# Official Journal C 183/2007

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 183 |
| | |
| English edition | Information and Notices | Volume 504 August 2007 |

ISSN 1725-2423

Official Journal

of the European Union

C 183

English edition

Information and Notices

Volume 504 August 2007

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2007/C 183/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 170, 21.7.2007 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2007/C 183/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 170, 21.7.2007

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2007/C 183/02 | Case C-6/05: Judgment of the Court (First Chamber) of 14 June 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias, Greece) — Medipac-Kazantzidis AE v Venizelio-Pananio (PE.S.Y. KRITIS) (Free movement of goods — Directive 93/42/EEC — Hospital purchase of medical devices bearing the CE marking — Protective measures — Public supply contract — Contract falling below the threshold of application of Directive 93/36/EEC — Principle of equal treatment and obligation of transparency) | 2 |
| 2007/C 183/03 | Case C-127/05: Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Social policy — Protection of the safety and health of workers — Directive 89/391/EEC — Article 5(1) — Employer's duty to ensure the safety and health of workers in every aspect related to the work — Employer's liability) | 3 |
| 2007/C 183/04 | Case C-148/05: Judgment of the Court (Fourth Chamber) of 14 June 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil its obligations — Directive 79/923/EEC — Quality of shellfish waters — Designation of shellfish waters — Pollution reduction programmes — Setting control parameters) | 3 |
| 2007/C 183/05 | Case C-173/05: Judgment of the Court (Second Chamber) of 21 June 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Articles 23 EC, 25 EC and 133 EC — EEC-Algeria Cooperation Agreement — Environmental protection tax on gas pipelines installed in the Sicilian Region — Charge having equivalent effect to a customs duty) | 4 |
| 2007/C 183/06 | Case C-246/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Oberster Patent- und Markensenat, Austria) — Armin Häupl v Lidl Stiftung & Co. KG (Trade mark law — Article 10(1) of Directive 89/104/EEC — Absence of genuine use of a trade mark — Concept of date of the completion of the registration procedure) | 4 |
| 2007/C 183/07 | Case C-259/05: Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the Rechtbank te Rotterdam, Netherlands) — Criminal proceedings against Omni Metal Service (Regulation (EEC) No 259/93 — Waste — Cables composed of copper and PVC — Export to China for purposes of recovery — Heading GC 020 — Mixed waste — Combination of two materials mentioned in the green list of wastes — Such mixed waste not included on the green list — Consequences) | 5 |
| 2007/C 183/08 | Case C-342/05: Judgment of the Court (Second Chamber) of 14 June 2007 — Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil its obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — Wolf hunting) | 5 |
| 2007/C 183/09 | Case C-358/05: Judgment of the Court (Eighth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2003/54/EC — Internal market in electricity — Failure to transpose within the period prescribed) | 6 |
| 2007/C 183/10 | Case C-366/05: Judgment of the Court (Fourth Chamber) of 21 June 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Optimus — Telecomunicações SA v Fazenda Pública (Indirect taxes on the raising of capital — Directive 69/335/EEC, as amended by Directive 85/303/EEC — Article 7(1) — Capital duty — Exemption — Conditions — Situation as at 1 July 1984) | 6 |
| 2007/C 183/11 | Case C-422/05: Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2002/30/EC — Air transport — Noise-related operating restrictions at Community airports — Adoption by a Member State of a measure liable seriously to compromise the result prescribed by the directive during the transposition period) | 7 |
| 2007/C 183/12 | Case C-424/05 P: Judgment of the Court (Third Chamber) of 21 June 2007 — Commission of the European Communities v Sonja Hosman-Chevalier (Appeal — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a) of Annex VII to the Staff Regulations — Concept of work done for another State) | 7 |
| 2007/C 183/13 | Case C-428/05: Judgment of the Court (Eighth Chamber) of 21 June 2007 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Firma Laub GmbH & Co. Vieh & Fleisch Import-Export v Hauptzollamt Hamburg-Jonas (Export refunds — Regulation (EEC) No 3665/87 — Definition of undue payment of a refund — Payment of a refund on the basis of incomplete documentation — Possibility of completing the documents relating to the payment of the refund after the expiry of the periods referred to in Articles 47(2) and 48(2)(a) of Regulation (EEC) No 3665/87 in the context of a subsequent recovery procedure) | 8 |
| 2007/C 183/14 | Case C-434/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands) — Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën (Sixth VAT Directive — Exemptions — Article 13A(1)(i) and 13A(2) — Teaching staff employed by one educational establishment made available, for consideration, to another) | 8 |
| 2007/C 183/15 | Case C-445/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Werner Haderer v Finanzamt Wilmersdorf (Sixth VAT Directive — Exemptions — Article 13A(1)(j) — Tuition given privately by teachers and covering school or university education — Education provided in the context of courses organised by adult education centres — No direct contractual link with pupils) | 9 |
| 2007/C 183/16 | Case C-453/05: Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg, Germany) — Volker Ludwig v Finanzamt Luckenwalde (Sixth Directive — VAT — Concept of transactions consisting in the negotiation of credit) | 10 |
| 2007/C 183/17 | Case C-56/06: Judgment of the Court (First Chamber) of 14 June 2007 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf, Germany) — Euro Tex Textilverwertung GmbH v Hauptzollamt Duisburg (Association between the European Communities and their Member States and the Republic of Poland — Concept of originating products — Used clothing) | 11 |
| 2007/C 183/18 | Case C-64/06: Judgment of the Court (Second Chamber) of 14 June 2007 (reference for a preliminary ruling from the Obvodní soud pro Prahu 3 — Czech Republic) — Telefónica O2 Czech Republic as, formerly Český Telecom as v Czech On Line as (Electronic communications — Networks and services — Common regulatory framework — Dominant undertaking — Obligation of interconnection with other operators — Transitional provisions — Directive 97/33) | 11 |
| 2007/C 183/19 | Case C-82/06: Judgment of the Court (Eighth Chamber) of 14 June 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Environment — Waste — Hazardous waste — Directives 75/442/EEC and 91/689/EEC — Obligation to draw up and communicate waste management plans) | 12 |
| 2007/C 183/20 | Case C-158/06: Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Stichting ROM-projecten v Staatssecretaris van Economische Zaken (Structural funds — Repayment of Community aid in the case of irregularity — Failure to publish or make known the conditions of grant of the aid — Beneficiary's lack of knowledge — Good faith — Legal certainty — Effectiveness — Article 10 EC) | 12 |
| 2007/C 183/21 | Case C-231/06 to C-233/06: Judgment of the Court (First Chamber) of 21 June 2007 (references for a preliminary ruling from the Cour du travail de Bruxelles, Belgium) — National Pensions Office v Emilienne Jonkman (C-231/06), Hélène Vercheval (C-232/06) and Noëlle Permesaen (C-233/06) v National Pensions Office (Equal treatment for men and women — Statutory pension scheme — Directive 79/7/EEC — Air hostesses — Grant of a pension equal to that of stewards — Payment of adjustment contributions in a single payment — Interest payments — Principle of effectiveness — Obligations on a Member State as a result of a preliminary ruling) | 13 |
| 2007/C 183/22 | Case C-321/06: Judgment of the Court (Seventh Chamber) of 14 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/14/EC — Informing and consulting employees — Failure to transpose within the period prescribed) | 14 |
| 2007/C 183/23 | Case C-333/06: Judgment of the Court (Sixth Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Regulation (EC) No 261/2004 — Air transport — Denied boarding and cancellation or long delays of flights — Compensation and assistance to passengers — Adoption of sanctions) | 14 |
| 2007/C 183/24 | Case C-339/06: Judgment of the Court (Eighth Chamber) of 21 June 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2004/116/EC — Annex to Directive 92/471/EEC — Animal feed — Candida guilliermondii — Failure to transpose within the period prescribed) | 15 |
| 2007/C 183/25 | Case C-392/06: Judgment of the Court (Sixth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/15/EC — Organisation of the working time of persons performing mobile road transport activities — Failure to transpose within the period prescribed) | 15 |
| 2007/C 183/26 | Case C-170/07: Action brought on 30 March 2007 — Commission of the European Communities v Republic of Poland | 16 |
| 2007/C 183/27 | Case C-221/07: Reference for a preliminary ruling from the Sozialgericht Stuttgart (Germany) lodged on 2 May 2007 — Krystyna Zablocka-Weyhermüller v Land Baden-Württemberg | 17 |
| 2007/C 183/28 | Case C-225/07: Reference for a preliminary ruling from the Amtsgericht Landau/Isar (Germany) lodged on 7 May 2007 — Criminal proceedings against Rainer Günther Möginger | 17 |
| 2007/C 183/29 | Case C-237/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 14 May 2007 — Dieter Janecek v Freistaat Bayern | 18 |
| 2007/C 183/30 | Case C-238/07 P: Appeal brought on 14 May 2007 by Derya Beyatli against the order of the Court of First Instance (Fifth Chamber) delivered on 5 March 2007 in Case T-455/04: Derya Beyatli and Armagan Candan v Commission of the European Communities | 18 |
| 2007/C 183/31 | Case C-246/07: Action brought on 22 May 2007 — Commission of the European Communities v Kingdom of Sweden | 19 |
| 2007/C 183/32 | Case C-249/07: Action brought on 23 May 2007 — Commission of the European Communities v Kingdom of the Netherlands | 19 |
| 2007/C 183/33 | Case C-252/07: Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 29 May 2007 — Intel Corporation Inc. v CPM United Kingdom Limited | 20 |
| 2007/C 183/34 | Case C-253/07: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 29 May 2007 — Canterbury Hockey Club, Canterbury Ladies Hockey Club v Commissioners of HM Revenue and Customs | 20 |
| 2007/C 183/35 | Case C-255/07: Action brought on 30 May 2007 — Commission of the European Communities v Kingdom of Spain | 21 |
| 2007/C 183/36 | Case C-256/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 31 May 2007 — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf | 21 |
| 2007/C 183/37 | Case C-257/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden | 22 |
| 2007/C 183/38 | Case C-258/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden | 22 |
| 2007/C 183/39 | Case C-259/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden | 22 |
| 2007/C 183/40 | Case C-260/07: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 31 May 2007 — Pedro IV Servicios S.L. v Total España S.A. | 23 |
| 2007/C 183/41 | Case C-266/07: Action brought on 5 June 2007 — Commission of the European Communities v Portuguese Republic | 24 |
| 2007/C 183/42 | Case C-274/07: Action brought on 7 June 2007 — Commission of the European Communities v Republic of Lithuania | 24 |
| 2007/C 183/43 | Case C-284/07: Action brought on 12 June 2007 — Commission of the European Communities v Portuguese Republic | 24 |
| 2007/C 183/44 | Case C-289/07: Action brought on 14 June 2007 — Commission of the European Communities v Portuguese Republic | 25 |
| 2007/C 183/45 | Case C-290/07 P: Appeal brought on 14 June 2007 by Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-366/00: Scott S. A, supported by the French Republic v Commission of the European Communities | 25 |
| 2007/C 183/46 | Case C-291/07: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 15 June 2007 — Kollektivavtalsstiftelsen TRR Trygghetsrådet v Skatteverket | 27 |
| 2007/C 183/47 | Case C-293/07: Action brought on 18 June 2007 — Commission of the European Communities v Hellenic Republic | 27 |
| 2007/C 183/48 | Case C-61/06: Order of the President of the Court of 10 May 2007 — Commission of the European Communities v Italian Republic | 28 |
| 2007/C 183/49 | Case C-140/06: Order of the President of the Sixth Chamber of the Court of 21 May 2007 — Commission of the European Communities v Czech Republic | 28 |
| 2007/C 183/50 | Case C-297/06: Order of the President of the Court of 23 May 2007 — Commission of the European Communities v Hellenic Republic | 28 |
| 2007/C 183/51 | Case C-322/06: Order of the President of the Court of 30 April 2007 — Commission of the European Communities v Kingdom of the Netherlands | 29 |
| 2007/C 183/52 | Case C-356/06: Order of the President of the Court of 11 May 2007 — Commission of the European Communities v Republic of Austria | 29 |
| 2007/C 183/53 | Case C-358/06: Order of the President of the Eighth Chamber of the Court of 11 May 2007 — Commission of the European Communities v Hellenic Republic | 29 |
| 2007/C 183/54 | Case C-394/06: Order of the President of the Court of 14 May 2007 — Commission of the European Communities v Italian Republic | 29 |
| 2007/C 183/55 | Case C-397/06: Order of the President of the Court of 24 April 2007 — Commission of the European Communities v Republic of Estonia | 29 |
| 2007/C 183/56 | Case C-422/06: Order of the President of the Court of 1 June 2007 — Commission of European Communities v Republic of Poland | 30 |
| 2007/C 183/57 | Case C-490/06: Order of the President of the Court of 10 May 2007 — Commission of the European Communities v Hellenic Republic | 30 |
| 2007/C 183/58 | Case C-509/06: Order of the President of the Court of 8 May 2007 — Akzo Nobel NV v Commission of the European Communities | 30 |
| 2007/C 183/59 | Case C-15/07: Order of the President of the Court of 23 April 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — 01081 Telecom AG v Bundesrepublik Deutschland, in the presence of: E-Plus Mobilfunk GmbH & Co. KG | 30 |
| | Court of First Instance |
| 2007/C 183/60 | Case T-246/99: Judgment of the Court of First Instance of 20 June 2007 — Tirrenia di Navigazione and Others v Commission (State Aid — Maritime transport — Decision to initiate the procedure under Article 88(2) EC — New State aid — Existing State aid) | 31 |
| 2007/C 183/61 | Case T-65/04: Judgment of the Court of First Instance of 27 June 2007 — Nuova Gela Sviluppo v Commission (ERDF — Conclusion of Community financial assistance — Action for annulment — Action for damages — Arbitration clause) | 31 |
| 2007/C 183/62 | Case T-473/04: Judgment of the Court of First Instance of 19 June 2007 — Asturias Cuerno v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Services carried out for an international organisation — Installation allowance — Daily subsistence allowance) | 32 |
| 2007/C 183/63 | Case T-182/06: Judgment of the Court of First Instance of 27 June 2007 — Kingdom of the Netherlands v Commission (Approximation of laws — Derogating national provisions — Rejection by the Commission of a draft decree advancing the lowering of the Community limit on emissions of particulate matter produced by certain new diesel-powered vehicles — Duty of care and to state reasons — Specificity of the notifying Member State's problem in complying with the Community limits on concentrations of particulate matter in ambient air) | 32 |
| 2007/C 183/64 | Case T-346/06 R: Order of the President of the Court of First Instance of 7 June 2007 — IMS v Commission (Applications for interim measures — Application for suspension of operation of a measure — Directive 98/37/EC — Admissibility — Prima facie case — Urgency — Balancing of the interests involved) | 33 |
| 2007/C 183/65 | Case T-163/07: Action brought on 8 May 2007 — SC Gerovital Cosmetics v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan) | 33 |
| 2007/C 183/66 | Case T-189/07: Action brought on 4 June 2007 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE) | 34 |
| 2007/C 183/67 | Case T-191/07: Action brought on 31 May 2007 — Anheuser-Busch v OHIM — Budějovický Budvar (BUDWEISER) | 34 |
| 2007/C 183/68 | Case T-200/07: Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (222) | 35 |
| 2007/C 183/69 | Case T-201/07: Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (333) | 35 |
| 2007/C 183/70 | Case T-202/07: Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (555) | 36 |
| 2007/C 183/71 | Case T-207/07: Action brought on 7 June 2007 — Eurallumina v Commission | 36 |
| 2007/C 183/72 | Case T-208/07: Action brought on 5 June 2007 — BOT Elektrownia Bełchatów and Others v Commission | 37 |
| 2007/C 183/73 | Case T-209/07: Action brought on 12 June 2007 — Gaedertz v OHIM — Living Byte Software (GlobalRemote) | 38 |
| 2007/C 183/74 | Case T-210/07: Action brought on 11 June 2007 — RSA Security Ireland v Commission | 39 |
| 2007/C 183/75 | Case T-211/07: Action brought on 13 June 2007 — AWWW v European Foundation for the Improvement of Living and Working Conditions | 39 |
| 2007/C 183/76 | Case T-212/07: Action brought on 15 June 2007 — Harman International Industries v OHIM — Becker (Barbara Becker) | 40 |
| 2007/C 183/77 | Case T-215/07: Action brought on 22 June 2007 — Donnici v Parliament | 40 |
| 2007/C 183/78 | Case T-181/02: Order of the Court of First Instance (First Chamber Extended Composition) of 22 May 2007 — Neue Erba Lautex v Commission | 41 |
| 2007/C 183/79 | Case T-378/02: Order of the Court of First Instance of 16 May 2007 — Technische Glaswerke Ilmenau v Commission | 41 |
| 2007/C 183/80 | Case T-266/06: Order of the Court of First Instance of 4 June 2007 — Commission v TH Parkner | 41 |
| | European Union Civil Service Tribunal |
| 2007/C 183/81 | Case F-21/06: Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2007 — da Silva v Commission (Officials — Appointment in grade — Post of director advertised before 1 May 2004 — Amendment of the Staff Regulations — Article 2 and Article 5(5) of Annex XIII to the Staff Regulations — Classification by grade pursuant to new less-favourable provisions — Principle that all officials are entitled to reasonable career prospects) | 42 |
| 2007/C 183/82 | Case F-38/06: Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2007 — Bianchi v European Training Foundation (ETF) (Staff cases — Members of temporary staff — Fixed-term contract — Non-renewal — Substandard work — Duty to state reasons — Manifest error of assessment) | 42 |
| 2007/C 183/83 | Case F-54/06: Judgment of the Civil Service Tribunal (First Chamber) of 19 June 2007 — Davis and Others v Council (Staff cases — Officials — Pensions — Weightings — Retirement after the entry into force of the version of the Staff Regulations applicable from 1 May 2004 — Application of weightings calculated on the basis of the average cost of living in the country of residence of retired officials — Transitional scheme — Abolition of weightings for pension rights acquired after the entry into force of the version of the Staff Regulations applicable from 1 May 2004) | 43 |
| 2007/C 183/84 | Case F-45/07: Action brought on 16 May 2007 — Wolfgang A. Mandt v European Parliament | 43 |
| 2007/C 183/85 | Case F-55/07: Action brought on 30 May 2007 — Tiralongo v Commission | 43 |
| 2007/C 183/86 | Case F-56/07: Action brought on 11 June 2007 — Gerochristos v Parliament | 44 |
| 2007/C 183/87 | Case F-57/07: Action brought on 5 June 2007 — Wiedmann v Parliament | 45 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2007/C 183/02

Case C-6/05: Judgment of the Court (First Chamber) of 14 June 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias, Greece) — Medipac-Kazantzidis AE v Venizelio-Pananio (PE.S.Y. KRITIS) (Free movement of goods — Directive 93/42/EEC — Hospital purchase of medical devices bearing the CE marking — Protective measures — Public supply contract — Contract falling below the threshold of application of Directive 93/36/EEC — Principle of equal treatment and obligation of transparency)

2

2007/C 183/03

Case C-127/05: Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Social policy — Protection of the safety and health of workers — Directive 89/391/EEC — Article 5(1) — Employer's duty to ensure the safety and health of workers in every aspect related to the work — Employer's liability)

3

2007/C 183/04

Case C-148/05: Judgment of the Court (Fourth Chamber) of 14 June 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil its obligations — Directive 79/923/EEC — Quality of shellfish waters — Designation of shellfish waters — Pollution reduction programmes — Setting control parameters)

3

2007/C 183/05

Case C-173/05: Judgment of the Court (Second Chamber) of 21 June 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Articles 23 EC, 25 EC and 133 EC — EEC-Algeria Cooperation Agreement — Environmental protection tax on gas pipelines installed in the Sicilian Region — Charge having equivalent effect to a customs duty)

4

2007/C 183/06

Case C-246/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Oberster Patent- und Markensenat, Austria) — Armin Häupl v Lidl Stiftung & Co. KG (Trade mark law — Article 10(1) of Directive 89/104/EEC — Absence of genuine use of a trade mark — Concept of date of the completion of the registration procedure)

