# Official Journal C 315/10 D

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 315 |
| | |
| English edition | Information and Notices | Volume 4810 December 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 315

English edition

Information and Notices

Volume 4810 December 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 315/1 | Judgment of the Court (First Chamber) of 15 September 2005 in Case C-464/02: Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Motor vehicles — Making available to the employee by the employer — Vehicle registered in the Member State of the employer — Employee resident in another Member State — Taxation of the motor vehicle) | 1 |
| 2005/C 315/2 | Judgment of the Court (Second Chamber) of 20 October 2005 in Case C-111/03: Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Free movement of agricultural products — Directive 89/662/EEC — Article 5 — Veterinary checks in the Member State of destination of the goods — National system of prior notification imposed on importers of certain products of animal origin from other Member States) | 1 |
| 2005/C 315/3 | Judgment of the Court (Grand Chamber) of 13 September 2005 in Case C-176/03: Commission of the European Communities v Council of the European Union (Action for annulment — Articles 29 EU, 31(e) EU, 34 EU and 47 EU — Framework Decision 2003/80/JHA — Protection of the environment — Criminal penalties — Community competence — Legal basis — Article 175 EC) | 2 |
| 2005/C 315/4 | Judgment of the Court (Third Chamber) of 20 October 2005 in Case C-264/03: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Public contracts — Directive 92/50/EEC — Procedures for the award of public service contracts — Freedom to provide services — Agency of delegated project contracting — Persons to whom the task of delegated project contracting may be entrusted — Exhaustive list of legal persons created under French law) | 2 |
| 2005/C 315/5 | Judgment of the Court (Third Chamber) of 20 October 2005 in Joined Cases C-327/03 and C-328/03: References for a preliminary ruling from the Bundesverwaltungsgericht in Bundesrepublik Deutschland v ISIS Multimedia Net GmbH und Co. KG, and Others (Telecommunications services — Directive 97/13/EC — Article 11(2) — Charge for the allocation of new telephone numbers — Stock of numbers available free of charge to the undertaking succeeding the former monopoly) | 3 |
| 2005/C 315/6 | Judgment of the Court (Grand Chamber) of 18 October 2005 in Case C-405/03: Reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage in Class International BV v Colgate-Palmolive Company, Unilever NV, SmithKline Beecham plc, Beecham Group plc (Trade marks — Directive 89/104/EEC — Regulation (EC) No 40/94 — Rights conferred by the trade mark — Use of the mark in the course of trade — Importation of original goods into the Community — Goods placed under the external transit procedure or the customs warehousing procedure — Opposition of the trade mark proprietor — Offering for sale or selling goods placed under the external transit procedure or the customs warehousing procedure — Opposition of the trade mark proprietor — Onus of proof) | 3 |
| 2005/C 315/7 | Judgment of the Court (Second Chamber) of 20 October 2005 in Case C-468/03: reference for a preliminary ruling from the VAT and Duties Tribunal, London Overland Footwear Ltd v Commissioners of Customs & Excise (Common customs tariff — Import customs duties — Declared customs value including a buying commission — Payment of customs duty on full amount declared — Revision of the customs declaration — Conditions — Refund of customs duties paid on the buying commission) | 4 |
| 2005/C 315/8 | Judgment of the Court (Third Chamber) of 20 October 2005 in Case C-511/03: reference for a preliminary ruling from the Hoge Raad der Nederlanden Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) v Ten Kate Holding Musselkanaal BV and Others (Human and animal health — Protection against bovine spongiform encephalopathy (mad cow disease) — Feeding of ruminants with proteins derived from species other than ruminants — Liability of a Member State for damage caused to individuals by breaches of Community law for which it may be held responsible — Applicable law — Obligation to bring an action against the Commission for failure to act) | 5 |
| 2005/C 315/9 | Judgment of the Court (Second Chamber) of 20 October 2005 in Case C-6/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fufil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora) | 5 |
| 2005/C 315/0 | Judgment of the Court (First Chamber) of 13 October 2005 in Case C-73/04 (Reference for a preliminary ruling from the Oberlandesgericht Hamm): Brigitte and Marcus Klein v Rhodos Management Ltd (Brussels Convention — Jurisdiction in proceedings regarding tenancies of immoveable property — Time-share in immoveable property) | 6 |
| 2005/C 315/1 | Judgment of the Court (First Chamber) of 15 September 2005 in Case C-258/04: Reference for a preliminary ruling from the Cour de travail de Liège in Office national de l'emploi v Ioannis Ioannidis (Job-seekers — European citizenship — Principle of non-discrimination — Article 39 EC — Tideover allowances for young people seeking their first employment — Grant conditional on completion of secondary education in the Member State concerned) | 6 |
| 2005/C 315/2 | Judgment of the Court (Sixth Chamber) of 20 October 2005 in Case C-505/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the period prescribed — Gibraltar) | 7 |
| 2005/C 315/3 | Judgment of the Court (Fourth Chamber) of 20 October 2005 in Case C-70/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2000/78/EC — Equal treatment in employment and occupation — Failure to transpose within the prescribed period) | 7 |
| 2005/C 315/4 | Case C-333/05: Reference for a preliminary ruling from the Bács-Kiskun Megyei Bíróság by order of that court of 12 July 2005 in Ilona Németh v Vám- és Pénzügyőrség Dél-Alföldi Regionális Parancsnoksága | 8 |
| 2005/C 315/5 | Case C-335/05: Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 24 August 2005 in Rizeni Letoveho Provozu UR SP v Bundesamt für Finanzen | 8 |
| 2005/C 315/6 | Case C-338/05 P: Appeal brought on 19 September 2005 by le Front National, M.F. Stirbois, B. Gollnisch, C. Lang, J.C. Martinez, Ph. Claeys, K. Dillen and M. Borghezio against the judgment delivered on 11 July 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-17/04 between Le Front National and Others and the European Parliament and the Counsel of the European Union | 9 |
| 2005/C 315/7 | Case C-346/05: Reference for a preliminary ruling from the Cour du travail de Liège by judgment of that court of 6 September 2005 in the case of Monique Chateignier v Office national de L'emploi (O.N.Em) | 9 |
| 2005/C 315/8 | Case C-356/05: Reference for a preliminary ruling from the High Court, Ireland by order of that court of 30 July 2004 in Elaine Farrell v Alan Whitty, Minister for the Environment, Ireland and the Attorney General and Motor Insurers' Bureau of Ireland | 10 |
| 2005/C 315/9 | Case C-359/05: Reference for a preliminary ruling from the Tribunal de Grande Instance de Brive-La-Gaillarde by order of that court of 9 September 2005 in Estager SA v Receveur Principal de la Recette des Douanes de Brive | 10 |
| 2005/C 315/0 | Case C-370/05: Reference for a preliminary ruling from the Vestre Landsret, Denmark by order of that court of 5 October 2005 in Anklagemyndigheden v Uwe Kay Festersen | 10 |
| 2005/C 315/1 | Case C-374/05: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 21 July 2005 in Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb e.V. | 11 |
| | COURT OF FIRST INSTANCE |
| 2005/C 315/2 | Case T-349/05: Action brought on 13 September 2005 — Ott and Others v Commission | 12 |
| 2005/C 315/3 | Case T-354/05: Action brought on 19 September 2005 — TF1 v Commission of the European Communities | 12 |
| 2005/C 315/4 | Case T-355/05: Action brought on 12 September 2005 — Vandaele v Commission | 13 |
| 2005/C 315/5 | Case T-359/05: Action brought on 26 September 2005 — Franklin and Others v Commission | 13 |
| 2005/C 315/6 | Case T-361/05: Action brought on 26 September 2005 — Genette v Commission | 14 |
| 2005/C 315/7 | Case T-364/05: Action brought on 26 September 2005 — Saint-Gobain Pam SA v OHIM | 14 |
| 2005/C 315/8 | Case T-365/05: Action brought on 26 September 2005 — Mische/Parliament | 15 |
| 2005/C 315/9 | Case T-367/05: Action brought on 23 September 2005 — UPC France v Commission | 15 |
| 2005/C 315/0 | Case T-370/05: Action brought on 30 September 2005 — France v Commission | 16 |
| 2005/C 315/1 | Case T-372/05: Action brought on 5 October 2005 — Giant (China)/Council | 17 |
| 2005/C 315/2 | Case T-376/05: Action brought on 13 October 2005 — Tea-Cegos and STG v Commission | 18 |
| 2005/C 315/3 | Case T-383/05: Action brought on 20 October 2005 — GHK Consulting/Commission | 18 |
| 2005/C 315/4 | Case T -270/04: Order of the Court of First Instance of 29 September 2005 — BIC v Commission | 19 |
| 2005/C 315/5 | Case T-125/05: Order of the Court of First Instance of 7 October 2005 — Umwelt- und Ingenieurtechnik v Commission | 19 |
| 2005/C 315/6 | Case T-289/05: Order of the Court of First Instance of 13 October 2005 — Milella and Campanella v Commission | 19 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 315/1

