermann v Commission

(Case T-456/05)

(2006/C 60/85)

Language of the case: German

Parties

Applicant: Gütermann Aktiengesellschaft (Gutach-Breisgau, Germany) (represented by: J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Article 1(1) of the Decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland also in the period from January 1990 up to and including December 1993; |
| --- | --- |

—

annul Article 1(1) of the Decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland also in the period from January 1990 up to and including December 1993;

| — | annul Article 2 of the Decision in so far as it imposes a fine of EUR 4,021 million on the applicant; |
| --- | --- |

—

annul Article 2 of the Decision in so far as it imposes a fine of EUR 4,021 million on the applicant;

| — | in the alternative, reduce as appropriate the fine imposed on the applicant in Article 2 of the Decision; |
| --- | --- |

—

in the alternative, reduce as appropriate the fine imposed on the applicant in Article 2 of the Decision;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2005) 3452 final of 14 September 2005 in Case 38.337 — PO/Thread (amended by the defendant's decision of 13 October 2005). In the contested decision a fine was imposed on the applicant for infringement of Article 81 EC and Article 53 of the EEA Agreement.

In support of its application the applicant is relying on four pleas in law.

First, it alleges breach of Article 7 of Regulation No 1/2003. (1) In this connection it submits that the finding as to the duration of the infringements in Article 1(1) of the contested decision is incorrect.

In its second plea in law the applicant submits that there has been an infringement of Article 15(2) of Regulation No 17/1962 (2) or of Article 23(2) of Regulation No 1/2003. It considers that Article 2 of the contested decision infringes fundamental principles regarding the assessment of fines. In addition, it is submitted that those provisions were infringed by Article 2 of the contested decision due to misapplication of the 1996 Leniency Notice.

Lastly, the applicant submits that Article 2 of the contested decision amounts to an infringement of the principle of proportionality as insufficient regard was had to the individual position of the applicant in fixing the fine.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/46 |
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Action brought on 30 December 2005 — Zwicky v Commission

(Case T-457/05)

(2006/C 60/86)

Language of the case: German

Parties

Applicant: Zwicky & Co. AG (Wallisellen, Switzerland) (represented by: J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Article 1(1) of the decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland, or in the alternative for the period from January 1990 up to and including December 1993; |
| --- | --- |

—

annul Article 1(1) of the decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland, or in the alternative for the period from January 1990 up to and including December 1993;

| — | annul Article 2 of the decision in so far as it imposes a fine of EUR 0.174 million on the applicant; |
| --- | --- |

—

annul Article 2 of the decision in so far as it imposes a fine of EUR 0.174 million on the applicant;

| — | in the alternative, reduce the fine imposed in Article 2 of the decision as appropriate; |
| --- | --- |

—

in the alternative, reduce the fine imposed in Article 2 of the decision as appropriate;

| — | annul Article 3 of the decision as regards the applicant; |
| --- | --- |

—

annul Article 3 of the decision as regards the applicant;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2005) 3452 final of 14 September 2005 in Case 38.337 — PO/Thread (amended by the defendant's decision of 13 October 2005). In the contested decision a fine was imposed on the applicant for infringement of Article 81 EC and Article 53 of the EEA Agreement.

In support of its application the applicant is relying on six pleas in law.

First, it alleges infringement of Article 7 of Regulation No 1/2003. (1) In this connection it submits that the finding as to the extent and duration of the infringements in Article 1(1) of the contested decision is incorrect.

In its second plea in law the applicant submits that there has been an infringement of Article 23(2) of Regulation No 1/2003. It considers that the fine imposed on it exceeds the ten percent of its total turnover in the business year preceding the decision. Consequently the imposition of the fine on the applicant in Article 2 of the contested decision is unlawful.

Moreover, Article 2 of the defendant's decision infringes Article 15(2) of Regulation No 17/1962 (2) or Article 23(2) of Regulation No 1/2003. That illegal act is based on the infringement of fundamental principles regarding the assessment of fines.

Furthermore, the defendant infringed Article 15(2) of Regulation No 17/1962 or Article 23(2) of Regulation No 1/2003 by way of Article 2 of the contested decision, inasmuch as it incorrectly applied the 1996 Leniency Notice to the detriment of the applicant.

Fifthly, the applicant submits that Article 2 of the contested decision is a violation of the principle of proportionality as insufficient regard was had to the individual position of the applicant in fixing the fine.

Lastly, the applicant submits that the direction, in Article 3 of the Commission's decision, to redress infringements and desist from them in future infringes Article 7(1) of Regulation No 1/2003 as it is neither necessary nor proportionate in the applicant's case.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/46 |
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Action brought on 30 December 2005 — Tegometall International v OHIM

(Case T-458/05)

(2006/C 60/87)

Language in which the application was lodged: German

Parties

Applicant: Tegometall International AG (Lengwil, Switzerland) (represented by: H. Timmann, 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: Wupperman AG (Leverkusen, Germany)

Form of order sought

The applicant claims that the Court should:

| — | alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 21 October 2005 in Case R 1063/2004-2, served on 2 November 2005, as amended by Corrigendum of 16 November 2005, served on 23 November 2005, and dismiss the application for declaration of invalidity of Community trade mark No 1 227 743 of 23 July 2003; |
| --- | --- |

—

alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 21 October 2005 in Case R 1063/2004-2, served on 2 November 2005, as amended by Corrigendum of 16 November 2005, served on 23 November 2005, and dismiss the application for declaration of invalidity of Community trade mark No 1 227 743 of 23 July 2003;

| — | in the alternative, annul that decision and refer the case back to the Second Board of Appeal for further deliberation; |
| --- | --- |