4

2007/C 183/07

Case C-259/05: Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the Rechtbank te Rotterdam, Netherlands) — Criminal proceedings against Omni Metal Service (Regulation (EEC) No 259/93 — Waste — Cables composed of copper and PVC — Export to China for purposes of recovery — Heading GC 020 — Mixed waste — Combination of two materials mentioned in the green list of wastes — Such mixed waste not included on the green list — Consequences)

5

2007/C 183/08

Case C-342/05: Judgment of the Court (Second Chamber) of 14 June 2007 — Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil its obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — Wolf hunting)

5

2007/C 183/09

Case C-358/05: Judgment of the Court (Eighth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2003/54/EC — Internal market in electricity — Failure to transpose within the period prescribed)

6

2007/C 183/10

Case C-366/05: Judgment of the Court (Fourth Chamber) of 21 June 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Optimus — Telecomunicações SA v Fazenda Pública (Indirect taxes on the raising of capital — Directive 69/335/EEC, as amended by Directive 85/303/EEC — Article 7(1) — Capital duty — Exemption — Conditions — Situation as at 1 July 1984)

6

2007/C 183/11

Case C-422/05: Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2002/30/EC — Air transport — Noise-related operating restrictions at Community airports — Adoption by a Member State of a measure liable seriously to compromise the result prescribed by the directive during the transposition period)

7

2007/C 183/12

Case C-424/05 P: Judgment of the Court (Third Chamber) of 21 June 2007 — Commission of the European Communities v Sonja Hosman-Chevalier (Appeal — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a) of Annex VII to the Staff Regulations — Concept of work done for another State)

7

2007/C 183/13

Case C-428/05: Judgment of the Court (Eighth Chamber) of 21 June 2007 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Firma Laub GmbH & Co. Vieh & Fleisch Import-Export v Hauptzollamt Hamburg-Jonas (Export refunds — Regulation (EEC) No 3665/87 — Definition of undue payment of a refund — Payment of a refund on the basis of incomplete documentation — Possibility of completing the documents relating to the payment of the refund after the expiry of the periods referred to in Articles 47(2) and 48(2)(a) of Regulation (EEC) No 3665/87 in the context of a subsequent recovery procedure)

8

2007/C 183/14

Case C-434/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands) — Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën (Sixth VAT Directive — Exemptions — Article 13A(1)(i) and 13A(2) — Teaching staff employed by one educational establishment made available, for consideration, to another)

8

2007/C 183/15

Case C-445/05: Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Werner Haderer v Finanzamt Wilmersdorf (Sixth VAT Directive — Exemptions — Article 13A(1)(j) — Tuition given privately by teachers and covering school or university education — Education provided in the context of courses organised by adult education centres — No direct contractual link with pupils)

9

2007/C 183/16

Case C-453/05: Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg, Germany) — Volker Ludwig v Finanzamt Luckenwalde (Sixth Directive — VAT — Concept of transactions consisting in the negotiation of credit)

10

2007/C 183/17

Case C-56/06: Judgment of the Court (First Chamber) of 14 June 2007 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf, Germany) — Euro Tex Textilverwertung GmbH v Hauptzollamt Duisburg (Association between the European Communities and their Member States and the Republic of Poland — Concept of originating products — Used clothing)

11

2007/C 183/18

Case C-64/06: Judgment of the Court (Second Chamber) of 14 June 2007 (reference for a preliminary ruling from the Obvodní soud pro Prahu 3 — Czech Republic) — Telefónica O2 Czech Republic as, formerly Český Telecom as v Czech On Line as (Electronic communications — Networks and services — Common regulatory framework — Dominant undertaking — Obligation of interconnection with other operators — Transitional provisions — Directive 97/33)

11

2007/C 183/19

Case C-82/06: Judgment of the Court (Eighth Chamber) of 14 June 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Environment — Waste — Hazardous waste — Directives 75/442/EEC and 91/689/EEC — Obligation to draw up and communicate waste management plans)

12

2007/C 183/20

Case C-158/06: Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Stichting ROM-projecten v Staatssecretaris van Economische Zaken (Structural funds — Repayment of Community aid in the case of irregularity — Failure to publish or make known the conditions of grant of the aid — Beneficiary's lack of knowledge — Good faith — Legal certainty — Effectiveness — Article 10 EC)

12

2007/C 183/21

Case C-231/06 to C-233/06: Judgment of the Court (First Chamber) of 21 June 2007 (references for a preliminary ruling from the Cour du travail de Bruxelles, Belgium) — National Pensions Office v Emilienne Jonkman (C-231/06), Hélène Vercheval (C-232/06) and Noëlle Permesaen (C-233/06) v National Pensions Office (Equal treatment for men and women — Statutory pension scheme — Directive 79/7/EEC — Air hostesses — Grant of a pension equal to that of stewards — Payment of adjustment contributions in a single payment — Interest payments — Principle of effectiveness — Obligations on a Member State as a result of a preliminary ruling)

13

2007/C 183/22

Case C-321/06: Judgment of the Court (Seventh Chamber) of 14 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/14/EC — Informing and consulting employees — Failure to transpose within the period prescribed)

14

2007/C 183/23

Case C-333/06: Judgment of the Court (Sixth Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Regulation (EC) No 261/2004 — Air transport — Denied boarding and cancellation or long delays of flights — Compensation and assistance to passengers — Adoption of sanctions)

14

2007/C 183/24

Case C-339/06: Judgment of the Court (Eighth Chamber) of 21 June 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2004/116/EC — Annex to Directive 92/471/EEC — Animal feed — Candida guilliermondii — Failure to transpose within the period prescribed)

15

2007/C 183/25

Case C-392/06: Judgment of the Court (Sixth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/15/EC — Organisation of the working time of persons performing mobile road transport activities — Failure to transpose within the period prescribed)

15

2007/C 183/26

Case C-170/07: Action brought on 30 March 2007 — Commission of the European Communities v Republic of Poland

16

2007/C 183/27

Case C-221/07: Reference for a preliminary ruling from the Sozialgericht Stuttgart (Germany) lodged on 2 May 2007 — Krystyna Zablocka-Weyhermüller v Land Baden-Württemberg

17

2007/C 183/28

Case C-225/07: Reference for a preliminary ruling from the Amtsgericht Landau/Isar (Germany) lodged on 7 May 2007 — Criminal proceedings against Rainer Günther Möginger

17

2007/C 183/29

Case C-237/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 14 May 2007 — Dieter Janecek v Freistaat Bayern

18

2007/C 183/30

Case C-238/07 P: Appeal brought on 14 May 2007 by Derya Beyatli against the order of the Court of First Instance (Fifth Chamber) delivered on 5 March 2007 in Case T-455/04: Derya Beyatli and Armagan Candan v Commission of the European Communities

18

2007/C 183/31

Case C-246/07: Action brought on 22 May 2007 — Commission of the European Communities v Kingdom of Sweden

19

2007/C 183/32

Case C-249/07: Action brought on 23 May 2007 — Commission of the European Communities v Kingdom of the Netherlands

19

2007/C 183/33

Case C-252/07: Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 29 May 2007 — Intel Corporation Inc. v CPM United Kingdom Limited

20

2007/C 183/34

Case C-253/07: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 29 May 2007 — Canterbury Hockey Club, Canterbury Ladies Hockey Club v Commissioners of HM Revenue and Customs

20

2007/C 183/35

Case C-255/07: Action brought on 30 May 2007 — Commission of the European Communities v Kingdom of Spain

21

2007/C 183/36

Case C-256/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 31 May 2007 — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf

21

2007/C 183/37

Case C-257/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

22

2007/C 183/38

Case C-258/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

22

2007/C 183/39

Case C-259/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

22

2007/C 183/40

Case C-260/07: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 31 May 2007 — Pedro IV Servicios S.L. v Total España S.A.

23

2007/C 183/41

Case C-266/07: Action brought on 5 June 2007 — Commission of the European Communities v Portuguese Republic

24

2007/C 183/42

Case C-274/07: Action brought on 7 June 2007 — Commission of the European Communities v Republic of Lithuania

24

2007/C 183/43

Case C-284/07: Action brought on 12 June 2007 — Commission of the European Communities v Portuguese Republic

24

2007/C 183/44

Case C-289/07: Action brought on 14 June 2007 — Commission of the European Communities v Portuguese Republic

25

2007/C 183/45

Case C-290/07 P: Appeal brought on 14 June 2007 by Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-366/00: Scott S. A, supported by the French Republic v Commission of the European Communities

25

2007/C 183/46

Case C-291/07: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 15 June 2007 — Kollektivavtalsstiftelsen TRR Trygghetsrådet v Skatteverket

27

2007/C 183/47

Case C-293/07: Action brought on 18 June 2007 — Commission of the European Communities v Hellenic Republic

27

2007/C 183/48

Case C-61/06: Order of the President of the Court of 10 May 2007 — Commission of the European Communities v Italian Republic

28

2007/C 183/49

Case C-140/06: Order of the President of the Sixth Chamber of the Court of 21 May 2007 — Commission of the European Communities v Czech Republic

28

2007/C 183/50

Case C-297/06: Order of the President of the Court of 23 May 2007 — Commission of the European Communities v Hellenic Republic

28

2007/C 183/51

Case C-322/06: Order of the President of the Court of 30 April 2007 — Commission of the European Communities v Kingdom of the Netherlands

29

2007/C 183/52

Case C-356/06: Order of the President of the Court of 11 May 2007 — Commission of the European Communities v Republic of Austria

29

2007/C 183/53

Case C-358/06: Order of the President of the Eighth Chamber of the Court of 11 May 2007 — Commission of the European Communities v Hellenic Republic

29

2007/C 183/54

Case C-394/06: Order of the President of the Court of 14 May 2007 — Commission of the European Communities v Italian Republic

29

2007/C 183/55

Case C-397/06: Order of the President of the Court of 24 April 2007 — Commission of the European Communities v Republic of Estonia

29

2007/C 183/56

Case C-422/06: Order of the President of the Court of 1 June 2007 — Commission of European Communities v Republic of Poland

30

2007/C 183/57

Case C-490/06: Order of the President of the Court of 10 May 2007 — Commission of the European Communities v Hellenic Republic

30

2007/C 183/58

Case C-509/06: Order of the President of the Court of 8 May 2007 — Akzo Nobel NV v Commission of the European Communities

30

2007/C 183/59

Case C-15/07: Order of the President of the Court of 23 April 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — 01081 Telecom AG v Bundesrepublik Deutschland, in the presence of: E-Plus Mobilfunk GmbH & Co. KG

30

Court of First Instance

2007/C 183/60

Case T-246/99: Judgment of the Court of First Instance of 20 June 2007 — Tirrenia di Navigazione and Others v Commission (State Aid — Maritime transport — Decision to initiate the procedure under Article 88(2) EC — New State aid — Existing State aid)

31

2007/C 183/61

Case T-65/04: Judgment of the Court of First Instance of 27 June 2007 — Nuova Gela Sviluppo v Commission (ERDF — Conclusion of Community financial assistance — Action for annulment — Action for damages — Arbitration clause)

31

2007/C 183/62

Case T-473/04: Judgment of the Court of First Instance of 19 June 2007 — Asturias Cuerno v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Services carried out for an international organisation — Installation allowance — Daily subsistence allowance)

32

2007/C 183/63

Case T-182/06: Judgment of the Court of First Instance of 27 June 2007 — Kingdom of the Netherlands v Commission (Approximation of laws — Derogating national provisions — Rejection by the Commission of a draft decree advancing the lowering of the Community limit on emissions of particulate matter produced by certain new diesel-powered vehicles — Duty of care and to state reasons — Specificity of the notifying Member State's problem in complying with the Community limits on concentrations of particulate matter in ambient air)

32

2007/C 183/64

Case T-346/06 R: Order of the President of the Court of First Instance of 7 June 2007 — IMS v Commission (Applications for interim measures — Application for suspension of operation of a measure — Directive 98/37/EC — Admissibility — Prima facie case — Urgency — Balancing of the interests involved)

33

2007/C 183/65

Case T-163/07: Action brought on 8 May 2007 — SC Gerovital Cosmetics v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan)

33

2007/C 183/66

Case T-189/07: Action brought on 4 June 2007 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE)

34

2007/C 183/67

Case T-191/07: Action brought on 31 May 2007 — Anheuser-Busch v OHIM — Budějovický Budvar (BUDWEISER)

34

2007/C 183/68

Case T-200/07: Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (222)

35

2007/C 183/69

Case T-201/07: Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (333)

35

2007/C 183/70

Case T-202/07: Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (555)

36

2007/C 183/71

Case T-207/07: Action brought on 7 June 2007 — Eurallumina v Commission

36

2007/C 183/72

Case T-208/07: Action brought on 5 June 2007 — BOT Elektrownia Bełchatów and Others v Commission

37

2007/C 183/73

Case T-209/07: Action brought on 12 June 2007 — Gaedertz v OHIM — Living Byte Software (GlobalRemote)

38

2007/C 183/74

Case T-210/07: Action brought on 11 June 2007 — RSA Security Ireland v Commission

39

2007/C 183/75

Case T-211/07: Action brought on 13 June 2007 — AWWW v European Foundation for the Improvement of Living and Working Conditions

39

2007/C 183/76

Case T-212/07: Action brought on 15 June 2007 — Harman International Industries v OHIM — Becker (Barbara Becker)

40

2007/C 183/77

Case T-215/07: Action brought on 22 June 2007 — Donnici v Parliament

40

2007/C 183/78

Case T-181/02: Order of the Court of First Instance (First Chamber Extended Composition) of 22 May 2007 — Neue Erba Lautex v Commission

41

2007/C 183/79

Case T-378/02: Order of the Court of First Instance of 16 May 2007 — Technische Glaswerke Ilmenau v Commission

41

2007/C 183/80

Case T-266/06: Order of the Court of First Instance of 4 June 2007 — Commission v TH Parkner

41

European Union Civil Service Tribunal

2007/C 183/81

Case F-21/06: Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2007 — da Silva v Commission (Officials — Appointment in grade — Post of director advertised before 1 May 2004 — Amendment of the Staff Regulations — Article 2 and Article 5(5) of Annex XIII to the Staff Regulations — Classification by grade pursuant to new less-favourable provisions — Principle that all officials are entitled to reasonable career prospects)

42

2007/C 183/82

Case F-38/06: Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2007 — Bianchi v European Training Foundation (ETF) (Staff cases — Members of temporary staff — Fixed-term contract — Non-renewal — Substandard work — Duty to state reasons — Manifest error of assessment)

42

2007/C 183/83

Case F-54/06: Judgment of the Civil Service Tribunal (First Chamber) of 19 June 2007 — Davis and Others v Council (Staff cases — Officials — Pensions — Weightings — Retirement after the entry into force of the version of the Staff Regulations applicable from 1 May 2004 — Application of weightings calculated on the basis of the average cost of living in the country of residence of retired officials — Transitional scheme — Abolition of weightings for pension rights acquired after the entry into force of the version of the Staff Regulations applicable from 1 May 2004)

43

2007/C 183/84

Case F-45/07: Action brought on 16 May 2007 — Wolfgang A. Mandt v European Parliament

43

2007/C 183/85

Case F-55/07: Action brought on 30 May 2007 — Tiralongo v Commission

43

2007/C 183/86

Case F-56/07: Action brought on 11 June 2007 — Gerochristos v Parliament

44

2007/C 183/87

Case F-57/07: Action brought on 5 June 2007 — Wiedmann v Parliament

45

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 4.8.2007 | EN | Official Journal of the European Union | C 183/1 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/1

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(2007/C 183/01)

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

OJ C 170, 21.7.2007

Past publications

OJ C 155, 7.7.2007

OJ C 140, 23.6.2007

OJ C 129, 9.6.2007

OJ C 117, 26.5.2007

OJ C 96, 28.4.2007

OJ C 95, 28.4.2007

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 4.8.2007 | EN | Official Journal of the European Union | C 183/2 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/2

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Judgment of the Court (First Chamber) of 14 June 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias, Greece) — Medipac-Kazantzidis AE v Venizelio-Pananio (PE.S.Y. KRITIS)

(Case C-6/05) (1)

(Free movement of goods - Directive 93/42/EEC - Hospital purchase of medical devices bearing the CE marking - Protective measures - Public supply contract - Contract falling below the threshold of application of Directive 93/36/EEC - Principle of equal treatment and obligation of transparency)

(2007/C 183/02)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Medipac-Kazantzidis AE

Defendant: Venizelio-Pananio (PE.S.Y. KRITIS)

Re:

Reference for a preliminary ruling — Symvoulio tis Epikrateias — Interpretation of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1) — Rejection of a tender concerning products bearing the CE marking — Insufficiency of the products in terms of their quality, having regard to the protection of public health and the particular use for which they are intended — Procedure for the supply of medical devices to a hospital

Operative part of the judgment

| 1) | The principle of equal treatment and the obligation of transparency preclude a contracting authority, which has issued an invitation to tender for the supply of medical devices and specified that those devices must comply with the European Pharmacopoeia and bear the CE marking, from rejecting, directly and without following the safeguard procedure provided for in Articles 8 and 18 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, on grounds of protection of public health, the materials proposed, if they comply with the stated technical requirement. If the contracting authority considers that those materials may jeopardise public health, it is required to inform the competent national authority with a view to setting that safeguard procedure in motion. |
| --- | --- |

1)

The principle of equal treatment and the obligation of transparency preclude a contracting authority, which has issued an invitation to tender for the supply of medical devices and specified that those devices must comply with the European Pharmacopoeia and bear the CE marking, from rejecting, directly and without following the safeguard procedure provided for in Articles 8 and 18 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, on grounds of protection of public health, the materials proposed, if they comply with the stated technical requirement. If the contracting authority considers that those materials may jeopardise public health, it is required to inform the competent national authority with a view to setting that safeguard procedure in motion.

| 2) | A contracting authority, which has referred a matter to the competent national authority with a view to setting in motion the safeguard procedure provided for by Articles 8 and 18 of Directive 93/42, as amended by Regulation No 1882/2003, concerning medical devices bearing the CE marking, is required to suspend the tendering procedure until the end of that safeguard procedure, the outcome of that procedure being binding on the contracting authority. If the implementation of such a safeguard procedure gives rise to delays liable to jeopardise the operation of a public hospital and thereby public health, the contracting authority is entitled to take all interim measures required to enable it to procure the materials necessary for the smooth running of that hospital, subject to compliance with the principle of proportionality. |
| --- | --- |

2)

A contracting authority, which has referred a matter to the competent national authority with a view to setting in motion the safeguard procedure provided for by Articles 8 and 18 of Directive 93/42, as amended by Regulation No 1882/2003, concerning medical devices bearing the CE marking, is required to suspend the tendering procedure until the end of that safeguard procedure, the outcome of that procedure being binding on the contracting authority. If the implementation of such a safeguard procedure gives rise to delays liable to jeopardise the operation of a public hospital and thereby public health, the contracting authority is entitled to take all interim measures required to enable it to procure the materials necessary for the smooth running of that hospital, subject to compliance with the principle of proportionality.

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(1)  OJ C 69, 19.3.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/3 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/3

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Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-127/05) (1)

(Failure of a Member State to fulfil obligations - Social policy - Protection of the safety and health of workers - Directive 89/391/EEC - Article 5(1) - Employer's duty to ensure the safety and health of workers in every aspect related to the work - Employer's liability)

(2007/C 183/03)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: M.-J. Jonczy and N. Yerrell, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Gibbs, Agent, D. Anderson, QC, and D. Barr, Barrister)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 5(1) and (4) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1) — National legislation restricting the duty on employers to ensure the safety and health of workers in every aspect related to work

Operative part of the judgment

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

1.

Dismisses the action;

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

2.

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

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(1)  OJ C 143, 11.6.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/3 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/3

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Judgment of the Court (Fourth Chamber) of 14 June 2007 — Commission of the European Communities v Ireland

(Case C-148/05) (1)

(Failure of a Member State to fulfil its obligations - Directive 79/923/EEC - Quality of shellfish waters - Designation of shellfish waters - Pollution reduction programmes - Setting control parameters)

(2007/C 183/04)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: B. Doherty and D. Recchia, Agents)

Defendant: Ireland (represented by: D. O'Hagan, acting as Agent, and N.J. Travers BL)

Re:

Failure of a Member State to fulfil obligations — Incomplete transposition of Articles 3, 4 and 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters (OJ 1979 L 281, p. 47) — Failure to designate certain shellfish waters, to establish pollution-reduction programmes and to set control parameters

Operative part of the judgment

The Court:

| 1. | Declares that, by failing:






  — | in accordance with Article 4 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters, to designate all shellfish waters requiring designation; |
| --- | --- | --- |

1.

