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I Information

Court of Justice

COURT OF JUSTICE

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JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-181/03 P: Albert Nardone, v Commission of the European Communities (1)

(Appeal - Former official - Application for invalidity pension - Conditions for granting)

(2005/C 69/01)

Language of the case: French

In Case C-181/03 P: appeal under Article 56 of the Statute of the Court of Justice, lodged at the Court on 25 April 2003 by Albert Nardone, former official of the Commission of the European Communities, residing in Piétrain (Belgium), (lawyer: I. Kletzlen), the other party to the proceedings being the Commission of the European Communities (Agent: J. Currall) – the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas, R. Silva de Lapuerta (Rapporteur), S. von Bahr and K. Schiemann, Judges; L.M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 13 January 2005, in which it:

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(1)OJ C 158 of 5.7.2003.

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 13 January 2005

in Case C-126/04 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): Heineken Brouwerijen BV v Hoofdproductschap Akkerbouw (1)

(Cereals - Import regime - Community tariff quota for barley for malting - Discrimination)

(2005/C 69/02)

Language of the case: Dutch

In Case C-126/04: reference to the Court under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 18 February 2004, received at the Court on 8 March 2004, in the proceedings between Heineken Brouwerijen BV and Hoofdproductschap Akkerbouw – the Court (Fourth Chamber), composed of K. Lenaerts (Rapporteur), President of the Chamber, E. Juhász and M. Ilešič, Judges; C. Stix-Hackl Advocate General; R. Grass, Registrar, has given a judgment on 13 January 2005, in which it has ruled:

Consideration of the questions raised has disclosed nothing capable of affecting the validity of Council Regulation (EC) No 1269/1999 of 14 June 1999 and Council Regulation No 822/2001 of 24 April 2001 opening a Community tariff quota for barley for malting falling within CN code 1003 00.

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(1)OJ C 106 of 30.04.2004.

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ORDER OF THE COURT

(Sixth Chamber)

of 25 November 2004

in Case C-18/03 P Vela Srl and Tecnagrind SL v Commission of the European Communities (1)

(Appeal - EAGGF - Financial participation in projects - Withdrawal of the Fund's financial aid)

(2005/C 69/03)

Language of the case: Italian

In Case C-18/03 P: appeal under Article 49 of the EC Statute of the Court of Justice, brought on 16 January 2003 by Vela Srl, established in Milan (Italy), and Tecnagrind SL, established in Barcelona (Spain), (Lawyer: M. Carretta), the other party to the proceedings being the Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio, assisted by M. Moretto) – the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, S. von Bahr and A. Ó Caoimh (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, has made an order on 25 November 2004, the operative part of which is as follows:

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(1)OJ C 70 of 22.03.2003.

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ORDER OF THE COURT

(Fifth Chamber)

of 8 October 2004

in Case C-248/03 Commission of the European Communities v Transport Environment Development Systems (Trends) and Others (1)

(Arbitration clause - Decision 2004/407/EC, Euratom - Articles 2 and 3 - Reference to the Court of First Instance)

(2005/C 69/04)

Language of the case: Greek

In Case C-248/03: application under Article 238 EC, brought on 6 June 2003, by Commission of the European Communities (Agent: M. Patakia, assisted by M. Bra, K. Kapoutzidou and S. Chatziyiannis) against Transport Environment Development Systems (Trends), a civil partnership with non-profit-making aims, established in Athens (Greece), (Lawyer: V. Christianos), Marios Kontaratos, residing in Athens (Greece), Anastasios Tillis, residing in Neo Irakleio, Attica (Greece), (Lawyer: V. Christianos), Georgios Argyrakos, residing in Athens (Greece), Konstantinos Petrakis, residing in Cholargos, Attica (Greece), Fotini Koutrouba, residing in Glyfada, Attica (Greece) – the Court (Fifth Chamber), composed of C. Gulmann, acting for the President of the Chamber, R. Schintgen and G. Arestis (Rapporteur), Judges; M. Poiares Maduro, Advocate General: R. Grass, Registrar, has made an order on 8 October 2004, the operative part of which is as follows:

Case C-248/03 is referred to the Court of First Instance of the European Communities.

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(1)OJ C 184 of 02.08.2003.

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ORDER OF THE COURT

(Fifth Chamber)

of 8 October 2004

in Case C-249/03 Commission of the European Communities v Transport Environment Development Systems (Trends) and Others (1)

(Arbitration clause - Decision 2004/407/EC, Euratom - Articles 2 and 3 - Reference to the Court of First Instance)

(2005/C 69/05)

Language of the case: Greek

In Case C-249/03: application under Article 238 EC, brought on 10 June 2003, by Commission of the European Communities (Agent: M. Patakia, assisted by M. Bra, K. Kapoutzidou and S. Chatziyiannis) against Transport Environment Development Systems (Trends), a civil partnership with non-profit-making aims, established in Athens (Greece), (Lawyer: V. Christianos), Marios Kontaratos, residing in Athens (Greece), Anastasios Tillis, residing in Neo Irakleio, Attica (Greece), (Lawyer: V. Christianos), Georgios Argyrakos, residing in Athens (Greece), Konstantinos Petrakis, residing in Cholargos, Attica (Greece), Fotini Koutrouba, residing in Glyfada, Attica (Greece) – the Court (Fifth Chamber), composed of C. Gulmann, acting for the President of the Chamber, R. Schintgen and G. Arestis (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has made an order on 8 October 2004, the operative part of which is as follows:

Case C-249/03 is referred to the Court of First Instance of the European Communities.

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(1)OJ C 184 of 02.08.2003.