—

in the alternative, annul that decision and refer the case back to the Second Board of Appeal for further deliberation;

| — | order the applicant in the invalidity proceedings to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal and of the present action. |
| --- | --- |

—

order the applicant in the invalidity proceedings to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal and of the present action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark TEK for goods in Classes 6 and 20 (shelves and parts of shelves, in particular hanging baskets for shelves, all the aforesaid goods of metal or not of wood) — Community trade mark No 1 227 743

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Wupperman AG

Decision of the Cancellation Division: Dismissal of the application for declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the facts found by the Board of Appeal do not justify cancellation of the mark. In addition, the Board of Appeal has infringed the applicant's right to a fair hearing.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/47 |
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Action brought on 30 December 2005 — MPDV Mikrolab v OHIM

(Case T-459/05)

(2006/C 60/88)

Language in which the application was lodged: German

Parties

Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (Mosbach, Germany) (represented by W. Göpfert, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of 19 October 2005 as regards the appeal proceedings R 1059/2004-2, and; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of 19 October 2005 as regards the appeal proceedings R 1059/2004-2, and;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘manufacturing score card’ for goods and services in Classes 9, 35 and 42 — Application No 3 334 596

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 40/94 as the mark for which registration is sought is capable of being protected because the fact that the elements constituting the mark sought could, each in themselves, or, as part of a different constellation, perhaps have a descriptive content is not sufficient to preclude protection.

Infringement of Article 7(1)(b) of the Regulation, inasmuch as the overall combination of elements, as regards the goods and services for which registration of the mark is sought, is imaginative and conveys an unclear and vague meaning which goes beyond a mere bringing together of the terms.

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Action brought on 11 January 2006 — PORTELA & Ca, S.A. v OHIM

(Case T-10/06)

(2006/C 60/89)

Language in which the application was lodged: Portuguese

Parties

Applicant: PORTELA & Ca, S.A. (S. Mamede do Coronado, Portugal) (represented by João M. Pimenta, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Juan Torres Quadrado and Josep Gilbert Sanz

Form of order sought

The applicant claims that the Court should:

| — | Annul the Decision of the First Board of Appeal of OHIM of 14 September 2005 in Case R-897/2004-1 granting registration of Community trade mark No 1 400 183 for the following products:






  — | Class 5 — pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, preparations for destroying vermin; |
| --- | --- | --- |

—

Annul the Decision of the First Board of Appeal of OHIM of 14 September 2005 in Case R-897/2004-1 granting registration of Community trade mark No 1 400 183 for the following products:

—

Class 5 — pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, preparations for destroying vermin;

| — | Class 42 — medical services, services related to pharmaceutical laboratories; research in the field of medicine and laboratories. |
| --- | --- |

—

Class 42 — medical services, services related to pharmaceutical laboratories; research in the field of medicine and laboratories.

| — | Order OHIM to pay all the costs. |
| --- | --- |

—

Order OHIM to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: PORTELA & Ca, S.A.

Community trade mark concerned: Bial (application No 1400183)

Proprietor of the mark or sign cited in the opposition proceedings: Juan Torres Quadrado and Josep Gilbert Sanz

Mark or sign cited in opposition: Spanish trade mark BIAL

Decision of the Opposition Division: Opposition allowed in part

Decision of the Board of Appeal: Decision of the Opposition Division upheld in its entirety

Pleas in law: The applicant claims that OHIM infringed Article 8(1)(b) of Regulation No 40/94 by interpreting it incorrectly and that the contested decision is vitiated by infringements of essential procedural requirements (the mark was not properly presented in the opposition, the applicant was not provided, within the period prescribed by law, with the relevant elements of the earlier mark on which the opposition was based and the decision on costs was incorrect).

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/48 |
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Action brought on 19 January 2006 — Romana Tabacchi v Commission

(Case T-11/06)

(2006/C 60/90)

Language of the case: Italian

Parties

Applicant: Romana Tabacchi Spa (Rome, Italy) (represented by: M. Siragusa and G. Cesare Rizza)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | Substantially reduce the fine imposed on Romana Tabacchi; |
| --- | --- |

—

Substantially reduce the fine imposed on Romana Tabacchi;

| — | Order the Commission to pay the applicant's costs; |
| --- | --- |

—

Order the Commission to pay the applicant's costs;

| — | Order any other measure, including any measure of an investigative nature, which it considers appropriate. |
| --- | --- |

—

Order any other measure, including any measure of an investigative nature, which it considers appropriate.

Pleas in law and main arguments

The object of the present action is the partial annulment of the Commission Decision of 20 October 2005 relating to a proceeding under Article 81 EC (Case COMP/C-38.281/B.2 — Raw tobacco — Italy), limited to the part concerning the calculation of the fine imposed on the applicant, and the resulting reduction of the said fine.

In that decision, the defendant found that six undertakings operating in Italy in the raw tobacco processing sector had infringed Article 81(1) EC from 1995 until the beginning of 2002, by means of concerted agreements or practices aimed at coordinating their individual purchasing strategies, including through the organisation of regular information exchanges and mutual consultation. In particular, according to the Commission, the processors agreed maximum and average delivery prices for the ‘Burley’ variety of raw tobacco, as well as the volumes of the product to be purchased. The cartel extended to include concerted action on bids in response to public competitive procedures organised by AIMA-Azienda di Stato (the State Corporation AIMA) in 1995 for action to be taken on the agricultural market and by ATI-Azienda Tabacchi Italiani S.p.A. in 1998.

