# Official Journal C 237/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 237 |
| | |
| English edition | Information and Notices | Volume 4930 September 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 237

English edition

Information and Notices

Volume 4930 September 2006

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 237/1 | Case C-289/04 P: Judgment of the Court (Second Chamber) of 29 June 2006 — Showa Denko KK v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Graphite electrodes — Article 81(1) EC — Fines — Guidelines on the method of setting fines — Leniency Notice — Principle of non bis in idem) | 1 |
| 2006/C 237/2 | Case C-262/05: Judgment of the Court (Fifth Chamber) of 15 June 2006 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the period prescribed) | 1 |
| 2006/C 237/3 | Case C-253/06: Action brought on 6 June 2006 — Commission of the European Communities v Federal Republic of Germany | 2 |
| 2006/C 237/4 | Case C-284/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 29 June 2006 — Finanzamt Hamburg-Am Tierpark v Burda Verlagsbeteiligungen GmbH | 2 |
| 2006/C 237/5 | Case C-285/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 3 July 2006 — Heinrich Stefan Schneider v Land Rheinland-Pfalz | 3 |
| 2006/C 237/6 | Case C-293/06: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 3 July 2006 — Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg | 3 |
| 2006/C 237/7 | Case C-294/06: Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 30 June 2006 — The Queen on the application of Ezgi Payir, Burhan Akyuz, Birol Ozturk v Secretary of State for the Home Department | 4 |
| 2006/C 237/8 | Case C-298/06: Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic | 4 |
| 2006/C 237/9 | Case C-301/06: Action brought on 6 July 2006 — Ireland v Council of the European Union, European Parliament | 5 |
| 2006/C 237/0 | Case C-303/06: Reference for a preliminary ruling from Employment Tribunal (London South) made on 10 July 2006 — S. Coleman v Attridge Law, Steve Law | 6 |
| 2006/C 237/1 | Case C-312/06: Reference for a preliminary ruling from the Legfelsőbb Bírósága/Hungary lodged on 18 July 2006 — OTP Garancia Biztosító Rt. v Vas Megyei Közigazgatási Hivatal | 6 |
| 2006/C 237/2 | Case C-322/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of the Netherlands | 7 |
| 2006/C 237/3 | Case C-328/06: Reference for a preliminary ruling from the Juzgado Mercantil 3, Barcelona, Spain lodged on 27 July 2006 — Alfredo Nieto Nuño v Leonci Monlleó Franquet | 7 |
| | COURT OF FIRST INSTANCE |
| 2006/C 237/4 | Case T-5/06: Order of the Court of First Instance of 27 June 2006 — Kingdom of Denmark v Commission of the European Communities (Declining of jurisdiction) | 8 |
| 2006/C 237/5 | Case T-114/06 R: Order of the President of the Court of First Instance of 20 July 2006 — GLOBE v Commission of the European Communities (Public procurement — Community tendering procedure — Procedure for interim relief — Prima facie case — Urgency) | 8 |
| 2006/C 237/6 | Case T-198/06: Action brought on 21 July 2006 — Rathscheck Schiefer und Dach-Systeme and Others v Commission | 8 |
| 2006/C 237/7 | Case T-200/06: Action brought on 26 July 2006 — IBERDROLA v Commission of the European Communities | 9 |
| 2006/C 237/8 | Case T-205/06: Action brought on 31 July 2006 — NewSoft Technology v OHIM — Soft (Presto! BizCard Reader) | 10 |
| 2006/C 237/9 | Case T-212/06: Action brought on 11 August 2006 — Bowland Dairy Products v Commission | 10 |
| 2006/C 237/0 | Case T-214/06: Action brought on 17 August 2006 — Imperial Chemical Industries v Commission | 11 |
| 2006/C 237/1 | Case T-216/06: Action brought on 16 August 2006 — Lucite International and Lucite International UK v Commission | 12 |
| 2006/C 237/2 | Case T-218/06: Action brought on 16 August 2006 — Neurim Pharmaceuticals (1991) v OHIM — Eurim-Pharm Arzneimittel (Neurim PHARMACEUTICALS) | 12 |
| 2006/C 237/3 | Case T-219/06: Action brought on 17 August 2006 — PTV v OHIM (map&guide travelbook) | 13 |
| 2006/C 237/4 | Case T-221/06: Action brought on 18 August 2006 — Hipp & Co v OHMI — Laboratorios Ordesa (BEBIMIL) | 13 |
| 2006/C 237/5 | Case T -371/05: Order of the Court of First Instance of 24 July 2006 — AITEC and Others v Commission | 14 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 237/6 | Case F-74/06: Action brought on 19 June 2006 — Longinidis v Cedefop | 15 |
| 2006/C 237/7 | Case F-76/06: Action brought on 18 July 2006 — Tsirimokos v European Parliament | 16 |
| 2006/C 237/8 | Case F-77/06: Action brought on 18 July 2006 — Colovea v European Parliament | 16 |
| 2006/C 237/9 | Case F-78/06: Action brought on 20 July 2006 — Simona Suhadolnik v Court of Justice of the European Communities | 17 |
| 2006/C 237/0 | Case F-79/06: Action brought on 24 July 2006 — Caló v Commission | 17 |
| 2006/C 237/1 | Case F-83/06: Action brought on 30 July 2006 — Schell v Commission | 18 |
| 2006/C 237/2 | Case F-85/06: Action brought on 28 July 2006 — Bellantone v Court of Auditors | 18 |
| 2006/C 237/3 | Case F-86/06: Action brought on 28 July 2006 — Vereecken v Commission | 19 |
| 2006/C 237/4 | Case F-87/06: Action brought on 3 August 2006 — Manté v Council | 19 |
| 2006/C 237/5 | Case F-89/06: Action brought on 11 August 2006 — Michel Nolin v Commission of the European Communities | 20 |
| 2006/C 237/6 | Case F-91/06: Action brought 11 August 2006 — Nolin v Commission | 21 |
| 2006/C 237/7 | Case F-92/06: Action brought on 11 August 2006 — Magdalena Antas v Council of the European Union | 21 |
| 2006/C 237/8 | Case F-93/06: Action brought on 16 August 2006 — Dethomas v Commission | 22 |
| 2006/C 237/9 | Case F-94/06: Action brought on 11 August 2006 — F v Commission | 22 |
| 2006/C 237/0 | Case F-95/06: Action brought on 11 August 2006 — Taruffi v Commission | 23 |
| 2006/C 237/1 | Case F-96/06: Action brought on 10 August 2006 — G v Commission of the European Communities | 23 |
| 2006/C 237/2 | Case F-97/06: Action brought on 15 August 2006 — Adelaida Lopez Teruel v Office of Harmonisation for the Internal Market | 24 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 237/1

Case C-289/04 P: Judgment of the Court (Second Chamber) of 29 June 2006 — Showa Denko KK v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Graphite electrodes — Article 81(1) EC — Fines — Guidelines on the method of setting fines — Leniency Notice — Principle of non bis in idem)

1

2006/C 237/2

Case C-262/05: Judgment of the Court (Fifth Chamber) of 15 June 2006 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the period prescribed)

1

2006/C 237/3

Case C-253/06: Action brought on 6 June 2006 — Commission of the European Communities v Federal Republic of Germany

2

2006/C 237/4

Case C-284/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 29 June 2006 — Finanzamt Hamburg-Am Tierpark v Burda Verlagsbeteiligungen GmbH

2

2006/C 237/5

Case C-285/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 3 July 2006 — Heinrich Stefan Schneider v Land Rheinland-Pfalz

3

2006/C 237/6

Case C-293/06: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 3 July 2006 — Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg

3

2006/C 237/7

Case C-294/06: Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 30 June 2006 — The Queen on the application of Ezgi Payir, Burhan Akyuz, Birol Ozturk v Secretary of State for the Home Department

4

2006/C 237/8

Case C-298/06: Action brought on 4 July 2006 — Commission of the European Communities v Hellenic Republic

4

2006/C 237/9

Case C-301/06: Action brought on 6 July 2006 — Ireland v Council of the European Union, European Parliament

5

2006/C 237/0

Case C-303/06: Reference for a preliminary ruling from Employment Tribunal (London South) made on 10 July 2006 — S. Coleman v Attridge Law, Steve Law

6

2006/C 237/1

Case C-312/06: Reference for a preliminary ruling from the Legfelsőbb Bírósága/Hungary lodged on 18 July 2006 — OTP Garancia Biztosító Rt. v Vas Megyei Közigazgatási Hivatal

6

2006/C 237/2

Case C-322/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of the Netherlands

7

2006/C 237/3

Case C-328/06: Reference for a preliminary ruling from the Juzgado Mercantil 3, Barcelona, Spain lodged on 27 July 2006 — Alfredo Nieto Nuño v Leonci Monlleó Franquet

7

COURT OF FIRST INSTANCE

2006/C 237/4

Case T-5/06: Order of the Court of First Instance of 27 June 2006 — Kingdom of Denmark v Commission of the European Communities (Declining of jurisdiction)

8

2006/C 237/5

Case T-114/06 R: Order of the President of the Court of First Instance of 20 July 2006 — GLOBE v Commission of the European Communities (Public procurement — Community tendering procedure — Procedure for interim relief — Prima facie case — Urgency)

8

2006/C 237/6

Case T-198/06: Action brought on 21 July 2006 — Rathscheck Schiefer und Dach-Systeme and Others v Commission

8

2006/C 237/7

Case T-200/06: Action brought on 26 July 2006 — IBERDROLA v Commission of the European Communities

9

2006/C 237/8

Case T-205/06: Action brought on 31 July 2006 — NewSoft Technology v OHIM — Soft (Presto! BizCard Reader)

10

2006/C 237/9

Case T-212/06: Action brought on 11 August 2006 — Bowland Dairy Products v Commission

10

2006/C 237/0

Case T-214/06: Action brought on 17 August 2006 — Imperial Chemical Industries v Commission

11

2006/C 237/1

Case T-216/06: Action brought on 16 August 2006 — Lucite International and Lucite International UK v Commission

12

2006/C 237/2

Case T-218/06: Action brought on 16 August 2006 — Neurim Pharmaceuticals (1991) v OHIM — Eurim-Pharm Arzneimittel (Neurim PHARMACEUTICALS)

12

2006/C 237/3

Case T-219/06: Action brought on 17 August 2006 — PTV v OHIM (map&guide travelbook)

13

2006/C 237/4

Case T-221/06: Action brought on 18 August 2006 — Hipp & Co v OHMI — Laboratorios Ordesa (BEBIMIL)

13

2006/C 237/5

Case T -371/05: Order of the Court of First Instance of 24 July 2006 — AITEC and Others v Commission

14

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 237/6

Case F-74/06: Action brought on 19 June 2006 — Longinidis v Cedefop

15

2006/C 237/7

Case F-76/06: Action brought on 18 July 2006 — Tsirimokos v European Parliament

16

2006/C 237/8

Case F-77/06: Action brought on 18 July 2006 — Colovea v European Parliament

16

2006/C 237/9

Case F-78/06: Action brought on 20 July 2006 — Simona Suhadolnik v Court of Justice of the European Communities

17

2006/C 237/0

Case F-79/06: Action brought on 24 July 2006 — Caló v Commission

17

2006/C 237/1

Case F-83/06: Action brought on 30 July 2006 — Schell v Commission

18

2006/C 237/2

Case F-85/06: Action brought on 28 July 2006 — Bellantone v Court of Auditors

18

2006/C 237/3

Case F-86/06: Action brought on 28 July 2006 — Vereecken v Commission

19

2006/C 237/4

Case F-87/06: Action brought on 3 August 2006 — Manté v Council

19

2006/C 237/5

Case F-89/06: Action brought on 11 August 2006 — Michel Nolin v Commission of the European Communities

20

2006/C 237/6

Case F-91/06: Action brought 11 August 2006 — Nolin v Commission

21

2006/C 237/7

Case F-92/06: Action brought on 11 August 2006 — Magdalena Antas v Council of the European Union

21

2006/C 237/8

Case F-93/06: Action brought on 16 August 2006 — Dethomas v Commission

22

2006/C 237/9

Case F-94/06: Action brought on 11 August 2006 — F v Commission

22

2006/C 237/0

Case F-95/06: Action brought on 11 August 2006 — Taruffi v Commission

23

2006/C 237/1

Case F-96/06: Action brought on 10 August 2006 — G v Commission of the European Communities

23

2006/C 237/2

Case F-97/06: Action brought on 15 August 2006 — Adelaida Lopez Teruel v Office of Harmonisation for the Internal Market

24

| | III   Notices |
| --- | --- |
| 2006/C 237/3 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 224, 16.9.2006 | 26 |

III   Notices

2006/C 237/3

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 224, 16.9.2006

Official Journal of the European Union

26

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 30.9.2006 | EN | Official Journal of the European Union | C 237/1 |
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30.9.2006

EN

Official Journal of the European Union

C 237/1

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Judgment of the Court (Second Chamber) of 29 June 2006 — Showa Denko KK v Commission of the European Communities

(Case C-289/04 P) (1)

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

(2006/C 237/01)

Language of the case: English

Parties

Appellant: Showa Denko KK (represented by: M. Dolmans and P. Werdmuller, advocaten, and J. Temple-Lang, Solicitor)

Other parties to the proceedings: Commission of the European Communities (represented by: P. Hellström and H. Gading, Agents), Tokai Carbon Co. Ltd, established in Tokyo, SGL Carbon AG, established in Wiesbaden (Germany), Nippon Carbon Co. Ltd, established in Tokyo, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington (United States), SEC Corp., established in Amagasaki (Japan), The Carbide/Graphite Group Inc., established in Pittsburgh (United States)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon Co. Ltd and Others v Commission annulling in part Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty (COMP/E-1/36.490 — Graphite electrodes) and reducing the amount of the fine imposed on the applicants

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Showa Denko KK to pay the costs. |
| --- | --- |

2.