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ORDER OF THE COURT

(Fourth Chamber)

of 18 November 2004

in Joined Cases C-261/03 and C-262/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per l'Emiglia-Romagna in Allevamenti Associati Srl v Regione Emilia-Romagna and Latteria Sociale Moderna Soc. Coop. Arl v Azienda di Stato per gli interventi nel mercato agricolo (AIMA) and Others (1)

(Reference for a preliminary ruling - Article 104(3) of the Rules of Procedure - Milk and milk products - Additional levy scheme - Treatment and processing by a dairy under a work contract - Concepts of ‘delivery’ and ‘direct sale’)

(2005/C 69/06)

Language of the case: Italian

In Joined Cases C-261/03 and C-262/03: reference for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per l'Emiglia-Romagna (Italy), made by decisions of 6 May 2003, received at the Court on 17 June 2003, in the proceedings Allevamenti Associati Srl v Regione Emilia-Romagna, supported by Agenzia per le Erogazioni in Agricoltura (AGEA) and Latteria Sociale Moderna Soc. Coop. arl (C-261/03), and Latteria Sociale Moderna Soc. Coop. arl v Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Servizio Provinciale Agricoltura di Reggio Emilia, Regione Emilia-Romagna, and Agenzia per le Erogazioni in Agricoltura (AGEA), supported by Allevamenti Associati Srl (C-262/03) – the Court (Fourth Chamber), composed of N. Colneric (Rapporteur), acting as President of the Fourth Chamber, J.N. Cunha Rodrigues and E. Juhász, Judges; L.A. Geelhoed, Advocate General; María Múgica Arzamendi, Principal Administrator, Registrar, made an order on 18 November 2004, the operative part of which is as follows:

Articles 1, 2 and 9(g) of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector and Article 1 of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as meaning that, in respect of the determination of milk quotas and the application of the additional levy, the fact that the milk-producing undertaking transfers, for payment, certain quantities of milk to third parties without relinquishing title to them, under a work contract relating to the treatment and processing of that milk into cheese, butter and skim milk, must be classified as delivery.

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(1)OJ C 200, 23.8.2003.

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ORDER OF THE COURT

(Fourth Chamber)

of 19 October 2004

in Case C-425/03: Reference for a preliminary ruling from the Giudice di pace di Milazzo in Provvidenza Regio v AXA Assicurazioni SpA (1)

(Reference for a preliminary ruling - Inadmissibility)

(2005/C 69/07)

Language of the case: Italian

In Case C-425/03: reference for a preliminary ruling under Article 234 EC from the Giudice di pace di Milazzo (Italy), made by decision of 18 April 2003, received at the Court on 6 October 2003, in the proceedings between Provvidenza Regio and AXA Assicurazioni SpA the Court (Fourth Chamber), composed of K. Lenaerts (Rapporteur), President of Chamber, N. Colneric and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, made an order on 19 October 2004, the operative part of which is as follows:

The reference for a preliminary ruling made by the Giudice di pace di Milazzo, by decision of 18 April 2003, is manifestly inadmissible.

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(1)OJ C 289, 29.11.2003.

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ORDER OF THE COURT

(Third Chamber)

of 14 December 2004

in Case C-1/04 SA Tertir-Terminais de Portugal SA v Commission of the European Communities (1)

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

(2005/C 69/08)

Language of the case: French

In Case C-1/04 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 15 March 2004 by Tertir-Terminais de Portugal SA, established in Terminal do Freixieiro (Portugal), (represented by G. Vandersanden, C. Houssa, L. Lévi and F. Gonçalves Pereira, lawyers) against Commission of the European Communities (Agents: I. Martinez del Peral Cagigal and F. Clotuche-Duvieusart) – the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg-Barthet, S. von Bahr (Rapporteur), J. Malenovský and A. Ó Caoimh, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar; has made an order on 14 December 2004, the operative part of which is as follows:

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(1)OJ C 106 of 30.04.2004.

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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 15 December 2004 in Visserijbedrijf D.J. Koornstra Zn. V.o.f. v Productschap Vis

(Case C-517/04)

(2005/C 69/09)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 15 December 2004 received at the Court Registry on 20 December 2004, for a preliminary ruling in the proceedings between Visserijbedrijf D.J. Koornstra Zn. V.o.f. and Productschap Vis (Fish Marketing Board) on the following questions:

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Appeal brought on 27 December 2004 by the Kingdom of Spain against the judgment delivered on 21 October 2004 by the Court of First Instance (Fifth Chamber, Extended Composition) in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain

(Case C-525/04 P)

(2005/C 69/10)

Language of the case: German

An appeal against the judgment of the Court of First Instance of the European Communities (Fifth Chamber, Extended Composition) of 21 October 2004 in Case T- 36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain, was brought before the Court of Justice of the European Communities on 27 December 2004 by the Kingdom of Spain, represented by Juan Manuel Rodríguez Cárcamo, Abogado del Estado, with an address for service in Luxembourg.

The Kingdom of Spain claims that the Court should:

Pleas in law and main arguments:

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(1)OJ L 149 of 16.6.1999, p. 40.

(2)OJ L 11 of 16.1.2001, p. 46.

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Reference for a preliminary ruling by the Court of Cassation, Commercial, Financial and Economic Division, France by order of that court of 14 December 2004 in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale (Central Agency for Social Security Bodies)

(Case C-526/04)

(2005/C 69/11)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Court of Cassation, Commercial, Financial and Economic Division, France, of 14 December 2004, received at the Court Registry on 29 December 2004 for a preliminary ruling in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale on the following questions:

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Reference for a preliminary ruling by the Corte d'Appello di Cagliari by order of that court of 12 November 2004 in the case of Gaetano Verdoliva against J.M. Van Der Hoeven B.N.

(Case C-3/05)

(2005/C 69/12)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Corte d'Appello di Cagliari (Italy) of 12 November 2004, received at the Court Registry on 6 January 2005, for a preliminary ruling in the case of Gaetano Verdoliva and J.M. Van Der Hoeven B.N. on the following questions:

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Reference for a preliminary ruling by the Hoge Raad der Nederlanden of 7 January 2005 in the case of Staatssecretaris van Financiën v B.F. Joustra

(Case C-5/05)

(2005/C 69/13)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of 7 January 2005 of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), which was received at the Court Registry on 10 January 2005, for a preliminary ruling in the case of Staatssecretaris van Financiën v B.F. Joustra on the following questions:

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(1)  Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

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Reference for a preliminary ruling from the Simvoulio tis Epikratias by decision of that court of 17 November 2004 in Medipac — Th. Kazantzidis A.E. v Venizelio-Pananio (PE.S.I. Kritis)

(Case C-6/05)

(2005/C 69/14)