The Commission also found that, during the period between February 1999 and November 2001, the Associazione Professionale Trasformatori Tabacchi Italiani (Italian Professional Association of Tobacco Processors) and the Unione Italiana Tabacco (Italian Tobacco Union) adopted decisions concerning their respective negotiating positions on prices for each grade of each variety of tobacco with a view to entering into inter-business agreements.

In support of its claims, the applicant pleads:

| — | Infringement of the principles of equality and proportionality, to the extent to which the Commission omitted, for the purposes of calculating the starting point for the fine, to take into account the fact that the cartel had no, or at most a modest, practical impact on the market; |
| --- | --- |

—

Infringement of the principles of equality and proportionality, to the extent to which the Commission omitted, for the purposes of calculating the starting point for the fine, to take into account the fact that the cartel had no, or at most a modest, practical impact on the market;

| — | The illogicality of the statement of reasons and the infringement of the principle of equal treatment as regards the failure to set progressive amounts for the basic fine in order to adjust it to the size of the undertaking on which the fine is imposed. In particular it maintains, on this point, that the use of the market share for the last full year of the breach should be mitigated and adjusted in all of the cases in which an undertaking's participation in the alleged restrictive practices was marked by interruptions; |
| --- | --- |

—

The illogicality of the statement of reasons and the infringement of the principle of equal treatment as regards the failure to set progressive amounts for the basic fine in order to adjust it to the size of the undertaking on which the fine is imposed. In particular it maintains, on this point, that the use of the market share for the last full year of the breach should be mitigated and adjusted in all of the cases in which an undertaking's participation in the alleged restrictive practices was marked by interruptions;

| — | That the finding that the duration of the applicant's participation in the cartel was two years and eight months is the result of a clear error of appraisal; |
| --- | --- |

—

That the finding that the duration of the applicant's participation in the cartel was two years and eight months is the result of a clear error of appraisal;

| — | That the Commission failed to take account of two mitigating circumstances: the purely passive role played by the applicant in the cartel, and the frequent confusion as to the aims of the agreements; |
| --- | --- |

—

That the Commission failed to take account of two mitigating circumstances: the purely passive role played by the applicant in the cartel, and the frequent confusion as to the aims of the agreements;

| — | That the fine in question, which is almost double its assets, is unjust and disproportionate. |
| --- | --- |

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That the fine in question, which is almost double its assets, is unjust and disproportionate.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/49 |
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Action brought on 19 January 2006 — Deltafina v Commission

(Case T-12/06)

(2006/C 60/91)

Language of the case: Italian

Parties

Applicant: Deltafina (Rome, Italy) (represented by: F. Di Gianni, R. Jacchia, A. Terranova, I. van Bael and J. F. Bellis)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the fine or, in the alternative, reduce the fine imposed on it pursuant to Article 2 of the Decision; |
| --- | --- |

—

annul the fine or, in the alternative, reduce the fine imposed on it pursuant to Article 2 of the Decision;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant in the present case seeks the annulment of the fine of EUR 30 million imposed on it pursuant to Article 2 of the contested Decision, which is the same as that in issue in Case T-11/06 Romana Tabacchi v Commission, on the ground that the Commission unlawfully deprived it of the immunity from fines which was granted pursuant to point 8(b) of the Commission Notice of 2002 on immunity from fines and reduction of fines in cartel cases (1).

It should be explained in this respect that the defendant revoked the conditional immunity granted to the applicant because of the latter's announcement, made during a meeting of the Governing Board of the Associazione Professionale Trasformatori Tabacchi Italiani (Italian Professional Association of Tobacco Processors), that it had made a request for favourable treatment to the Commission.

In support of its claims, the applicant pleads:

| — | that it informed the Commission in advance that it would be impossible for it not to reveal that it had submitted the request for favourable treatment; |
| --- | --- |

—

that it informed the Commission in advance that it would be impossible for it not to reveal that it had submitted the request for favourable treatment;

| — | that the Commission had accepted that it was impossible for Deltafina not to reveal that it had submitted a request for favourable treatment; |
| --- | --- |

—

that the Commission had accepted that it was impossible for Deltafina not to reveal that it had submitted a request for favourable treatment;

| — | that the Commission officials did not inform Deltafina that its announcement that it had submitted a request for favourable treatment would entail the loss of conditional immunity; |
| --- | --- |

—

that the Commission officials did not inform Deltafina that its announcement that it had submitted a request for favourable treatment would entail the loss of conditional immunity;

| — | that Deltafina did not submit its own request for favourable treatment in concert with its principal competitors; and |
| --- | --- |

—

that Deltafina did not submit its own request for favourable treatment in concert with its principal competitors; and

| — | that Deltafina's disclosure that it had submitted a request for favourable treatment in no way prejudiced the Commission's investigation. |
| --- | --- |

—

that Deltafina's disclosure that it had submitted a request for favourable treatment in no way prejudiced the Commission's investigation.

As regards the reduction of the fine, the applicant submits that:

| — | The basic amount of the fine imposed by the Commission is clearly excessive and disproportionate, having regard to the modest value of the market concerned, Deltafina's reduced turnover and the fact that the breach did not have any impact on the market; |
| --- | --- |

—

The basic amount of the fine imposed by the Commission is clearly excessive and disproportionate, having regard to the modest value of the market concerned, Deltafina's reduced turnover and the fact that the breach did not have any impact on the market;

| — | The Commission erroneously attributed Deltafina's conduct to its parent company; |
| --- | --- |

—

The Commission erroneously attributed Deltafina's conduct to its parent company;

| — | The reduction of the fine and the assessment of mitigating circumstances do not adequately reflect the specific facts of the case, in the light, in particular, of the new interpretative practices under the 2002 Notice. |
| --- | --- |

—

The reduction of the fine and the assessment of mitigating circumstances do not adequately reflect the specific facts of the case, in the light, in particular, of the new interpretative practices under the 2002 Notice.