Orders Showa Denko KK to pay the costs.

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(1)  OJ C 239, 25.09.2004.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/1 |
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30.9.2006

EN

Official Journal of the European Union

C 237/1

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Judgment of the Court (Fifth Chamber) of 15 June 2006 — Commission of the European Communities v Republic of Austria

(Case C-262/05) (1)

(Failure of a Member State to fulfil obligations - Directive 2001/19/EC - Mutual recognition of diplomas, certificates and other qualifications - Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor - Failure to transpose within the period prescribed)

(2006/C 237/02)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: A. Manville and H. Støvlbæk, Agents)

Defendant: Republic of Austria (represented by: E. Riedl, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to transpose, within the prescribed period, Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2001 L 206, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, the Republic of Austria has failed to fulfil its obligations under that directive;

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

2.

Orders the Republic of Austria to pay the costs.

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(1)  OJ C 205, 20.08.2005.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/2 |
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30.9.2006

EN

Official Journal of the European Union

C 237/2

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Action brought on 6 June 2006 — Commission of the European Communities v Federal Republic of Germany

(Case C-253/06)

(2006/C 237/03)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: F. Simonetti and B. Schima, acting as Agents)

Defendant: Federal Republic of Germany

Forms of order sought

The applicant claims that the Court should:

| — | declare that, by not bringing into force the laws, regulations and administrative provisions necessary to implement Directive 2003/35/EC (1) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, or by not informing the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under Article 6 of that directive; |
| --- | --- |

—

declare that, by not bringing into force the laws, regulations and administrative provisions necessary to implement Directive 2003/35/EC (1) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, or by not informing the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under Article 6 of that directive;

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

—

order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The period laid down for implementing the directive expired on 25 June 2005.

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(1)  OJ 2003 L 156, p. 17.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/2 |
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30.9.2006

EN

Official Journal of the European Union

C 237/2

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 29 June 2006 — Finanzamt Hamburg-Am Tierpark v Burda Verlagsbeteiligungen GmbH

(Case C-284/06)

(2006/C 237/04)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt Hamburg-Am Tierpark

Respondent: Burda Verlagsbeteiligungen GmbH

Questions referred

| 1. | Is there withholding tax within the meaning of Article 5(1) of Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6, ..., now Article 5 as amended by Directive 2003/123/EC of 22 December 2003, OJ 2004 L 7, p. 41) in the case in which national law provides that, where profits are distributed by a subsidiary to its parent company, income and asset increases of the capital company are taxed which, under national law, would not be taxed if they remained with the subsidiary and were not distributed to the parent company? |
| --- | --- |

1.

Is there withholding tax within the meaning of Article 5(1) of Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6, ..., now Article 5 as amended by Directive 2003/123/EC of 22 December 2003, OJ 2004 L 7, p. 41) in the case in which national law provides that, where profits are distributed by a subsidiary to its parent company, income and asset increases of the capital company are taxed which, under national law, would not be taxed if they remained with the subsidiary and were not distributed to the parent company?

| 2. | Should Question 1 be answered in the negative: is it compatible with Articles 73b and 73d of the EC Treaty (now Articles 56 EC and 58 EC respectively) and with Article 52 of the EC Treaty (now Article 43 EC) for a national rule to provide for divergent set-off arrangements for the distribution of profits by a capital company using portions of its own capital, resulting in consequent tax liability even in cases in which the capital company demonstrates that it has distributed dividends to non-resident shareholders, even though, under national law, such non-resident shareholders, unlike resident shareholders, are not entitled to set off against their own tax the corporation tax thus determined? |
| --- | --- |

2.

Should Question 1 be answered in the negative: is it compatible with Articles 73b and 73d of the EC Treaty (now Articles 56 EC and 58 EC respectively) and with Article 52 of the EC Treaty (now Article 43 EC) for a national rule to provide for divergent set-off arrangements for the distribution of profits by a capital company using portions of its own capital, resulting in consequent tax liability even in cases in which the capital company demonstrates that it has distributed dividends to non-resident shareholders, even though, under national law, such non-resident shareholders, unlike resident shareholders, are not entitled to set off against their own tax the corporation tax thus determined?

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(1)  OJ L 225, p. 6.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/3 |
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30.9.2006

EN

Official Journal of the European Union

C 237/3

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 3 July 2006 — Heinrich Stefan Schneider v Land Rheinland-Pfalz

(Case C-285/06)

(2006/C 237/05)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Heinrich Stefan Schneider

Defendant: Land Rheinland-Pfalz

Questions referred

| 1. | Is Article 47(2)(b) and (c) of Regulation (EC) No 1493/1999 (1) in conjunction with the fifth indent of point (B)(1)(b) and point (B)(3) of Annex VII to that regulation and Article 23 of Regulation (EC) No 753/2002 to be interpreted as meaning that a particular which refers to the production or ageing method or the quality of the wine is permitted only as a regulated ‘optional particular’ in accordance with the fifth indent of point (B)(1)(b) of Annex VII to Regulation (EC) No 1493/1999 under the conditions provided for therein and in Article 23 of Regulation (EC) No 753/2002 (2), and not as an ‘other particular’ in accordance with point (B)(3) of Annex VII to Regulation (EC) No 1493/1999? |
| --- | --- |

1.

Is Article 47(2)(b) and (c) of Regulation (EC) No 1493/1999 (1) in conjunction with the fifth indent of point (B)(1)(b) and point (B)(3) of Annex VII to that regulation and Article 23 of Regulation (EC) No 753/2002 to be interpreted as meaning that a particular which refers to the production or ageing method or the quality of the wine is permitted only as a regulated ‘optional particular’ in accordance with the fifth indent of point (B)(1)(b) of Annex VII to Regulation (EC) No 1493/1999 under the conditions provided for therein and in Article 23 of Regulation (EC) No 753/2002 (2), and not as an ‘other particular’ in accordance with point (B)(3) of Annex VII to Regulation (EC) No 1493/1999?

| 2. | Is Article 24(2)(a) of Regulation (EC) No 753/2002 to be interpreted as meaning that imitation or evocation exists only if it is in the same language as that of the protected traditional term? |
| --- | --- |

2.

Is Article 24(2)(a) of Regulation (EC) No 753/2002 to be interpreted as meaning that imitation or evocation exists only if it is in the same language as that of the protected traditional term?

| 3. | Is Article 24(2) of Regulation (EC) No 753/2002 to be interpreted as meaning that the traditional terms listed in Annex III are protected only with regard to wines from the same producer Member State as the protected traditional term? |
| --- | --- |

3.

Is Article 24(2) of Regulation (EC) No 753/2002 to be interpreted as meaning that the traditional terms listed in Annex III are protected only with regard to wines from the same producer Member State as the protected traditional term?

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(1)  OJ 1999 L 179, p. 1

(2)  OJ 2002 L 118, p. 1

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/3 |
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30.9.2006

EN

Official Journal of the European Union

C 237/3

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Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 3 July 2006 — Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg

(Case C-293/06)

(2006/C 237/06)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Deutsche Shell GmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Questions referred

| 1. | Is it contrary to Article 52, in conjunction with Article 58, of the EC Treaty (now Article 43 EC, in conjunction with Article 48 EC) for the Federal Republic of Germany, as the State of origin, to treat a currency loss of a German controlling company resulting from the repatriation of so-called start-up capital granted to an Italian establishment as being part of that establishment's profits and to exclude that loss, on the basis of the exemption under Articles 3(1), 3(3) and 11.1(c) of the 1925 Double Taxation Convention between Germany and Italy, from the basis of assessment for German tax, even though the currency loss cannot form part of the establishment's profits to be assessed for purposes of taxation in Italy and thus cannot be taken into account in either the State of origin or in the State in which the establishment is situate? |
| --- | --- |

1.

Is it contrary to Article 52, in conjunction with Article 58, of the EC Treaty (now Article 43 EC, in conjunction with Article 48 EC) for the Federal Republic of Germany, as the State of origin, to treat a currency loss of a German controlling company resulting from the repatriation of so-called start-up capital granted to an Italian establishment as being part of that establishment's profits and to exclude that loss, on the basis of the exemption under Articles 3(1), 3(3) and 11.1(c) of the 1925 Double Taxation Convention between Germany and Italy, from the basis of assessment for German tax, even though the currency loss cannot form part of the establishment's profits to be assessed for purposes of taxation in Italy and thus cannot be taken into account in either the State of origin or in the State in which the establishment is situate?

| 2. | If Question 1 is answered in the affirmative: is it contrary to Article 52, in conjunction with Article 58, of the EC Treaty (now Article 43 EC, in conjunction with Article 48 EC) if the currency loss mentioned above is to be included in the basis for assessment of the German tax but may be deducted as operating expenditure only in so far as no tax-free profits are achieved by the Italian establishment? |
| --- | --- |

2.

If Question 1 is answered in the affirmative: is it contrary to Article 52, in conjunction with Article 58, of the EC Treaty (now Article 43 EC, in conjunction with Article 48 EC) if the currency loss mentioned above is to be included in the basis for assessment of the German tax but may be deducted as operating expenditure only in so far as no tax-free profits are achieved by the Italian establishment?

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/4 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/4

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Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 30 June 2006 — The Queen on the application of Ezgi Payir, Burhan Akyuz, Birol Ozturk v Secretary of State for the Home Department

(Case C-294/06)

(2006/C 237/07)

Language of the case: English

Referring court

Court of Appeal (Civil Division) (England and Wales)

Parties to the main proceedings

Applicants: Ezgi Payir, Burhan Akyuz, Birol Ozturk

Defendant: Secretary of State for the Home Department

Questions referred

| 1. | In a case in which:






  a) | a Turkish national was granted leave to enter the United Kingdom for two years in order to take up a placement in that country as an 'au pair' as defined in the United Kingdom Immigration Rules; and |
| --- | --- | --- |

1.

In a case in which:

a)

a Turkish national was granted leave to enter the United Kingdom for two years in order to take up a placement in that country as an 'au pair' as defined in the United Kingdom Immigration Rules; and

| b) | her leave to enter included permission to be employed in that capacity; and |
| --- | --- |

b)

her leave to enter included permission to be employed in that capacity; and

| c) | she was continuously employed in that capacity by the same employer for a period exceeding one year during her leave to enter; and |
| --- | --- |

c)

she was continuously employed in that capacity by the same employer for a period exceeding one year during her leave to enter; and

| d) | that employment was a genuine and effective economic activity; and |
| --- | --- |

d)

that employment was a genuine and effective economic activity; and

| e) | that employment was in accordance with national laws relating to employment and immigration;
  then, was the Turkish national concerned, during that employment:






  (i) | a worker within the meaning of Article 6 of Decision No 1/80 of the Association Council established by the Association Agreement between the Community and Turkey? |
| --- | --- | --- |

e)

that employment was in accordance with national laws relating to employment and immigration;

then, was the Turkish national concerned, during that employment:

(i)

a worker within the meaning of Article 6 of Decision No 1/80 of the Association Council established by the Association Agreement between the Community and Turkey?

| (ii) | duly registered as belonging to the labour force of the United Kingdom within the meaning of that Article? |
| --- | --- |

(ii)

duly registered as belonging to the labour force of the United Kingdom within the meaning of that Article?

| 2. | In a case in which:






  a) | a Turkish national was granted leave to enter the United Kingdom under its Immigration Rules in order to follow a course of study in that country; and |
| --- | --- | --- |

2.