Language of the case: Greek

Reference has been made to the Court of Justice of the European Communities by decision of the Simvoulio tis Epikratias (Council of State, Greece) of 17 November 2004, received at the Court Registry on 5 January 2005, for a preliminary ruling in the proceedings between Medipac — Th. Kazantzidis A.E. and Venizelio-Pananio (PE.S.I. Kritis) on the following questions:

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Reference for a preliminary ruling from the Cour Administrative (Grand Duchy of Luxembourg) by judgment of that court of 11 January 2005 in Cynthia Mattern and Hajrudin Cikotic v Ministre du travail et de l'emploi

(Case C-10/05)

(2005/C 69/15)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour administrative (Higher Administrative Court) (Grand Duchy of Luxembourg) of 11 January 2005, received at the Court Registry on 14 January 2005, for a preliminary ruling in the proceedings between Cynthia Mattern and Hajrudin Cikotic and the Ministre du travail et de l'emploi on the following question:

Do Community rules concerning freedom of movement for workers apply to the situation of a national of a non-member State married to a Community national who has attended a vocational training course and professional training in a Member State other than her own, and may the non-Community spouse therefore be exempt from the requirement to obtain a work permit on the basis of rules guaranteeing to Community nationals and members of their families who are non-member country nationals the right to freedom of movement as workers?

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Reference for a preliminary ruling from Juzgado de lo Social No 33 by order of that court of 7 January 2005 in the case of Sonia Chacón Navas against Eurest Colectividades SA

(Case C-13/05)

(2005/C 69/16)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of Juzgado de lo Social (Social Court) No 33 (Spain) of 7 January 2005, received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of Sonia Chacón Navas against Eurest Colectividades SA on the following questions:

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

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Reference for a preliminary ruling by the House of Lords, by order of that court dated 2 December 2004, in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department

(Case C-16/05)

(2005/C 69/17)

Language of procedure: English

Reference has been made to the Court of Justice of the European Communities by order of the House of Lords, dated 2 December 2004, which was received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department on the following question:

Is Article 41(1) of the Additional Protocol to the Association Agreement signed at Brussels on 23 November 1970 to be interpreted as prohibiting a Member State from introducing new restrictions, as from the date on which that Protocol entered into force in that Member State, on the conditions of and procedure for entry to its territory for a Turkish national seeking to establish himself in business in that Member State?

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Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 11 January 2005, in the case of B.F. Cadman against Health & Safety Executive, Intervener: Equal Opportunities Commission

(Case C-17/05)

(2005/C 69/18)

Language of procedure: English

Reference has been made to the Court of Justice of the European Communities by order of the Court of Appeal (England & Wales) (Civil Division), dated 11 January 2005, which was received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of B.F. Cadman and Health & Safety Executive, Intervener: Equal Opportunities Commission on the following questions:

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Action brought on 25 January 2005 by the Commission of the European Communities against the Italian Republic

(Case C-21/05)

(2005/C 69/19)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 January 2005 by the Commission of the European Communities, represented by N. Yerrell and A. Aresu, acting as Agents.

The Commission claims that the Court should:

Pleas in law and main arguments

The time-limit for the transposition of the directive expired on 1 December 2003.

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(1)OJ L 302, 1.12.2000, p. 57.

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Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-24/05 P)

(2005/C 69/20)

Language of the case: German

An appeal against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 26 January 2005 (fax: 24 January 2005) by August Storck KG, represented by Ilse Rohr, Heidi Wrage-Molkenthin and Tim Reher, Rechtsanwälte, CMS Hasche Sigle, Stadthausbrücke 1-3, D-20355 Hamburg.

The appellant claims that the Court should:

Pleas on appeal and main arguments:

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

The Court of First Instance erred in law by requiring that the mark applied for must differ substantially from other comparable marks in the relevant product market. The distinctive character of the mark should instead be examined on its own merits, without reference to any similar marks on the market.

The mark applied for possesses inherent distinctiveness. The fact that consumers recognise the mark as a sweet does not prevent it from simultaneously having the function of an indication of trade origin. The colour three-dimensional mark serves as a signal and a recognition factor, especially in cases where the consumer is confronted with a very large choice, as in the confectionery market.

2.   Breach of the first sentence of Article 74(1) of Regulation No 40/94

Contrary to the view of the Court of First Instance, the Office should have examined and explained which similar or identical marks exist on the market – as it claims – if it seeks thereby to justify its refusal to register the mark. The Office may not base its decision on facts which have not been proved and which it merely presumes. If the Office considers it necessary – which the appellant does not – to measure the distinctiveness of the mark against other sweet designs available on the market, it must examine that market situation.

Likewise, the Court of First Instance may not itself rule on facts which have not been examined.

3.   Breach of Article 73 of Regulation No 40/94

In order to justify its finding that the mark applied for is devoid of distinctiveness, the Office relies on similar sweet designs which it claims exist on the market. The appellant has had no opportunity to express a view on those sweet designs allegedly existing on the market, since they have not been produced by the Office.

The appellant's right to a fair hearing has thereby been infringed.

4.   Breach of Article 7(3) of Regulation No 40/94

The objection of the Court of First Instance that the proof of use adduced does not demonstrate the exact use of the mark applied for, since that mark is accompanied by other marks, should be dismissed. By its nature, the three-dimensional mark appears along with other marks. The mark cannot be held to be devoid of distinctive character on the basis of that fact alone.

The dual function of a colour three-dimensional mark consisting of the shape of the product itself does not mean that it is not used as a mark even if, at the same time, it provides information about the design of the product.

In the context of proof of use, account is to be taken of all contact that the consumer has with the mark. The extent to which the consumer encounters the mark before or at the time of making his decision to purchase is not the sole determinant of proof of use. When the mark is noticed at a later point, in particular at the time when the product is consumed, this also contributes to its recognition.

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(1)OJ C 19, 22.1.2005.

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Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-25/05 P)

(2005/C 69/21)

Language of the case: German

An appeal against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 26 January 2005 (fax: 24 January 2005) by August Storck KG, represented by Ilse Rohr, Heidi Wrage-Molkenthin and Tim Reher, Rechtsanwälte, CMS Hasche Sigle, Stadthausbrücke 1-3, D-20355 Hamburg.

The appellant claims that the Court should:

Pleas on appeal and main arguments:

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

The Court of First Instance erred in law by requiring that the mark applied for must differ substantially from other comparable marks in the relevant product market. The distinctive character of the mark should instead be examined on its own merits, without reference to any similar marks on the market.