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(1)  OJ C 45, 19.2.2002, p. 3.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/49 |
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Action brought on 20 January 2006 — Mindo v Commission

(Case T-19/06)

(2006/C 60/92)

Language of the case: English

Parties

Applicant: Mindo Srl (Rome, Italy) [represented by: J. Folguera Crespo, P. Vidal Martínez, lawyers]

Defendant: Commission of the European Communities

Form of order sought

| — | Declare Article 1.1(a) of Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) partially null and void to the extent that it refers to a longer duration of the infringement (which is deemed to be terminated on 19 February 2002 instead of 15 January 2002, at the latest); |
| --- | --- |

—

Declare Article 1.1(a) of Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) partially null and void to the extent that it refers to a longer duration of the infringement (which is deemed to be terminated on 19 February 2002 instead of 15 January 2002, at the latest);

| — | declare Article 2(b) of the Contested Decision null and void to the extend that MINDO should have been granted full immunity from fines under the Leniency Notice, or in the alternative, the amount of the fine imposed on MINDO and on a joint and several basis to ‘Alliance One International’ should be substantially reduced; |
| --- | --- |

—

declare Article 2(b) of the Contested Decision null and void to the extend that MINDO should have been granted full immunity from fines under the Leniency Notice, or in the alternative, the amount of the fine imposed on MINDO and on a joint and several basis to ‘Alliance One International’ should be substantially reduced;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By the contested Decision the Commission found that several companies, including the applicant, infringed Article 81(1) EC by way of agreements and/or concerted practices in the Italian raw tobacco sector. The applicant requests the partial annulment of this Decision invoking, firstly, an alleged infringement of its legitimate expectations regarding the application of the Leniency Notice. The applicant contests the Commission's rejections of its application to benefit from immunity on the grounds that another company, and not the applicant, was entitled to immunity. According to the applicant, that other company did not comply with the requirements of the Leniency Notice whereas the Commission failed to prove that the applicant did not comply with the same requirements.

In the alternative, the applicant contends that its participation to the infringements ceased on 15 January 2002 at the latest, rather than on 19 February 2002, and that the fine imposed on it should be reduced accordingly on this basis.

Further, the applicant considers that the Commission violated the principles of proportionality and legal certainty as well as the duty to state reasons regarding the assessment of the scope of the applicant's restrictive conduct. According to the applicant, the Commission failed to take into account that it participated in agreements regarding the purchase price and the quantities of surplus production only in 1998 and 1999 and that it did so in the context of interprofessional agreements authorised under Italian legislation.

The applicant also invokes an infringement of the rights of defence as well as of the principles of proportionality and legitimate expectations in the calculation of the basic amount of the fine. In this context the applicant alleges that the basic amount of the fine materially exceeds the total value of the products which were affected by the cartel practices; that the Commission has erred in the assessment of the two potential effects of the restrictive practices cited in the contested Decision; that those two potential effects are new to the contested Decision and had not been stated in the Statement of Objections; and that the Commission mistakenly applied a multiplying factor in order to calculate the basic amount of the fine without taking into consideration that at the time of the contested Decision's adoption the applicant was not part of any large multinational undertaking.

Further, the applicant invokes an infringement of the duty to state reasons and the principles of legal certainty and of legitimate expectations in connection with the Commission's alleged failure to take certain mitigating factors into account, notably the early termination of the infringing conduct and the minimal effects of the restrictive practices attributed to the applicant.

Finally, the applicant also invokes an infringement of the principles of proportionality and of legitimate expectations as well as the duty to state reasons in the application of section 5(b) of the Commission's guidelines, regarding the specific economic and social context in which the restrictive practices took place. It also alleges that the Commission failed to take into consideration, when setting the amount of the fine, its extremely fragile economic situation and its ability to pay.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/50 |
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Action brought on 24 January 2006 — Alliance One International v Commission

(Case T-25/06)

(2006/C 60/93)

Language of the case: English

Parties

Applicant: Alliance One International, Inc. (Danville, USA) [represented by: C. Osti, A. Prastaro, lawyers]

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 1.1(a) of Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) insofar as it relates to SCC, Dimon Inc. and Alliance One; |
| --- | --- |

—

Annul Article 1.1(a) of Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) insofar as it relates to SCC, Dimon Inc. and Alliance One;

| — | accordingly reduce the fines imposed on Transcatab and Dimon Italia- Mindo so that the fines do not exceed 10 % of their turnover in the latest financial year; |
| --- | --- |

—

accordingly reduce the fines imposed on Transcatab and Dimon Italia- Mindo so that the fines do not exceed 10 % of their turnover in the latest financial year;

| — | alternatively, reduce the fine imposed on Transcatab and Dimon Italia- Mindo as the multiplying factor is not applicable; |
| --- | --- |

—

alternatively, reduce the fine imposed on Transcatab and Dimon Italia- Mindo as the multiplying factor is not applicable;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the contested Decision the Commission found that several companies, including the applicant and its subsidiaries, Transcatab and Dimon Italia, later renamed Mindo, infringed Article 81(1) EC by way of agreements and/or concerted practices in the Italian raw tobacco sector.

The applicant requests the partial annulment of this Decision arguing, firstly, that by holding it jointly and severally liable for the infringement committed by its subsidiaries, the Commission breached the rules regulating responsibility of parent companies. The applicant contests in this context the arguments and the evidence cited by the Commission in support of its finding.