In a case in which:

a)

a Turkish national was granted leave to enter the United Kingdom under its Immigration Rules in order to follow a course of study in that country; and

| b) | his leave to enter included permission to be employed in any occupation with a limit during term time of 20 hours work per week; and |
| --- | --- |

b)

his leave to enter included permission to be employed in any occupation with a limit during term time of 20 hours work per week; and

| c) | he was continuously employed by the same employer for a period exceeding one year during his leave to enter; |
| --- | --- |

c)

he was continuously employed by the same employer for a period exceeding one year during his leave to enter;

| d) | that employment was a genuine and effective economic activity; and |
| --- | --- |

d)

that employment was a genuine and effective economic activity; and

| e) | that employment was in accordance with national laws relating to employment and immigration;
  then, was the Turkish national concerned, during that employment:






  (i) | a worker within the meaning of Article 6 of Decision No 1/80 of the Association Council established by the Association Agreement between the Community and Turkey? |
| --- | --- | --- |

e)

that employment was in accordance with national laws relating to employment and immigration;

then, was the Turkish national concerned, during that employment:

(i)

a worker within the meaning of Article 6 of Decision No 1/80 of the Association Council established by the Association Agreement between the Community and Turkey?

| (ii) | duly registered as belonging to the labour force of the United Kingdom within the meaning of that Article? |
| --- | --- |

(ii)

duly registered as belonging to the labour force of the United Kingdom within the meaning of that Article?

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/4 |
| --- | --- | --- | --- |

30.9.2006

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C 237/4

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

(Case C-298/06)

(2006/C 237/08)

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/43/EC (1) of 26 May 2003 amending Directive 88/407/EEC laying down the animal health requirements applicable to intra-Community trade in and imports of semen of domestic animals of the bovine species, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/43/EC (1) of 26 May 2003 amending Directive 88/407/EEC laying down the animal health requirements applicable to intra-Community trade in and imports of semen of domestic animals of the bovine species, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive into domestic law expired on 1 July 2004.

---

(1)  OJ L 143, 11.6.2003, p. 23.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/5 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/5

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Action brought on 6 July 2006 — Ireland v Council of the European Union, European Parliament

(Case C-301/06)

(2006/C 237/09)

Language of the case: English

Parties

Applicant: Ireland (represented by: D. O'Hagan, Agent, E. Fitzsimons SC, D. Barniville BL)

Defendants: Council of the European Union, European Parliament

The applicant claims that the Court should:

| — | Annul Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (1) on the grounds that it was not adopted on an appropriate legal basis. |
| --- | --- |

—

Annul Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (1) on the grounds that it was not adopted on an appropriate legal basis.

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

—

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

Pleas in law and main arguments

Ireland submits that the choice of Article 95 of the Treaty establishing the European Community (‘TEC’) as the legal basis for Directive 2006/24/EC (‘the Directive’) is fundamentally flawed. Ireland further submits that neither Article 95 TEC nor any other provision of the TEC can provide a proper legal basis for the Directive. It is primarily Ireland's case that the sole or, alternatively, the main or predominant purpose of the Directive is to facilitate the investigation, detection and prosecution of serious crime, including terrorism. In those circumstances, it is Ireland's contention that the only permissible legal base for the measures contained in the Directive is Title VI of the Treaty on European Union (‘TEU’), in particular Articles 30, 31(1)(c) and 34(2)(b).

In support of its submissions, Ireland has indicated that a consideration of the recitals to and the fundamental provisions of the Directive unquestionably demonstrates that reliance upon Article 95 TEC as the legal basis for the Directive is wholly inappropriate and unsustainable. In that regard, it has pointed out that the Directive is clearly and unambiguously directed towards the fight against serious crime. Accordingly, Ireland submits that this constitutes the main or predominant purpose of the Directive and, indeed, its sole objective.

It is established that measures based upon Article 95 TEC must have as their ‘centre of gravity’ the approximation of national laws to benefit the functioning of the internal market. The provisions of the Directive are concerned with combating serious crime and are not intended to address any defects in the internal market.

While a defect arising from differences of national laws has been asserted, it has not been established.

In the alternative, even if, contrary to Ireland's fundamental submission, the Directive does have as one of its objectives the prevention of distortions or obstacles to the internal market, Ireland submits that this objective must be regarded as being purely incidental in character to the demonstrated main or predominant objective of the fight against crime.

---

(1)  OJ L 105, p. 54

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/6 |
| --- | --- | --- | --- |

30.9.2006

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Official Journal of the European Union

C 237/6

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Reference for a preliminary ruling from Employment Tribunal (London South) made on 10 July 2006 — S. Coleman v Attridge Law, Steve Law

(Case C-303/06)

(2006/C 237/10)

Language of the case: English

Referring court

Employment Tribunal (London South)

Parties to the main proceedings

Applicant: S. Coleman

Defendants: Attridge Law, Steve Law

Questions referred

| 1. | In the context of the prohibition of discrimination on grounds of disability, does the Directive (1) only protect from direct discrimination and harassment persons who are themselves disabled? |
| --- | --- |

1.

In the context of the prohibition of discrimination on grounds of disability, does the Directive (1) only protect from direct discrimination and harassment persons who are themselves disabled?

| 2. | If the answer to Question (1) above is in the negative, does the Directive protect employees who, though they are not themselves disabled, are treated less favourably or harassed on the ground of their association with a person who is disabled? |
| --- | --- |

2.

If the answer to Question (1) above is in the negative, does the Directive protect employees who, though they are not themselves disabled, are treated less favourably or harassed on the ground of their association with a person who is disabled?

| 3. | Where an employer treats an employee less favourably than he treats or would treat other employees, and it is established that the ground for the treatment of the employee is that the employee has a disabled son for whom the employee cares, is that treatment direct discrimination in breach of the principle of equal treatment established by the Directive? |
| --- | --- |

3.

Where an employer treats an employee less favourably than he treats or would treat other employees, and it is established that the ground for the treatment of the employee is that the employee has a disabled son for whom the employee cares, is that treatment direct discrimination in breach of the principle of equal treatment established by the Directive?

| 4. | Where an employer harasses an employee, and it is established that the ground for the treatment of the employee is that the employee has a disabled son for whom the employee cares, is that harassment a breach of the principle of equal treatment established by the Directive? |
| --- | --- |

4.

Where an employer harasses an employee, and it is established that the ground for the treatment of the employee is that the employee has a disabled son for whom the employee cares, is that harassment a breach of the principle of equal treatment established by the Directive?

---

(1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, p. 16

---

| 30.9.2006 | EN | Official Journal of the European Union | C 237/6 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/6

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Reference for a preliminary ruling from the Legfelsőbb Bírósága/Hungary lodged on 18 July 2006 — OTP Garancia Biztosító Rt. v Vas Megyei Közigazgatási Hivatal

(Case C-312/06)

(2006/C 237/11)

Language of the case: Hungarian

Referring court

Legfelsőbb Bírósága/Hungary

Parties to the main proceedings

Applicant: OTP Garancia Biztosító Rt.

Defendant: Vas Megyei Közigazgatási Hivatal

Questions referred

| 1. | Must the agreement set out in point 3(a) of part 4 of Annex X to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) (‘the Act of Accession’), which is applicable pursuant to Article 24 of the Act of Accession, and which provides that, notwithstanding Articles 87 and 88 of the EC Treaty, Hungary may apply, up to and including 31 December 2007, local business tax reductions of up to 2 % of the net receipts of undertakings, granted by local government for a limited period of time on the basis of Articles 6 and 7 of Act C of 1990 on Local Taxes, be interpreted as meaning that it concerns a temporary derogation which allows Hungary to maintain the tax on economic activities, that is to say, as meaning that the Treaty of Accession, in contemplating the possibility of maintaining the tax reductions relating to the tax on economic activities, recognised that Hungary has the temporary right to maintain a tax of the same type as the tax on economic activities? |
| --- | --- |

1.

Must the agreement set out in point 3(a) of part 4 of Annex X to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) (‘the Act of Accession’), which is applicable pursuant to Article 24 of the Act of Accession, and which provides that, notwithstanding Articles 87 and 88 of the EC Treaty, Hungary may apply, up to and including 31 December 2007, local business tax reductions of up to 2 % of the net receipts of undertakings, granted by local government for a limited period of time on the basis of Articles 6 and 7 of Act C of 1990 on Local Taxes, be interpreted as meaning that it concerns a temporary derogation which allows Hungary to maintain the tax on economic activities, that is to say, as meaning that the Treaty of Accession, in contemplating the possibility of maintaining the tax reductions relating to the tax on economic activities, recognised that Hungary has the temporary right to maintain a tax of the same type as the tax on economic activities?

| 2. | Must Article 33(1) of Sixth Council Directive 77/388/EEC (2) (‘the Sixth Directive’) be interpreted as meaning that it prohibits the maintenance of a tax (the local tax on economic activities) on profit-making business activities which is fundamentally characterised by the fact that it is imposed in respect of net receipts, after deduction of the cost of acquisition of the goods sold and the services supplied by third parties and the cost of raw materials? That is to say, with reference to that article, may a tax with those characteristics be classified as a turnover tax? |
| --- | --- |

2.

Must Article 33(1) of Sixth Council Directive 77/388/EEC (2) (‘the Sixth Directive’) be interpreted as meaning that it prohibits the maintenance of a tax (the local tax on economic activities) on profit-making business activities which is fundamentally characterised by the fact that it is imposed in respect of net receipts, after deduction of the cost of acquisition of the goods sold and the services supplied by third parties and the cost of raw materials? That is to say, with reference to that article, may a tax with those characteristics be classified as a turnover tax?

---

(1)  OJ 2003 L 236, p. 846.

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

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/7 |
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C 237/7

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

(Case C-322/06)

(2006/C 237/12)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell and W. Wils, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to give effect to Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities, (1)or in any event by failing to inform the Commission of those laws, regulations and administrative provisions, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to give effect to Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities, (1)or in any event by failing to inform the Commission of those laws, regulations and administrative provisions, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

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

—

Order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be implemented in national law expired on 23 March 2005.

---

(1)  OJ 2002 L 80, p. 35.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/7 |
| --- | --- | --- | --- |

30.9.2006

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Official Journal of the European Union

C 237/7

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Reference for a preliminary ruling from the Juzgado Mercantil 3, Barcelona, Spain lodged on 27 July 2006 — Alfredo Nieto Nuño v Leonci Monlleó Franquet

(Case C-328/06)

(2006/C 237/13)

Language of the case: Spanish

Referring court

Juzgado Mercantil 3, Barcelona

Parties to the main proceedings

Applicant: Alfredo Nieto Nuño

Defendant: Leonci Monlleó Franquet

Question referred

Must the concept of trade marks which are ‘well known’ in a Member State, referred to in Article 4 of First Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), be taken to indicate solely and exclusively the degree of knowledge and establishment in a Member State or in a significant part of the territory of that State, or may the determination of whether a mark is well known be linked to a territorial scope which does not coincide with that of the territory of a State but rather with an autonomous community, region, district or city, depending on the goods or services which the mark covers and the persons to whom the mark is actually addressed, in short, depending on the market in which the mark is used?

---

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

---

COURT OF FIRST INSTANCE

| 30.9.2006 | EN | Official Journal of the European Union | C 237/8 |
| --- | --- | --- | --- |

30.9.2006

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Official Journal of the European Union

C 237/8

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Order of the Court of First Instance of 27 June 2006 — Kingdom of Denmark v Commission of the European Communities

(Case T-5/06) (1)

(Declining of jurisdiction)

(2006/C 237/14)

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (represented by: J. Molde, acting as Agent)

Defendant: Commission of the European Communities (represented by: M. Konstantinidis and H Støvlbaek, acting as Agents)

Re:

Application for partial annulment of Commission Decision 2005/717/EC of 13 October 2005 amending for the purposes of adapting to the technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ 2005 L 271, p. 48).

Operative part of the order

| 1. | The Court of First Instance declines jurisdiction in Case T-5/06 Denmark v Commission so that the Court of Justice may rule on the request for annulment. |
| --- | --- |

1.

The Court of First Instance declines jurisdiction in Case T-5/06 Denmark v Commission so that the Court of Justice may rule on the request for annulment.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

(1)  OJ C 74, 25.3.2006.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/8 |
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C 237/8

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Order of the President of the Court of First Instance of 20 July 2006 — GLOBE v Commission of the European Communities

(Case T-114/06 R)

(Public procurement - Community tendering procedure - Procedure for interim relief - Prima facie case - Urgency)

(2006/C 237/15)

Language of the case: French

Parties

Applicant: GLOBE NV (Zandhoven, Belgium) (represented by: A. Abate, lawyer)

Defendant: Commission of the European Communities (represented by: M. Wilderspin and G. Boudot, agents)

Re:

Suspension of the operation of the Commission's decision to reject the applicant's tender in connection with the tendering procedure for supplies to various countries in Central Asia (EuropeAid/122078/C/S/Multi).