In any event, the public interest or a need to preserve the availability [of a mark] are not to be taken into consideration within the context of Article 7(1)(b) of Regulation No 40/94. The monopolisation of marks as such is intended by trade mark law. There is no evidence of an unjustified monopolisation.

The Office has not relied on other grounds of refusal in the context of which the public interest could be taken into consideration, in particular the grounds of refusal provided for under Article 7(1) (d) to (j) of Regulation No 40/94.

The mark applied for possesses inherent distinctiveness. The fact that consumers recognise the mark as a sweet wrapper does not prevent it from simultaneously having the function of an indication of trade origin. The colour three-dimensional mark serves as a signal and a recognition factor, especially in cases where the consumer is confronted with a very large choice, as in the confectionery market.

2.   Breach of the first sentence of Article 74(1) of Regulation No 40/94

Contrary to the view of the Court of First Instance, the Office should have examined and explained which similar or identical marks exist on the market – as it claims – if it seeks thereby to justify its refusal to register the mark. The Office may not base its decision on facts which have not been proved and which it merely presumes. If the Office considers it necessary – which the appellant does not – to measure the distinctiveness of the mark against sweet wrappers available on the market, it must examine that market situation.

3.   Breach of Article 73 of Regulation No 40/94

In order to justify its finding that the mark applied for is devoid of distinctiveness, the Office relies on similar sweet wrappers which it claims exist on the market. The appellant has had no opportunity to express a view on those sweet wrappers allegedly existing on the market, since they have not been produced by the Office.

The appellant's right to a fair hearing has thereby been infringed.

4.   Breach of Article 7(3) of Regulation No 40/94

The mark applied for has at least acquired distinctiveness through its extensive use in the EC. The evidence relating to sales volumes and advertising expenditure for goods designated by that mark should have been taken into account even in the absence of comparative figures concerning the sweet market as a whole which the Office required.

Contrary to the view expressed by the Office and the Court of First Instance, it is not necessary to adduce evidence for all Member States of the EC that the mark has become distinctive in consequence of the use that has been made of it. In the light of the objective of establishing a single market in all Member States of the EC, it is appropriate to analyse the dissemination and recognition of the mark applied for within the territory of the EC, without regard to national borders. Consequently, the evidence of use adduced by the appellant is sufficient to form the basis for a finding that the mark has distinctive character in the EC.

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(1)OJ C 19, 22.1.2005.

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Action brought on 31 January 2005 by the Commission of the European Communities against the Kingdom of Spain

(Case C-36/05)

(2005/C 69/22)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 31 January 2005 by the Commission of the European Communities, represented by Ramón Vidal and Wouter Wils, of its Legal Service.

The Commission claims that the Court should:

Pleas in law and main arguments

Article 1 of Directive 92/100/EEC imposes a duty on Member States to accord authors the exclusive right to authorise or prohibit the lending of his works. Article 5(1) of the Directive provides that the Member States may derogate from that exclusive right, provided that authors at least obtain a remuneration for unauthorised lending. In accordance with Article 5(3) of the Directive, Member States may ‘exempt’ from payment of that remuneration only ‘certain categories of establishments’.

Articles 17 and 19 of the Ley de Propriedad Intelectual (Law on Intellectual Property) (‘LPI’) recognise, in principle, the exclusive right of authors to authorise lending of their works. However, Article 37.2 of the LPI renders that right meaningless, by exempting practically every, if not all lending from the obligation to obtain the authors' prior authorisation and the obligation to pay a remuneration. On those grounds, the Commission takes the view that Article 37.2 of the LPI is contrary to the Kingdom of Spain's obligations under Articles 1, 5(1) and 5(3) of the Directive.

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(1)OJ L 346, de 27.11.1992, p. 61.

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

(2005/C 69/23)

(Languages of the case: all official languages)

By order of 16 December 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Opinion C-1/04: European Parliament.

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(1)OJ C 118 of 30.4.2004.

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COURT OF FIRST INSTANCE

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 January 2005

in Case T-141/01 Entorn, Societat Limitada Enginyeria i Serveis v Commission of the European Communities (1)

(EAGGF - Financial participation in a demonstration project concerning the introduction of new cultivation techniques in sumac production - Cancellation of financial assistance from the fund)

(2005/C 69/24)

Language of the case: Spanish

In Case T-141/01: Entorn, Societat Limitada Enginyeria i Serveis, established in Barcelona (Spain), represented by M. Belard-Kopke Marques-Pinto and C. Viñas Llebot, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: S. Pardo and L. Visaggio, with an address for service in Luxembourg) – action for annulment of Commission Decision C(1999) 534 of 4 March 1999 cancelling the financial assistance of the Guidance Section of the European Agriculture Guidance and Guarantee Fund (EAGGF) initially granted to the applicant by Decision C(93)3394 of 26 November 1993, in accordance with Council Regulation (EEC) No 4256/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the EAGGF Guidance Section (OJ 1988 L 374, p. 25), for the financing of a demonstration project concerning the introduction of new cultivation techniques in sumac production (Project No 93.ES.06.030) – the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 18 January 2005, in which it:

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(1)OJ C 289 of 13.10.2001.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 January 2005

in Case T-93/02: Confédération nationale du Crédit Mutuel v Commission of the European Communities (1)

(State aid - Measures taken by the French Republic for Crédit Mutuel - Livret bleu - Decision 2003/216/EC - Duty to state reasons - Action for annulment)

(2005/C 69/25)

Language of the case: French

In Case T-93/02: Confédération nationale du Crédit Mutuel, established in Paris (France), represented by A. Carnelutti and J.-P. Gunther, lawyers, supported by French Republic (Agents: G. de Bergues and F. Million, with an address for service in Luxembourg), against Commission of the European Communities (Agent: G. Rozet, with an address for service in Luxembourg) — action for annulment of Commission Decision 2003/216/EC of 15 January 2002 on State aid granted by France to Crédit Mutuel (OJ 2003 L 88, p. 39), in the form of excess compensation for collection and management costs of regulated savings under the ‘Livret bleu’ system — the Court of First Instance (Second Chamber, Extended Composition), composed of J. Pirrung, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges, J. Palacio González, Principal Administrator, for the Registrar; has given a judgment on 18 January 2005, in which it:

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(1)OJ C 131 of 1.6.2002.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 12 January 2005

in Joined Cases T-367/02 to T-369/02: Wieland-Werke AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word marks SnTEM, SnPUR and SnMIX - Absolute grounds for refusal - Descriptive nature - Article 7(1)(c) of Regulation (EC) No 40/94)

(2005/C 69/26)

Language of the case: German

In Joined Cases T-367/02 to T-369/02: Wieland-Werke AG, established at Ulm (Germany), represented by S. Gruber and F. Graf von Stosch, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: T.L. Eichenberg and G. Schneider) — applications for annulment of three decisions of the First Board of Appeal of the OHIM of 25 September 2002 (Cases R 338/2001-1, R 337/2001-1 and R 335/2001-1), concerning applications for registration of word marks SnTEM, SnPUR and SnMIX as Community trade marks — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 12 January 2005, in which it:

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(1)OJ C 55 of 8.3.2003.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 12 January 2005

in Case T-334/03: Deutsche Post EURO EXPRESS GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - EUROPREMIUM - Absolute ground for refusal - Descriptive nature - Article 7(1)(c) of Regulation (EC) No 40/94)

(2005/C 69/27)

Language of the case: German

In Case T-334/03: Deutsche Post EURO EXPRESS GmbH, represented initially by G. Lindhofer and subsequently by K.-U. Jonas, lawyers, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: initially by U. Pfleghar and G. Schneider and subsequently by A. von Mühlendahl and G. Schneider) — action against the decision of the Fourth Board of Appeal of OHIM of 20 June 2003 (Case R 348/2002-4) regarding registration of the sign EUROPREMIUM as a Community trade mark — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and O. Czúcz, Judges; B. Pastor, Deputy Registrar, for the Registrar, has given a judgment on 12 January 2005, in which it:

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(1)OJ C 289 of 29.11.2003.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 19 January 2005

in Case T-387/03: Proteome Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark BIOKNOWLEDGE - Absolute grounds for refusal - Article 7(1)(c) of Regulation (EC) No 40/94 - Descriptive sign)

(2005/C 69/28)

Language of the case: English

In Case T-387/03: Proteome Inc., established at Beverly, Massachusetts (United States), represented by M. Edenborough, Barrister, C. Jones, A. Brodie and C. Loweth, Solicitors, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: P. Bullock and S. Laitinen) — action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 August 2003 (Case R 0707/2002-4), and the examiner's decision of 21 June 2002 refusing registration of the word mark BIOKNOWLEDGE — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has given a judgment on 19 January 2005, in which it:

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(1)OJ C 21 of 24.1.2004.

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ORDER OF THE COURT OF FIRST INSTANCE

of 10 December 2004

in Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (1)

(Manifest inadmissibility - Concept of measure of individual concern to an applicant - European Economic Interest Group - Contracts being performed - Intellectual property rights)

(2005/C 69/29)

Language of the case: English

In Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI), established in Brussels (Belgium), represented by K. Van Maldegem and C. Mereu, Lawyers, against European Parliament (Agents: J. L. Rufas Quintana, M. Moore and K. Bradley, with an address for service in Luxembourg) and Council of the European Union (Agents: E. Karlsson and C. Giorgi Fort), application for the annulment of:

the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has given a judgment on 10 December, the operative part of which is as follows:

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(1)OJ C 184 of 2.8.2003.

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ORDER OF THE COURT OF FIRST INSTANCE

of 10 December 2004

in Case T-261/03 Euro Style 94 Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Application for figurative Community trade mark including the verbal element ‘GLOVE’ - National and international figurative and verbal marks ‘GLOBE’ - Relative ground for refusal - Article 8(1)(b) of Regulation No 40/94 - Action clearly devoid of legal foundation)

(2005/C 69/30)

Language of the case: English

In Case T-269/04, Euro Style 94 Srl, established in Baretta (Italy), represented by G. Pica, lawyer, with an address for service in Luxembourg, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Laporta Insa and A. Folliard-Monguiral), the other party to the proceedings before the Board of Appeal of the OHIM being RCN-Companhia de Importacao e Esportacao de Texteis, LDA, established in Oeiras (Portugal); appeal against the decision of the Second Board of Appeal of the OHIM of 19 May 2003 (Case R 67/2001-2), concerning an opposition procedure between RCN-Companhia de Importacao e Esportacao and Eurostyle 94 Srl, the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S.S. Papasavvas, Judges; Registrar, H. Jung, made an order on 10 December 2004, the operative part of which is as follows:

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(1)OJ C 264 of 1.11.2003

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 22 December 2004

in Case T-201/04 R Microsoft Corporation v Commission of the European Communities

(Proceedings for interim relief - Article 82 EC)

(2005/C 69/31)

Language of the case: English

In Case T-201/04 R: Microsoft Corporation, established in Redmond, Washington (United States), represented by J.-F. Bellis, lawyer, and I.S. Forrester QC, supported by The Computing Technology Industry Association, Inc., established in Oakbrook Terrace, Illinois (United States), represented by G. van Gerven and T. Franchoo, lawyers, and B. Kilpatrick, Solicitor, Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by L. Ruessmann and P. Hecker, lawyers, TeamSystem SpA, established in Pesaro (Italy) and Mamut ASA, established in Oslo (Norway), both represented by G. Berrisch, lawyer, DMDsecure.com BV, established in Amsterdam (Netherlands), MPS Broadband AB, established in Stockholm (Sweden), Pace Micro Technology plc, established in Shipley, West Yorkshire (United Kingdom), Quantel Ltd, established in Newbury, Berkshire (United Kingdom) and Tandberg Television Ltd, established in Southampton, Hampshire (United Kingdom), all represented by J. Bourgeois, lawyer, Exor AB, established in Uppsala (Sweden), represented by S. Martínez Lage, H. Brokelmann and R. Allendesalazar Corcho, lawyers against Commission of the European Communities (Agents: R. Wainwright, W. Mölls, F. Castillo de la Torre and P. Hellström), supported by RealNetworks, Inc., established in Seattle, Washington (United States), represented by A. Winckler, M. Dolmans and T. Graf, lawyers, Software & Information Industry Association, established in Washington, DC, represented by C.A. Simpson, Solicitor, Free Software Foundation Europe eV, established in Hamburg (Germany), represented by C. Piana, lawyer — application for suspension of the operation of Articles 4, 5(a) to (c) and 6(a) of Commission Decision C(2004) 900 final of 24 March 2004 relating to a proceeding under Article 82 EC (Case COMP/C-3/37.792 Microsoft) — the President of the Court of First Instance has made an order on 22 December 2004, the operative part of which is as follows:

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ORDER OF THE COURT OF FIRST INSTANCE

of 13 December 2004

in Case T-269/04 IDOM SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

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

(2005/C 69/32)

Language of the case: Spanish

In Case T-269/04, IDOM SA, established in Bilbao, Spain, represented by Tatiana Villate Consonni, lawyer, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: Ignacio de Medrano Caballero), the other party to the proceedings before the Board of Appeal of the OHIM being IDOM Inc., established in New Jersey (United States), represented by Fry Heath and Spence LLP, lawyers; appeal against the decision of the Second Board of Appeal of the OHIM of 27 April 2004 (Case R 153/2003-2), concerning registration of the sign IDOM as a Community trade mark, the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, M.E. Martins Ribeiro and K. Jürimäe, Judges; Registrar, H. Jung, made an order on 13 December 2004, the operative part of which is as follows:

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(1)OJ C 217 of 28.8.2004.

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 10 November 2004

in Case T-303/04 R, European Dynamics SA v Commission of the European Communities

(Public service contracts - Community tender procedure - Interim measures - Application for suspension of operation - Urgency - None)

(2005/C 69/33)

Language of the case: English

In Case T-303/04 R, European Dynamics SA, established in Athens (Greece), represented by S. Pappas, lawyer, against Commission of the European Communities (Agents: L. Parpala and E. Manhaeve, and J. Stuyck, lawyer, with an address for service in Luxembourg) — application for suspension of operation of, first, the Commission's decision of 4 June 2004 (DIGIT/R2/CTR/mas D(2004) 324) to rank only in second place the offer submitted by the consortium of which the applicant is a member following a call for tenders for the provision of informatics services and, second, the Commission's decision of 14 July 2004 (DG DIGIT/R2/CTR/mas D(2004) 811) rejecting the applicant's complaints of 21 June, 1, 5 and 8 July 2004 against the award of the contract to another consortium — the President of the Court of First Instance has made an order on 10 November 2004, the operative part of which is as follows:

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Action brought on 30 November 2004 by HEG Limited and Graphite India Limited against the Council of the European Union

(Case T-462/04)

(2005/C 69/34)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 30 November 2004 by HEG Limited, New Delhi, India and Graphite India Limited, Kolkata, India, represented by Dr K. Adamantopoulos, lawyer and J. Branton, Solicitor.

The applicants claim that the Court should:

Pleas in law and main arguments

Following complaints introduced on behalf of Community producers of graphite electrodes, the Commission initiated parallel anti-subsidy and anti-dumping proceedings against imports of the product concerned from India. These proceedings led to the adoption of the contested regulation.

The applicants are two Indian companies which manufacture and export the product concerned to the European Union. In support of their application they submit first of all that the Commission services and finally the Council failed to investigate other obvious sources of injury, namely dumped imports from other third countries, even when presented with strong evidence of them by Indian exporters. On this basis the applicants invoke a violation of Article 9 paragraph 5 of Regulation 384/96 (3) and of Article 9 paragraph 2 of the Agreement on Implementation of Article VI of the GATT (Anti-dumping agreement), a violation of the principle of non-discrimination and of fundamental procedural requirements and a manifest error of assessment.

The applicants further submit that both contested regulations are vitiated by the infringement of fundamental procedural requirements provided by Regulation 2026/97 (4) and Regulation 384/96 respectively as well as by the Anti-dumping agreement and the Agreement on subsidies and countervailing measures, having imposed anti-dumping and countervailing measures on the basis of a Community of 25 Member States even though the investigation was initiated and conducted on the basis of a 15 Member States.

The applicants also contend that Regulation 1628/2004 imposes countervailing duties in inappropriate amounts in respect of the Indian DEPB post-export scheme thus violating Regulation 2026/97, the Agreement on subsidies and countervailing measures and the principle of proportionality, committing a manifest error of assessment and breaching fundamental procedural requirements.

The applicants also invoke violations of Regulations 2026/97 and 384/96 respectively, of the anti-dumping agreement and the Agreement on subsidies and countervailing measures, as well as a manifest error of assessment, contending that the contested measures base material injury determination on data made unreliable by the existence of anti-competitive market sharing and price fixing agreements between the members of the Community industry, confirmed and sanctioned by a decision of the Commission itself.

Finally, the applicants contend that the contested measures respectively violate Article 3 paragraph 2 of Regulation 384/96 and Article 8 paragraph 7 of Regulation 2026/97 in failing to remove the effects of other factors in determining its final injury analysis and thereby attributing injury caused by other factors to Indian imports.

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(1)OJ L 295, 18.9.2004, p. 4.

(2)OJ L 295, 18.9.2004, p. 10.

(3)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ L 56, 6.3.1996, p. 1.

(4)  Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidized imports from countries not members of the European Community, OJ L 288, 21.10.1997, p. 1.

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Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-466/04)

(2005/C 69/35)

Language in which the application was submitted: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 19 November 2004 by Elisabetta Dami, residing in Milan (Italy), represented by Paolo Guido Beduschi and Silvia Giudici, lawyers.

The Stilton Cheese Makers Association was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

Pleas in law and main arguments

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Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-467/04)

(2005/C 69/36)

Language in which the application was submitted: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 19 November 2004 by Elisabetta Dami, residing in Milan (Italy), represented by Paolo Guido Beduschi and Silvia Giudici, lawyers.

The Stilton Cheese Makers Association was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

Pleas in law and main arguments

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Action brought on 24 November 2004 by Bouygues SA and Bouygues Télécom against the Commission of the European Communities

(Case T-475/04)

(2005/C 69/37)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 November 2004 by Bouygues SA, established in Paris, and Bouygues Télécom, established in Boulogne-Billancourt (France), represented by Louis Vogel, Joseph Vogel, Bernard Amory, Alexandre Verheyden, François Sureau and Didier Théophile, lawyers.