Declares that, by failing:

—

in accordance with Article 4 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters, to designate all shellfish waters requiring designation;

| — | in accordance with Article 3 of Directive 79/923, to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4; and |
| --- | --- |

—

in accordance with Article 3 of Directive 79/923, to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4; and

| — | in accordance with Article 5 of Directive 79/923, to take all necessary measures to establish pollution reduction programmes for waters requiring designation pursuant to Article 4, |
| --- | --- |

—

in accordance with Article 5 of Directive 79/923, to take all necessary measures to establish pollution reduction programmes for waters requiring designation pursuant to Article 4,

Ireland has failed to fulfil its obligations under that directive.

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

2.

Orders Ireland to pay the costs.

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(1)  OJ C 69, 19.3.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/4 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/4

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Judgment of the Court (Second Chamber) of 21 June 2007 — Commission of the European Communities v Italian Republic

(Case C-173/05) (1)

(Failure of a Member State to fulfil obligations - Articles 23 EC, 25 EC and 133 EC - EEC-Algeria Cooperation Agreement - Environmental protection tax on gas pipelines installed in the Sicilian Region - Charge having equivalent effect to a customs duty)

(2007/C 183/05)

Language of the case: Italian

Parties

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

Defendant: Italian Republic (represented by: I.M. Braguglia, Agent, and A. Cingolo, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 23 EC, 25 EC, 26 EC and 133 EC and of Articles 4 and 9 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria signed on 26 April 1976 and approved by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) — National law imposing an environmental protection tax (‘tributo ambientale’) on gas pipelines installed in the Sicilian Region

Operative part of the judgment

The Court:

| 1. | Declares that, by introducing an environmental tax on methane gas from Algeria, the Italian Republic has failed to fulfil its obligations under Articles 23 EC, 25 EC and 133 EC and under Article 9 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976, and approved on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978; |
| --- | --- |

1.

Declares that, by introducing an environmental tax on methane gas from Algeria, the Italian Republic has failed to fulfil its obligations under Articles 23 EC, 25 EC and 133 EC and under Article 9 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976, and approved on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Italian Republic to pay the costs. |
| --- | --- |

3.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 155, 25.6.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/4 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/4

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Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Oberster Patent- und Markensenat, Austria) — Armin Häupl v Lidl Stiftung & Co. KG

(Case C-246/05) (1)

(Trade mark law - Article 10(1) of Directive 89/104/EEC - Absence of genuine use of a trade mark - Concept of ‘date of the completion of the registration procedure’)

(2007/C 183/06)

Language of the case: German

Referring court

Oberster Patent- und Markensenat

Parties to the main proceedings

Applicant: Armin Häupl

Defendant: Lidl Stiftung & Co. KG

Re:

Reference for a preliminary ruling — Oberster Patent- und Markensenat — Interpretation of Articles 10(1) and 12(1) of Directive 89/104/EEC: First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Absence of genuine use of a mark — Reasons outside the control of the undertaking preventing it from opening supermarkets on the national territory, whereas its usual strategy is to market goods bearing that mark only in its own supermarkets — Concept of the date on which the registration procedure finishes

Operative part of the judgment

| 1) | The ‘date of the completion of the registration procedure’ within the meaning of Article 10(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be determined in each Member State in accordance with the procedural rules on registration in force in that State; |
| --- | --- |

1)

The ‘date of the completion of the registration procedure’ within the meaning of Article 10(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be determined in each Member State in accordance with the procedural rules on registration in force in that State;

| 2) | Article 12(1) of Directive 89/104 must be interpreted as meaning that obstacles having a direct relationship with a trade mark which make its use impossible or unreasonable and which are independent of the will of the proprietor of that mark constitute ‘proper reasons for non-use’ of the mark. It is for the national court or tribunal to assess the facts in the main proceedings in the light of that guidance. |
| --- | --- |

2)

Article 12(1) of Directive 89/104 must be interpreted as meaning that obstacles having a direct relationship with a trade mark which make its use impossible or unreasonable and which are independent of the will of the proprietor of that mark constitute ‘proper reasons for non-use’ of the mark. It is for the national court or tribunal to assess the facts in the main proceedings in the light of that guidance.

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(1)  OJ C 193, 16.8.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/5 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/5

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Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the Rechtbank te Rotterdam, Netherlands) — Criminal proceedings against Omni Metal Service

(Case C-259/05) (1)

(Regulation (EEC) No 259/93 - Waste - Cables composed of copper and PVC - Export to China for purposes of recovery - Heading GC 020 - Mixed waste - Combination of two materials mentioned in the green list of wastes - Such mixed waste not included on the green list - Consequences)

(2007/C 183/07)

Language of the case: Dutch

Referring court

Rechtbank te Rotterdam

Party in the criminal prosecution in the main proceedings

Omni Metal Service

Re:

Reference for a preliminary ruling — Rechtbank Rotterdam — Interpretation of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1) — Whether cable scrap with a diameter of 15 cm and composed of different materials may be classified as electronic scrap within the meaning of heading GC 020 of the green list in Annex II to that regulation — Whether it is possible to transport such waste without the notification procedure or without the need to transport it separately

Operative part of the judgment

| 1. | Heading GC 020 of the green list of wastes in Annex II to Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, as amended by Commission Regulation (EC) No 2557/2001 of 28 December 2001, is to be interpreted as covering wire cable only if such wire comes from electronic equipment. |
| --- | --- |

1.

Heading GC 020 of the green list of wastes in Annex II to Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, as amended by Commission Regulation (EC) No 2557/2001 of 28 December 2001, is to be interpreted as covering wire cable only if such wire comes from electronic equipment.

| 2. | Regulation No 259/93, as amended by Regulation No 2557/2001, is to be construed in such a way that the fact that composite waste is a combination of two materials both of which are mentioned in the green list of wastes in Annex II to that regulation does not have the effect of making the rules laid down by that regulation concerning the wastes mentioned on that list applicable to such composite waste. |
| --- | --- |

2.

Regulation No 259/93, as amended by Regulation No 2557/2001, is to be construed in such a way that the fact that composite waste is a combination of two materials both of which are mentioned in the green list of wastes in Annex II to that regulation does not have the effect of making the rules laid down by that regulation concerning the wastes mentioned on that list applicable to such composite waste.

---

(1)  OJ C 243, 1.10.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/5 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/5

---

Judgment of the Court (Second Chamber) of 14 June 2007 — Commission of the European Communities v Republic of Finland

(Case C-342/05) (1)

(Failure of a Member State to fulfil its obligations - Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora - Wolf hunting)

(2007/C 183/08)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: M. van Beek and I. Koskinen, Agents)

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

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 12(1) and 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Hunting of wolves

Operative part of the judgment

The Court:

| 1. | Declares that, by authorising wolf hunting on a preventive basis, without it being established that the hunting is such as to prevent serious damage within the meaning of Article 16(1)(b) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Finland has failed to fulfil its obligations under Articles 12(1) and 16(1)(b) of that directive; |
| --- | --- |

1.

Declares that, by authorising wolf hunting on a preventive basis, without it being established that the hunting is such as to prevent serious damage within the meaning of Article 16(1)(b) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Finland has failed to fulfil its obligations under Articles 12(1) and 16(1)(b) of that directive;

| 2. | Dismisses the action as to the remainder; |
| --- | --- |

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission of the European Communities and the Republic of Finland to bear their own costs. |
| --- | --- |

3.

Orders the Commission of the European Communities and the Republic of Finland to bear their own costs.

---

(1)  OJ C 281, 12.11.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/6 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/6

---

Judgment of the Court (Eighth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-358/05) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/54/EC - Internal market in electricity - Failure to transpose within the period prescribed)

(2007/C 183/09)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and S. Pardo Quintillán, acting as Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, the laws, regulation and administrative provisions to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulation and administrative provisions to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 296, 26.11.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/6 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/6

---

Judgment of the Court (Fourth Chamber) of 21 June 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Optimus — Telecomunicações SA v Fazenda Pública

(Case C-366/05) (1)

(Indirect taxes on the raising of capital - Directive 69/335/EEC, as amended by Directive 85/303/EEC - Article 7(1) - Capital duty - Exemption - Conditions - Situation as at 1 July 1984)

(2007/C 183/10)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Optimus — Telecomunicações SA

Defendant: Fazenda Pública

Intervener: Ministério Público

Re:

Preliminary ruling — Supremo Tribunal Administrativo — Interpretation of Article 4(2), Article 7(1), Article 8 and Article 10 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English Special Edition 1969 II, p. 412) as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — Stamp duty levied on an increase of capital of a public limited company, paid up in cash, even though as at 1 July 1984 transactions of that kind were exempt from such duty

Operative part of the judgment

| 1. | In the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, in the absence of derogating provisions in the Act of Accession of that State or in another Community document, Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted to mean that the mandatory exemption for which it provides applies to all transactions falling within the scope of Directive 69/335 which, on 1 July 1984, were exempted, in that State, from capital duty or which were subject to that duty at a reduced rate of 0.50 % or less. |
| --- | --- |

1.

In the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, in the absence of derogating provisions in the Act of Accession of that State or in another Community document, Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted to mean that the mandatory exemption for which it provides applies to all transactions falling within the scope of Directive 69/335 which, on 1 July 1984, were exempted, in that State, from capital duty or which were subject to that duty at a reduced rate of 0.50 % or less.

| 2. | In the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, Articles 7(1) and 10 of Directive 69/335, as amended by Directive 85/303, prohibit the introduction, after 1 January 1986, of stamp duty on a transaction increasing share capital falling within the scope of Directive 69/335 which, on 1 July 1984, was exempted from that duty under national law. |
| --- | --- |

2.

In the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, Articles 7(1) and 10 of Directive 69/335, as amended by Directive 85/303, prohibit the introduction, after 1 January 1986, of stamp duty on a transaction increasing share capital falling within the scope of Directive 69/335 which, on 1 July 1984, was exempted from that duty under national law.

---

(1)  OJ C 330, 24.12.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/7 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/7

---

Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-422/05) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/30/EC - Air transport - Noise-related operating restrictions at Community airports - Adoption by a Member State of a measure liable seriously to compromise the result prescribed by the directive during the transposition period)

(2007/C 183/11)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: F. Benyon and M. Huttunen, Agents, acting as Agents)

Defendant: Kingdom of Belgium (represented by: M. Wimmer and A. Hubert, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of the second paragraph of Article 10 EC and the third paragraph of Article 249 EC — Measures taken by a Member State during the period laid down for implementation of Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (OJ 2002 L 85, p. 40) which are liable seriously to compromise the result prescribed by the Directive — National legislation limiting night flights of certain types of civil subsonic jet aircraft

Operative part of the judgment

| 1. | Declares that, by adopting the Royal Decree of 14 April 2002 regulating night flights of certain types of civil subsonic jet aeroplanes, the Kingdom of Belgium has failed to fulfil its obligations under Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports and under the second paragraph of Article 10 EC, read in conjunction with the third paragraph of Article 249 EC; |
| --- | --- |

1.

Declares that, by adopting the Royal Decree of 14 April 2002 regulating night flights of certain types of civil subsonic jet aeroplanes, the Kingdom of Belgium has failed to fulfil its obligations under Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports and under the second paragraph of Article 10 EC, read in conjunction with the third paragraph of Article 249 EC;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 48, 25.2.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/7 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/7

---

Judgment of the Court (Third Chamber) of 21 June 2007 — Commission of the European Communities v Sonja Hosman-Chevalier

(Case C-424/05 P) (1)

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

(2007/C 183/12)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: H. Kraemer and M. Velardo, acting as Agents)

Other party to the proceedings: Sonja Hosman-Chevalier (represented by: J.-R. García-Gallardo Gil-Fournier, A. Sayagués Torres and D. Dominguez Pérez, abogados)

Re:

Appeal brought against the judgment of the Court of First Instance (First Chamber) of 13 September 2005 in Case T-72/04 Hosman-Chevalier v Commission, in which the Court of First Instance annulled the Commission's decisions refusing to grant payment of the expatriation allowance and the installation allowance

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

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

2.

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

---

(1)  OJ C 10, 14.1.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/8 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/8

---

Judgment of the Court (Eighth Chamber) of 21 June 2007 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Firma Laub GmbH & Co. Vieh & Fleisch Import-Export v Hauptzollamt Hamburg-Jonas

(Case C-428/05) (1)

(Export refunds - Regulation (EEC) No 3665/87 - Definition of ‘undue payment of a refund’ - Payment of a refund on the basis of incomplete documentation - Possibility of completing the documents relating to the payment of the refund after the expiry of the periods referred to in Articles 47(2) and 48(2)(a) of Regulation (EEC) No 3665/87 in the context of a subsequent recovery procedure)

(2007/C 183/13)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Firma Laub GmbH & Co. Vieh & Fleisch Import-Export

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Articles 11(3), subparagraph 1, first sentence, Article 47(2) and 48(2)(a) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 495/97 of 18 March 1997 (OJ 1997 L 77, p. 12) — Concept of ‘undue payment of a refund’ — Recovery of refunds awarded on production of an incomplete transport document, the duly completed document having been produced only after expiry of the time-limits

Operative part of the judgment

An export refund can not be regarded as ‘unduly paid’, within the meaning of the first sentence of the first subparagraph of Article 11(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as last amended by Commission Regulation (EC) No 604/98 of 17 March 1998, if the beneficiary, in the context of a recovery procedure for the refund, produces the necessary evidence to justify its right to that refund. It is a matter for the competent national authorities to set a reasonable time-limit which allows the beneficiary to produce this evidence.

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(1)  OJ C 36, 11.2.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/8 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/8

---

Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands) — Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën

(Case C-434/05) (1)

(Sixth VAT Directive - Exemptions - Article 13A(1)(i) and 13A(2) - Teaching staff employed by one educational establishment made available, for consideration, to another)

(2007/C 183/14)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College)

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 13(A)(1)(i) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Extent of the exemption in it — Teacher employed by one educational establishment made available, for consideration, to another

Operative part of the judgment

| 1) | Article 13A(1)(i) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, is to be interpreted as meaning that the expression ‘children's or young people's education, school or university education, vocational training or retraining’ does not cover the making available, for consideration, of a teacher to an educational establishment, within the meaning of that provision, in which that teacher temporarily carries out teaching duties under the responsibility of that establishment, even if the body which makes the teacher available is itself a body governed by public law that has an educational aim, or another organisation defined by the Member State concerned as having similar objects. |
| --- | --- |

1)

Article 13A(1)(i) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, is to be interpreted as meaning that the expression ‘children's or young people's education, school or university education, vocational training or retraining’ does not cover the making available, for consideration, of a teacher to an educational establishment, within the meaning of that provision, in which that teacher temporarily carries out teaching duties under the responsibility of that establishment, even if the body which makes the teacher available is itself a body governed by public law that has an educational aim, or another organisation defined by the Member State concerned as having similar objects.

| 2) | Article 13A(1)(i) of Sixth Directive 77/388, read in conjunction with Article 13A(2) of that directive, is to be interpreted as meaning that the making available, for consideration, of a teacher to an educational establishment in which that teacher temporarily carries out teaching duties under the responsibility of that establishment, may constitute a transaction that is exempt from value added tax on the basis that it is a supply of services ‘closely related’ to education, within the meaning of Article 13A(1)(i), if such a teacher placement is a means of better enjoying the education deemed to be the principal service, provided, however, — which it is for the national court to verify — that:






  — | both that principal service and the placement which is closely related to it are provided by bodies referred to in Article 13A(1)(i), taking into account, where appropriate, any conditions which may have been introduced by the Member State concerned pursuant to Article 13A(2)(a); |
| --- | --- | --- |

2)

Article 13A(1)(i) of Sixth Directive 77/388, read in conjunction with Article 13A(2) of that directive, is to be interpreted as meaning that the making available, for consideration, of a teacher to an educational establishment in which that teacher temporarily carries out teaching duties under the responsibility of that establishment, may constitute a transaction that is exempt from value added tax on the basis that it is a supply of services ‘closely related’ to education, within the meaning of Article 13A(1)(i), if such a teacher placement is a means of better enjoying the education deemed to be the principal service, provided, however, — which it is for the national court to verify — that:

—

both that principal service and the placement which is closely related to it are provided by bodies referred to in Article 13A(1)(i), taking into account, where appropriate, any conditions which may have been introduced by the Member State concerned pursuant to Article 13A(2)(a);

| — | that placement is of a nature and quality such that, without recourse to such a service, there could be no assurance that the education provided by the host establishment and, consequently, the education from which its students benefit, would have an equivalent value; and |
| --- | --- |

—

that placement is of a nature and quality such that, without recourse to such a service, there could be no assurance that the education provided by the host establishment and, consequently, the education from which its students benefit, would have an equivalent value; and

| — | the basic purpose of such a placement is not to obtain additional income by carrying out a transaction which is in direct competition with commercial enterprises liable for value added tax. |
| --- | --- |

—

the basic purpose of such a placement is not to obtain additional income by carrying out a transaction which is in direct competition with commercial enterprises liable for value added tax.

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(1)  OJ C 74, 25.3.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/9 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/9

---

Judgment of the Court (Third Chamber) of 14 June 2007 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Werner Haderer v Finanzamt Wilmersdorf

(Case C-445/05) (1)

(Sixth VAT Directive - Exemptions - Article 13A(1)(j) - Tuition given privately by teachers and covering school or university education - Education provided in the context of courses organised by adult education centres - No direct contractual link with pupils)

(2007/C 183/15)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Werner Haderer

Respondent: Finanzamt Wilmersdorf

Re:

Preliminary ruling — Bundesfinanzhof — Interpretation of Article 13A(1)(j) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemption for lessons provided by private teachers — Education provided in the context of courses organised by adult education centres

Operative part of the judgment

In circumstances such as those in the main proceedings, the activities of an individual acting in a freelance capacity, consisting of providing assistance with schoolwork and also running ceramics and pottery courses in adult education centres, can be exempted from value added tax under Article 13A(1)(j) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment only where such activities consist of tuition given by a teacher on his own account and at his own risk, and covering school or university education. It is for the referring court to verify whether that is the case in the main proceedings.

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(1)  OJ C 60, 11.3.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/10 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/10

---

Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg, Germany) — Volker Ludwig v Finanzamt Luckenwalde

(Case C-453/05) (1)

(Sixth Directive - VAT - Concept of transactions consisting in ‘the negotiation of credit’)

(2007/C 183/16)

Language of the case: German

Referring court

Finanzgericht des Landes Brandenburg

Parties to the main proceedings

Applicant: Volker Ludwig

Defendant: Finanzamt Luckenwalde

Re:

Reference for a preliminary ruling — Finanzgericht des Landes Brandenburg — Interpretation of Article 13B(d)(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended — Concept of transactions consisting in the negotiation of credit — Refusal to exempt commission received by a financial adviser from a company providing financial services, of which he is subagent, as remuneration for the conclusion of a credit agreement, where there is no contractual relationship between the adviser and the parties to the credit agreement

Operative part of the judgment

| 1) | The fact that a taxable person analyses the financial situation of clients canvassed by him with a view to obtaining credit for them does not preclude recognition of the service supplied as being a negotiation of credit which is exempt under Article 13B(d)(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, if, in the light of the foregoing interpretative criteria, the negotiation of credit offered by that taxable person falls to be considered as the principal service to which the provision of financial advice is ancillary, in such a way that the latter shares the same tax treatment as the former. It is for the national court to determine whether that is the case in the proceedings before it. |
| --- | --- |

1)

The fact that a taxable person analyses the financial situation of clients canvassed by him with a view to obtaining credit for them does not preclude recognition of the service supplied as being a negotiation of credit which is exempt under Article 13B(d)(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, if, in the light of the foregoing interpretative criteria, the negotiation of credit offered by that taxable person falls to be considered as the principal service to which the provision of financial advice is ancillary, in such a way that the latter shares the same tax treatment as the former. It is for the national court to determine whether that is the case in the proceedings before it.

| 2) | The fact that the taxable person has no contractual link with any of the parties to a credit agreement to the conclusion of which he has contributed and that he does not establish direct contact with one of those parties does not preclude that taxable person from providing a service of negotiation of credit which is exempt under Article 13B(d)(1) of Sixth Directive 77/388. |
| --- | --- |

2)

The fact that the taxable person has no contractual link with any of the parties to a credit agreement to the conclusion of which he has contributed and that he does not establish direct contact with one of those parties does not preclude that taxable person from providing a service of negotiation of credit which is exempt under Article 13B(d)(1) of Sixth Directive 77/388.