Operative part of the order

| 1. | The operation of the Commission's decision to award the tender to IGN France international in connection with the tendering procedure for supplies to various countries in Central Asia (EuropeAid/122078/C/S/Multi) and the performance of the contract concluded by the Commission with IGN France international are suspended until the Court of First Instance has ruled on the application in the main proceedings. |
| --- | --- |

1.

The operation of the Commission's decision to award the tender to IGN France international in connection with the tendering procedure for supplies to various countries in Central Asia (EuropeAid/122078/C/S/Multi) and the performance of the contract concluded by the Commission with IGN France international are suspended until the Court of First Instance has ruled on the application in the main proceedings.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/8 |
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Action brought on 21 July 2006 — Rathscheck Schiefer und Dach-Systeme and Others v Commission

(Case T-198/06)

(2006/C 237/16)

Language of the case: German

Parties

Applicants: Rathscheck Schiefer und Dach-Systeme KG (Mayen, Germany), Nikolaus Theis Nachf. Böger GmbH (Bundenbach, Germany) and I.B. Rathscheck Söhne KG Moselschiefer-Bergwerke (Mayen, Germany) (represented by: T. Risse, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Declare invalid Article 1 of the Commission Decision of 8 March 2006 on Germany's State aid No C 31/2004 (ex NN 53/2004) to Magog Schiefergruben GmbH & Co. KG.

Pleas in law and main arguments

The applicants contest Article 1 of Commission Decision C (2006) 641 final of 8 March 2006, by which the Commission decided that the State aid awarded by Germany to Schiefergruben Magog GmbH & Co. KG, a competitor of the applicants, is compatible in part with the common market in accordance with Article 87(3)(c) EC.

The applicants took part in the Commission's formal verification procedure.

In support of their claim, the applicants allege infringement of Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (OJ 2001 L 10, p. 33) in the version amended by Commission Regulation (EC) No 364/2004 of 25 February 2004 (OJ 2004 L 63, p. 22).

In the applicants' view, there is eligibility for aid under Articles 5a and 5b of Regulation No 70/2001 only if the new production process, the implementation of which was assisted by the aid, is a precompetitive development. They submit that that is not the case in the present situation, since the prototype for which aid was granted is not innovative.

Furthermore, the applicants submit in support of their claim that there is here no eligibility for aid under Article 4 of Regulation No 70/2001. There is eligibility only where the production process receiving aid is significantly changed from the previous production process. That precondition is not met in this case since the working procedure in the production process has remained the same.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/9 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/9

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Action brought on 26 July 2006 — IBERDROLA v Commission of the European Communities

(Case T-200/06)

(2006/C 237/17)

Language of the case: Spanish

Parties

Applicant: IBERDROLA S.A. (Bilbao, Spain) (represented by: J. Alfaro Aguila-Real, P. Liñán Hernández, S. Martínez Lage, H. Brokelmann and J. Ruiz Calzado, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision; |
| --- | --- |

—

Annul the contested decision;

| — | Order the Commission to pay all the costs of the proceedings. |
| --- | --- |

—

Order the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

The present action is directed against the Decision of the European Commission of 25 April 2006 (Case No COMP/M.4110 — E.ON/ENDESA) declaring compatible with the common market the concentration whereby E.ON AG proposes to acquire control of the whole of the shares in ENDESA SA.

The applicant claims in that regard that, in its opinion, the contested decision disregards the serious risks that coordinated effects will be produced in the relations of competition between the principal operators with a pan-European presence, which must be examined in a transaction of this magnitude and having these characteristics, that it affects the dominant undertakings in two of the main national energy markets.

In support of its claims, the applicant maintains that the defendant has:

| — | infringed the principle of sound administration by carrying out a biased and inadequate investigation of the operation of the affected markets and of the impact of the transaction in those markets; |
| --- | --- |

—

infringed the principle of sound administration by carrying out a biased and inadequate investigation of the operation of the affected markets and of the impact of the transaction in those markets;

| — | made an error of law by basing its examination of the transaction on a consideration of the national markets, contrary to the Merger Regulation and the Community case-law; |
| --- | --- |

—

made an error of law by basing its examination of the transaction on a consideration of the national markets, contrary to the Merger Regulation and the Community case-law;

| — | failed to fulfil its obligation to ensure the coherent application of the rules on the control of concentrations and the abuse of a dominant position in examining the notified transaction, authorising it without having examined the origin of the funds which E.ON proposed to use for the acquisition of ENDESA, in order to determine whether such a concentration could be the result of an abuse of a dominant position; |
| --- | --- |

—

failed to fulfil its obligation to ensure the coherent application of the rules on the control of concentrations and the abuse of a dominant position in examining the notified transaction, authorising it without having examined the origin of the funds which E.ON proposed to use for the acquisition of ENDESA, in order to determine whether such a concentration could be the result of an abuse of a dominant position;

| — | made a series of manifest errors of assessment and ignored certain relevant elements by concluding that the compatibility of the transaction does not raise serious doubts and adopting the decision authorising it in Phase 1. The applicant emphasises in that regard that, although it was adopted on the basis of the new Merger Regulation, which requires a more sophisticated and rigorous analysis, the contested decision:






  — | wholly ignores the negative impact which the transaction will have on the process of the integration of the national wholesale markets, which will culminate in the completion of the single European market in gas and electricity, |
| --- | --- | --- |

—

made a series of manifest errors of assessment and ignored certain relevant elements by concluding that the compatibility of the transaction does not raise serious doubts and adopting the decision authorising it in Phase 1. The applicant emphasises in that regard that, although it was adopted on the basis of the new Merger Regulation, which requires a more sophisticated and rigorous analysis, the contested decision:

—

wholly ignores the negative impact which the transaction will have on the process of the integration of the national wholesale markets, which will culminate in the completion of the single European market in gas and electricity,

| — | did not sufficiently evaluate the impact of the proposed transaction on the emergent pan-European market for the supply of electricity to multinational undertakings, |
| --- | --- |

—

did not sufficiently evaluate the impact of the proposed transaction on the emergent pan-European market for the supply of electricity to multinational undertakings,

| — | considers that, in spite of its pan-European objective and its economic strength, E.ON was not a significant potential competitor of ENDESA in the Spanish markets for electricity generation and the supply of gas, |
| --- | --- |

—

considers that, in spite of its pan-European objective and its economic strength, E.ON was not a significant potential competitor of ENDESA in the Spanish markets for electricity generation and the supply of gas,

| — | concludes that the transaction will not strengthen a dominant position in the German market and that the disappearance of a recent entrant, ENDESA, does not alter the competitive context. |
| --- | --- |

—

concludes that the transaction will not strengthen a dominant position in the German market and that the disappearance of a recent entrant, ENDESA, does not alter the competitive context.

Finally the applicant claims that there has been a breach of the duty to state the reasons on which measures are based.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/10 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/10

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Action brought on 31 July 2006 — NewSoft Technology v OHIM — Soft (Presto! BizCard Reader)

(Case T-205/06)

(2006/C 237/18)

Language in which the application was lodged: German

Parties

Applicant: NewSoft Technology Corporation (Taipei, Taiwan) (represented by: M. Dirksen-Schwanenland, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Soft, S.A.

Form of order sought

| — | Annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 19 May in Case R 601/2005, notified on 30 May 2006; |
| --- | --- |

—

Annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 19 May in Case R 601/2005, notified on 30 May 2006;

| — | Rejection of the application for a declaration of invalidity of the registration of European Community trade mark No 002625457 ‘Presto! BizCard Reader’ made by Soft, S.A., Spain. |
| --- | --- |

—

Rejection of the application for a declaration of invalidity of the registration of European Community trade mark No 002625457 ‘Presto! BizCard Reader’ made by Soft, S.A., Spain.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘Presto! BizCard Reader’ for goods and services in Classes 9, 16 and 42 (Community trade mark No 2625457).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: SOFT, S.A.

Trade mark right of applicant for the declaration: Spanish figurative marks ‘Presto’ for goods and services in Classes 9 and 42.

Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since it is not established that there is a likelihood of confusion between the conflicting trade marks.

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

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/10 |
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30.9.2006

EN

Official Journal of the European Union

C 237/10

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Action brought on 11 August 2006 — Bowland Dairy Products v Commission

(Case T-212/06)

(2006/C 237/19)

Language of the case: English

Parties

Applicant: Bowland Dairy Products Limited (Nelson, United Kingdom) (represented by: J. Milligan, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the contested decision; |
| --- | --- |

—

Annulment of the contested decision;

| — | order the Commission to pay damages to the applicant in the amount of the loss suffered by the applicant as a result of the contested decision, with interest; |
| --- | --- |

—

order the Commission to pay damages to the applicant in the amount of the loss suffered by the applicant as a result of the contested decision, with interest;

| — | order the Commission to pay the applicant's costs of these proceedings. |
| --- | --- |

—

order the Commission to pay the applicant's costs of these proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of a decision of the Commission of the European Communities contained in an email to the UK Foods Agency dated 20 July 2006, forwarded to the applicant on 21 July 2006, refusing to circulate, under the Rapid Alert System for Food and Feed provided for by Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 (OJ L 31 of 1 February 2002, p. 1-24), an additional notification declaring that the Food Security Agency (FSA) was content for the applicant's curd cheese to be marketed, unless conditions specified by the Commission were met.

The applicant claims that the Commission was not entitled to impose conditions upon the circulation of an additional Notice prepared by a national competent authority under Article 50 of Regulation (EC) No 178/2002.

Moreover, the applicant submits that in formulating these conditions, the Commission has misinterpreted the applicable Regulations both in relation to antibiotic milk as in relation to watery milk.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/11 |
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30.9.2006

EN

Official Journal of the European Union

C 237/11

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Action brought on 17 August 2006 — Imperial Chemical Industries v Commission

(Case T-214/06)

(2006/C 237/20)

Language of the case: English

Parties

Applicant: Imperial Chemical Industries plc (ICI) (London, United Kingdom) (represented by: D. Anderson, QC, H. Rosenblatt, B. Lebrun, lawyers, W. Turner and S. Berwick, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Article 2(c) of the contested decision; or in the alternative |
| --- | --- |

—

Annul Article 2(c) of the contested decision; or in the alternative

| — | amend Article 2(c) of the contested decision so as to reduce the fine imposed on ICI; and |
| --- | --- |

—

amend Article 2(c) of the contested decision so as to reduce the fine imposed on ICI; and

| — | order the Commission to pay the applicant's costs. |
| --- | --- |

—

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission's Decision C(2006) 2098 final of 31 May 2006 in Case COMP/F/38.645 — Methacrylates, by which the Commission found that the applicant had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a methacrylates cartel which consisted of discussing prices, agreeing, implementing and monitoring price agreements either in form of price increases, or at least stabilisation of existing price levels, discussing the passing on of additional service costs to customers, exchange of commercially important and confidential market and/or company relevant information and participating in regular meetings and other contacts to facilitate the infringement.

Firstly, the applicant submits that the Commission did not satisfy its burden of proof under Article 2 of Council Regulation No 1/2003 (1) for an infringement in relation to polymethyl methacrylate moulding compounds as it based its findings of the applicant's cartel activity on certain parts of immunity and leniency applications which were, to the extent that they relate to polymethyl methacrylate moulding compounds and to the applicant's period of ownership of the acrylics business, not supported by any relevant evidence and which were moreover conflicting with one another on important aspects. The applicant argues that such material does not satisfy the Commission's obligation to establish findings of an infringement with substantial and reliable evidence.

Secondly, the applicant claims that the Commission failed to reason the amount of the fine when calculating the gravity element hereof contrary to Article 253 EC.

Thirdly, the applicant alleges that the Commission committed an error of law by incorrectly treating the applicant and the company Lucite as competitors rather than consecutive participants in the alleged infringement whereby the impact on competition was counted double. This resulted in a larger aggregated fine for the applicant and Lucite merely because the business changed hands.

Fourthly, the applicant asserts that the Commission applied an incorrect standard for imposing an uplift for deterrence by relying solely on the applicant's turnover and not considering evidence of the applicant's economic capacity. Moreover, the applicant finds the deterrence uplift disproportionate with that imposed on another party in the cartel.

Fifthly, the applicant contends that the Commission improperly denied the applicant leniency and credit for cooperation outside the Leniency Notice (2). According to the applicant, the material it voluntarily submitted to the Commission constitutes the requisite significant added value under the Leniency Notice.