The applicants claim that the Court should:

Pleas in law and main arguments

This action is brought against Commission decision C(2004)2647 final of 20 July 2004 concluding that aid was not granted by the French State to Orange France and SFR by way of the retroactive reduction in the fee of EUR 4 995 000 000 which each of those operators had undertaken to pay to the French State for the Universal Mobile Telecommunication System (UMTS) licence awarded to it on 18 July 2001. By the adoption of that decision, the complaint lodged by the applicant companies was rejected.

It is recalled in that regard that the French Government issued two invitations to apply for the award of the UMTS licences. The first, in which Orange France and SFR participated, was launched in August 2000. The amount of the fee had been set at EUR 4 995 000 000 per licence. Bouygues Télécom had decided not to compete on account of the price set. In the second invitation to apply, the amount of the fee was reduced to EUR 619 000 000. Bouygues Télécom was awarded a UMTS licence following that second procedure. However, in the meantime, the French Government decided to align retroactively the amount of the fees provided for in the first procedure with that provided for in the second invitation to apply.

In support of their claims, the applicants plead, first, infringement of Article 87 of the Treaty. They argue in that regard that:

In addition, the applicants submit that, by merely stating, without any further explanation, that the award of the UMTS licences cannot be treated as a market transaction, the defendant, in breach of Article 230 of the Treaty, failed to state proper reasons for its decision.

Finally, the applicants submit that the Commission infringed Articles 87 and 88 EC by not examining the measure at issue by way of the formal review procedure laid down by those provisions.

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Action brought on 14 December 2004 by Aktieselskabet af 21. November 2001 against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-477/04)

(2005/C 69/38)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 14 December 2004 by Aktieselskabet af 21. November 2001, established in Brande (Denmark), represented by C. Barrett Christiansen, lawyer.

TDK Kabushiki Kaisha (TDK Corporation), established in Tokyo (Japan), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

Pleas in law and main arguments:

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Action brought on 8 December 2004 by Armour Pharmaceutical Company against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-483/04)

(2005/C 69/39)

Language in which the application was submitted: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 8 December 2004 by Armour Pharmaceutical Company, established in Bridgewater (United States), represented by Richard Gilbey, lawyer.

Teva Pharmaceutical Industries Limited was also a party to the proceedings before the Fourth Board of Appeal.

The applicant claims that the Court should:

Pleas in law and main arguments

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Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-2/05)

(2005/C 69/40)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 4 January 2005 by ReckittBenckiser N.V., established in Hoofddorp (The Netherlands) represented by G.S.P. Vos, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments

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Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-3/05)

(2005/C 69/41)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 4 January 2005 by ReckittBenckiser N.V., established in Hoofddorp (The Netherlands) represented by G.S.P. Vos, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments

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Action brought on 7 January 2005 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities

(Case T-12/05)

(2005/C 69/42)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 January 2005 by TV Danmark A/S, Skovlunde, (Denmark) and Kanal 5 Denmark Ltd., Hounslow (United Kingdom) represented by D. Vandermeersch, T. Müller-Ibold, K. Nordlander and H. Peytz, lawyers with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The contested decision relates to an injection of capital and a conversion of a State loan into equity by the Danish Government for the benefit of TV2/Danmark A/S, which it considered necessary to avoid the bankruptcy of TV2 resulting from the repayment of amounts of illegal State aid ordered by the Commission in a decision of 19 May 2004 (1) establishing the Government's overcompensation of TV2's public service cost. In the contested decision, the Commission held that State aid might be involved in the Government's recapitalisation of TV2, but that if so it would be compatible with the common market under Article 86(2) EC.

The applicants submit that in adopting the decision, the Commission infringed Articles 86(2), 87(1), 88(2) and 253 EC, the Protocol annexed to the EC Treaty on the system of public broadcasting in the Member States, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2), and the Communication from the Commission on the application of the State aid rules to public service broadcasting (3).

In support of their application, the applicants submit that the Commission infringed Articles 87(1), 88(3) and 86(2) EC, when, after having found that the private investor principle, as applied to long-term investment, could not be invoked given the uncertainty surrounding the planned privatisation of TV2, it failed to establish and to quantify the State aid.

Secondly, the applicants submit that the Commission infringed Article 86(2) EC, the Protocol, and the Broadcasting Communication when it based itself on a definition of a service of a general economic interest which is too broad, too imprecisely worded and creates a distortion of competition and an effect on trade contrary to Article 86(2) EC. The applicants also claim that the Commission failed to establish that compliance with the Recovery Decision without the subsequent recapitalisation would obstruct TV2 in the performance of its public service tasks.

According to the applicants, the Commission furthermore failed to establish that the development of trade would not be affected by the recapitalisation to such an extent as is contrary to the interest of the Community.

Thirdly, the applicants submit that the Commission infringed Article 86(2) EC, the Protocol, and the Broadcasting Communication when it failed to establish TV2's net public service costs which could be funded by the State and committed manifest errors of assessment when applying the proportionality test.

Fourthly, the applicants submit that the contested decision infringes Articles 87 and 88 EC and the right to equal treatment as it perpetuates, contrary to the Commission's State aid recovery policy, the unlawful advantage of the illegal aid and the resulting distortion of competition.

Fifthly, the applicants submit that the Commission infringed Article 88(2) EC and Article 4(4) of the Procedural Regulation when it decided not to open the formal investigation procedure giving interested third parties the opportunity to be heard.

Finally, the applicants claim that the Commission infringed Article 253 EC when it failed to properly state its reasons for adopting the contested decision.

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(1)  Commission Decision of 19 May 2004 in case C 2/2003 - State funding of TV2/Denmark

(2)  OJ L 83, p. 1

(3)  OJ 2001 C 320, p. 5

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Action brought on 7 January 2004 by Castell del Remei S.L against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-13/05)

(2005/C 69/43)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 7 January 2004 by Castell del Remei S.L, represented by Jorge Grau Mora and Alejandro Angulo, of the Barcelona Bar; Maria Baylos Morales and Antonio Velazquez Ibanez, of the Madrid Bar; Fernand de Visscher, Emmanuel Cornu, Eric de Gryse and Donatienne Moreau, of the Brussels Bar, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments:

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Action brought on 12 January 2005 by the Italian Republic against the Commission of the European Communities

(Case T-14/05)

(2005/C 69/44)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 January 2005 by the Italian Republic, represented by Danilo Del Gaizo, Avvocato dello Stato.