---

(1)  OJ C 60, 11.3.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/11 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/11

---

Judgment of the Court (First Chamber) of 14 June 2007 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf, Germany) — Euro Tex Textilverwertung GmbH v Hauptzollamt Duisburg

(Case C-56/06) (1)

(Association between the European Communities and their Member States and the Republic of Poland - Concept of ‘originating products’ - Used clothing)

(2007/C 183/17)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Euro Tex Textilverwertung GmbH

Defendant: Hauptzollamt Duisburg

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Article 7(1)(b) of Protocol 4 to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part — Protocol 4 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation (OJ 1993 L 348, p. 2), as amended by Decision No 1/97 of the Association Council, Association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, of 30 June 1997 (OJ 1997 L 221, p. 1) — Concept of ‘originating products’ — Determination of the origin of used items of clothing which have been separated and sorted within the Community

Operative part of the judgment

Since Article 7(1)(b) of Protocol 4 to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, as amended by Decision No 1/97 of the Association Council, Association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, of 30 June 1997 does not make it possible to draw a distinction between simple and more complex matching operations, matching operations such as those described in the order for reference are covered by the concept of simple operations of matching for the purposes of that provision.

---

(1)  OJ C 86, 8.4.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/11 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/11

---

Judgment of the Court (Second Chamber) of 14 June 2007 (reference for a preliminary ruling from the Obvodní soud pro Prahu 3 — Czech Republic) — Telefónica O2 Czech Republic as, formerly Český Telecom as v Czech On Line as

(Case C-64/06) (1)

(Electronic communications - Networks and services - Common regulatory framework - Dominant undertaking - Obligation of interconnection with other operators - Transitional provisions - Directive 97/33)

(2007/C 183/18)

Language of the case: Czech

Referring court

Obvodní soud pro Prahu 3 — Czech Republic

Parties to the main proceedings

Applicant: Telefónica O2 Czech Republic as, formerly Český Telecom as

Defendant: Czech On Line as

Re:

Preliminary ruling — Obvodní soud pro Prahu 3 (Czech Republic) — Interpretation of provisions of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7) and Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Obligation imposed by the national regulatory authority on an undertaking with significant power in the telecommunications market to conclude a contract with another operator on the interconnection of networks, following an administrative procedure which took place for the most part before accession to the EU and was not preceded by a market analysis procedure

Operative part of the judgment

In accordance with the transitional provisions of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities, the ‘Access Directive’) and of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (the ‘Framework Directive’), the Český telekomunikační úřad [Czech telecommunications regulatory authority] was entitled to consider the obligation, on the part of a telecommunications company with significant market power within the meaning of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), as amended by Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998, to conclude a contract for the interconnection of its networks with that of another operator, subsequent to 1 May 2004, within the context of the provisions of Directive 97/33, as amended.

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(1)  OJ C 121, 20.5.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/12 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/12

---

Judgment of the Court (Eighth Chamber) of 14 June 2007 — Commission of the European Communities v Italian Republic

(Case C-82/06) (1)

(Failure of a Member State to fulfil its obligations - Environment - Waste - Hazardous waste - Directives 75/442/EEC and 91/689/EEC - Obligation to draw up and communicate waste management plans)

(2007/C 183/19)

Language of the case: Italian

Parties

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

Defendant: Italian Republic (represented by: I. Braguglia and G. Fiengo, Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Article 7 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 47), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and Article 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20) — Obligation to communicate waste management plans

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to draw up:






  — | a waste management plan in accordance with Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, for the Province of Rimini; |
| --- | --- | --- |

1.

Declares that, by failing to draw up:

—

a waste management plan in accordance with Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, for the Province of Rimini;

| — | waste management plans including suitable sites or installations for the disposal of waste in accordance with the fourth indent of Article 7(1) of Directive 75/442, as amended by Directive 91/156, for the Region of Lazio; |
| --- | --- |

—

waste management plans including suitable sites or installations for the disposal of waste in accordance with the fourth indent of Article 7(1) of Directive 75/442, as amended by Directive 91/156, for the Region of Lazio;

| — | waste management plans in accordance with Article 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste for the Regions of Friuli Venezia-Giulia and Puglia, the Autonomous Province of Bolzano Alto-Adige and the Province of Rimini, |
| --- | --- |

—

waste management plans in accordance with Article 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste for the Regions of Friuli Venezia-Giulia and Puglia, the Autonomous Province of Bolzano Alto-Adige and the Province of Rimini,

the Italian Republic has failed to fulfil its obligations under those directives;

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

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 86, 8.4.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/12 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/12

---

Judgment of the Court (First Chamber) of 21 June 2007 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Stichting ROM-projecten v Staatssecretaris van Economische Zaken

(Case C-158/06) (1)

(Structural funds - Repayment of Community aid in the case of irregularity - Failure to publish or make known the conditions of grant of the aid - Beneficiary's lack of knowledge - Good faith - Legal certainty - Effectiveness - Article 10 EC)

(2007/C 183/20)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: Stichting ROM-projecten

Defendant: Staatssecretaris van Economische Zaken

Re:

Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Interpretation of Article 6 of Commission Decision C (95) 1753 of 16 October 1995 concerning a contribution from the European Regional Development Fund (ERDF) and the European Social Fund (ESF) for an operational programme within the framework of the SME Community initiative for the benefit of areas eligible under Objectives 1 and 2 in the Netherlands — Whether unconditional and sufficiently clear and precise to be directly applicable with regard to the final beneficiary — Interpretation of Article 38(1)(h) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1) — Non-recovery, following an irregularity, vis-à-vis a beneficiary who was not informed of the Commission's decision

Operative part of the judgment

Where the conditions for the grant of a financial assistance by the Community to a Member State are set out in the grant decision but that Member State has neither published them nor made them known to the ultimate beneficiary of the assistance, it is not contrary to Community law to apply the principle of legal certainty so as to preclude repayment by that beneficiary of the amounts wrongly paid, provided that it is possible to establish the beneficiary's good faith. In such a case, the Member State concerned may be held financially liable for the amounts not recovered in order to give effect to the Community's right to obtain repayment of the amount of the assistance.

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(1)  OJ C 60, 11.3.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/13 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/13

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Judgment of the Court (First Chamber) of 21 June 2007 (references for a preliminary ruling from the Cour du travail de Bruxelles, Belgium) — National Pensions Office v Emilienne Jonkman (C-231/06), Hélène Vercheval (C-232/06) and Noëlle Permesaen (C-233/06) v National Pensions Office

(Case C-231/06 to C-233/06) (1)

(Equal treatment for men and women - Statutory pension scheme - Directive 79/7/EEC - Air hostesses - Grant of a pension equal to that of stewards - Payment of adjustment contributions in a single payment - Interest payments - Principle of effectiveness - Obligations on a Member State as a result of a preliminary ruling)

(2007/C 183/21)

Language of the case: French

Referring court

Cour du travail de Bruxelles

Parties to the main proceedings

Appellants: National Pensions Office, Noëlle Permesaen (C-233/06)

Respondents: Emilienne Jonkman (C-231/06), Hélène Vercheval (C-232/06), National Pensions Office

Re:

Reference for a preliminary ruling — Cour du travail de Bruxelles (Labour Court, Brussels) — Interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) — Possibility for a woman who was excluded from a more favourable pension scheme to be entitled to membership thereof retroactively, on making payment of the contributions relating to the membership period in question, in the form of a lump sum payment, and of late payment interest

Operative part of the judgment

| 1. | When a Member State adopts rules intended to allow persons of a particular sex, originally discriminated against, to become eligible throughout their retirement for the pension scheme applicable to persons of the other sex, Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security:






  — | does not preclude that Member State from making such membership dependent upon the payment of adjustment contributions consisting of the difference between the contributions paid by the persons originally discriminated against in the period during which the discrimination took place and the higher contributions paid by the other category of persons during the same period, together with interest to compensate for inflation, |
| --- | --- | --- |

1.

When a Member State adopts rules intended to allow persons of a particular sex, originally discriminated against, to become eligible throughout their retirement for the pension scheme applicable to persons of the other sex, Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security:

—

does not preclude that Member State from making such membership dependent upon the payment of adjustment contributions consisting of the difference between the contributions paid by the persons originally discriminated against in the period during which the discrimination took place and the higher contributions paid by the other category of persons during the same period, together with interest to compensate for inflation,

| — | does preclude, by contrast, that Member State from requiring that payment of adjustment contributions to be made together with interest other than that to compensate for inflation, |
| --- | --- |

—

does preclude, by contrast, that Member State from requiring that payment of adjustment contributions to be made together with interest other than that to compensate for inflation,

| — | also precludes a requirement that that payment be made as a single sum, where that condition makes the adjustment concerned impossible or excessively difficult in practice. That is the case in particular where the sum to be paid exceeds the annual pension of the interested party. |
| --- | --- |

—

also precludes a requirement that that payment be made as a single sum, where that condition makes the adjustment concerned impossible or excessively difficult in practice. That is the case in particular where the sum to be paid exceeds the annual pension of the interested party.

| 2. | Following a judgment given by the Court on an order for reference from which it is apparent that the national legislation is incompatible with Community law, it is for the authorities of the Member State concerned to take the general or particular measures necessary to ensure that Community law is complied with, by ensuring in particular that national law is changed so as to comply with Community law as soon as possible and that the rights which individuals derive from Community law are given full effect. |
| --- | --- |

2.

Following a judgment given by the Court on an order for reference from which it is apparent that the national legislation is incompatible with Community law, it is for the authorities of the Member State concerned to take the general or particular measures necessary to ensure that Community law is complied with, by ensuring in particular that national law is changed so as to comply with Community law as soon as possible and that the rights which individuals derive from Community law are given full effect.

| 3. | Where discrimination infringing Community law has been found, for as long as measures reinstating equal treatment have not been adopted, the national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category. |
| --- | --- |

3.

Where discrimination infringing Community law has been found, for as long as measures reinstating equal treatment have not been adopted, the national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category.

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(1)  OJ C 190, 12.8.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/14 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/14

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Judgment of the Court (Seventh Chamber) of 14 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-321/06) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/14/EC - Informing and consulting employees - Failure to transpose within the period prescribed)

(2007/C 183/22)

Language of the case: French

Parties

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

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, all the provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community — Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 212, 2.9.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/14 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/14

---

Judgment of the Court (Sixth Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-333/06) (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 261/2004 - Air transport - Denied boarding and cancellation or long delays of flights - Compensation and assistance to passengers - Adoption of sanctions)

(2007/C 183/23)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: R. Vidal Puig and K. Simonsson, Agents)

Defendant: Kingdom of Sweden (represented by: A. Kruse, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take the measures necessary to comply with Article 16 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delays of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Laying down of effective, proportionate and dissuasive sanctions

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to lay down the sanctions for infringements of the provisions of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delays of flights, and repealing Regulation (EEC) No 295/91, the Kingdom of Sweden has failed to fulfil its obligations under Article 16 of that directive; |
| --- | --- |

1.

Declares that, by failing to lay down the sanctions for infringements of the provisions of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delays of flights, and repealing Regulation (EEC) No 295/91, the Kingdom of Sweden has failed to fulfil its obligations under Article 16 of that directive;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Kingdom of Sweden to pay the costs. |
| --- | --- |

3.

Orders the Kingdom of Sweden to pay the costs.

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(1)  OJ C 224, 16.9.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/15 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/15

---

Judgment of the Court (Eighth Chamber) of 21 June 2007 — Commission of the European Communities v Italian Republic

(Case C-339/06) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/116/EC - Annex to Directive 92/471/EEC - Animal feed - Candida guilliermondii - Failure to transpose within the period prescribed)

(2007/C 183/24)

Language of the case: Italian

Parties

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

Defendant: Italian Republic (represented by: I. Braguglia and S. Fiorentino, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Commission Directive 2004/116/EC of 23 December 2004 amending the Annex to Council Directive 82/471/EEC as regards the inclusion of Candida guilliermondii (OJ 2004 L 379, p. 81)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, the laws, regulation and administrative provisions necessary to comply with Commission Directive 2004/116/EC of 23 December 2004 amending the Annex to Council Directive 82/471/EEC as regards the inclusion of Candida guilliermondii, the Italian Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulation and administrative provisions necessary to comply with Commission Directive 2004/116/EC of 23 December 2004 amending the Annex to Council Directive 82/471/EEC as regards the inclusion of Candida guilliermondii, the Italian Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 224, 16.9.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/15 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/15

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Judgment of the Court (Sixth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-392/06) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/15/EC - Organisation of the working time of persons performing mobile road transport activities - Failure to transpose within the period prescribed)

(2007/C 183/25)

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain (represented by: M.A. Sampol Pucurull)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with 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 (OJ 2002 L 80, p. 35)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with 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, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with 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, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 294, 2.12.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/16 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/16

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Action brought on 30 March 2007 — Commission of the European Communities v Republic of Poland

(Case C-170/07)

(2007/C 183/26)

Language of the case: Polish

Parties

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

Defendant: Republic of Poland

Form of order sought

| — | declare that, by introducing a requirement for roadworthiness tests of imported second-hand vehicles prior to their registration whereas there is no such requirement in relation to domestic vehicles in the same circumstances, the Republic of Poland has failed to fulfil its obligations under Article 28 EC; |
| --- | --- |

—

declare that, by introducing a requirement for roadworthiness tests of imported second-hand vehicles prior to their registration whereas there is no such requirement in relation to domestic vehicles in the same circumstances, the Republic of Poland has failed to fulfil its obligations under Article 28 EC;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Article 28 EC prohibits quantitative restrictions on imports between Member States and all measures having equivalent effect. According to the Court's case-law, in the absence of harmonisation ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions’.

A measure having equivalent effect to a quantitative restriction constitutes an infringement of Article 28 EC unless it is justified on the basis of Article 30 EC or, in accordance with the Court's case-law, by mandatory requirements in the public interest.

The Polish Law on Road Traffic imposes an obligation to carry out a roadworthiness test prior to the first registration of vehicles in Poland. Since new vehicles are exempted from that obligation, in practice only second-hand vehicles imported from other Member States are subject to mandatory roadworthiness tests prior to their registration in Poland. Consequently, that requirement constitutes a measure discriminating against vehicles imported from other Member States compared with domestic vehicles. Moreover, the above conclusion is supported by the fact that the Polish authorities charge for the roadworthiness tests carried out a significant fee almost twice as high as the fee for periodical tests for a domestic vehicle of the same category. In the Commission's view, the Polish authorities have not put forward a legitimate justification for such differentiation. In accordance with settled case-law, national provisions which impose additional costs on imported goods in comparison with similar domestic goods constitute a restriction on intra-Community trade for the purposes of Article 28 EC.

In order to justify such a measure, the Member State must prove that it is necessary and proportionate to the objective pursued. In accordance with Article 30 EC, such a measure cannot constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

In this regard, the Commission acknowledges that the fact that a vehicle has been used on the public highway since the last roadworthiness test may justify, on grounds of the protection of health and life of humans, a test carried out at the time of the vehicle's registration establishing that it has not been involved in an accident and is in a good mechanical condition. The Member States may therefore subject vehicles to roadworthiness tests prior to registration, provided however that such a requirement does not constitute arbitrary discrimination, that is to say it concerns both vehicles imported from other Member States and domestic vehicles in a similar position. However, if provisions of national law do not require roadworthiness tests for domestic vehicles submitted for registration in the same circumstances as vehicles imported from other Member States, such provisions must be found to constitute arbitrary discrimination.

Furthermore, the Commission takes the view that the Polish provisions restricting intra-Community trade cannot be justified by the protection of health and life of humans, because they do not meet the requirement that they be necessary and proportionate.

First, if the roadworthiness of a vehicle has been tested in one of the Member States, the principle of equivalence and of mutual recognition resulting from Article 3(2) of Directive 96/96/EC obliges all Member States to recognise a certificate issued in such circumstances as if they had issued it themselves. The Commission has to reject the argument of the Polish authorities that periodical roadworthiness tests carried out in another Member State are immaterial. In the Commission's view, marking in the registration documents the fact that the vehicle's registration has been cancelled is not intended to invalidate all roadworthiness tests and other certificates concerning the vehicle's mechanical state and, moreover, the cancellation of a vehicle's registration has nothing to do with its mechanical state. Second, selective checking would be more proportionate to safeguarding road safety, because it would concern only those vehicles imported from other Member States in relation to which there is reason to suppose that they endanger road safety or the environment. Third, the Commission does not agree with the Polish Government that roadworthiness tests are necessary for the identification of vehicles and the fight against crime. In the Commission's view, the carrying out of thorough roadworthiness tests which cost almost twice as much as periodical roadworthiness tests is not necessary for determining the category, sub-category, intended use or type of a vehicle. That information is usually already contained in the vehicle documents submitted to the Polish registration bodies. Fourth, the Commission rejects the Polish authorities' argument concerning the Vienna Convention. In the Commission's view, a lack of appropriate rules at international level has no effect on the Republic of Poland's obligations in relation to the Community.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/17 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/17

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Reference for a preliminary ruling from the Sozialgericht Stuttgart (Germany) lodged on 2 May 2007 — Krystyna Zablocka-Weyhermüller v Land Baden-Württemberg

(Case C-221/07)

(2007/C 183/27)

Language of the case: German

Referring court

Sozialgericht Stuttgart

Parties to the main proceedings

Applicant: Krystyna Zablocka-Weyhermüller

Defendant: Land Baden-Württemberg

Question referred

Are the benefit restrictions laid down in German social compensation law under Paragraph 64e of the Bundesversorgungsgesetz (Federal Law on war pensions — BVG) for those entitled to pensions who have their residence or habitual abode in Poland as a new EU accession state consistent with higher-ranking Community law, in particular from the point of view of freedom of movement?

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/17 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/17

---

Reference for a preliminary ruling from the Amtsgericht Landau/Isar (Germany) lodged on 7 May 2007 — Criminal proceedings against Rainer Günther Möginger

(Case C-225/07)

(2007/C 183/28)

Language of the case: German

Referring court

Amtsgericht Landau/Isar

Party to the main proceedings

Rainer Günther Möginger

Questions referred

| 1. | Are Articles 1(2), 7(1)(b), 8(2) and (4) and 9 of Council Directive 91/439/EEC of 29 July 1999 on driving licences (1) as amended by Council Directive 97/26/EC of 2 June 1997 (hereinafter: the directive) to be interpreted as meaning
  that they preclude a Member State from refusing to recognise a driving licence issued by another Member State even where its holder has, in the first Member State, been subject to a measure withdrawing or cancelling the right to drive issued by that Member State and where a temporary ban on obtaining a new right to drive, with which that measure is coupled, had not yet expired before the date on which the driving licence was issued by the other Member State? |
| --- | --- |

1.

Are Articles 1(2), 7(1)(b), 8(2) and (4) and 9 of Council Directive 91/439/EEC of 29 July 1999 on driving licences (1) as amended by Council Directive 97/26/EC of 2 June 1997 (hereinafter: the directive) to be interpreted as meaning

that they preclude a Member State from refusing to recognise a driving licence issued by another Member State even where its holder has, in the first Member State, been subject to a measure withdrawing or cancelling the right to drive issued by that Member State and where a temporary ban on obtaining a new right to drive, with which that measure is coupled, had not yet expired before the date on which the driving licence was issued by the other Member State?

| 2. | If so:
  Is that directive to be interpreted as meaning that the principle of mutual recognition may be ignored by the courts and authorities of the first Member State where, on grounds of abuse of a right, the holder of the right to drive is barred in a specific case from relying on the right to drive acquired in another EU Member State, in particular where an overall appraisal of the objective circumstances shows that, despite formal observance of the conditions laid down by the Community rules, the purpose of the rules in the directive has not been achieved and where there is a subjective element consisting in the intention to obtain an advantage from the Community rules, in the form of recognition of the right to drive acquired in another EU Member State, by arbitrarily creating the conditions laid down for acquiring it,
  above all,






  — | where, according to the information available to the first Member State, when the driving licence was issued the holder of the driving licence had his normal residence in that Member State and not in the Member State which issued the driving licence, and |
| --- | --- | --- |

2.