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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)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/12 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/12

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Action brought on 16 August 2006 — Lucite International and Lucite International UK v Commission

(Case T-216/06)

(2006/C 237/21)

Language of the case: English

Parties

Applicants: Lucite International Ltd (Hampshire, United Kingdom) and Lucite International UK Ltd (Lancashire, United Kingdom) (represented by: R. Thompson, QC, and S. Rose, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Article 2(d) of Decision COMP/F/38.645; |
| --- | --- |

—

Annulment of Article 2(d) of Decision COMP/F/38.645;

| — | the replacement of the fine imposed under Article 2(d) of Decision [COMP/F/38.645] by a fine of EUR 18,268,750 or such other lower amount as the Court may consider appropriate; and |
| --- | --- |

—

the replacement of the fine imposed under Article 2(d) of Decision [COMP/F/38.645] by a fine of EUR 18,268,750 or such other lower amount as the Court may consider appropriate; and

| — | order the defendant to bear the costs of this application. |
| --- | --- |

—

order the defendant to bear the costs of this application.

Pleas in law and main arguments

The applicants seek the partial annulment of the Commission's Decision C(2006) 2098 final of 31 May 2006 in Case COMP/F/38.645 — Methacrylates, by which the Commission found that the applicants had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a methacrylates cartel which consisted of discussing prices, agreeing, implementing and monitoring price agreements either in form of price increases, or at least stabilisation of existing price levels, discussing the passing on of additional service costs to customers, exchange of commercially important and confidential market and/or company relevant information and participating in regular meetings and other contacts to facilitate the infringement.

In support of their application, the applicants submit that the Commission applied its guidelines on the method of setting fines incorrectly when calculating the fine imposed on the applicants.

First of all, the Commission failed to take account of the nature of the applicant's involvement and the extent of their role in undermining the cartel when setting the starting amount of the fine.

Secondly, the Commission did not give proper consideration to the attenuating circumstances applicable to the applicants.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/12 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/12

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Action brought on 16 August 2006 — Neurim Pharmaceuticals (1991) v OHIM — Eurim-Pharm Arzneimittel (Neurim PHARMACEUTICALS)

(Case T-218/06)

(2006/C 237/22)

Language in which the application was lodged: German

Parties

Applicant: Neurim Pharmaceuticals (1991) Ltd (Tel Aviv, Israel) (represented by: M. Kinkeldey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Eurim-Pharm Arzneimittel GmbH

Forms of order sought

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade, Marks and Designs) of 2 June 2006 — Appeal number R 74/2006-1 — in its entirety; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade, Marks and Designs) of 2 June 2006 — Appeal number R 74/2006-1 — in its entirety;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The figurative mark ‘Neurim PHARMACEUTICALS’ for goods in Classes 5 and 10.

Proprietor of the mark or sign cited in the opposition proceedings: Eurim-Pharm Arzneimittel GmbH.

Mark or sign cited in opposition: The word mark ‘EURIM-PHARM’ (Community trade mark No 667 899 and national mark) and the trade mark right for ‘Eurim-Pharm GmbH’ for goods in Class 5.

Decision of the Opposition Division: Grant of the opposition and refusal of the application.

Decision of the Board of Appeal: Dismissal of the appeal as inadmissible.

Pleas in law: Infringement of Article 59 of Regulation (EC) No 40/94 (1) and Rules 48, 49 and 96 of Regulation (EC) No 2868/95 (2), infringement of Article 78 and Article 78a of Regulation No 40/94 and infringement of the principle by which OHIM is bound by its own decisions and the principle of proportionality.

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

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/13 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/13

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Action brought on 17 August 2006 — PTV v OHIM (map&guide travelbook)

(Case T-219/06)

(2006/C 237/23)

Language of the case: German

Parties

Applicant: PTV Planung Transport Verkehr AG (Karlsruhe, Germany) (represented by F. Nielsen, lawyer)

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

Forms of order sought

| — | set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 8 June 2006 (Appeal case number: R 1174/2005-1); |
| --- | --- |

—

set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 8 June 2006 (Appeal case number: R 1174/2005-1);

| — | 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 ‘map&guide travelbook’ for goods and services in Classes 9, 16 and 42.

Decision of the Examiner: Partial dismissal of the application.

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

Pleas in law: The mark applied for does have distinctive character for the purposes of Article 7(1)(b) of Regulation (EC) No 40/94 (1).

---

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

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/13 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/13

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Action brought on 18 August 2006 — Hipp & Co v OHMI — Laboratorios Ordesa (BEBIMIL)

(Case T-221/06)

(2006/C 237/24)

Language in which the application was lodged: English

Parties

Applicant: Hipp & Co (Kommanditgesellschaft) (Sachseln, Switzerland) (represented by: M. Kinkeldey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Ordesa S.L. (Sant Boi de Llobregat, Spain)

Form of order sought

| — | Annulment of the decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market of 2 June 2006 (Case No R571/2005-1), |
| --- | --- |

—

Annulment of the decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market of 2 June 2006 (Case No R571/2005-1),

| — | order the costs of the proceedings to be borne by the defendant. |
| --- | --- |

—

order the costs of the proceedings to be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant.

Community trade mark concerned: The community word mark ‘BEBIMIL’ for goods in classes 5, 29, 30 and 32.

Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Ordesa S.L.

Mark or sign cited: Community and national word mark ‘BLEMIL’ for goods in classes 5 and 29, 6 and 32 respectively.

Decision of the Opposition Division: Opposition partially upheld.

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

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94. In support of his claims, the applicant puts forward the dissimilarity of the two marks with regards to the relevant consumer circles, as well as the phonetic, visual and conceptual differences between the earlier mark and the contested one.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/14 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/14

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Order of the Court of First Instance of 24 July 2006 — AITEC and Others v Commission

(Case T -371/05) (1)

(2006/C 237/25)

Language of the case: Italian

The President of the Second Chamber has ordered that the case be removed from the register.

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(1)  OJ C 296, 26.11.2005.

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EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 30.9.2006 | EN | Official Journal of the European Union | C 237/15 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/15

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Action brought on 19 June 2006 — Longinidis v Cedefop

(Case F-74/06)

(2006/C 237/26)

Language of the case: Greek

Parties

Applicant: Pavlos Longinidis (Thessalonius, Greece) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Centre européen pour le développement de la formation professionnelle (‘European Centre for the Development of Vocational Training’) (‘Cedefop’)

Forms of order sought

| — | annul the decision of Cedefop′s Directorate of 30 November 2005 terminating the applicant's indefinite term contract; |
| --- | --- |

—

annul the decision of Cedefop′s Directorate of 30 November 2005 terminating the applicant's indefinite term contract;

| — | annul the decision of Cedefop′s Directorate of 10 March 2006 refusing the applicant′s request to suspend enforcement of that decision; |
| --- | --- |

—

annul the decision of Cedefop′s Directorate of 10 March 2006 refusing the applicant′s request to suspend enforcement of that decision;

| — | annul the decision of Cedefop′s Directorate of 9 December 2005 downgrading the applicant from his post as Head of Legal and Contract Management Services to the rank of advisor to Cedefop; |
| --- | --- |

—

annul the decision of Cedefop′s Directorate of 9 December 2005 downgrading the applicant from his post as Head of Legal and Contract Management Services to the rank of advisor to Cedefop;

| — | annul the decision of 24 May 2006 by which the Cedefop′s Appeals Committee rejected the applicant′s complaint seeking the annulment of the three abovementioned decisions; this decision contained the grounds on which the appointing authority terminated the applicant′s contract; |
| --- | --- |

—

annul the decision of 24 May 2006 by which the Cedefop′s Appeals Committee rejected the applicant′s complaint seeking the annulment of the three abovementioned decisions; this decision contained the grounds on which the appointing authority terminated the applicant′s contract;

| — | annul the decision of 11 November 2005 by which Cedefop′s Directorate amended the composition of the Appeals Committee; |
| --- | --- |

—

annul the decision of 11 November 2005 by which Cedefop′s Directorate amended the composition of the Appeals Committee;

| — | annul the decision of 14 November 2005 by which Cedefop′s Appeals Committee amended its rules of procedure; |
| --- | --- |

—

annul the decision of 14 November 2005 by which Cedefop′s Appeals Committee amended its rules of procedure;

| — | annul the decision of Cedefop′s Appeals Committee′s of 10 March 2006 refusing the applicant′s complaint seeking annulment of the abovementioned decisions of 11 November 2005 and of 14 November; |
| --- | --- |

—

annul the decision of Cedefop′s Appeals Committee′s of 10 March 2006 refusing the applicant′s complaint seeking annulment of the abovementioned decisions of 11 November 2005 and of 14 November;

| — | annul the decision of Cedefop′s Directorate of 28 April 2006 rejecting the applicant's request that the deputy director of Cedefop should be excluded from leading the administrative investigation concerning him and the applicant; |
| --- | --- |

—

annul the decision of Cedefop′s Directorate of 28 April 2006 rejecting the applicant's request that the deputy director of Cedefop should be excluded from leading the administrative investigation concerning him and the applicant;

| — | annul the decision of Cedefop's Appeals Committee of 9 March 2006, relating to the complaint lodged by one of Cedefop's agent, so far as this decision affects the applicant′s reputation and his professional integrity; |
| --- | --- |

—

annul the decision of Cedefop's Appeals Committee of 9 March 2006, relating to the complaint lodged by one of Cedefop's agent, so far as this decision affects the applicant′s reputation and his professional integrity;

| — | order Cedefop to compensate the applicant for the financial damage — equal to the basic rate of salary, additional salary and pension rights — that the abovementioned decision of 30 November 2005 has caused him; |
| --- | --- |

—

order Cedefop to compensate the applicant for the financial damage — equal to the basic rate of salary, additional salary and pension rights — that the abovementioned decision of 30 November 2005 has caused him;

| — | order Cedefop to pay the applicant 50 000 euros as compensation for pain and suffering caused by the abovementioned decision of 30 November 2005 by the abovementioned decision of 9 March 2006; |
| --- | --- |

—

order Cedefop to pay the applicant 50 000 euros as compensation for pain and suffering caused by the abovementioned decision of 30 November 2005 by the abovementioned decision of 9 March 2006;

| — | order Cedefop to pay the applicant one euro symbolically as compensation for pain and suffering caused by the abovementioned decision of 11 November 2005; |
| --- | --- |

—

order Cedefop to pay the applicant one euro symbolically as compensation for pain and suffering caused by the abovementioned decision of 11 November 2005;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By the decision of 30 November 2005, the Director of Cedefop terminated the employment contract for an indefinite term linking the applicant to Cedefop. According to the applicant this decision was taken beyond the limits of the discretionary power of the appointing authority and it is marred by misuse of power, breach of the right to be heard and of the right to a fair hearing, and also contradictions in the statement of reasons.

According to the applicant, it is apparent from the explanations given by the appointing authority in the course of examining the administrative complaint that the reason for the dismissal must be found in the proposal, made by the applicant, in August 2005, not to renew the fixed-term employment contract of an employee, of whom the applicant was the hierarchical superior. The appointing authority, following the reappointment of the governing board of Cedefop, reinstated that employee and dismissed the applicant. The appointing authority took this decision on the basis of a manifestly incorrect assessment of the circumstances and the decision to dismiss the applicant was clearly against the interests of the service.

Next, the applicant states that the other contested decisions are marred by breach of Cedefop's internal procedures, such as the provisions concerning the Appeals Committee, the provisions concerning administrative inquiries and disciplinary procedures.

The applicant also requests compensation for the illegal termination of his contract. Finally, he requests compensation from Cedefop, relying on the provisions relating to non-contractual responsibility of the community bodies, because of the alleged attack made on his character and his professional reputation by the decision to dismiss him and by the content of the decision taken by the Appeals committee concerning the complaint lodged by the abovementioned employee.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/16 |
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30.9.2006

EN

Official Journal of the European Union

C 237/16

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Action brought on 18 July 2006 — Tsirimokos v European Parliament

(Case F-76/06)

(2006/C 237/27)

Language of the case: French

Parties

Applicant: Ioannis Tsirimokos (Senningerberg, Luxembourg) (represented by: J. Choucroun, lawyer)

Defendant: European Parliament

Form of order sought

| — | annul the European Parliament′s decision of 25 October 2005 confirmed 19 April 2006; |
| --- | --- |

—

annul the European Parliament′s decision of 25 October 2005 confirmed 19 April 2006;

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

—

order the European Parliament to pay the costs.

Pleas in law and main arguments

The applicant, a European Parliament official since 1 May 1981, lodged, 7 September 2005 a request to work part time in preparation for retirement, as provided for by Article 55a of the Staff Regulations and Article 4 of Annex IVa of the Staff Regulations. In the calculation of the percentage of the basic salary to which the applicant was entitled, the administration did not take into account the years of pensionable service that the applicant had acquired before being recruited by the European Parliament.