The applicant claims that the Court should:

Pleas in law and main arguments

This action is brought against Commission Regulation (EC) No 1809/2004 of 18 October 2004 amending Regulation (EC) No 2848/98 laying down detailed rules for the application of the quota buy-back programme in the raw tobacco sector (OJ L 318 of 19.10.2004) (‘the contested regulation’). The contested regulation adds to Article 36(1) of Regulation No 2848/98 a subparagraph which provides for a buy-back price for tobacco quotas relating to the 2004 harvest fixed at an amount equal to 40 % of the premium and states that that amount is to be paid before 31 May 2005.

The Italian Government takes the view that the contested regulation infringes Council Regulation (EEC) No 2075/92 (1) (and in particular Article 14a thereof) and that there is infringement of an essential procedural requirement and misuse of powers.

In particular, the setting of a quota buy-back price for quotas bought back in respect of the 2004 harvest, which is, moreover, particularly high, identical and undifferentiated for all producers and for all qualities of tobacco varieties, payable almost immediately in a single payment, is, in the Italian Government's view, contrary to Article 14a of Council Regulation No 2075/92, as amended, inter alia, by Regulation No 1636/98.

The Italian Government also considers that the setting of the contested level of the buy-back price cannot be regarded as being justified, and certainly cannot be justified by the reasons stated in the third recital in the preamble to the contested regulation, according to which: ‘For quotas under the 2004 harvest, the buy-back price should be fixed on the basis of the minimum level of aid which the farmer can receive under the direct payment scheme set up by Council Regulation (EC) No 1782/2003 of 29 September 2003 ... Moreover, with a view to the implementation of the single payment scheme, the payment period for the buy-back price should be kept to a minimum.’ In that regard, it contends that the provisions of Regulation No 2075/92 were not repealed for the year under consideration (or for 2005) and that the Commission was not therefore authorised to use for the level of the buy-back price a legal basis completely different from the one which it should have adhered to in performing the operation or to pursue objectives completely different from and contrary to those which, on the basis of Council Regulation No 2075/92, should have justified its adoption.

The Italian Government further alleges a failure to give reasons for the contested measure, both in respect of the setting of a buy-back price which is the same for all producers and takes no account of the individual varieties of tobacco produced and in respect of the quantification of the price at an amount equal to 40 % of the premium, as well as a conflict between the provisions of Article 1 of the contested regulation, the statements contained in its third recital and the reasons clearly stated in its second recital.

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(1)  Council Regulation (EEC) No 2075/92 of 30 June 1992 on the common organization of the market in raw tobacco (OJ L 215 of 30.07.1992, p. 70).

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Action brought on 19 January 2005 by IMI plc, IMI Kynoch Ltd. and Yorkshire Copper Tube against the Commission of the European Communities

(Case T-18/05)

(2005/C 69/45)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 January 2005 by IMI plc, established in Birmingham (United Kingdom), IMI Kynoch Ltd., established in Birmingham (United Kingdom) and Yorkshire Copper Tube, established in Liverpool (United Kingdom), represented by M. Struys and D. Arts, lawyers.

The applicants claim that the Court should:

Pleas in law and main arguments

In the contested decision, the Commission found an infringement of Article 81(1) EC and Article 53(1) EEA by several undertakings in the copper plumbing sector. The infringement comprised three separate manifestations: arrangements among the so-called SANCO producers, arrangements among the so called WICU and Cuprotherm producers and arrangements among the broader group of copper plumbing tube producers. According to the decision, the applicants were not aware or could not have reasonably foreseen the SANCO arrangements and the WICU and Cuprotherm arrangements.

In support of their application, the applicants submit a violation of the principle of non-discrimination. According to the applicants, the Commission favoured, because of the way it conducted its investigation, some of the undertakings. The applicants state that they were the last companies to receive a request for information and therefore were also the last to apply for leniency, resulting in only a 10 % reduction of the fine on that ground.

The applicants furthermore submit that the Commission erred in finding that the SANCO arrangements were not significantly tighter than the arrangements in the broader group. They also submit that the absence of differentiation at the level of the fines between the participants in the SANCO arrangements and participants in the broader group of producers, violates the principle of non-discrimination and the principle according to which responsibility for violating competition law is personal in nature.

The applicants also contest the conclusion to impose the same fine on the applicants and the producers that participated in the broader arrangement and the WICU and Cuprotherm arrangements. The applicants submit that this conclusion violates the principle of non-discrimination, the principle according to which responsibility for violating competition law is personal in nature and that the decision is not sufficiently reasoned on this point.

The applicants furthermore claim that the Commission violated the principle of non-discrimination and made a manifest error in finding that the applicants participated without interruption in the arrangements while no continuity could be established in respect of certain other undertakings. According to the applicants, their situation is identical to that of those other undertakings. The applicants also invoke in this respect a violation of their rights of defence in that the Commission relied in the decision on elements that had not been taken into consideration in the statement of objections.

Finally, the applicants submit a violation of the principle of proportionality in the determination of the fines.

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Action brought on 18 January 2005 by the Italian Republic against the Commission of the European Communities

(Case T-26/05)

(2005/C 69/46)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 January 2005 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato.

The applicant claims that the Court should:

Pleas in law and main arguments

The pleas in law and main arguments are the same as those put forward in Case T-345/04 Italian Republic v Commission (1).

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(1)OJ C 262 of 23.10.2004, p. 55.

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Removal from the Register of Case T-189/04 (1)

(2005/C 69/47)

(Language of the case: French)

By order of 16 December 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-189/04, Christian van der Haegen v European Economic and Social Committee.

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(1)OJ C 217 of 28.8.2004.

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III Notices

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(2005/C 69/48)

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

OJ C 57, 5.3.2005

Past publications

OJ C 45, 19.2.2005

OJ C 31, 5.2.2005

OJ C 19, 22.1.2005

OJ C 6, 8.1.2005

OJ C 314, 18.12.2004

OJ C 300, 4.12.2004

These texts are available on:

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