The applicant also considers that the Commission breached Article 23(2) of Regulation 1/2003 (1) by imposing fines which exceed 10 % of the total turnover of its subsidiaries.

Finally, the applicant considers that the Commission should not have applied a multiplying factor to its subsidiaries as this was not justified on the basis of the parties' turnovers and the Commission's decisional practice. It further argues that the multiplying factor applied to it is higher than that applied to another undertaking leading to an evident violation of proportionality and lack of reasoning. The applicant also submits that the reasoning for the application of a multiplying factor to Mindo is inconsistent as it applies different criteria to determine the same fine.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 04/01/2003 p. 1.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/51 |
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Action brought on 24 January 2006 — Universal v Commission

(Case T-34/06)

(2006/C 60/94)

Language of the case: English

Parties

Applicant: Universal Corp. (Richmond, USA) [represented by: A. Riesenkampff, T. Reher, M. Holzhäuser, C. Swaak, M. Mollica, avocats]

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) insofar as it is addressed to the applicant; |
| --- | --- |

—

Annul Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) insofar as it is addressed to the applicant;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the contested Decision the Commission found that several companies, including the applicant and one of its indirect subsidiaries, infringed Article 81(1) EC by way of agreements and/or concerted practices in the Italian raw tobacco sector. On this basis, it imposed a fine on the applicant, jointly and severally with its subsidiary.

In support of its application the applicant contends, firstly, that in the contested Decision the Commission adopted, without giving any explanation or objective justification, a diametrically opposed position to its own position in the Spanish raw tobacco case which involved the same parent/subsidiary relationship, the same time frame, the same commodity, the same buying prices and the same lack of involvement or knowledge by the applicant. On this basis the applicant considers that the Commission violated its obligation to state reasons, disregarded the principle of equal treatment and violated the applicant's legitimate expectations by imposing a fine on it for the infringement of its subsidiary.

The applicant further argues that the Commission failed to prove to the requisite legal standard any decisive influence by the applicant on the commercial behaviour of its subsidiary. In this context, it submits that the Commission wrongly considered that requirements for reporting and for certain approvals confirm its exercise of decisive commercial influence over its subsidiary whereas this was not the case, due to the applicant's very decentralised structure and organisation.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/51 |
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Order of the Court of First Instance of 16 January 2006 — Germany v Commission

(Case T -389/04) (1)

(2006/C 60/95)

Language of the case: German

The President of the First Chamber has ordered that the case be removed from the register.

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(1)  OJ C 300, 4.12.2004.

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EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 11.3.2006 | EN | Official Journal of the European Union | C 60/52 |
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Action brought on 12 December 2005 — Klopfer v Commission

(Case F-118/05)

(2006/C 60/96)

Language of the case: German

Parties

Applicant: Matthias Klopfer (Berlin, Germany) (represented by: E. Pätzel)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul Decision ADMIN.B.2/D (05) 18479/EGL-ade of the Director of the European Personnel Selection Office (EPSO) of 29 August 2005; |
| --- | --- |

—

annul Decision ADMIN.B.2/D (05) 18479/EGL-ade of the Director of the European Personnel Selection Office (EPSO) of 29 August 2005;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant took part in competition EPSO/B/11/03 to constitute a 'reserve pool of assistants in the field of production of publications: proofreading' in Grades B 5/B 4.

The Selection Board for that competition decided to exclude the applicant from the competition as he had completed the necessary three-year period of professional experience only through part-time work, which, in the view of the Selection Board, did not fulfil the requirements.

In support of his action, the applicant claims infringement of the principle of equal treatment laid down in Article 5 of the Staff Regulations. Furthermore, the wording of the notice of competition is, he argues, ambiguous in such a way that it also amounts to infringement of the principle that the administrative authorities are bound by the provision which they themselves have laid down.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/52 |
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Action brought on 16 December 2005 –De Meerleer v Commission

(Case F-121/05)

(2006/C 60/97)

Language of the case: French

Parties

Applicant: Michel De Meerleer (Ophain-Bois-Seigneur-Isaac, Belgium) (represented by: E. Boigelet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the selection board for Open Competition EPSO/A/19/04 not to accept the applicant's candidature and, consequently, not to admit him to the competition or to mark his written test; |
| --- | --- |

—

annul the decision of the selection board for Open Competition EPSO/A/19/04 not to accept the applicant's candidature and, consequently, not to admit him to the competition or to mark his written test;

| — | annul the selection board's decision of 30 May 2005 refusing to make a determination in respect of the applicant's request for a reconsideration of 18 May 2005 and also annulment of any act consecutive upon or relating to that decision; |
| --- | --- |

—

annul the selection board's decision of 30 May 2005 refusing to make a determination in respect of the applicant's request for a reconsideration of 18 May 2005 and also annulment of any act consecutive upon or relating to that decision;

| — | in so far as necessary, annul the appointing authority's decision of 2 September 2005, notified to the applicant on 14 September 2005, rejecting the applicant's complaint, which was registered on 13 June 2005 under reference R/493/05; |
| --- | --- |

—

in so far as necessary, annul the appointing authority's decision of 2 September 2005, notified to the applicant on 14 September 2005, rejecting the applicant's complaint, which was registered on 13 June 2005 under reference R/493/05;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant participated in Open Competition EPSO/A/19/04 for the establishment of a reserve list for the recruitment of administrators in grade A7/A6 in the specialist fields of civil engineering, engineering, chemistry/chemical products/industrial chemistry and air transport. Following his success in the pre-selection tests, he sent EPSO his application together with the requisite supporting documents. After examining the file, the selection board excluded the applicant from the competition on the ground that his professional experience was inadequate.