If so:

Is that directive to be interpreted as meaning that the principle of mutual recognition may be ignored by the courts and authorities of the first Member State where, on grounds of abuse of a right, the holder of the right to drive is barred in a specific case from relying on the right to drive acquired in another EU Member State, in particular where an overall appraisal of the objective circumstances shows that, despite formal observance of the conditions laid down by the Community rules, the purpose of the rules in the directive has not been achieved and where there is a subjective element consisting in the intention to obtain an advantage from the Community rules, in the form of recognition of the right to drive acquired in another EU Member State, by arbitrarily creating the conditions laid down for acquiring it,

above all,

—

where, according to the information available to the first Member State, when the driving licence was issued the holder of the driving licence had his normal residence in that Member State and not in the Member State which issued the driving licence, and

| — | where, according to the information available to the first Member State, it must be assumed, on the basis of objective and judicially verifiable facts, that the holder of the right to drive would not have had any possibility of lawfully acquiring a right to drive in the first Member State. |
| --- | --- |

—

where, according to the information available to the first Member State, it must be assumed, on the basis of objective and judicially verifiable facts, that the holder of the right to drive would not have had any possibility of lawfully acquiring a right to drive in the first Member State.

---

(1)  OJ L 237, p. 1.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/18 |
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4.8.2007

EN

Official Journal of the European Union

C 183/18

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 14 May 2007 — Dieter Janecek v Freistaat Bayern

(Case C-237/07)

(2007/C 183/29)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Dieter Janecek

Defendant: Freistaat Bayern

Questions referred

| 1. | Is Article 7(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (1) to be interpreted as meaning that a third party whose health is impaired is entitled to the preparation of an action plan even if, irrespective of any action plan, he is in a position to enforce his right to avoid any detriment to his health as a result of the nuisance limit value for particulate matter PM10 being exceeded, by bringing an action for intervention by the public authority? |
| --- | --- |

1.

Is Article 7(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (1) to be interpreted as meaning that a third party whose health is impaired is entitled to the preparation of an action plan even if, irrespective of any action plan, he is in a position to enforce his right to avoid any detriment to his health as a result of the nuisance limit value for particulate matter PM10 being exceeded, by bringing an action for intervention by the public authority?

| 2. | If so, is a third party who is affected by such concentrations of particulate matter PM10 as could be detrimental to health entitled to have an action plan drawn up laying down the measures to be taken in the short term to ensure strict compliance with the nuisance limit value for particulate matter PM10? |
| --- | --- |

2.

If so, is a third party who is affected by such concentrations of particulate matter PM10 as could be detrimental to health entitled to have an action plan drawn up laying down the measures to be taken in the short term to ensure strict compliance with the nuisance limit value for particulate matter PM10?

| 3. | If the answer to Question 2 is in the negative, to what extent must the measures included in an action plan serve to reduce the risk of exceeding the limit value and to limit the duration of such an occurrence? Can an action plan be limited, on the principle of ‘one step at a time’, to measures which, while not guaranteeing compliance with the limit value, nevertheless contribute in the short term to improvements in ambient air quality? |
| --- | --- |

3.

If the answer to Question 2 is in the negative, to what extent must the measures included in an action plan serve to reduce the risk of exceeding the limit value and to limit the duration of such an occurrence? Can an action plan be limited, on the principle of ‘one step at a time’, to measures which, while not guaranteeing compliance with the limit value, nevertheless contribute in the short term to improvements in ambient air quality?

---

(1)  OJ L 296, p. 55.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/18 |
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4.8.2007

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Official Journal of the European Union

C 183/18

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Appeal brought on 14 May 2007 by Derya Beyatli against the order of the Court of First Instance (Fifth Chamber) delivered on 5 March 2007 in Case T-455/04: Derya Beyatli and Armagan Candan v Commission of the European Communities

(Case C-238/07 P)

(2007/C 183/30)

Language of the case: English

Parties

Appellant: Derya Beyatli (represented by: A. Demetriades, Δικηγόρος)

Other party: Commission of the European Communities

Form of order sought

The applicant claim that the Court should:

| — | set aside the contested Order |
| --- | --- |

—

set aside the contested Order

| — | annul the Respondent's decision of 5 May 2004 |
| --- | --- |

—

annul the Respondent's decision of 5 May 2004

| — | order the Respondent to pay the costs of this appeal |
| --- | --- |

—

order the Respondent to pay the costs of this appeal

Pleas in law and main arguments

The appellant maintains that the contested order should be set aside on the following grounds:

| | The Court of First Instance erred in law in failing to seek out evidence by means of measures of instruction or inquiry for the opening of the archives of not only EPSO but also of the European Community Representation in Cyprus and/or the Commission in general; |
| --- | --- |

The Court of First Instance erred in law in failing to seek out evidence by means of measures of instruction or inquiry for the opening of the archives of not only EPSO but also of the European Community Representation in Cyprus and/or the Commission in general;

| | As a result of the CFI's omission, the Respondents did not disclose all relevant correspondence between the European Community Representation in Cyprus and/or the Commission and/or EPSO. Therefore the appellant's rights regarding a fair hearing were infringed during the proceedings before the CFI. |
| --- | --- |

As a result of the CFI's omission, the Respondents did not disclose all relevant correspondence between the European Community Representation in Cyprus and/or the Commission and/or EPSO. Therefore the appellant's rights regarding a fair hearing were infringed during the proceedings before the CFI.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/19 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/19

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Action brought on 22 May 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-246/07)

(2007/C 183/31)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: G. Valero Jordana and C. Tufvesson, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by proposing unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on persistent organic pollutants, the Kingdom of Sweden has failed to fulfil its obligations under Article 10 EC and Article 300(1) EC; |
| --- | --- |

—

Declare that, by proposing unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on persistent organic pollutants, the Kingdom of Sweden has failed to fulfil its obligations under Article 10 EC and Article 300(1) EC;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

Sweden has proposed unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on persistent organic pollutants.

The Commission claims that Sweden's unilateral proposal of PFOS meant that the EC's international representation was divided. Sweden acted unilaterally with regard to PFOS despite the fact that Sweden was aware that the Community was engaged in drafting legislation which included that substance. Sweden's action meant that the Community and Member States could not jointly present proposals for additions to the Stockholm Convention. Thus Sweden has failed to fulfil its obligations under Articles 10 EC and 300(1) EC.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/19 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/19

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Action brought on 23 May 2007 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-249/07)

(2007/C 183/32)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis and S.B. Noë, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by introducing a system of prior authorisation for oysters and mussels that come lawfully from other Member States, belong to species indigenous to the Netherlands and are intended to be planted in Netherlands coastal waters, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 28 and 30 EC; |
| --- | --- |

—

Declare that, by introducing a system of prior authorisation for oysters and mussels that come lawfully from other Member States, belong to species indigenous to the Netherlands and are intended to be planted in Netherlands coastal waters, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 28 and 30 EC;

| — | 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 Netherlands legislation prohibiting the planting, without prior authorisation, of oysters and mussels originating from other Member States impedes intra-Community trade and market access for oysters and mussels from other Member States.

This national rule cannot be justified.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/20 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/20

---

Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 29 May 2007 — Intel Corporation Inc. v CPM United Kingdom Limited

(Case C-252/07)

(2007/C 183/33)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Intel Corporation Inc.

Defendant: CPM United Kingdom Limited

Questions referred

| 1. | For the purposes of Art 4(4)(a) of the First Council Directive 89/104 of 21st December 1988 (1), where:






  (a) | the earlier mark has a huge reputation for certain specific types of goods or services, |
| --- | --- | --- |

1.

For the purposes of Art 4(4)(a) of the First Council Directive 89/104 of 21st December 1988 (1), where:

(a)

the earlier mark has a huge reputation for certain specific types of goods or services,

| (b) | those goods or services are dissimilar or dissimilar to a substantial degree to the goods or services of the later mark, |
| --- | --- |

(b)

those goods or services are dissimilar or dissimilar to a substantial degree to the goods or services of the later mark,

| (c) | the earlier mark is unique in respect of any goods or services, |
| --- | --- |

(c)

the earlier mark is unique in respect of any goods or services,

| (d) | the earlier mark would be brought to mind by the average consumer when he or she encounters the later mark used for the services of the later mark, |
| --- | --- |

(d)

the earlier mark would be brought to mind by the average consumer when he or she encounters the later mark used for the services of the later mark,

are those facts sufficient in themselves to establish (i) ‘a link’ within the meaning of paragraphs [29] & [30] of Adidas-Salomon AG v. Fitnessworld Trading Ltd, Case C-408/01, [2003] ECR I-12537 and/or (ii) unfair advantage and/or detriment within the meaning of that Article?

| 2. | If no, what factors is the national court to take into account in deciding whether such is sufficient? Specifically, in the global appreciation to determine whether there is a ‘link’, what significance is to be attached to the goods or services in the specification of the later mark? |
| --- | --- |

2.

If no, what factors is the national court to take into account in deciding whether such is sufficient? Specifically, in the global appreciation to determine whether there is a ‘link’, what significance is to be attached to the goods or services in the specification of the later mark?

| 3. | In the context of Art 4(4)(a), what is required in order to satisfy the condition of detriment to distinctive character? Specifically, does (i) the earlier mark have to be unique, (ii) is a first conflicting use sufficient to establish detriment to distinctive character and (iii) does the element of detriment to distinctive character of the earlier mark require an effect on the economic behaviour of the consumer? |
| --- | --- |

3.

In the context of Art 4(4)(a), what is required in order to satisfy the condition of detriment to distinctive character? Specifically, does (i) the earlier mark have to be unique, (ii) is a first conflicting use sufficient to establish detriment to distinctive character and (iii) does the element of detriment to distinctive character of the earlier mark require an effect on the economic behaviour of the consumer?

---

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

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/20 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/20

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 29 May 2007 — Canterbury Hockey Club, Canterbury Ladies Hockey Club v Commissioners of HM Revenue and Customs

(Case C-253/07)

(2007/C 183/34)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Canterbury Hockey Club, Canterbury Ladies Hockey Club

Defendant: Commissioners of HM Revenue and Customs

Questions referred

| 1. | For the purposes of the exemption contained in Article 13 A (1)(m) of the Sixth Directive (1), does the term ‘persons’ in the context of ‘persons taking part in sport’ include corporate persons and unincorporated associations, or is it limited to individuals, in the sense of natural persons or human beings? |
| --- | --- |

1.

For the purposes of the exemption contained in Article 13 A (1)(m) of the Sixth Directive (1), does the term ‘persons’ in the context of ‘persons taking part in sport’ include corporate persons and unincorporated associations, or is it limited to individuals, in the sense of natural persons or human beings?

| 2. | If the term ‘persons’ in the context of ‘persons taking part in sport’ does include corporate persons and unincorporated associations, as well as individuals, does the expression ‘certain services closely linked to sport’ permit a Member State to limit the exemption only to individuals taking part in sport? |
| --- | --- |

2.

If the term ‘persons’ in the context of ‘persons taking part in sport’ does include corporate persons and unincorporated associations, as well as individuals, does the expression ‘certain services closely linked to sport’ permit a Member State to limit the exemption only to individuals taking part in sport?

---

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

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/21 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/21

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Action brought on 30 May 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-255/07)

(2007/C 183/35)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and D. Kukovec, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1), or in any event by not communicating such measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1), or in any event by not communicating such measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2004/18/EC into national law expired on 31 January 2006.

---

(1)  OJ 2004 L 134, p. 114.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/21 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/21

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 31 May 2007 — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf

(Case C-256/07)

(2007/C 183/36)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Mitsui & Co. Deutschland GmbH

Defendant: Hauptzollamt Düsseldorf

Questions referred

| 1. | Do payments of the seller/manufacturer to the buyer which, as in the present case, are made in the context of a guarantee agreement and by which the buyer is reimbursed the expenditure on repairs invoiced to him by his customers, reduce the customs value under Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 (1) establishing the Community Customs Code which was declared on the basis of the price agreed between the seller/manufacturer and the buyer? |
| --- | --- |

1.

Do payments of the seller/manufacturer to the buyer which, as in the present case, are made in the context of a guarantee agreement and by which the buyer is reimbursed the expenditure on repairs invoiced to him by his customers, reduce the customs value under Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 (1) establishing the Community Customs Code which was declared on the basis of the price agreed between the seller/manufacturer and the buyer?

| 2. | Do the payments referred to in Question 1 of the seller/manufacturer to the buyer for the reimbursement of expenses incurred under a guarantee constitute an adjustment of the transaction value under Article 145(2) of Commission Regulation (EEC) No 2454/93 (2) laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 (3) amending Regulation (EEC) No 2454/93 and Regulations (EC) No 2787/2000 and (EC) No 993/2001? |
| --- | --- |

2.

Do the payments referred to in Question 1 of the seller/manufacturer to the buyer for the reimbursement of expenses incurred under a guarantee constitute an adjustment of the transaction value under Article 145(2) of Commission Regulation (EEC) No 2454/93 (2) laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 (3) amending Regulation (EEC) No 2454/93 and Regulations (EC) No 2787/2000 and (EC) No 993/2001?

| 3. | Should either of the first two questions be answered in the affirmative: is Article 145(2) and (3) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 amending Regulation (EEC) No 2454/93 and Regulations (EC) No 2787/2000 and (EC) No 993/2001, to be applied to imports in respect of which the customs declarations were accepted before the entry into force of Commission Regulation (EC) No 444/2002 amending the Regulation implementing the Community Customs Code and Regulations (EC) No 2787/2000 and (EC) No 993/2001? |
| --- | --- |

3.

Should either of the first two questions be answered in the affirmative: is Article 145(2) and (3) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 amending Regulation (EEC) No 2454/93 and Regulations (EC) No 2787/2000 and (EC) No 993/2001, to be applied to imports in respect of which the customs declarations were accepted before the entry into force of Commission Regulation (EC) No 444/2002 amending the Regulation implementing the Community Customs Code and Regulations (EC) No 2787/2000 and (EC) No 993/2001?

| 4. | Should Question 3 be answered in the affirmative: is Article 145(2) and (3) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 amending the Regulation implementing the Community Customs Code and Regulations (EC) No 2787/2000 and (EC) No 993/2001, valid? |
| --- | --- |

4.

Should Question 3 be answered in the affirmative: is Article 145(2) and (3) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 amending the Regulation implementing the Community Customs Code and Regulations (EC) No 2787/2000 and (EC) No 993/2001, valid?

---

(1)  OJ 1992 L 302, p. 1.

(2)  OJ 1993 L 253, p. 1.

(3)  OJ 2002 L 68, p. 11.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/22 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/22

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Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-257/07)

(2007/C 183/37)

Language of the case: Swedish

Parties

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

Defendants: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/17/EC (1) of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (the procurement directive) or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/17/EC (1) of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (the procurement directive) or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

Order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The period for implementation of the Directive expired on 31 January 2006.

---

(1)  OJ L 134, 30.4.2004, p. 1.

---

| 4.8.2007 | EN | Official Journal of the European Union | C 183/22 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/22

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Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-258/07)

(2007/C 183/38)

Language of the case: Swedish

Parties

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

Defendants: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The period for implementation of the Directive expired on 31 January 2006.

---

(1)  OJ L 134, 30.4.2004, p. 114.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/22 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/22

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Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-259/07)

(2007/C 183/39)

Language of the case: Swedish

Parties

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

Defendants: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/51/EC (1) of 7 September 2005 amending Annex XX to Directive 2004/17/EC (2) and Annex VIII to Directive 2004/18/EC (3) of the European Parliament and the Council on public procurement or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/51/EC (1) of 7 September 2005 amending Annex XX to Directive 2004/17/EC (2) and Annex VIII to Directive 2004/18/EC (3) of the European Parliament and the Council on public procurement or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The period for implementation of the Directive expired on 31 January 2006.

---

(1)  OJ L 257, 1.10.2005, p. 127.

(2)  OJ L 134, 30.4.2004, p. 1.

(3)  OJ L 134, 30.4.2004, p. 114.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/23 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/23

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Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 31 May 2007 — Pedro IV Servicios S.L. v Total España S.A.

(Case C-260/07)

(2007/C 183/40)

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Pedro IV Servicios S.L.

Defendant: Total España S.A.

Questions referred

Must Article 12(2) of Commission Regulation (EEC) No 1984/83 (1), which provides that ‘where the agreement relates to a service station which the supplier lets to the reseller, or allows the reseller to occupy on some other basis, in law or in facts, [then] exclusive purchasing obligations or prohibitions of competition indicated in this Title may, notwithstanding Paragraph 1(c), be imposed on the reseller for the whole period for which the reseller in fact operates on the premises’, be interpreted as referring to the situation in which the supplier/lessor initially owned the land and the installations, or on the contrary does the reference to the ‘letting’ of the service station cover all those titles which by operation of law give the supplier a proprietary right in the service station alone, with the consequence that the supplier can lease it to the owner of the land without being required to comply with the time limitations which the rules impose in respect of exclusive purchasing agreements?

If Commission Regulation (EC) No 2790/1999 (2) of 22 December 1999 is applicable to the present case, must the provision in Article 5 that the exemption [in Article 2 of the regulation] is not to apply if the duration of the exclusive purchasing agreement exceeds five years, although ‘the time limitation of five years shall not apply where the contract goods or services are sold by the buyer from premises and land owned by the supplier or leased by the supplier from third parties not connected with the buyer, provided that the duration of the non-compete obligation does not exceed the period of occupancy of the premises and land by the buyer’, be interpreted, where it mentions leasing, as referring to a situation in which the supplier/lessor also initially owned the land and the installations, or on the contrary does the reference to the leasing of the service station cover all those titles which may by operation of law give the supplier a proprietary right in the service station alone, with the consequence that the supplier can lease it to the owner of the land without being required to comply with the time limitations which the rules impose in respect of exclusive purchasing agreements?

Must the prohibition of the indirect fixing of purchase or selling prices laid down in Article 81(1)(a) EC and the statement in recital 8 in the preamble to Commission Regulation (EEC) No 1984/83 that ‘further restrictive obligations and in particular those which limit the reseller's choice of customers or his freedom to determine his prices and conditions of sale cannot be exempted under this Regulation’ resale price fixing not being among the other restrictions on competition permitted in Article 11 of that regulation, be interpreted as including any form of restriction of the reseller's freedom to fix the retail price, such as where the supplier fixes the distribution margin of the operator of the service station, by fixing the price of the fuel which he supplies to the reseller on the most advantageous terms agreed with other service stations that may be established in Barcelona, provided that the price will never be higher than the average price fixed by other suppliers with a significant presence on the market, then adding the minimum margin which is thought appropriate and thus arriving at the PVP (retail price), which the supplier does not expressly impose but which it recommends be charged?

Must the prohibition of the indirect fixing of purchase or selling prices laid down in Article 81(1)(a) EC, and the inclusion in Article 4(a) of Commission Regulation (EC) No 2790/1999 of 22 December 1999 of resale price maintenance as a particularly serious (‘hardcore’) restriction on competition, be interpreted as including any form of restriction of the reseller's freedom to fix the retail price, such as where the supplier fixes the distribution margin of the operator of the service station, by fixing the price of the fuel which he supplies to the reseller on the most advantageous terms agreed with other service stations that may be established in Barcelona, provided that the price will never be higher than the average price fixed by other suppliers with a significant presence on the market, then adding the minimum margin which is thought appropriate and thus arriving at the PVP (retail price), which the supplier does not expressly impose but which it recommends be charged?

---

(1)  Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5).

(2)  Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21).