In support of his action, the applicant invokes three pleas in law:

| — | firstly, breach of Article 2 of Annex VIII of the Staff Regulations; |
| --- | --- |

—

firstly, breach of Article 2 of Annex VIII of the Staff Regulations;

| — | secondly, breach of the duty to have regard for the welfare of officials; |
| --- | --- |

—

secondly, breach of the duty to have regard for the welfare of officials;

| — | thirdly, breach of the principle of protection of legitimate expectations. |
| --- | --- |

—

thirdly, breach of the principle of protection of legitimate expectations.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/16 |
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30.9.2006

EN

Official Journal of the European Union

C 237/16

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Action brought on 18 July 2006 — Colovea v European Parliament

(Case F-77/06)

(2006/C 237/28)

Language of the case: French

Parties

Applicant: Fotini Colovea (Luxembourg, Luxembourg) (represented by: J. Choucroun, lawyer)

Defendant: European Parliament

Form of order sought

| — | annul the European Parliament′s decision of 20 September 2005, confirmed 19 April 2006; |
| --- | --- |

—

annul the European Parliament′s decision of 20 September 2005, confirmed 19 April 2006;

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

—

order the European Parliament to pay the costs.

Pleas in law and main arguments

The applicant was recruited by the European Parliament as a member of the temporary staff at Grade B5 on 1 May 1981. On 4 August 2005 she introduced a request of to work part time in preparation for retirement, as provided for by Article 55a of the Staff Regulations and Article 4 of Annex IVa of the Staff Regulations. In the calculation of the percentage of the basic salary to which the applicant was entitled, the administration did not take into account the years of pensionable service that the applicant had acquired before being recruited by the European Parliament.

In support of his action, the applicant invokes three pleas in law:

| — | firstly, breach of Article 2 of Annex VIII of the Staff Regulations; |
| --- | --- |

—

firstly, breach of Article 2 of Annex VIII of the Staff Regulations;

| — | secondly, breach of the duty to have regard for the welfare of officials; |
| --- | --- |

—

secondly, breach of the duty to have regard for the welfare of officials;

| — | thirdly, breach of the principle of protection of legitimate expectations. |
| --- | --- |

—

thirdly, breach of the principle of protection of legitimate expectations.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/17 |
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30.9.2006

EN

Official Journal of the European Union

C 237/17

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Action brought on 20 July 2006 — Simona Suhadolnik v Court of Justice of the European Communities

(Case F-78/06)

(2006/C 237/29)

Language of the case: French

Parties

Applicant: Simona Suhadolnik (Howald, Luxembourg) (represented by: S. Rodrigues, A. Jaume and C. Bernard-Glanz, lawyers)

Defendant: Court of Justice of the European Communities

Form of order sought

| — | annul the decision of the appointing authority of the Court of Justice refusing the applicant's complaint; |
| --- | --- |

—

annul the decision of the appointing authority of the Court of Justice refusing the applicant's complaint;

| — | annul the decision to establish the applicant of 22 July 2005 insofar as it determines her grade pursuant to Article 12(3) of Annex XIII of the Staff Regulations, and determines her step in accordance with the new version of Article 32 of the Staff Regulations; |
| --- | --- |

—

annul the decision to establish the applicant of 22 July 2005 insofar as it determines her grade pursuant to Article 12(3) of Annex XIII of the Staff Regulations, and determines her step in accordance with the new version of Article 32 of the Staff Regulations;

| — | reclassify the applicant in grade C*3, or, at least, in grade C*2, as well as at the step corresponding to her qualifications and professional experience, which she would have been granted if she had been appointed before 1 May 2004, with retroactive effect from the date on which she took up her duties; |
| --- | --- |

—

reclassify the applicant in grade C*3, or, at least, in grade C*2, as well as at the step corresponding to her qualifications and professional experience, which she would have been granted if she had been appointed before 1 May 2004, with retroactive effect from the date on which she took up her duties;

| — | order the defendant to compensate the applicant for damage suffered (default interest, damage to her career, pension rights etc.); |
| --- | --- |

—

order the defendant to compensate the applicant for damage suffered (default interest, damage to her career, pension rights etc.);

| — | order the defendant to pay default interest, from the date of the decision to be adopted; |
| --- | --- |

—

order the defendant to pay default interest, from the date of the decision to be adopted;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By the appointing authority's decision of 22 July 2005, the applicant, who was a successful candidate in open competition EPSO/C/9/03 held for the purpose of constituting a reserve list for the recruitment of Cypriot, Czech, Estonian, Hungarian, Lithuanian, Latvian, Maltese, Polish, Slovene and Slovak typists (C5/C4),1 was appointed as an official of the European Community and classified at grade C*1, step (1).

In her application, the applicant takes issue with her classification and calls into question first, Article 12(3) of Annex XIII to the Staff Regulations, on which the appointing authority relied in determining her grade, and, second, the new version of Article 32 of the Staff Regulations, on which the appointing authority relied to determine her step.

As regards her classification in grade, the applicant pleads principally that Article 12(3) of Annex XIII to the Staff Regulations, which governs the status of officials who have been included on a list of suitable candidates, does not apply to successful competition candidates, as they cannot be considered as officials.

In the alternative, the applicant submits a plea of illegality in relation to Article 12(3) of Annex XIII to the Staff Regulations on the grounds, in particular, that this provision infringes: (i) the principle of non-discrimination, (ii) the principle of freedom of movement for workers, (iii) the principles of protection of legitimate expectations and legal certainty, (iv) the principle of proportionality, (v) the principle of good administration and the duty to have regard for the welfare of officials, (vi) Article 31 of the Staff Regulations, and (vii) Article 10 of the Staff Regulations.

As regards her classification in step, the applicant considers that the appointing authority breached its duty to protect her legitimate expectation that she would be granted a step bonus, as a result of her professional experience, under the version of Article 32 of the Staff Regulations in force before 1 May 2004.

---

(1)  OJ C 120, 22.5.2003, p. 30.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/17 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/17

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Action brought on 24 July 2006 — Caló v Commission

(Case F-79/06)

(2006/C 237/30)

Language of the case: French

Parties

Applicant: Giuseppe Caló (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the decisions of the Director-General of DG Eurostat providing for, first, the reorganisation of that DG by way of acts changing the duties assigned to directors and, second, the rejection of the applicant's request to be appointed to one of the vacant posts of director, or one that might become vacant. |
| --- | --- |

—

Annulment of the decisions of the Director-General of DG Eurostat providing for, first, the reorganisation of that DG by way of acts changing the duties assigned to directors and, second, the rejection of the applicant's request to be appointed to one of the vacant posts of director, or one that might become vacant.

| — | An order that the defendant should pay the costs. |
| --- | --- |

—

An order that the defendant should pay the costs.

Pleas in law and main arguments

The applicant, an official of the defendant, after challenging before the Court of First Instance of the European Communities, first, the decision to reassign him to the post of Chief Adviser in the DG in which he was employed (1) and, second, the decision to reject his application for a post of Director in the same DG (2), currently disputes the defendant's decisions, taken in the context of the reorganisation of DG Eurostat, to reject his application for the post of Director announced in vacancy notice COM/2006/164, and to appoint another candidate to that post.

In support of his application, the applicant relies on infringement of: (i) the duty to give reasons, (ii) Article 27 of the Staff Regulations and (iii) of the Rules of Conduct for Appointments to Posts in Grades A1 and A2, approved by the defendant on 18 September 1999, as confirmed and further defined by the Compilation Document on Senior Officials Policy, approved by the defendant on 26 October 2004.

---

(1)  Case T-118/04 (OJ C 118, 30.04.2004, p. 47).

(2)  Case T-134/04 (OJ C 146, 29.05.2004, p. 6).

---

| 30.9.2006 | EN | Official Journal of the European Union | C 237/18 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/18

---

Action brought on 30 July 2006 — Schell v Commission

(Case F-83/06)

(2006/C 237/31)

Language of the case: French

Parties

Applicant: Arno Schell (Brussels, Belgium) (represented by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the lists of officials promoted in the 2004 and 2005 promotion years, in so far as these lists do not contain the applicant's name, and also, incidentally, the preparatory actions of those decisions; |
| --- | --- |

—

Annul the lists of officials promoted in the 2004 and 2005 promotion years, in so far as these lists do not contain the applicant's name, and also, incidentally, the preparatory actions of those decisions;

| — | in the alternative, annul the allocation of promotion points in those years in so far as the applicant is concerned; |
| --- | --- |

—

in the alternative, annul the allocation of promotion points in those years in so far as the applicant is concerned;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant relies on the seven following pleas in law:

| — | first, infringement of Article 45 of the Staff Regulations; |
| --- | --- |

—

first, infringement of Article 45 of the Staff Regulations;

| — | second, infringement of the general implementing provisions in respect of that article; |
| --- | --- |

—

second, infringement of the general implementing provisions in respect of that article;

| — | third, infringement of the principle of non-discrimination; |
| --- | --- |

—

third, infringement of the principle of non-discrimination;

| — | fourth, infringement of the Administrative Guide ‘Appraisal and Promotion of Officials’, and of successive Guides; |
| --- | --- |

—

fourth, infringement of the Administrative Guide ‘Appraisal and Promotion of Officials’, and of successive Guides;

| — | fifth, infringement of the principles of prohibition of arbitrary procedures and of abuse of powers, and also infringement of the duty to give reasons; |
| --- | --- |

—

fifth, infringement of the principles of prohibition of arbitrary procedures and of abuse of powers, and also infringement of the duty to give reasons;

| — | sixth, infringement of the principle of protection of legitimate expectations, and of the rule ‘Patere legem quam ipse fecisti’ (obey the rules which you yourself have made); |
| --- | --- |

—

sixth, infringement of the principle of protection of legitimate expectations, and of the rule ‘Patere legem quam ipse fecisti’ (obey the rules which you yourself have made);

| — | seventh, infringement of the duty to have regard for the welfare of officials. |
| --- | --- |

—

seventh, infringement of the duty to have regard for the welfare of officials.

---

| 30.9.2006 | EN | Official Journal of the European Union | C 237/18 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/18

---

Action brought on 28 July 2006 — Bellantone v Court of Auditors

(Case F-85/06)

(2006/C 237/32)

Language of the case: French

Parties

Applicant: Gerardo Bellantone (Luxembourg, Luxembourg) (represented by: T. Bontinck and J. Feld, lawyers)

Defendant: European Court of Auditors

Form of order sought

The applicant claims that the Tribunal should:

| — | Annul the decision of the Secretary-General of the European Court of Auditors of 30 March 2006 rejecting the applicant's complaint seeking payment of the balance of the allowance in lieu of additional notice, of the severance grant and of the daily subsistence allowance; |
| --- | --- |

—

Annul the decision of the Secretary-General of the European Court of Auditors of 30 March 2006 rejecting the applicant's complaint seeking payment of the balance of the allowance in lieu of additional notice, of the severance grant and of the daily subsistence allowance;

| — | Order the defendant to pay: (i) EUR 20 751,45 in respect of additional notice, (ii) EUR 39 247,74 corresponding to the severance grant to which the applicant could have been entitled, (iii) EUR 8 467,02 in respect of daily subsistence allowance; |
| --- | --- |

—

Order the defendant to pay: (i) EUR 20 751,45 in respect of additional notice, (ii) EUR 39 247,74 corresponding to the severance grant to which the applicant could have been entitled, (iii) EUR 8 467,02 in respect of daily subsistence allowance;

| — | Order the defendant to pay interest for late payment until payment is made; |
| --- | --- |

—

Order the defendant to pay interest for late payment until payment is made;

| — | Order the rectification of the remarks made in the contested decision concerning the absence of any remark by the applicant regarding the threat of possible dismissal by the defendant; |
| --- | --- |

—

Order the rectification of the remarks made in the contested decision concerning the absence of any remark by the applicant regarding the threat of possible dismissal by the defendant;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a former member of the temporary staff of the European Court of Auditors in Grade A*8, was appointed as a probationary official in Grade A*5, without his agreement being sought beforehand.

In his application, the applicant maintains that the defendant's conduct amounts to breaches of contractual and non-contractual duties. He alleges infringement of the Code of good administrative conduct for the staff of the European Court of Auditors, infringement of Article 25 of the Staff Regulations, as well as infringement of the general principles of the law of the public service relating to sound administration, legitimate expectations and the retention of acquired rights.