The applicant maintains that the competition selection board breached Articles 29(1)(a) and 30 of the Staff Regulations, Article 5 of Annex III to the Staff Regulations and the competition notice, in so far as a manifest error of assessment vitiates the evaluation of the applicant's professional experience and the decision not to accept his candidature. Furthermore, the decision contains only inadequate reasons.

The applicant further criticises the competition selection board and the appointing authority for having breached Article 25 of the Staff Regulations, Article 7 of Annex III to the Staff Regulations and also the competition notice and the principle of equal treatment for candidates. In particular, the use of unreliable computer systems in correspondence with the applicant gave rise to discrimination against the applicant by comparison with other candidates.

As an ancillary point, in case the Tribunal should not grant his application for annulment of the contested decisions, the applicant contends that the award of compensation would constitute the most appropriate form of reparation for the non-pecuniary and pecuniary damage that those decisions caused to him.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/53 |
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Action brought on 21 December 2005 — Economidis v Commission

(Case F-122/05)

(2006/C 60/98)

Language of the case: French

Parties

Applicant: Ioannis Economidis (Woluwé-St-Etienne, Belgium) (represented by: S. Orlandi, A. Coolen, J-N Louis, E. Marchal, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission's decision appointing Mr S. Hogan to the post of Head of Unit ‘Biotechnology and applied genomics’; |
| --- | --- |

—

annul the Commission's decision appointing Mr S. Hogan to the post of Head of Unit ‘Biotechnology and applied genomics’;

| — | annul the decision rejecting the applicant's candidature for that post; |
| --- | --- |

—

annul the decision rejecting the applicant's candidature for that post;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of the Commission, contests the appointing authority's rejection of his candidature for the post as Head of Unit ‘Biotechnology and applied genomics’ (vacancy notice COM/R/7012/04).

In support of the form of order sought, he relies on the unlawfulness of the recruitment procedure, breach of Articles 29(1) and 31 of the Staff Regulations, breach of the obligation to state reasons and a manifest error of assessment.

He claims, specifically, that:

| — | by failing to fix the grade at which the post would be filled, the appointing authority did not inform candidates as precisely as possible of the nature of the conditions required to occupy the vacant post in order to put them in a position to determine whether it was appropriate to apply for it; |
| --- | --- |

—

by failing to fix the grade at which the post would be filled, the appointing authority did not inform candidates as precisely as possible of the nature of the conditions required to occupy the vacant post in order to put them in a position to determine whether it was appropriate to apply for it;

| — | the reasons provided by the Commission are irrelevant, in so far as they do not permit the applicant to examine the merits of the decision or the Community judicature to exercise its power of review; |
| --- | --- |

—

the reasons provided by the Commission are irrelevant, in so far as they do not permit the applicant to examine the merits of the decision or the Community judicature to exercise its power of review;

| — | the contested decisions are vitiated by a manifest error of assessment in that the candidate chosen does not have all the general and special qualifications required, unlike the applicant, whose professional experience demonstrates his high abilities, notably in management. |
| --- | --- |

—

the contested decisions are vitiated by a manifest error of assessment in that the candidate chosen does not have all the general and special qualifications required, unlike the applicant, whose professional experience demonstrates his high abilities, notably in management.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/53 |
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Action brought on 13 December 2005 — Jean-Marc Bracke v Commission of the European Communities

(Case F-123/05)

(2006/C 60/99)

Language of the case: French

Parties

Applicant(s): Jean-Marc Bracke (Watermael-Boitsfort, Belgium) (represented by: P. Bruwier, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the decision adopted on 7 September 2005 by the appointing authority in response to the complaint lodged by Mr Jean-Marc Bracke (No R/570/05) and the subsequent measures adopted as a consequence of that decision; |
| --- | --- |

—

annul the decision adopted on 7 September 2005 by the appointing authority in response to the complaint lodged by Mr Jean-Marc Bracke (No R/570/05) and the subsequent measures adopted as a consequence of that decision;

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

—

order the defendants to pay the costs.

Pleas in law and main arguments

The applicant, who was a successful candidate in competition COM/PC/04, contests the legality of the appointing authority's decision not to take him on as a probationary official on the ground that he does not fulfil the seniority requirements included among the eligibility conditions for the abovementioned competition.

The applicant contends that the contested decision infringes Article 27 of the Staff Regulations in that, for no valid reason, it denies some of the candidates access to the vacant post. He also alleges breach of the principle of non-discrimination, of the principle of sound administration, of the principle of independence of the selection board and of the principle of the protection of legitimate expectations. Finally, he contends that the provision in the vacancy notice on which the abovementioned decision was based, namely paragraph III .1, is illegal, since it is in breach of the principle of non-discrimination and should therefore be declared inoperative, pursuant to Article 241 EC.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/54 |
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Action brought on 19 December 2005 — Tsarnavas v Commission

(Case F-125/05)

(2006/C 60/100)