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/24 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/24

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Action brought on 5 June 2007 — Commission of the European Communities v Portuguese Republic

(Case C-266/07)

(2007/C 183/41)

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Form of order sought

| — | declare that, by permitting the incineration of hospital waste in incineration plants which do not have a valid permit, the Portuguese Republic has failed to fulfil its obligations under Article 4 of Directive 2000/76/EC (1) of 4 December 2000 on the incineration of waste or, in the alternative, Article 9 of Directive 2006/12/EC (2) of 5 April 2006 on waste; |
| --- | --- |

—

declare that, by permitting the incineration of hospital waste in incineration plants which do not have a valid permit, the Portuguese Republic has failed to fulfil its obligations under Article 4 of Directive 2000/76/EC (1) of 4 December 2000 on the incineration of waste or, in the alternative, Article 9 of Directive 2006/12/EC (2) of 5 April 2006 on waste;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

According to the interpretation of Article 3 of Directive 2000/76/EC read in conjunction with Article 20(2) of that directive, the incinerator in question is a new incinerator for the purposes of the application of Directive 2000/76/EC, with the result that the directive is applicable to the incinerator in the Parque da Saúde in Lisbon. The incinerator could start to function only after a permit was obtained by meeting the conditions laid down in Article 4 of that directive. The Portuguese authorities have not respected that requirement.

In any case, even if it is to be considered, quod non, that the incinerator in question should be classed as an ‘existing incinerator’ for the purposes of Directive 2000/76/EC and that, consequently, that directive was not applicable to it, its functioning was subject to obtaining a permit in advance in accordance with Article 9(1) of Directive 2006/12/EC.

---

(1)  OJ 2000 L 332, p. 91.

(2)  OJ 2006 L 114, p. 9.

---

| 4.8.2007 | EN | Official Journal of the European Union | C 183/24 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/24

---

Action brought on 7 June 2007 — Commission of the European Communities v Republic of Lithuania

(Case C-274/07)

(2007/C 183/42)

Language of the case: Lithuanian

Parties

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

Defendant: Republic of Lithuania

Form of order sought

| — | declare that, by not managing to ensure in practice that authorities handling emergencies are, to the extent technically feasible, given caller location information for all callers to the single European emergency call number 112 when public telephone networks are used, the Republic of Lithuania has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC (1) on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive); |
| --- | --- |

—

declare that, by not managing to ensure in practice that authorities handling emergencies are, to the extent technically feasible, given caller location information for all callers to the single European emergency call number 112 when public telephone networks are used, the Republic of Lithuania has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC (1) on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive);

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

—

order the Republic of Lithuania to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 24 July 2003.

---

(1)  OJ L 108, 24.4.2002, p. 51.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/24 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/24

---

Action brought on 12 June 2007 — Commission of the European Communities v Portuguese Republic

(Case C-284/07)

(2007/C 183/43)

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Form of order sought

| — | principally, declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Commission Directive 2005/51/EC (1) of 7 September 2005 amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement, the Portuguese Republic has failed to fulfil its obligations under the first paragraph of Article 3 of Directive 2005/51/EC; |
| --- | --- |

—

principally, declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Commission Directive 2005/51/EC (1) of 7 September 2005 amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement, the Portuguese Republic has failed to fulfil its obligations under the first paragraph of Article 3 of Directive 2005/51/EC;

| — | or, declare that, by failing in any event to communicate those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that same provision; |
| --- | --- |

—

or, declare that, by failing in any event to communicate those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that same provision;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 31 January 2006.

---

(1)  OJ 2005 L 257, p. 127.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/25 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/25

---

Action brought on 14 June 2007 — Commission of the European Communities v Portuguese Republic

(Case C-289/07)

(2007/C 183/44)

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Form of order sought

| — | principally, declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2004/17/EC (1) of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, the Portuguese Republic has failed to fulfil its obligations under the first subparagraph of Article 71(1) of Directive 2004/17/EC; |
| --- | --- |

—

principally, declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2004/17/EC (1) of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, the Portuguese Republic has failed to fulfil its obligations under the first subparagraph of Article 71(1) of Directive 2004/17/EC;

| — | or, declare that, by failing in any event to communicate those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that same provision; |
| --- | --- |

—

or, declare that, by failing in any event to communicate those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that same provision;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 31 January 2006.

---

(1)  OJ 2004 L 134, p. 1.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/25 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/25

---

Appeal brought on 14 June 2007 by Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-366/00: Scott S. A, supported by the French Republic v Commission of the European Communities

(Case C-290/07 P)

(2007/C 183/45)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: J. Flett, Agent)

Other parties to the proceedings: Scott SA, French Republic

Form of order sought

The appellant claims that the Court should:

| — | quash the contested the contested judgment |
| --- | --- |

—

quash the contested the contested judgment

| — | give final judgement in the matters that are subject of this appeal. Failing which, for any matter with respect to which the Court considers that the state of the proceedings does not permit final judgment, the Commission respectfully requests the Court to refer the case back to the CFI for reassessment. |
| --- | --- |

—

give final judgement in the matters that are subject of this appeal. Failing which, for any matter with respect to which the Court considers that the state of the proceedings does not permit final judgment, the Commission respectfully requests the Court to refer the case back to the CFI for reassessment.

| — | Order the applicant bear its own costs and to pay those incurred by the Commission relating to the proceedings before this Court and before the Court of First Instance; and order the French Republic to bear its own costs relating |
| --- | --- |

—

Order the applicant bear its own costs and to pay those incurred by the Commission relating to the proceedings before this Court and before the Court of First Instance; and order the French Republic to bear its own costs relating

Pleas in law and main arguments

The first four grounds of appeal relate to legal errors in the contested judgment concerning the procedural rights of third parties and the procedural obligations of the Commission in State aid proceedings:

| | The first ground of appeal concerns the exclusion from the administrative file of Scott's additional comments of 24.12.1999, sent 13 months after the prescribed time limit. |
| --- | --- |

The first ground of appeal concerns the exclusion from the administrative file of Scott's additional comments of 24.12.1999, sent 13 months after the prescribed time limit.

| | The second ground of appeal concerns the contested judgment's finding that the Commission was under a procedural obligation to provide France with a further opportunity to produce the alleged valuations. |
| --- | --- |

The second ground of appeal concerns the contested judgment's finding that the Commission was under a procedural obligation to provide France with a further opportunity to produce the alleged valuations.

| | The third ground of appeal concerns the contested judgment's finding that the Commission was under procedural obligation to give Scott a further opportunity to submit comments. |
| --- | --- |

The third ground of appeal concerns the contested judgment's finding that the Commission was under procedural obligation to give Scott a further opportunity to submit comments.

| | The fourth ground of appeal concerns the contested judgement's finding that the Commission was under a procedural obligation to use an ‘outside expert’. |
| --- | --- |

The fourth ground of appeal concerns the contested judgement's finding that the Commission was under a procedural obligation to use an ‘outside expert’.

In relation to these matters, the Commission submits that the contested judgment neither sets out nor applies the correct legal standard: did the Commission infringe an essential procedural requirement. In addition, the contested judgment could not lawfully rule on these matters since Scott's application did not include any such grounds of annulment. In any event; the Commission submits that there was no infringement of an essential procedural requirement. No such requirements are provided for the Procedural Regulation; and the contested judgment was not entitled to ‘grant’ such rights or impose such obligations based on the erroneous considerations set out in the contested judgment. Finally, there was no breach of an essential procedural requirement:

| | Scott's excluded additional comments were in re-submitted by France on 21.2.2000, included in the administrative file, and assessed in the contested decision. |
| --- | --- |

Scott's excluded additional comments were in re-submitted by France on 21.2.2000, included in the administrative file, and assessed in the contested decision.

| | Given the four information requests and the information injunction the Commission was not obliged to give France a further opportunity to produce the alleged valuations. |
| --- | --- |

Given the four information requests and the information injunction the Commission was not obliged to give France a further opportunity to produce the alleged valuations.

| | Scott had ample opportunity to submit comments, and in particular participated in the response to the information injunction. |
| --- | --- |

Scott had ample opportunity to submit comments, and in particular participated in the response to the information injunction.

| | Both France and Scott had ample opportunity to produce a grant-date valuation, but failed to do so. |
| --- | --- |

Both France and Scott had ample opportunity to produce a grant-date valuation, but failed to do so.

The fifth to eighth grounds of appeal group together what the Commission has termed for convenience only ‘preliminary issues’, and relate to legal errors in the contested judgment concerning: the absence from Scott's application of any ground of annulment relating to the alleged valuations; the Court of First Instance's standard of review (the Commission is said to have no margin of appreciation); the contested judgment's reliance on speculation instead of evidence; and the reversal of the burden of proof in State aid proceedings and proceedings before the Court of First Instance.

The ninth and tenth grounds of appeal relate to substantive legal errors concerning the factory.

The ninth ground of appeal concerns the method for assessing the amount of State aid in transfers in kind. Contrary to what the contested judgment finds, absent a grant-date valuation or open tender, the Commission is lawfully entitled to use cost as proxy for value. This was particularly reasonable in the present case because the factory was tailored to Scott's requirements. The contested judgment's reasoning regarding the alleged sale price 11 years after grant is dependent on alleged procedural irregularities and other legal errors; and is in any event substantively erroneous.

The tenth ground of appeal concerns supposed errors by the Commission in the application of the cost-based method. The contested judgment's findings are dependent on alleged procedural irregularities and other legal errors. The Commission's conservative estimate of the costs was the lowest possible; and there is no basis for annulling the contested decision on the grounds that the State aid might have been higher.

The eleventh to thirteenth grounds of appeal relate to substantive legal errors concerning the land.

The eleventh ground of appeal relates to the contested judgment's dismissal of the conservative valuations in Orléans Council Minutes of 27.5.1994 as ‘a very brief summary without detailed explanation’.

The twelfth ground of appeal concerns the method for assessing the amount of State aid transfers in kind, and is similar to the ninth ground of appeal. Absent a grant-date valuation or open tender the Commission is lawfully entitled to use cost as a proxy for value. This was particularly reasonable in the present case because the third land purchase was tailored to Scott's requirements. The contested judgment's reasoning regarding the alleged tax audit dependent on alleged procedural irregularities and other legal errors; and is in any event substantively erroneous.

The thirteenth ground of appeal concerns supposed errors by the Commission in the application of the cost-based method. The contested judgment's findings are dependent on alleged procedural irregularities and other legal errors. The Commission used the lowest possible land value as asserted by both France and Scott. The facts and evidence supporting the Commission are: the Offer Document; the alleged Galtier and Commissaire aux Apports valuations; the Orléans Council Minutes of 27.5.1994; and the average price of the three land parcel purchases. There is no basis for annulling the contested decision on the grounds that the State aid might have been higher.

The fourteenth ground of appeal concerns the information injunction, particularly with respect to the land, the cost-based method for assessing the amount of State aid, and the three land parcel purchases. This is a procedural matter, but is dealt with at the end because it is linked to thirteenth ground of appeal.

By the fifteenth ground of appeal the Commission requests the Court to quash the contested judgment because of the distortion by the Court of First Instance of the clear sense of the evidence before it, in particular because the Court of First Instance has substituted its own reasoning for that of the contested decision.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/27 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/27

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Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 15 June 2007 — Kollektivavtalsstiftelsen TRR Trygghetsrådet v Skatteverket

(Case C-291/07)

(2007/C 183/46)

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Kollektivavtalsstiftelsen TRR Trygghetsrådet

Defendant: Skatteverket

Question referred

Are Articles 9(2)(e) and 21(1)(b) of the Sixth VAT Directive (1) and Articles 56(1)(c) and 196 of the Council Directive on a common system of value added tax (2) to be interpreted as meaning that a person who purchases consultancy services from a person liable to tax in another EC country and carries out both economic activity and also activity which falls outside the scope of the Directives is to be regarded as a taxable person/person liable to tax where those articles are applied, even though the purchase was made solely in respect of the latter activity?

---

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

(2)  OJ 2006 L 347, p. 1.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/27 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/27

---

Action brought on 18 June 2007 — Commission of the European Communities v Hellenic Republic

(Case C-293/07)

(2007/C 183/47)

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

| — | declare that, by failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as Special Protection Areas, in the light of the conservation objectives of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2), in conjunction with the first sentence of Article 4(4) of that directive, as amended by Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora |
| --- | --- |

—

declare that, by failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as Special Protection Areas, in the light of the conservation objectives of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2), in conjunction with the first sentence of Article 4(4) of that directive, as amended by Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

On the basis of a large number of complaints, Parliamentary questions and petitions, the Commission maintains that the Hellenic Republic is not properly applying the provisions of Directive 79/409/EEC which requires measures to be taken for the conservation of wild bird habitats and for the avoidance of their pollution and deterioration.

In the Commission's view, the infringement of the directive consists in the lack of protection for Special Protection Areas (SPAs) and also the existence of activities which may damage their integrity and have significant negative consequences for the objectives of conservation of SPAs and of the species for which the areas have been defined.

The argument of the Greek authorities that the existing legislative framework ensures to a satisfactory degree the protection of all types of wild birds and their respective habitats is countered by the Commission with the argument that that framework does not constitute a specific and effective protection framework for all SPAs.

---

(1)  OJ L 103 of 25.4.1979, p. 1.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/28 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/28

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Order of the President of the Court of 10 May 2007 — Commission of the European Communities v Italian Republic

(Case C-61/06) (1)

(2007/C 183/48)

Language of the case: Italian

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

---

(1)  OJ C 86, 8.4.2006.

---

| 4.8.2007 | EN | Official Journal of the European Union | C 183/28 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/28

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Order of the President of the Sixth Chamber of the Court of 21 May 2007 — Commission of the European Communities v Czech Republic

(Case C-140/06) (1)

(2007/C 183/49)

Language of the case: Czech

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

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(1)  OJ C 108, 6.5.2006.

---

| 4.8.2007 | EN | Official Journal of the European Union | C 183/28 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/28

---

Order of the President of the Court of 23 May 2007 — Commission of the European Communities v Hellenic Republic

(Case C-297/06) (1)

(2007/C 183/50)

Language of the case: Greek

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

---

(1)  OJ C 212, 2.9.2006.

---

| 4.8.2007 | EN | Official Journal of the European Union | C 183/29 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/29

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Order of the President of the Court of 30 April 2007 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-322/06) (1)

(2007/C 183/51)

Language of the case: Dutch

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

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(1)  OJ C 224, 16.9.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/29 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/29

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Order of the President of the Court of 11 May 2007 — Commission of the European Communities v Republic of Austria

(Case C-356/06) (1)

(2007/C 183/52)

Language of the case: German

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

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(1)  OJ C 249, 14.10.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/29 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/29

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Order of the President of the Eighth Chamber of the Court of 11 May 2007 — Commission of the European Communities v Hellenic Republic

(Case C-358/06) (1)

(2007/C 183/53)

Language of the case: Greek

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

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(1)  OJ C 294, 14.10.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/29 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/29

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Order of the President of the Court of 14 May 2007 — Commission of the European Communities v Italian Republic

(Case C-394/06) (1)

(2007/C 183/54)

Language of the case: Italian

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

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(1)  OJ C 294, 2.12.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/29 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/29

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Order of the President of the Court of 24 April 2007 — Commission of the European Communities v Republic of Estonia

(Case C-397/06) (1)

(2007/C 183/55)

Language of the case: Estonian

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

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(1)  OJ C 281, 18.11.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/30 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/30

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Order of the President of the Court of 1 June 2007 — Commission of European Communities v Republic of Poland

(Case C-422/06) (1)

(2007/C 183/56)

Language of the case: Polish

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

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(1)  OJ C 326, 30.12.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/30 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/30

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Order of the President of the Court of 10 May 2007 — Commission of the European Communities v Hellenic Republic

(Case C-490/06) (1)

(2007/C 183/57)

Language of the case: Greek

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

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(1)  OJ C 326, 30.12.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/30 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/30

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Order of the President of the Court of 8 May 2007 — Akzo Nobel NV v Commission of the European Communities

(Case C-509/06) (1)

(2007/C 183/58)

Language of the case: Dutch

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

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(1)  OJ C 56, 10.3.2007.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/30 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/30

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Order of the President of the Court of 23 April 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — 01081 Telecom AG v Bundesrepublik Deutschland, in the presence of: E-Plus Mobilfunk GmbH & Co. KG

(Case C-15/07) (1)

(2007/C 183/59)

Language of the case: German

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

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(1)  OJ C 69, 24.3.2007.

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Court of First Instance

| 4.8.2007 | EN | Official Journal of the European Union | C 183/31 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/31

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Judgment of the Court of First Instance of 20 June 2007 — Tirrenia di Navigazione and Others v Commission

(Case T-246/99) (1)

(State Aid - Maritime transport - Decision to initiate the procedure under Article 88(2) EC - New State aid - Existing State aid)

(2007/C 183/60)

Language of the case: Italian

Parties

Applicants: Tirrenia di Navigazione SpA, formerly Tirrenia di Navigazione SpA and Adriatica di Navigazione SpA (Naples, Italy); Caremar SpA (Naples); Toremar SpA (Leghorn, Italy); Siremar SpA (Palermo, Italy); and Saremar SpA (Cagliari, Italy) (represented by: initially A. Tizzano and G. Roberti and subsequently G. Roberti, A. Franchi and G. Bellitti, lawyers)

Defendant: Commission of the European Communities (represented by: D. Triantafyllou, V. Di Bucci and E. De Persio, Agents)

Interveners in support of the defendant: Navigazione Libera del Golfo SpA (Naples) (represented by: S. Ravenna and A. Abate, lawyers); Aliscafi Società Navigazione Alta Velocità SpA (Aliscafi SNAV) (Messina, Italy) (represented by: B. Castaldo and C. Forte, lawyers); Traghetti Pozzuoli Srl (Naples); Alilauro SpA (Naples); and Linee Lauro Srl (Pozzuoli, Italy) (represented by: E. Amato, lawyer)

Re:

Annulment of the Commission's decision of 6 August 1999 to initiate the procedure under Article 88(2) EC concerning the State aid granted by the Italian Republic to undertakings in the Tirrenia di Navigazione group (OJ 1999 C 306, p. 2).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicants to bear their own costs and to pay those of the Commission and the interveners Navigazione Libera del Golfo SpA, Linee Lauro Srl, Traghetti Pozzuoli Srl and Alilauro SpA; |
| --- | --- |

2.

Orders the applicants to bear their own costs and to pay those of the Commission and the interveners Navigazione Libera del Golfo SpA, Linee Lauro Srl, Traghetti Pozzuoli Srl and Alilauro SpA;

| 3. | Orders the intervener Aliscafi Società Navigazione Alta Velocità SpA (Aliscafi SNAV) to bear its own costs. |
| --- | --- |

3.

Orders the intervener Aliscafi Società Navigazione Alta Velocità SpA (Aliscafi SNAV) to bear its own costs.

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(1)  OJ C 20, 22.1.2000.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/31 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/31

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Judgment of the Court of First Instance of 27 June 2007 — Nuova Gela Sviluppo v Commission

(Case T-65/04) (1)

(ERDF - Conclusion of Community financial assistance - Action for annulment - Action for damages - Arbitration clause)

(2007/C 183/61)

Language of the case: Italian

Parties

Applicant: Nuova Gela Sviluppo Soc. Cons. pa, formerly Gela Sviluppo Soc. Cons. pa (Gela, Italy) (represented by: P. Menchetti, lawyer)

Defendant: Commission of the European Communities (represented by: L. Flynn and M. Velardo, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

Primarily, annulment of the decision contained in the Commission's letter of 16 December 2003 concerning the closure of assistance ERDF 98.05.26.001, annulment of the Commission decisions reducing the assistance, withdrawing the assistance and recovering the balance of the assistance, and annulment of Article 6(2) of Commission Decision SEC (1999) 1316 of 9 September 1999 on guidelines for the financial closure of operational assistance (1994-1999) from the Structural Funds, and, in the alternative, compensation for the loss suffered by the applicant and performance of the agreement of 13 September 1999 between the applicant and the Commission.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 106, 30.4.2004.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/32 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/32

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Judgment of the Court of First Instance of 19 June 2007 — Asturias Cuerno v Commission

(Case T-473/04) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Services carried out for an international organisation - Installation allowance - Daily subsistence allowance)

(2007/C 183/62)

Language of the case: Spanish

Parties

Applicant: Cristina Asturias Cuerno (Brussels, Belgium) (represented by: R. García-Gallardo Gil-Fournier and A. Sayagués Torres, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall, acting as Agent, assisted by J. Rivas Andrés, J. Gutiérrez Gisbert and M. Canal Fontcuberta, lawyers)

Re:

Application for annulment of the Commission's decision of 25 August 2004 not to accept the applicant's complaint of 27 April 2004 and not to grant him the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith.