---

| 30.9.2006 | EN | Official Journal of the European Union | C 237/19 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/19

---

Action brought on 28 July 2006 — Vereecken v Commission

(Case F-86/06)

(2006/C 237/33)

Language of the case: French

Parties

Applicant: Marc Vereecken (Brussels, Belgium) (represented by: S. Rodrigues, A. Jaume and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Principally:

| — | annul the decision of the Appointing Authority refusing the applicant's objection, taken together with the refusal of the Appointing Authority to put the applicant on the list of officials promoted to grade A*9 in the 2005 promotion exercise, that refusal resulting implicitly from Administrative Notice No 85/2005 of 23 November 2005, as well as with the applicant's career progress reports for the years 2003 and 2005; |
| --- | --- |

—

annul the decision of the Appointing Authority refusing the applicant's objection, taken together with the refusal of the Appointing Authority to put the applicant on the list of officials promoted to grade A*9 in the 2005 promotion exercise, that refusal resulting implicitly from Administrative Notice No 85/2005 of 23 November 2005, as well as with the applicant's career progress reports for the years 2003 and 2005;

| — | indicate to the Appointing Authority the effects of the annulment of the contested decisions, in particular, the reclassification of the applicant at grade A*9 with retrospective effect from 1 March 2005. |
| --- | --- |

—

indicate to the Appointing Authority the effects of the annulment of the contested decisions, in particular, the reclassification of the applicant at grade A*9 with retrospective effect from 1 March 2005.

In the alternative:

| — | require the defendant to recognise that the applicant is eligible for promotion to grade A*9 at the time of his next promotion; |
| --- | --- |

—

require the defendant to recognise that the applicant is eligible for promotion to grade A*9 at the time of his next promotion;

| — | order the defendant to pay compensation for the damage suffered by the applicant as a result of not being promoted to grade A*9 as from 1 March 2005; |
| --- | --- |

—

order the defendant to pay compensation for the damage suffered by the applicant as a result of not being promoted to grade A*9 as from 1 March 2005;

| — | order the defendant to pay compensation for non-material damage suffered by the applicant because no staff reports for 1997-1999 were drawn up and the 1999-2001 staff report and the career progress reports for 2003 and 2004 were drawn up late. |
| --- | --- |

—

order the defendant to pay compensation for non-material damage suffered by the applicant because no staff reports for 1997-1999 were drawn up and the 1999-2001 staff report and the career progress reports for 2003 and 2004 were drawn up late.

In any event:

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant submits three pleas, very similar to the first, third and fourth pleas relied on in application F-17/06 (1), brought by the same applicant.

---

(1)  OJ C 96 of 22.04.2006, p. 39.

---

| 30.9.2006 | EN | Official Journal of the European Union | C 237/19 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/19

---

Action brought on 3 August 2006 — Manté v Council

(Case F-87/06)

(2006/C 237/34)

Language of the case: French

Parties

Applicant: Thierry Manté (Woluwe Saint Pierre, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union

Forms of order sought

The applicant claims that the Court should:

| — | annul the decision of the Council's Appointing Authority of 22 August 2005 refusing to grant the applicant the installation allowance and ordering its recovery; |
| --- | --- |

—

annul the decision of the Council's Appointing Authority of 22 August 2005 refusing to grant the applicant the installation allowance and ordering its recovery;

| — | order the defendant to pay the applicant, as compensation for material damage suffered, an amount equivalent to the sums relating to the installation allowance which will have been recovered at the date of the judgment of the Tribunal, increased by the interest rate in force at that date; |
| --- | --- |

—

order the defendant to pay the applicant, as compensation for material damage suffered, an amount equivalent to the sums relating to the installation allowance which will have been recovered at the date of the judgment of the Tribunal, increased by the interest rate in force at that date;

| — | order the defendant to pay the applicant the token sum of 1 euro, as compensation for pain and suffering; |
| --- | --- |

—

order the defendant to pay the applicant the token sum of 1 euro, as compensation for pain and suffering;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant arrived in Brussels in 2004 as a national expert on secondment at the Council, and subsequently became an official at the same institution. The Council, after having granted him the installation allowance, decided that he was not entitled to it and ordered its recovery.

In support of his action, the applicant puts forward three pleas alleging:

| — | first, breach of his right to the installation allowance arising from the first subparagraph of Article 5(1) of Annexe VII to the Staff Regulations; |
| --- | --- |

—

first, breach of his right to the installation allowance arising from the first subparagraph of Article 5(1) of Annexe VII to the Staff Regulations;

| — | secondly, breach of the obligation to provide a statement of reasons arising from Articles 20(2) and 90(1) of the Staff Regulations; |
| --- | --- |

—

secondly, breach of the obligation to provide a statement of reasons arising from Articles 20(2) and 90(1) of the Staff Regulations;

| — | thirdly, breach of the conditions referred to in the first paragraph of Article 85 of the Staff Regulations in so far as they relate to recovery of the installation allowance by the administration. |
| --- | --- |

—

thirdly, breach of the conditions referred to in the first paragraph of Article 85 of the Staff Regulations in so far as they relate to recovery of the installation allowance by the administration.

---

| 30.9.2006 | EN | Official Journal of the European Union | C 237/20 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/20

---

Action brought on 11 August 2006 — Michel Nolin v Commission of the European Communities

(Case F-89/06)

(2006/C 237/35)

Language of the case: French

Parties

Applicant: Michel Nolin (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision and the formal intention of the Director-General of the Legal Service, based respectively on Article 13(3) and Article 5(7) of the General Provisions for Implementing Article 45 of the Staff Regulations, adopted by Commission Decision of 23 December 2004 not to allocate any Directorate-General priority points to the applicant for the ‘promotion exercise’ (hereinafter ‘promotion year’) 2005, as confirmed and made final by the decision of the Director-General of Personnel and Administration, taken pursuant to Article 10(2) of the General Provisions for Implementing Article 45 of the Staff Regulations, and rejecting the internal appeal filed on 26 September 2005; |
| --- | --- |

—

annul the decision and the formal intention of the Director-General of the Legal Service, based respectively on Article 13(3) and Article 5(7) of the General Provisions for Implementing Article 45 of the Staff Regulations, adopted by Commission Decision of 23 December 2004 not to allocate any Directorate-General priority points to the applicant for the ‘promotion exercise’ (hereinafter ‘promotion year’) 2005, as confirmed and made final by the decision of the Director-General of Personnel and Administration, taken pursuant to Article 10(2) of the General Provisions for Implementing Article 45 of the Staff Regulations, and rejecting the internal appeal filed on 26 September 2005;

| — | annul the decision of the Director-General of Personnel and Administration, taken pursuant to Article 10(2) of the General Provisions for Implementing Article 45 of the Staff Regulations not to allocate to the applicant any special priority points in recognition of work undertaken in the interest of the institution, for the promotion year 2005; |
| --- | --- |

—

annul the decision of the Director-General of Personnel and Administration, taken pursuant to Article 10(2) of the General Provisions for Implementing Article 45 of the Staff Regulations not to allocate to the applicant any special priority points in recognition of work undertaken in the interest of the institution, for the promotion year 2005;

| — | annul the list of officials to whom priority points in recognition of work undertaken in the interest of the institution were awarded, the merit list of officials of grade A*12 in the 2005 promotion year, and the list of officials promoted to grade A*13 in that year; |
| --- | --- |

—

annul the list of officials to whom priority points in recognition of work undertaken in the interest of the institution were awarded, the merit list of officials of grade A*12 in the 2005 promotion year, and the list of officials promoted to grade A*13 in that year;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant first points out that in applying the General Provisions for Implementing Article 45 of the Staff Regulations in the 2005 promotion exercise the Commission infringed the principles of legal certainty and protection of legitimate expectations, to the extent that those provisions were adopted at the end of December 2004.

Furthermore, the applicant submits that the decision not to allocate to him any Directorate-General priority points, when he had obtained the highest mark of any official in his grade and in his department for the period from July 2001 to December 2003, infringes Article 45 of the Staff Regulations, and the General Provisions for Implementing that Article, which require merit to be the determining factor for the awarding of such points, and constitutes a manifest error of assessment. Moreover, the applicant states that, to the extent that the Directorate-General priority points were not allocated on the basis of merit, the Commission has misused its powers.

Next, the applicant claims that the decision not to allocate to him any priority points in recognition of work undertaken in the interest of the institution is illegal, in light of the fact that his application for membership of the selection board was successful. There was therefore an infringement of Article 5 of the Staff Regulations and of the principle of equal treatment.

Finally, according to the applicant, the lists cited in the third indent (above) must also be annulled, first, because of the defects of the contested decisions, and, second, because of the illegality of certain articles of the General Provisions for Implementing Article 45 of the Staff Regulations. The applicant states that:

| — | by providing for the awarding of priority points in recognition of work undertaken in the interest of the institution for certain supplementary tasks which are already taken into account during the marking and awarding of Directorate-General priority points, Article 9 of the General Provisions for Implementing Article 45 of the Staff Regulations infringes Article 45 of those Regulations as well as the principle that officials should have reasonable career prospects, and the principle of equal treatment; |
| --- | --- |

—

by providing for the awarding of priority points in recognition of work undertaken in the interest of the institution for certain supplementary tasks which are already taken into account during the marking and awarding of Directorate-General priority points, Article 9 of the General Provisions for Implementing Article 45 of the Staff Regulations infringes Article 45 of those Regulations as well as the principle that officials should have reasonable career prospects, and the principle of equal treatment;

| — | in providing for the award of transitional priority points based only on seniority within a grade during the 2005 promotion year, Article 13(3) of the Rules for Implementing Article 45 infringes Article 9 of the Staff Regulations; |
| --- | --- |

—

in providing for the award of transitional priority points based only on seniority within a grade during the 2005 promotion year, Article 13(3) of the Rules for Implementing Article 45 infringes Article 9 of the Staff Regulations;

| — | in providing for more favourable treatment for officials of Directorates-General or services that have fewer staff, including the staff of the Private Offices of Members of the Commission, Article 6(2) of the General Provisions for Implementing Article 45 of the Staff Regulations infringes Article 45 of those Regulations as well as the principle that officials should have reasonable career prospects, and the principle of equal treatment. |
| --- | --- |

—

in providing for more favourable treatment for officials of Directorates-General or services that have fewer staff, including the staff of the Private Offices of Members of the Commission, Article 6(2) of the General Provisions for Implementing Article 45 of the Staff Regulations infringes Article 45 of those Regulations as well as the principle that officials should have reasonable career prospects, and the principle of equal treatment.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/21 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/21

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Action brought 11 August 2006 — Nolin v Commission

(Case F-91/06)

(2006/C 237/36)

Language of the case: French

Parties

Applicant: Michel Nolin (Brussels, Belgium) (represented by: S. Orlandi, 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 appeal assessor's decision, of 8 April 2006, setting out the applicant's Career Progress Report (CPR) for the 2005 assessment exercise; |
| --- | --- |

—

annul the appeal assessor's decision, of 8 April 2006, setting out the applicant's Career Progress Report (CPR) for the 2005 assessment exercise;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant claims that the defendant erred in law, in as far as some essential tasks and points relating to his work were not mentioned by the assessor and no comments on those tasks are made in his CPR. That situation is due to serious inconsistencies and inadequacies comparable to manifest errors of fact in the consideration of the factors relevant to his assessment.

Furthermore, the applicant considers that, despite the two changes made by the assessor in his comments as compared with the 2003 reference exercise, the applicant's report from the previous year was repeated, in breach of Article 5 of the general provisions implementing Article 43 of the Staff Regulations, whilst significant changes in the applicant's functions had taken place and the repetition of the previous year's report had taken place without the applicant's consent.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/21 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/21

---

Action brought on 11 August 2006 — Magdalena Antas v Council of the European Union

(Case F-92/06)

(2006/C 237/37)

Language of the case: French

Parties

Applicant: Magdalena Antas (Warsaw, Poland) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | annul the Council's decision rejecting the applicant's claim for damages for suffering caused by the successive errors made by the institution; |
| --- | --- |

—

annul the Council's decision rejecting the applicant's claim for damages for suffering caused by the successive errors made by the institution;

| — | fix a time-limit for the parties so as to allow them to agree on the correct level of compensation for the damage suffered by the applicant; |
| --- | --- |

—

fix a time-limit for the parties so as to allow them to agree on the correct level of compensation for the damage suffered by the applicant;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant took up her duties as a member of the auxiliary staff in the General Secretariat of the Council on 1 November 2003 and her contract ended on 31 March 2005. From 1 January 2005, the Council automatically affiliated her to the compulsory Belgian social security scheme for the last three months of her employment. Subsequently, the Council informed the applicant of her affiliation to the abovementioned scheme with retroactive effect, dated back to the day on which she took up her duties. However, according to the applicant, as a result of the lateness of her affiliation, she was unable to meet the conditions for receiving Belgian unemployment benefits, as laid down in the Belgian Royal Decree of 25 November 1991 on the regulation of unemployment (1). She was therefore unable to prove that she had sufficient means to be granted a residence permit that would allow her to remain in Belgium for more than three months, in accordance with Article 7 of Directive 2004/38/EC (2). Furthermore, the lateness of the affiliation deprived her of the right that she would have enjoyed under Annex XII of the Treaty of Accession of Poland to the European Union of access to the Belgian labour market.