Language of the case: French

Parties

Applicant: Vassilios Tsarnavas (Athens, Greece) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the appointing authority's decision of 1 April 2005 rejecting the applicant's request under Article 90(1) of the Staff Regulations (Request No D/007/05); |
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—

annul the appointing authority's decision of 1 April 2005 rejecting the applicant's request under Article 90(1) of the Staff Regulations (Request No D/007/05);

| — | in so far as necessary, annul the Commission's decision of 7 October 2005 rejecting the applicant's complaint (No R/488/05); |
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in so far as necessary, annul the Commission's decision of 7 October 2005 rejecting the applicant's complaint (No R/488/05);

| — | order the defendant to pay compensation of EUR 72 000 for the pecuniary and non-pecuniary damage sustained by the applicant in consequence of the irregularities or repeated service-related faults committed by the Commission in the context of the 1998 and 1999 promotion exercises; |
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—

order the defendant to pay compensation of EUR 72 000 for the pecuniary and non-pecuniary damage sustained by the applicant in consequence of the irregularities or repeated service-related faults committed by the Commission in the context of the 1998 and 1999 promotion exercises;

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

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests the Commission's decisions rejecting the request and the complaint which he had submitted in order to obtain compensation for the pecuniary and non-pecuniary damage caused to him by the Commission's conduct in the context of the 1998 and 1999 promotion exercises. In order to contest the measures taken by the Commission in respect of him, the applicant had initiated four pre-contentious procedures and four contentious procedures, which culminated in either the withdrawal or the annulment of those measures.

The pecuniary damage follows from the fact that, in order to ensure that his interests were fully defended in the context of the pre-contentious procedures, the applicant was required to consult a legal adviser. The non-pecuniary damage follows from the situation of uncertainty in which the applicant found himself for a number of years and also from his loss of confidence in the institution.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/54 |
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Official Journal of the European Union

C 60/54

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Action brought on 22 December 2005 — Borbély v Commission

(Case F-126/05)

(2006/C 60/101)

Language of the case: English

Parties

Applicant: Andrea Borbély (Brussels, Belgium) (represented by: R. Stötzel, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of the European Commission of 30 September 2005 in so far as it refuses to grant the applicant the daily subsistence allowance provided for in Article 10(1) of Annex VII of the Staff Regulations of Officials of the European Communities, the installation allowance provided for in the first subparagraph of Article 5(1) of Annex VII of the Staff Regulations and reimbursement of travel expenses on taking up her appointment as provided for in Article 7(1)(a) of Annex VII of the Staff Regulations; |
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annul the decision of the European Commission of 30 September 2005 in so far as it refuses to grant the applicant the daily subsistence allowance provided for in Article 10(1) of Annex VII of the Staff Regulations of Officials of the European Communities, the installation allowance provided for in the first subparagraph of Article 5(1) of Annex VII of the Staff Regulations and reimbursement of travel expenses on taking up her appointment as provided for in Article 7(1)(a) of Annex VII of the Staff Regulations;

| — | order the European Commission to pay the applicant the daily subsistence allowance, the installation allowance and the travel expenses on taking up her appointment, together with interest from the dates on which those amounts became payable pursuant to Annex VII of the Staff Regulations. |
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order the European Commission to pay the applicant the daily subsistence allowance, the installation allowance and the travel expenses on taking up her appointment, together with interest from the dates on which those amounts became payable pursuant to Annex VII of the Staff Regulations.

Pleas in law and main arguments

The applicant, formally an official of the Ministry of Foreign Affairs in Budapest, Hungary, seconded for Diplomatic Service to the Permanent Representation on Hungary to the EU in Brussels for a period of four years, was appointed as probationary official of the Commission and posted in Brussels.

She applied in March 2005 for the installation allowance, reimbursement of the travel expenses payable on taking up her appointment and the daily subsistence allowance. The Commission rejected that request.

The applicant claims that, while on secondment, she continued to be remunerated by her Hungarian employer and maintained her residence and her financial interests in Hungary. Moreover, in Brussels she used to live in a furnished apartment relied by her employer.

She argues that the case-law (1) has already established that an official is entitled to the above-mentioned reimbursement and allowances in a situation where the place of appointment is the one on which the official resided immediately prior to being appointed because of a secondment.

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(1)  Case T-137/95 Mozzaglia v Commission [1996] ECR-SC I-A-619 and II-1657.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/55 |
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Official Journal of the European Union

C 60/55

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Action brought on 21 December 2005 — Nanbru v European Parliament

(Case F-127/05)

(2006/C 60/102)

Language of the case: French

Parties

Applicant: Nicole-Kiwi Nanbru (Brussels, Belgium) (represented by: G. Vandersanden, lawyer)

Defendant: European Parliament

Forms of order sought

The applicant claims that the Court should:

| — | Annul the decision of the European Parliament, notified to the applicant on 3 May 2005, giving new notification of her retirement pension rights as from 1 January 2005; |
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—

Annul the decision of the European Parliament, notified to the applicant on 3 May 2005, giving new notification of her retirement pension rights as from 1 January 2005;

| — | Restore the applicant to her pension rights as stated by continuous, consistent and checked figures supplied in writing (mails or notes) and confirmed orally by the DG Personnel of the European Parliament, awarding her a differential sum of EUR 634.40 per month until the expiry of her retirement pension; |
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—

Restore the applicant to her pension rights as stated by continuous, consistent and checked figures supplied in writing (mails or notes) and confirmed orally by the DG Personnel of the European Parliament, awarding her a differential sum of EUR 634.40 per month until the expiry of her retirement pension;

| — | Compensate for the non-material damage suffered by the applicant, provisionally assessed, ex aequo et bono, at EUR 250 000. |
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Compensate for the non-material damage suffered by the applicant, provisionally assessed, ex aequo et bono, at EUR 250 000.

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a temporary servant of the European Parliament in retirement since 1 January 2005, challenges the decision of that institution to reduce the amount of her pension from what had been indicated to her at the time when she was considering whether it was appropriate to retire and, if appropriate, request transfer to the Community system of her pension rights acquired in Belgium.