Operative part of the judgment

The Court:

| 1. | Annuls the Commission's decisions of 28 January and 25 August 2004; |
| --- | --- |

1.

Annuls the Commission's decisions of 28 January and 25 August 2004;

| 2. | Declares that the applicant is entitled to the expatriation allowance provided for by Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the installation allowance provided for by Article 5 of that Annex; |
| --- | --- |

2.

Declares that the applicant is entitled to the expatriation allowance provided for by Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the installation allowance provided for by Article 5 of that Annex;

| 3. | Dismisses the remainder of the action; |
| --- | --- |

3.

Dismisses the remainder of the action;

| 4. | Orders the Commission to pay the costs. |
| --- | --- |

4.

Orders the Commission to pay the costs.

---

(1)  OJ C 45, 19.2.2005.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/32 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/32

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Judgment of the Court of First Instance of 27 June 2007 — Kingdom of the Netherlands v Commission

(Case T-182/06) (1)

(Approximation of laws - Derogating national provisions - Rejection by the Commission of a draft decree advancing the lowering of the Community limit on emissions of particulate matter produced by certain new diesel-powered vehicles - Duty of care and to state reasons - Specificity of the notifying Member State's problem in complying with the Community limits on concentrations of particulate matter in ambient air)

(2007/C 183/63)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H. Sevenster and M. de Grave, Agents)

Defendant: Commission of the European Communities (represented by: M. Patakia, A. Alcover San Pedro and H. van Vliet, Agents)

Re:

Annulment of Commission Decision 2006/372/EC of 3 May 2006 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty laying down limits on the emissions of particulate matter by diesel-powered vehicles (OJ 2006 L 142, p. 16)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Kingdom of the Netherlands to pay the costs.

---

(1)  OJ C 212, 2.9.2006.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/33 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/33

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Order of the President of the Court of First Instance of 7 June 2007 — IMS v Commission

(Case T-346/06 R)

(Applications for interim measures - Application for suspension of operation of a measure - Directive 98/37/EC - Admissibility - Prima facie case - Urgency - Balancing of the interests involved)

(2007/C 183/64)

Language of the case: Italian

Parties

Applicant: Industria Masetto Schio Srl (IMS) (Schio, Italy) (represented by: F. Colonna and T. Romolotti, lawyers)

Defendant: Commission of the European Communities (represented by: C. Zadra and D. Lawunmi, Agents)

Re:

Application for the suspension of operation of Commission Opinion C (2006) 3914 of 6 September 2006 concerning a prohibition measure adopted by the French authorities relating to certain IMS brand mechanical presses.

Operative part of the order

| 1. | The operation of Commission Opinion C(2006) 3914 of 6 December 2006 concerning a prohibition measure adopted by the French authorities relating to certain IMS brand mechanical presses is suspended until the Court of First Instance has ruled on the action in the main proceedings. |
| --- | --- |

1.

The operation of Commission Opinion C(2006) 3914 of 6 December 2006 concerning a prohibition measure adopted by the French authorities relating to certain IMS brand mechanical presses is suspended until the Court of First Instance has ruled on the action in the main proceedings.

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

2.

Costs are reserved.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/33 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/33

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Action brought on 8 May 2007 — SC Gerovital Cosmetics v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan)

(Case T-163/07)

(2007/C 183/65)

Language in which the application was lodged: English

Parties

Applicant: SC Gerovital Cosmetics S.A. (Bucharest, Romania) (represented by: D. Boştinşă, lawyer)

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

Other party to the proceedings before the Board of Appeal: Farmec S.A. (Cluj-Napoca, Romania)

Form of order sought

| — | The invalidation of Decision of 27 February 2007 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks and Designs) in Case R 271/2006-2 — GEROVITAL H3; and subsequently |
| --- | --- |

—

The invalidation of Decision of 27 February 2007 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks and Designs) in Case R 271/2006-2 — GEROVITAL H3; and subsequently

| — | the invalidation of Cancellation Division decision of 23 December 2005 in the proceedings for a declaration of invalidity of OHIM reference number 872C 0000986 034, CTM 986034 GEROVITAL H3; |
| --- | --- |

—

the invalidation of Cancellation Division decision of 23 December 2005 in the proceedings for a declaration of invalidity of OHIM reference number 872C 0000986 034, CTM 986034 GEROVITAL H3;

| — | order that the costs of the proceedings be paid by the defendant. |
| --- | --- |

—

order that the costs of the proceedings be paid by the defendant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The Community figurative mark containing word elements ‘GEROVITAL H3 Prof. Dr. A. Aslan’ for goods and services in Class 3 and 42 — application No 986 034

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: Farmec S.A.

Trade mark right of the party requesting the declaration of invalidity: The figurative national trade mark ‘Gerovital H3 PROF. DR. ANA ASLAN’ for certain goods in Class 3

Decision of the Cancellation Division: Declared the trade mark invalid in its entirety

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Articles 52 and 53(2) of Council Regulation No 40/94.

The applicant considers that the Romanian figurative mark it was partially assigned — with respect to specific products provided in the assignment contract — by the holder of the international and national trade mark registrations is an earlier well known mark enjoying such reputation in more than one Member State. Hence, it claims to be entitled to priority and exclusivity for registration purposes.

Also, contrary to the rights of the other party to the cancellation and appeal proceedings (hereinafter, ‘Farmec’), the applicant claims to have broader rights over the trade mark, both with regards to the range of cosmetic products it is entitled to produce as to their composition. Based on the assumption that the two companies enjoy equal and distinctive rights over the trademark GEROVITAL H3 Prof. Dr. A. Aslan related to the intensity of protection, the anteriority/precedence aspect referred to by Farmec should have no bearing according to the applicant.

Finally, the applicant submits that its ownership rights would be seriously affected if faced to the impossibility to acquire international recognition and protection of the rights deriving from the assignment contract, even if it claims to enjoy full rights and protection in Romania.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/34 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/34

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Action brought on 4 June 2007 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE)

(Case T-189/07)

(2007/C 183/66)

Language in which the application was lodged: German

Parties

Applicant: Frosch Touristik GmbH (Munich, Germany) (represented by: H. Lauf, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM: DSR touristik GmbH

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 March 2007 — Case R 1084/2004-4 — in its entirety and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 March 2007 — Case R 1084/2004-4 — in its entirety and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘FLUGBÖRSE’ for goods and services in Classes 16, 39 and 42 (Community trade mark No 81 406).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: DSR touristik GmbH.

Decision of the Cancellation Division: Partial declaration of invalidity of the trade mark concerned.

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

Pleas in law: Incorrect application of Article 51(1)(a), of Article 7(1)(c) and of Article 51(2) 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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| 4.8.2007 | EN | Official Journal of the European Union | C 183/34 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/34

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Action brought on 31 May 2007 — Anheuser-Busch v OHIM — Budějovický Budvar (BUDWEISER)

(Case T-191/07)

(2007/C 183/67)

Language in which the application was lodged: German

Parties

Applicant: Anheuser-Busch, Inc. (St. Louis, United States) (represented by: V. von Bomhard, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Budějoviský Budvar, národní podnik

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 March 2007 in Case R 299/2006-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 March 2007 in Case R 299/2006-2;

| — | In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 March 2007 in Case R 299/2006-2 in so far as it concerns ‘non-alcoholic drinks’; |
| --- | --- |

—

In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 March 2007 in Case R 299/2006-2 in so far as it concerns ‘non-alcoholic drinks’;

| — | Order the defendant and, in the event that it intervenes, the other party to the proceedings before the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the defendant and, in the event that it intervenes, the other party to the proceedings before the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘BUDWEISER’ for goods and services in Class 32 (application No 24 646).

Proprietor of the mark or sign cited in the opposition proceedings: Budějoviský Budvar, národní podnik.

Mark or sign cited in opposition: The international word mark ‘BUDWEISER’ for goods in Class 32, the international figurative mark ‘Budweiser Budvar’ for goods in Classes 31 and 32 and the international figurative mark ‘Budweiser Budvar’ for goods in Class 32.

Decision of the Opposition Division: Opposition upheld and application for registration rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of the right to be heard, incorrect application of Article 74(2) of Regulation (EC) No 40/94 (1) and infringement of Article 43(2) of that regulation; in the alternative, infringement of Article 73 of that regulation on account of an inadequate statement of reasons.

---

(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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| 4.8.2007 | EN | Official Journal of the European Union | C 183/35 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/35

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Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (222)

(Case T-200/07)

(2007/C 183/68)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza ‘Technopol’ Sp. z o. o. (represented by D. Rzążewska, lawyer)

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

Form of order sought

| — | annul in its entirety the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 March 2007 in Case R 1276/2006-4; |
| --- | --- |

—

annul in its entirety the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 March 2007 in Case R 1276/2006-4;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘222’ for goods in Class 16

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: incorrect application of Article 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1), in that, according to the applicant, the designation ‘222’ is neither descriptive nor non-distinctive for the goods referred to.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993, OJ L 11, 14.1.1994, p. 1.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/35 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/35

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Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (‘333’)

(Case T-201/07)

(2007/C 183/69)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza ‘Technopol’ Sp. z o.o. (represented by: D. Rzążewska, lawyer)

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

Form of order sought

| — | set aside in its entirety the decision delivered on 22 March 2007 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case No R 1277/2006-4; |
| --- | --- |

—

set aside in its entirety the decision delivered on 22 March 2007 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case No R 1277/2006-4;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘333’ for goods in Class 16

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of the provisions of Article 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1), inasmuch as, according to the applicant, the designation ‘333’, in relation to the goods indicated, is neither descriptive nor devoid of distinctive character.

---

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

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/36 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/36

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Action brought on 6 June 2007 — Agencja Wydawnicza Technopol v OHIM (‘555’)

(Case T-202/07)

(2007/C 183/70)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza ‘Technopol’ Sp. z o.o. (represented by: D. Rzążewska, lawyer)

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

Form of order sought

| — | set aside in its entirety decision no R 1278/2006-4 delivered on 22 March 2007 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs); |
| --- | --- |

—

set aside in its entirety decision no R 1278/2006-4 delivered on 22 March 2007 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘555’ for goods in Class 16

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of the provisions of Article 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1), inasmuch as, according to the applicant, the designation ‘555’, in relation to the goods indicated, is neither descriptive nor devoid of distinctive character.

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

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/36 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/36

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Action brought on 7 June 2007 — Eurallumina v Commission

(Case T-207/07)

(2007/C 183/71)

Language of the case: English

Parties

Applicant: Eurallumina SpA (Portoscuso, Italy) (represented by: L. Martin Alegi, R. Denton and E. Cormack, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Either:






  — | annul the entirety of the contested decision; or |
| --- | --- | --- |

—

Either:

—

annul the entirety of the contested decision; or

| — | order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or |
| --- | --- |

—

order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or

| — | annul the entirety of the contested decision and order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or |
| --- | --- |

—

annul the entirety of the contested decision and order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or

| — | order that a maximum of 3 EUR per tonne should be recovered. |
| --- | --- |

—

order that a maximum of 3 EUR per tonne should be recovered.

| — | Either:






  — | annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina; or |
| --- | --- | --- |

—

Either:

—

annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina; or

| — | order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered unlawful State aid, or at least not be recovered; or |
| --- | --- |

—

order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered unlawful State aid, or at least not be recovered; or

| — | annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina and order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or |
| --- | --- |

—

annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina and order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or

| — | order that a maximum of 3 EUR per tonne should be recovered. |
| --- | --- |

—

order that a maximum of 3 EUR per tonne should be recovered.

| — | In the alternative, modify Articles 5 and 6 of the contested decision insofar as they pertain to Eurallumina to the effect that pursuant to the present exemption until 31 December 2006, any sums foregone by the Italian State should not be recovered; and |
| --- | --- |

—

In the alternative, modify Articles 5 and 6 of the contested decision insofar as they pertain to Eurallumina to the effect that pursuant to the present exemption until 31 December 2006, any sums foregone by the Italian State should not be recovered; and

| — | order that the Commission pay all of the costs of the proceedings. |
| --- | --- |

—

order that the Commission pay all of the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2007) 286 final of 7 February 2007 by which the Commission found that the exemptions from excise duty granted by France, Ireland and Italy in respect of heavy fuel oils used in the production of alumina as from 1 January 2004 constituted State aid within the meaning of Article 87(1) EC and that a certain part of this aid was incompatible with the common market.

In support of its application, the applicant submits that the continuation of the exemption from excise duty on mineral oils used as fuel for alumina production in Sardinia also after the entry into force of Council Directive 2003/96/EC (1) on 1 January 2004 does not constitute State aid, as Article 18(1) of the directive and Annex II hereto expressly state that this exemption, which was approved by Council Decision 2001/224/EC (2), continues until 31 December 2006. According to the applicant, Directive 2003/96/EC thus expressly revalidates the specific exemption from excise duty granted to the applicant until 31 December 2006.

Furthermore, the applicant alleges that even though the exemption approved by Council Decision 2001/224/EC is a selective measure at first sight, it is justified by the ‘overall nature and logic’ of both the Community rules and the Italian tax system, and thus is not State aid.

Moreover, the applicant submits that even if the exemption approved by Council Decision 2001/224/EC is to be considered State aid, it qualifies for an exemption from the prohibition of Article 87(1) EC under the rules for environmental aid (3).

Finally, the applicant contends that the Commission breached the principles of legitimate expectations, legal certainty, presumption of validity, lex specialis, effet utile and good administration by finding that the application of the exemption from excise duty on mineral oils used for alumina production in, among others, Sardinia was a State aid recoverable from 1 January 2004, as the applicant had the right to expect that the exemption approved by Council Decision 2001/224/EC until 31 December 2006 was a legally valid Community act and that any measure taken by the Italian authorities and the applicant to implement and rely on this decision would not lead to an unlawful result.

---

(1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

(2)  Council Decision 2001/224/EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ 2001 L 84, p. 23).

(3)  Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3), in particular paragraph 51(1)(a) and (b).

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/37 |
| --- | --- | --- | --- |

4.8.2007

EN

Official Journal of the European Union

C 183/37

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Action brought on 5 June 2007 — BOT Elektrownia Bełchatów and Others v Commission

(Case T-208/07)

(2007/C 183/72)

Language of the case: English

Parties

Applicants: BOT Elektrownia Bełchatów S.A. (Rogowiec, Poland), BOT Elektrownia Turów S.A. (Bogatynia, Poland), BOT Elektrownia Opole S.A. (Brzezie, Poland), Elektrownia ‘Kozienice’ S.A. (Świerże Górne, Poland), Elektrownia Połaniec S.A. — Grupa Electrabel Polska (Połaniec, Poland), Elektrownia ‘Rybnik’ S.A. (Rybnik, Poland), Elektrownia Skawina S.A. (Skawina, Poland), Elektrownia ‘Stalowa Wola’ S.A. (Stalowa Wola, Poland), Południowy Koncern Energetyczny S.A. (Katowice, Poland), Zespół Elektrowni Dolna Odra S.A. (Nowe Czarnowo, Poland), Zespół Elektrowni Ostrołęka S.A. (Ostrołęka, Poland) and Zespół Elektrowni Pątnów-Adamów-Konin S.A. (Konin, Poland) (represented by: B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo and S. Boullart, lawyers)

Defendant: Commission of the European Communities

Form of order sought

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

—

Annul the decision;

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

—

order the Commission to bear the costs.

Pleas in law and main arguments

The applicants seek the annulment of the Commission's decision of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances for the period 2008-2012 notified by Poland in accordance with Directive 2003/87/EC (1).

In support of their application the applicants allege that the Commission erred by adopting a decision substantially reducing, inter alia, the total quantity of CO2 emission allowances that installations covered by Directive 2003/87/EC can emit.

The applicants submit in this regard that the Commission breached essential procedural requirements laid down in Directive 2003/87/EC in that it i) unlawfully adopted the contested decision after the expiry of the three-month period laid down in Article 9(3) of the directive, and ii) unlawfully restricted the applicants' right to be consulted prior to Poland's adoption of a definitive national allocation plan for greenhouse gas emission allowances for the period 2008-2012.

The applicants furthermore claim that the Commission misused the powers conferred upon it under Directive 2003/87/EC in that it i) adopted too low a GDP growth rate for Poland and too stringent an emission reduction ratio, which resulted in the allocation of an underestimated total emission quota for Poland; and ii) distorted the real purpose of the directive as a cost-effective instrument for the fulfilment of the greenhouse gas emission commitments of the parties to the Kyoto Protocol by reducing the national emission level for 2008-2012 far below what was needed for Poland to fulfil its Kyoto objective.

Finally, the applicants contend that the Commission disregarded the principles of legitimate expectations, proportionality, equal treatment and the duty for institutional cooperation as well as its obligation to state reasons.

---

(1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/38 |
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Action brought on 12 June 2007 — Gaedertz v OHIM — Living Byte Software (GlobalRemote)

(Case T-209/07)

(2007/C 183/73)

Language in which the application was lodged: German

Parties

Applicant: Johann-Christoph Gaedertz (Frankfurt am Main, Germany) (represented by: E. M. Gerstenberg, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM: Living Byte Software GmbH

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 April 2007 in Case R 272/2005-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 April 2007 in Case R 272/2005-4;

| — | Declare Community trade mark No 1 466 499 ‘GlobalRemote’ invalid; |
| --- | --- |

—

Declare Community trade mark No 1 466 499 ‘GlobalRemote’ invalid;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘GlobalRemote’ for goods and services in Classes 9, 38 and 42 (Community trade mark No 1 466 499).

Proprietor of the Community trade mark: Living Byte Software GmbH.

Applicant for the declaration of invalidity: The applicant.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.

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

Pleas in law: In particular, infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) since the Community trade mark in respect of which a declaration of invalidity has been sought is devoid of the necessary distinctive character and is of a purely descriptive nature.

---

(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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| 4.8.2007 | EN | Official Journal of the European Union | C 183/39 |
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4.8.2007

EN

Official Journal of the European Union

C 183/39

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Action brought on 11 June 2007 — RSA Security Ireland v Commission

(Case T-210/07)

(2007/C 183/74)

Language of the case: English

Parties

Applicant: RSA Security Ireland Ltd (Shannon, Ireland) (represented by: S. Daly, Solicitor and B. Conway, Barrister)

Defendant: Commission of the European Communities

Form of order sought

| — | to annul the decision of the Commission as conveyed to the applicant by the Revenue Commissioners on 30 March 2007 as it fails to classify the applicant's product for tariff classification purposes under the Combined Nomenclature by reference to the objective characteristics and qualities of the product; |
| --- | --- |

—

to annul the decision of the Commission as conveyed to the applicant by the Revenue Commissioners on 30 March 2007 as it fails to classify the applicant's product for tariff classification purposes under the Combined Nomenclature by reference to the objective characteristics and qualities of the product;

| — | to declare that the customs classification of the product is to be determined pursuant to the intrinsic characteristic of the product which is that it is in the nature of an automatic data processing machine and so falls to be classified within the terms of Chapter 8471 of the Combined Nomenclature; or, in the alternative |
| --- | --- |

—

to declare that the customs classification of the product is to be determined pursuant to the intrinsic characteristic of the product which is that it is in the nature of an automatic data processing machine and so falls to be classified within the terms of Chapter 8471 of the Combined Nomenclature; or, in the alternative

| — | to declare that the product is to be classified by reference to its essential characteristic as a calculating machine or device pursuant to Chapter 8470 of the Combined Nomenclature; |
| --- | --- |

—

to declare that the product is to be classified by reference to its essential characteristic as a calculating machine or device pursuant to Chapter 8470 of the Combined Nomenclature;

| — | to declare that in accordance with the accepted classification rules of goods for Community customs purposes that the essential characteristic of the product is not that of a security device or a means of access to records whether stored on an automatic data processing machine or otherwise; |
| --- | --- |

—

to declare that in accordance with the accepted classification rules of goods for Community customs purposes that the essential characteristic of the product is not that of a security device or a means of access to records whether stored on an automatic data processing machine or otherwise;

| — | to order the repayment to the applicant of such customs duty as has been paid by the applicant in respect of the importation of the product into the Community since the coming into force of the Commission's decision together with the repayment of interest to the applicant. |
| --- | --- |

—

to order the repayment to the applicant of such customs duty as has been paid by the applicant in respect of the importation of the product into the Community since the coming into force of the Commission's decision together with the repayment of interest to the applicant.