In support of her application, the applicant pleads first of all infringement of Article 70 of the Conditions of Employment of other servants of the European Communities, which lays down the institution's obligation to affiliate auxiliary staff to a compulsory social security scheme and to take responsibility for the employer's contributions required under the legislation in force.

Next, the applicant claims infringement of Articles 4 and 8 of the Belgian Royal Decree of 5 November 2002 establishing an immediate declaration of employment (3).

Finally, the applicant relies on infringement of the duty to have regard for the welfare of officials.

---

(1)  Moniteur belge of 31 December 1991, p. 29888.

(2)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, p. 77).

(3)  Moniteur belge of 20 November 2002, p. 51778.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/22 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/22

---

Action brought on 16 August 2006 — Dethomas v Commission

(Case F-93/06)

(2006/C 237/38)

Language of the case: French

Parties

Applicant: Bruno Dethomas (Rabat, Morocco) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | Annul the Commission decision of 11 January 2006 appointing the applicant a probationary official of the European Communities, as Head of the Commission delegation to Morocco in the Directorate-General for External Relations, in so far as it classifies him in Grade A*14, step 2; |
| --- | --- |

—

Annul the Commission decision of 11 January 2006 appointing the applicant a probationary official of the European Communities, as Head of the Commission delegation to Morocco in the Directorate-General for External Relations, in so far as it classifies him in Grade A*14, step 2;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

While he was a member of the temporary staff in Grade A*14, step 8, the applicant applied for the post advertised in vacancy notice COM/229/04 for the recruitment of the Head of the Commission Delegation to Morocco (1). His application being successful, he was appointed a probationary official in Grade A*14, step 2.

In his application, the applicant claims that, since he was appointed an official in the same Grade immediately following his period of service as a member of the temporary staff, the Commission should have appointed him, under the third paragraph of Article 32 of the Staff Regulations, in grade A*14, step 8. By refusing him the benefit of that provision, the Commission made a manifest error of law.

---

(1)  OJ C 246 A, 5.10.2004, p. 1.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/22 |
| --- | --- | --- | --- |

30.9.2006

EN

Official Journal of the European Union

C 237/22

---

Action brought on 11 August 2006 — F v Commission

(Case F-94/06)

(2006/C 237/39)

Language of the case: French

Parties

Applicant: F (Brussels, Belgium) (represented by: J. Van Rossum, S. Orlandi and J.-N. Louis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | Annul the decision of the Director of DG ADMIN/C ‘Social welfare policy, Luxembourg staff, health, safety’ of 23 February 2006 to retire the applicant and to award him an invalidity allowance fixed in accordance with the provisions of the second paragraph of Article 78 of the Staff Regulations, with retrospective effect from 1 February 2002; |
| --- | --- |

—

Annul the decision of the Director of DG ADMIN/C ‘Social welfare policy, Luxembourg staff, health, safety’ of 23 February 2006 to retire the applicant and to award him an invalidity allowance fixed in accordance with the provisions of the second paragraph of Article 78 of the Staff Regulations, with retrospective effect from 1 February 2002;

| — | Order the defendant to pay the applicant a sum assessed on equitable principles at EUR 15 000; |
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—

Order the defendant to pay the applicant a sum assessed on equitable principles at EUR 15 000;

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

Order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant puts forward very similar pleas to those in Case F-44/06 (1), which he also brought.

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(1)  OJ C 154, 1.7.2006, p. 25.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/23 |
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Action brought on 11 August 2006 — Taruffi v Commission

(Case F-95/06)

(2006/C 237/40)

Language of the case: French

Parties

Applicant: Adrien Taruffi (Schouweiler, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | Declare illegal Article 4(1) of the General Implementing Provisions for Article 45 of the Staff Regulations, adopted by the Commission decision of 23 December 2004 (GIP); |
| --- | --- |

—

Declare illegal Article 4(1) of the General Implementing Provisions for Article 45 of the Staff Regulations, adopted by the Commission decision of 23 December 2004 (GIP);

| — | Annul the Commission decisions fixing the applicant's merit and priority points in respect of the 2004 and 2005 promotion exercises and the decisions not to include his name on the merit list after Promotion Committees and on the list of officials promoted to Grade B*10 in the 2004 promotion exercise; |
| --- | --- |

—

Annul the Commission decisions fixing the applicant's merit and priority points in respect of the 2004 and 2005 promotion exercises and the decisions not to include his name on the merit list after Promotion Committees and on the list of officials promoted to Grade B*10 in the 2004 promotion exercise;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant argues that there was no genuine examination of his merits in the appraisal carried out by the Promotion Committee, following the administration's positive response to his first complaint.

As regards the 2004 exercise, the applicant pleads, inter alia, that there was a manifest error of assessment in that his merits in the 2004 exercise were compared to those of the officials covered by the ‘research’ budget whereas, for that exercise, he was covered by the ‘operations’ budget.

As regards the 2005 exercise, the applicant regards as illegal the Commission's interpretation of Article 4(1) of the GIP, under which, even though the applicant had been assigned to two separate Directorates-General and an interim report had been drawn up for the first part of 2004 including the award of merit points, only the Directorate-General responsible for establishing his final report would have the power to award priority points.

In general, the applicant submits that the contested decisions were adopted in breach of Article 45 of the Staff Regulations and that length of service, rather than merit, was taken into account as the decisive criterion.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/23 |
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Action brought on 10 August 2006 — G v Commission of the European Communities

(Case F-96/06)

(2006/C 237/41)

Language of the case: French

Parties

Applicant: G (Port-Vendres, France) (represented by: B. Camber and L. Cambier, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare that the defendant is liable for the wrongful acts that it has committed to the applicant's detriment; |
| --- | --- |

—

declare that the defendant is liable for the wrongful acts that it has committed to the applicant's detriment;

| — | order the defendant to pay provisional damages of EUR 1 581 801 to the applicant and his family, which corresponds to half of the damage caused by all of the wrongful acts committed by the Commission, its agents, employees and/or other dependent bodies, the other half having to be assessed with the assistance of an expert; |
| --- | --- |

—

order the defendant to pay provisional damages of EUR 1 581 801 to the applicant and his family, which corresponds to half of the damage caused by all of the wrongful acts committed by the Commission, its agents, employees and/or other dependent bodies, the other half having to be assessed with the assistance of an expert;

| — | order the defendant to pay 8 % interest on all of the abovementioned sums from 23 November 1999 onwards, when the first report of the internal enquiry of the European Anti-Fraud Office (OLAF) was published, in which the first signs of bias against the applicant appeared, or, in the alternative, from 29 June 2005 onwards, when the applicant lodged a request for compensation under Article 90(1) of the Staff Regulations; |
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order the defendant to pay 8 % interest on all of the abovementioned sums from 23 November 1999 onwards, when the first report of the internal enquiry of the European Anti-Fraud Office (OLAF) was published, in which the first signs of bias against the applicant appeared, or, in the alternative, from 29 June 2005 onwards, when the applicant lodged a request for compensation under Article 90(1) of the Staff Regulations;

| — | appoint an expert; |
| --- | --- |

—

appoint an expert;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant puts forward eight pleas in law.

First, he criticises the Commission for placing him at the heart of the ‘Berthelot’ affair and for considering him as the leading instigator of that affair, whereas in fact all of these allegations were false, and there was not the slightest evidence to support any such allegations against the applicant. In doing so, the Commission failed to fulfil its duty to have regard for the interests of officials and its duty of good administration, and frustrated the applicant's legitimate expectations.

Second, the applicant criticises the Commission for having gravely compromised his right to a fair hearing through all the failures and deficiencies in the administrative enquiries stemming from the ‘Berthelot’ affair, which were not carried out impartially.

Third, the applicant claims breach of the Commission's duty of confidentiality in allowing journalists, during the course of the year 2000, to enter OLAF's premises and thereby gain knowledge of certain confidential documents concerning the applicant, details of which were then broadcast in a television programme.

Fourth, the Commission criticises the Commission's decision to lift his immunity from jurisdiction.

Fifth, the applicant criticises the Commission for transferring him to the post of Chief Adviser in the Directorate-General Research and Technological Development, not in the interests of the Commission's service nor by applying the institution's mobility policy, but as a veiled disciplinary sanction.

Sixth, regarding the procedure for recognition of the occupational cause of the applicant's illness (Article 73 of the Staff Regulations), the applicant contests the Commission's decisions to exclude, from the outset, the possibility that his illness might be work-related, and to transfer his file to the Investigation and Disciplinary Office of the Commission (IDOC), so that the latter could carry out administrative enquiries seeking to determine the cause of his illness.

Seventh, the applicant relies on the independence of the procedures governed by Articles 73 and 78 of the Staff Regulations and contests the Commission Invalidity Committee's decision indefinitely to stay the proceedings under Article 78(5) of the Staff Regulations, until a decision has been taken on the basis of Article 73 of the Staff Regulations.

Eighth, the applicant finds fault with the fact that disciplinary proceedings against him were initiated and continued, while the evidence that formed the basis of those proceedings had been found to be baseless by the Belgian courts, in criminal proceedings brought against the applicant.

The applicant concludes that the Commission's abovementioned wrongful acts are the cause of the nervous depression which forced him prematurely to end his career as an official. This state of affairs caused material damage and pain and suffering to him and his family.

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| 30.9.2006 | EN | Official Journal of the European Union | C 237/24 |
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Action brought on 15 August 2006 — Adelaida Lopez Teruel v Office of Harmonisation for the Internal Market

(Case F-97/06)

(2006/C 237/42)

Language of the case: French

Parties

Applicant: Adelaida Lopez Teruel (El Casar, Spain) (represented by: G. Vandersanden, L. Levi and C. Ronzi, lawyers)

Defendant: Office of Harmonisation for the Internal Market

Form of order sought

| — | annul the appointing authority's decision of 6 October 2005 to refuse the applicant's request to convene an Invalidity Committee, in accordance with Article 78 of the Staff Regulations; |
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—

annul the appointing authority's decision of 6 October 2005 to refuse the applicant's request to convene an Invalidity Committee, in accordance with Article 78 of the Staff Regulations;

| — | in so far as it is necessary, annul the appointing authority's decision of 5 May 2006 rejecting the complaint lodged by the applicant on 6 January 2006; |
| --- | --- |

—

in so far as it is necessary, annul the appointing authority's decision of 5 May 2006 rejecting the complaint lodged by the applicant on 6 January 2006;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of OHIM, sent a request to the administration on 8 June 2005 asking that an Invalidity Committee be convened so as to decide on the existence of an invalidity within the meaning of Article 78 of the Staff Regulations. OHIM refused to convene such a Committee, pointing out first, that the appointing authority has discretion in such matters, and, second, that the disease she referred to could not give rise to invalidity proceedings, given that it had already given rise to arbitration proceedings.

In her application, the applicant raises three pleas in law, of which the first, alleging infringement of Article 78 of the Staff Regulations, is made up of two parts. In the first part, it is argued that the official in question has the right to bring a matter before the Invalidity Committee, irrespective of the right to do so also given to the appointing authority, given that Articles 78 and 59 of the Staff Regulations have a different ratio legis and govern different types of situations. In the second part, the applicant takes issue with OHIM for having committed a manifest error of assessment and having exceeded the bounds of its powers, in that it substituted its assessment for that of medical experts.

The second plea alleges infringement of the duty to have regard for the welfare of officials and the principle of good administration. Specifically, OHIM did not weigh in the balance the interests in issue and did not at any time take into account the applicant's extremely delicate state of health.

The third plea alleges infringement of the principles of non-discrimination and equal treatment. According to the applicant, all other European Community officials can invoke the right to have their cases examined by an Invalidity Committee, unlike those of OHIM. The interpretation by OHIM of Article 78 of the Staff Regulations would lead to a rupture of the single administration of the Communities, as enshrined in Article 9(3) of the Treaty of Amsterdam.

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III Notices

| 30.9.2006 | EN | Official Journal of the European Union | C 237/26 |
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(2006/C 237/43)

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

OJ C 224, 16.9.2006

Past publications

OJ C 212, 2.9.2006

OJ C 190, 12.8.2006

OJ C 178, 29.7.2006

OJ C 165, 15.7.2006

OJ C 154, 1.7.2006

OJ C 143, 17.6.2006

These texts are available on:

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

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