Concerning the application for annulment, the applicant argues that, even if it is possible for an administrative authority to replace an illegal decision, in this case the new decision fixing her pension rights at a lower level than previously anticipated was not taken within a reasonable time. In those circumstances, the confidence she might legitimately have as to the amount of her pension had been breached.

She argues that the non-material damage arises from the whole of the faults committed by the European Parliament throughout the case.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/56 |
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Official Journal of the European Union

C 60/56

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Action brought on 20 December 2005 — Claude Adolf and Others v Commission of the European Communities

(Case F-128/05)

(2006/C 60/103)

Language of the case: French

Parties

Applicant(s): Claude Adolf and Others (represented by: L. Levi and G Vandersanden, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | declare the action admissible and well founded, including the objection of illegality contained in it; |
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—

declare the action admissible and well founded, including the objection of illegality contained in it;

| — | consequently, annul the applicants' pension statements for March 2005, so as to result in the application of a weighting for the capital of the country of residence or, at least, of a weighting such as to reflect adequately the differences in the cost of living as between the places where the applicants are deemed to incur their expenditure and therefore to give effect to the principle of equivalence; |
| --- | --- |

—

consequently, annul the applicants' pension statements for March 2005, so as to result in the application of a weighting for the capital of the country of residence or, at least, of a weighting such as to reflect adequately the differences in the cost of living as between the places where the applicants are deemed to incur their expenditure and therefore to give effect to the principle of equivalence;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants in this case are all officials who retired before 1 May 2004. They object to the transitional conditions being applied, pending the removal of weightings by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, in so far as those conditions are based on a new calculation of ‘pension’ weightings which is no longer based on the capital city but on the average cost of living in the Member State where the pensioner proves that he has established his principal residence.

In support of their contentions, the applicants claim, first, that the abovementioned regulation is based on an incorrect statement of reasons, in so far as neither the increased integration of the Community, nor freedom of movement and of residence nor the difficulty in verifying pensioners' actual place of residence can serve as a basis for the transitional regime at issue.

Next, the applicants allege infringement in this case of the principles of equal treatment, legal certainty, retroactivity of acquired rights and protection of legitimate expectations.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/56 |
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Official Journal of the European Union

C 60/56

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Action brought on 23 December 2005 — Merglova v Commission

(Case F-129/05)

(2006/C 60/104)

Language of the case: French

Parties

Applicant: Eva Merglova (Brussels, Belgium) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

The applicant claims that the Court should:

| — | Declare the action admissible; |
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—

Declare the action admissible;

| — | Annul the Commission's decision of 15 September 2005 rejecting the applicant's complaint; |
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—

Annul the Commission's decision of 15 September 2005 rejecting the applicant's complaint;

| — | Pronounce the reclassification of the applicant in Grade C3 or C2, with retrospective effect from 1 May 2004; |
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Pronounce the reclassification of the applicant in Grade C3 or C2, with retrospective effect from 1 May 2004;

| — | In the alternative, order the Commission to recognise the applicant as eligible for promotion to Grade C3 or C2 in the next promotions year and order the Commission to make compensation for the loss suffered by the applicant through not having been classed in Grade C2 or C3 as from 1 May 2004; |
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In the alternative, order the Commission to recognise the applicant as eligible for promotion to Grade C3 or C2 in the next promotions year and order the Commission to make compensation for the loss suffered by the applicant through not having been classed in Grade C2 or C3 as from 1 May 2004;

| — | In any event, order the Commission to pay the costs. |
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—

In any event, order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official recruited after the reform of the Staff Regulations but entered on the reserve list of a competition published before that reform, pleads unlawfulness of Article 2 of Annex XIII to the Staff Regulations, pursuant to which she was classed in Grade C1, Step 2.

In support of her objection of illegality, the applicant claims infringement of the principle of equivalence between the old and the new career structure, laid down by Article 6 of the Staff Regulations. The applicant argues that her career has been slowed by her being classed in Grade C1.

The applicant also considers that she has been the victim of an infringement of the principle of equal treatment in relation to her colleagues in Grade C4 or C5 who were promoted before 1 May 2004.

Finally, the applicant argues infringement of the legitimate expectation she was given that the new career structure would not involve deterioration of her working conditions, infringement of her acquired rights, and misuse of powers.

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/57 |
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Official Journal of the European Union

C 60/57

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Action brought on 31 December 2005 — Soares v Commission

(Case F-130/05)

(2006/C 60/105)

Language of the case: French

Parties

Applicant: Carlos Alberto Soares (Brussels, Belgium) (represented by: A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | Annul the Commission's decision of 19 September 2005, rejecting the applicant's request seeking reconstitution of his career |
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—

Annul the Commission's decision of 19 September 2005, rejecting the applicant's request seeking reconstitution of his career

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

Order the Commission to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant makes a single plea in law claiming infringement of the principles of sound management, sound administration and equal treatment, and of Article 45 of the Staff Regulations, in the version in force before 1 May 2004.

The applicant accuses the Commission of holding back his career by not drawing up staff reports for the promotion years 1995 to 2000 and by not taking all measures capable of repairing the damage that the applicant claims to have suffered by reason of the absence of those staff reports.

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III Notices

| 11.3.2006 | EN | Official Journal of the European Union | C 60/58 |
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C 60/58

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(2006/C 60/106)

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

OJ C 48, 25.2.2006

Past publications

OJ C 36, 11.2.2006

OJ C 22, 28.1.2006

OJ C 10, 14.1.2006

OJ C 330, 24.12.2005

OJ C 315, 10.12.2005

OJ C 296, 26.11.2005

These texts are available on:

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

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

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