Pleas in law and main arguments

By means of its application the applicant seeks annulment of a Commission decision of which the applicant was informed by e-mail correspondence served on it on 30 March 2007 by the Revenue Commissioners, in response to an application for binding tariff information submitted by the applicant in respect of a security device connectible to an automatic data processing machine referred to as the ‘SID 800 Product’.

The applicant claims that the decision as communicated in the first instance to the Revenue Commissioners and hence to the applicant itself failed to classify the applicant's product by reference to its objective characteristics and qualities and determined the tariff classification in a manner which constitutes a fundamental error of law.

The applicant further submits that the correct tariff classification of the product by reference to its essential characteristics should be that of a unit of an automatic data processing machine pursuant to Chapter 8471 of the Community Customs Code (1) in that the product complies with the requirements of Note 5(B) of Chapter 8471 for such classification, or is in itself an automatic data processing machine.

In the alternative, the applicant submits that the correct tariff classification of the product by reference to its objective characteristics is as a calculating machine or device pursuant to Chapter 8470 of the Community Customs Code.

Finally, the applicant claims that the Commission's actions in dealing with its request for binding tariff information of the product on the basis of the product's attributes as a unit of an automatic data processing machine amount to a lack of due process and abuse of power.

---

(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992, L 302, p. 1).

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/39 |
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C 183/39

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Action brought on 13 June 2007 — AWWW v European Foundation for the Improvement of Living and Working Conditions

(Case T-211/07)

(2007/C 183/75)

Language of the case: English

Parties

Applicant: AWWW GmbH ArbeitsWelt — Working World (Göttingen, Germany) (represented by: B. Schreier, M. Kappuhne, lawyers)

Defendant: European Foundation for the Improvement of Living and Working Conditions

Form of order sought

| — | the lifting of procurement procedure: fast track restricted tender No 2007/S 13-014125 published in the OJ S 13 on 19 January 2007 relating to information and analysis on quality of work and employments, industrial relations and restructuring covering the European level of the European Foundation for the Improvement of Living and Working Conditions |
| --- | --- |

—

the lifting of procurement procedure: fast track restricted tender No 2007/S 13-014125 published in the OJ S 13 on 19 January 2007 relating to information and analysis on quality of work and employments, industrial relations and restructuring covering the European level of the European Foundation for the Improvement of Living and Working Conditions

Pleas in law and main arguments

The applicant claims that the method of execution of the above mentioned procurement procedure was not conducted fairly by the defendant.

The applicant submits, first, that the grounds for rejecting its bid are not sufficiently motivated. In particular, the extracts of the evaluation sheet which have been forwarded to the applicant allegedly fail to explain adequately why the contract was awarded to another tenderer.

Secondly, the applicant further submits that the defendant's letter dated 15 May 2007 contains formal defects since the annex B to the evaluation report was allegedly not signed by persons entrusted with the tenders' assessment.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/40 |
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4.8.2007

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Official Journal of the European Union

C 183/40

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Action brought on 15 June 2007 — Harman International Industries v OHIM — Becker (Barbara Becker)

(Case T-212/07)

(2007/C 183/76)

Language in which the application was lodged: English

Parties

Applicant: Harman International Industries, Inc. (Northridge, USA) (represented by: M. Vanhegan, Barrister)

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

Other party to the proceedings before the Board of Appeal: Barbara Becker (Miami, USA)

Form of order sought

| — | Annulment of paragraph 1 of the First Board of Appeal's decision of 7 March 2007 (Case R 502/2006-1), by which the decision of the Opposition Division of 15 February 2005 was annulled; |
| --- | --- |

—

Annulment of paragraph 1 of the First Board of Appeal's decision of 7 March 2007 (Case R 502/2006-1), by which the decision of the Opposition Division of 15 February 2005 was annulled;

| — | an order that the Community trade mark application No 2 939 072 be refused in its entirety; |
| --- | --- |

—

an order that the Community trade mark application No 2 939 072 be refused in its entirety;

| — | an order that the defendant pays the applicant its costs incurred before the Board of Appeal and the Court of First Instance. |
| --- | --- |

—

an order that the defendant pays the applicant its costs incurred before the Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: Barbara Becker

Community trade mark concerned: The Community work mark ‘Barbara Becker’ for goods in Class 9 — application No 2 939 072

Proprietor of the mark or sign cited in the opposition proceedings: Harman International Industries, Inc

Mark or sign cited: The Community word marks ‘BECKER’ and ‘BECKER ONLINE PRO’ for goods in Class 9

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Upheld the appeal and rejected the opposition

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation 40/94 (‘CTMR’).

The applicant claims that the Board erred in its application of Article 8(1)(b) CTMR in finding that there was no conceptual similarity between the applicant's mark ‘BECKER’ and the sign applied for by ‘Barbara Becker’, and hence no likelihood of confusion. Furthermore, the applicant submits that the Board erred in law in its application of Article 8(5) CTMR in finding that there was no link between the sign applied for by ‘Barbara Becker’ and the Community trade mark of its own.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/40 |
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C 183/40

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Action brought on 22 June 2007 — Donnici v Parliament

(Case T-215/07)

(2007/C 183/77)

Language of the case: Italian

Parties

Applicant: Beniamino Donnici (represented by: M. Sanino, G. Roberti, I. Perego and P. Salvatore, lawyers)

Defendant: European Parliament

Form of order sought

| — | annul the decision of the European Parliament of 24 May 2007 on the verification of the applicant's credentials; |
| --- | --- |

—

annul the decision of the European Parliament of 24 May 2007 on the verification of the applicant's credentials;

| — | declare Rule 3(5) of the Rules of Procedure of the European Parliament unlawful under Article 241 EC; |
| --- | --- |

—

declare Rule 3(5) of the Rules of Procedure of the European Parliament unlawful under Article 241 EC;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The decision contested in the present case declares invalid the mandate as member of the European Parliament of Beniamino Donnici, whose election was communicated by the competent national authorities, and confirms the validity of the mandate of Achille Occhetto.

It should be noted in this regard that, in a decision which has become final, the Consiglio di Stato annulled the declaration of the election of Achille Occhetto to the European Parliament.

In support of his claims, the applicant submits that the European Parliament:

| — | was not competent to rule on the validity of the mandate conferred on him as member of the European Parliament; |
| --- | --- |

—

was not competent to rule on the validity of the mandate conferred on him as member of the European Parliament;

| — | infringed Article 12 of the 1976 Act, legislation which does not in any way permit it to challenge decisions taken by the national authorities acting within their powers; |
| --- | --- |

—

infringed Article 12 of the 1976 Act, legislation which does not in any way permit it to challenge decisions taken by the national authorities acting within their powers;

| — | misapplied Rule 3(5) of the Rules of Procedure, which, it is also submitted, is unlawful as being at variance with the 1976 Act. The Rules of Procedure, in so far as they are a source of secondary legislation, cannot of themselves confer powers on the European Parliament which are not already provided for in that Act; |
| --- | --- |

—

misapplied Rule 3(5) of the Rules of Procedure, which, it is also submitted, is unlawful as being at variance with the 1976 Act. The Rules of Procedure, in so far as they are a source of secondary legislation, cannot of themselves confer powers on the European Parliament which are not already provided for in that Act;

| — | wrongly took the view that it could find that there had been an infringement of Article 6 of the 1976 Act and also breached the principle of res judicata by ‘disapplying’ the judgments, now final and conclusive, which had been delivered in the matter by the national courts; |
| --- | --- |

—

wrongly took the view that it could find that there had been an infringement of Article 6 of the 1976 Act and also breached the principle of res judicata by ‘disapplying’ the judgments, now final and conclusive, which had been delivered in the matter by the national courts;

| — | failed to give adequate reasons for the contested decision and, in particular, failed to explain the reasons which led it to disregard the contrary opinion delivered by its Legal Service on this matter. |
| --- | --- |

—

failed to give adequate reasons for the contested decision and, in particular, failed to explain the reasons which led it to disregard the contrary opinion delivered by its Legal Service on this matter.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/41 |
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C 183/41

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Order of the Court of First Instance (First Chamber Extended Composition) of 22 May 2007 — Neue Erba Lautex v Commission

(Case T-181/02) (1)

(2007/C 183/78)

Language of the case: German

The President of the Court of First Instance First Chamber Extended Composition Chamber has ordered that the case be removed from the register.

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(1)  OJ C 202, 24.8.2002.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/41 |
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Order of the Court of First Instance of 16 May 2007 — Technische Glaswerke Ilmenau v Commission

(Case T-378/02) (1)

(2007/C 183/79)

Language of the case: German

The President of the Court of First Instance (Fourth Chamber) has ordered that the case be removed from the register.

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(1)  OJ C 55, 8.3.2003.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/41 |
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Order of the Court of First Instance of 4 June 2007 — Commission v TH Parkner

(Case T-266/06) (1)

(2007/C 183/80)

Language of the case: German

The President of the Court of First Instance (Third Chamber) has ordered that the case be removed from the register.

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(1)  OJ C 294, 2.12.2006.

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European Union Civil Service Tribunal

| 4.8.2007 | EN | Official Journal of the European Union | C 183/42 |
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Official Journal of the European Union

C 183/42

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Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2007 — da Silva v Commission

(Case F-21/06) (1)

(Officials - Appointment in grade - Post of director advertised before 1 May 2004 - Amendment of the Staff Regulations - Article 2 and Article 5(5) of Annex XIII to the Staff Regulations - Classification by grade pursuant to new less-favourable provisions - Principle that all officials are entitled to reasonable career prospects)

(2007/C 183/81)

Language of the case: French

Parties

Applicant: João da Silva (Brussels, Belgium) (represented by: G. Vandersanden and L. Levi, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall, H. Kraemer and K. Herrmann, acting as Agents)

Party intervening in support of the defendant: Council of the European Union (represented by: M. Arpio Santacruz and I. Sulce, acting as Agents)

Re:

First, annulment of the Commission's decision of 18 May 2005 appointing the applicant as a Director and fixing his grade at A*14 instead of the A2 indicated in the vacancy notice published in 2003, and secondly, the reinstatement of the applicant at grade A*15 (ex A2) and restoration of his career prospects with retrospective effect

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the Commission of the European Communities of 18 May 2005, inasmuch as it classifies Mr da Silva as a director in grade A*14, step 2; |
| --- | --- |

1.

Annuls the decision of the Commission of the European Communities of 18 May 2005, inasmuch as it classifies Mr da Silva as a director in grade A*14, step 2;

| 2. | Orders the Commission of the European Communities to bear its own costs and to pay Mr da Silva's costs; |
| --- | --- |

2.

Orders the Commission of the European Communities to bear its own costs and to pay Mr da Silva's costs;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs.

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(1)  OJ C 108, 6.5.2006, p. 31.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/42 |
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Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2007 — Bianchi v European Training Foundation (ETF)

(Case F-38/06) (1)

(Staff cases - Members of temporary staff - Fixed-term contract - Non-renewal - Substandard work - Duty to state reasons - Manifest error of assessment)

(2007/C 183/82)

Language of the case: French

Parties

Applicant: Irène Bianchi (Turin, Italy) (represented by: M.-A. Lucas, lawyer)

Defendant: European Training Foundation (ETF) (represented by: M. Dunbar, assisted by G. Vandersanden, lawyer)

Re:

First, annulment of the decision by the Director of the European Training Foundation not to renew the applicant's contract of employment as a member of the temporary staff and, secondly, a claim for damages

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 143, 17.6.2006, p. 37.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/43 |
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4.8.2007

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Official Journal of the European Union

C 183/43

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Judgment of the Civil Service Tribunal (First Chamber) of 19 June 2007 — Davis and Others v Council

(Case F-54/06) (1)

(Staff cases - Officials - Pensions - Weightings - Retirement after the entry into force of the version of the Staff Regulations applicable from 1 May 2004 - Application of weightings calculated on the basis of the average cost of living in the country of residence of retired officials - Transitional scheme - Abolition of weightings for pension rights acquired after the entry into force of the version of the Staff Regulations applicable from 1 May 2004)

(2007/C 183/83)

Language of the case: French

Parties

Applicants: Davis and Others (Bolton, United Kingdom) and three Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Council of the European Union (represented by: M. Arpio Santacruz and I. Sulce, acting as Agents)

Re:

Annulment of the Council's decisions determining the applicants' pension entitlements, on the grounds that the portion of their pension entitlement acquired after 30 April 2004 is not multiplied by a weighting, and that the weighting by which the portion of their pension entitlement acquired before 30 April 2004 is multiplied differs from that by which the remuneration of officials in active employment in the United Kingdom or Denmark is multiplied.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 154, 1.7.2006, p. 28.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/43 |
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C 183/43

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Action brought on 16 May 2007 — Wolfgang A. Mandt v European Parliament

(Case F-45/07)

(2007/C 183/84)

Language of the case: German

Parties

Applicant: Wolfgang A. Mandt (Kreuztal, Germany) (represented by: B. Kolb, lawyer)

Defendant: European Parliament

Form of order sought

| — | Annul the decision of 8 February 2007 to reduce the applicant's survivor's pension by 50 %; |
| --- | --- |

—

Annul the decision of 8 February 2007 to reduce the applicant's survivor's pension by 50 %;

| — | Order the defendant, with retrospective effect from 1 April 2006, and monthly henceforth, to pay the applicant the further 50 % of the survivor's pension of his deceased wife Gisela Neumann. |
| --- | --- |

—

Order the defendant, with retrospective effect from 1 April 2006, and monthly henceforth, to pay the applicant the further 50 % of the survivor's pension of his deceased wife Gisela Neumann.

Pleas in law and main arguments

The European Parliament cut the applicant's survivor's pension as the widower of Gisela Neumann with reference to non-recognition of the Belgian decree of divorce which the deceased obtained against her first husband in 1995.

The claim is brought against the non-recognition of that decree and against Council Regulation No 2201/2203/EC of 24 November 2003. The applicant argues that he is the sole ‘surviving spouse’, since the marriage between himself and the deceased came into existence in a legally effective way (Art. 18 Annex VIII of the Staff Regulations).

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/43 |
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Action brought on 30 May 2007 — Tiralongo v Commission

(Case F-55/07)

(2007/C 183/85)

Language of the case: Italian

Parties

Applicant: Giuseppe Tiralongo (Ladispoli, Italy) (represented by: F. Sciaudone, R. Sciaudone and S. Frazzani, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare the present action admissible; |
| --- | --- |

—

declare the present action admissible;

| — | order the Commission to provide the information and documents relating to the initial engagement of Ms X and to the successive extensions of her contract within the European Anti-Fraud Office (OLAF), and order Ms X to testify as a witness; |
| --- | --- |

—

order the Commission to provide the information and documents relating to the initial engagement of Ms X and to the successive extensions of her contract within the European Anti-Fraud Office (OLAF), and order Ms X to testify as a witness;

| — | adopt all measures of organisation of procedure and measures of inquiry necessary for the purpose of assessing the infringement by the Commission of the principles of equal treatment and non-discrimination; |
| --- | --- |

—

adopt all measures of organisation of procedure and measures of inquiry necessary for the purpose of assessing the infringement by the Commission of the principles of equal treatment and non-discrimination;

| — | order the Commission to pay 460 000 EUR, or any other amount which the Tribunal may consider to be fair and equitable, by way of compensation for the material damage caused to the applicant; |
| --- | --- |

—

order the Commission to pay 460 000 EUR, or any other amount which the Tribunal may consider to be fair and equitable, by way of compensation for the material damage caused to the applicant;

| — | order the Commission to pay 100 000 EUR, or any other amount which the Tribunal may consider to be fair and equitable, by way of compensation for the non-material damage caused to the applicant; |
| --- | --- |

—

order the Commission to pay 100 000 EUR, or any other amount which the Tribunal may consider to be fair and equitable, by way of compensation for the non-material damage caused to the applicant;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a member of the temporary staff of OLAF up to 30 April 2005, seeks to recover compensation in respect of the damage which he claims to have suffered as a result of a series of unlawful acts allegedly committed by the Commission in connection with the extension of his contract. Those unlawful acts ostensibly concern in particular: (i) breach of the applicable legal rules and of the case-law relating to employment in the public service; (ii) infringement of the principle of the protection of legitimate expectations; (iii) infringement of the principles of equal treatment and non-discrimination.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/44 |
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C 183/44

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Action brought on 11 June 2007 — Gerochristos v Parliament

(Case F-56/07)

(2007/C 183/86)

Language of the case: French

Parties

Applicant: Ioannis Gerochristos (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: European Parliament

Form of order sought

| — | annul the Parliament's decision of 26 September 2006 to appoint the applicant as a probationary official in the function group for administrators with the classification of grade AD 6, step 3; |
| --- | --- |

—

annul the Parliament's decision of 26 September 2006 to appoint the applicant as a probationary official in the function group for administrators with the classification of grade AD 6, step 3;

| — | annul the Parliament's subsequent decision to withhold EUR 994.95 from the applicant's basic salary and order it to repay that amount to him as soon as practicable after the decision to annul; |
| --- | --- |

—

annul the Parliament's subsequent decision to withhold EUR 994.95 from the applicant's basic salary and order it to repay that amount to him as soon as practicable after the decision to annul;

| — | order the defendant to pay, by way of damages for non-material or material damage and the prejudice to the applicant's career, the amount of EUR 25 000, subject to increase or decrease in the course of the proceedings; |
| --- | --- |

—

order the defendant to pay, by way of damages for non-material or material damage and the prejudice to the applicant's career, the amount of EUR 25 000, subject to increase or decrease in the course of the proceedings;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a successful candidate in Open Competition EPSO A/18/04 (1), notice of which was published before the entry into force of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities (2), was a member of the temporary staff in grade AST 8 at the time of his recruitment as an official in grade AD 6.

In support of his action, the applicant relies, first, on breach of the duty to state reasons laid down in Article 25(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), in that the administration never provided him with an explanation for his classification in grade AD 6 or for the decision to withhold the amount of EUR 994.95 from his basic salary.

Second, the applicant: (i) claims that there has been a breach of Article 31 of the Staff Regulations, of Articles 2 and 8 of Annex XIII of the Staff Regulations and of the provisions of the competition notice and (ii) raises a plea of illegality in respect of Article 13(1) of Annex XIII to the Staff Regulations.

Third, the applicant maintains that the administration failed to apply the principles of equal treatment and non-discrimination, particularly in that he was penalised in comparison with members of the temporary staff and officials who benefit from a more favourable classification under Article 5(2) and (4) of Annex XIII to the Staff Regulations or to certain provisions adopted by the Parliament's bureau on 13 February 2006.

Fourth, the applicant replies on breach of the principles of legal certainty and legitimate expectations, particularly as the competition notice was for the drawing up of a reserve list for the recruitment of administrators in grade A7/A6.

Fifth, the applicant claims breach of the principle of sound administration and the duty to have regard for the interests of officials.

Finally, the applicant submits that, in withholding the abovementioned amount from his basic salary, the administration has breached Article 85 of the Staff Regulations.

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(1)  OJ C 96 A, 21.4.2004, p. 1.

(2)  OJ L 124, 27.4.2004, p. 1.

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| 4.8.2007 | EN | Official Journal of the European Union | C 183/45 |
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4.8.2007

EN

Official Journal of the European Union

C 183/45

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Action brought on 5 June 2007 — Wiedmann v Parliament

(Case F-57/07)

(2007/C 183/87)

Language of the case: French

Parties

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

Defendant: European Parliament

Form of order sought

| — | annul the decision of the Appointing Authority of 26 June 2006 appointing the applicant as an official of the European Communities, inasmuch as it classified him in grade AD 6, step 1; |
| --- | --- |

—

annul the decision of the Appointing Authority of 26 June 2006 appointing the applicant as an official of the European Communities, inasmuch as it classified him in grade AD 6, step 1;

| — | 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 relies on pleas in law which are very similar to those relied on in Case F-12/06 (1).

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(1)  OJ C 86, 8.4.2006, p. 48.

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