Judgment of the Court (First Chamber) of 15 September 2005 in Case C-464/02: Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Motor vehicles — Making available to the employee by the employer — Vehicle registered in the Member State of the employer — Employee resident in another Member State — Taxation of the motor vehicle)

1

2005/C 315/2

Judgment of the Court (Second Chamber) of 20 October 2005 in Case C-111/03: Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Free movement of agricultural products — Directive 89/662/EEC — Article 5 — Veterinary checks in the Member State of destination of the goods — National system of prior notification imposed on importers of certain products of animal origin from other Member States)

1

2005/C 315/3

Judgment of the Court (Grand Chamber) of 13 September 2005 in Case C-176/03: Commission of the European Communities v Council of the European Union (Action for annulment — Articles 29 EU, 31(e) EU, 34 EU and 47 EU — Framework Decision 2003/80/JHA — Protection of the environment — Criminal penalties — Community competence — Legal basis — Article 175 EC)

2

2005/C 315/4

Judgment of the Court (Third Chamber) of 20 October 2005 in Case C-264/03: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Public contracts — Directive 92/50/EEC — Procedures for the award of public service contracts — Freedom to provide services — Agency of delegated project contracting — Persons to whom the task of delegated project contracting may be entrusted — Exhaustive list of legal persons created under French law)

2

2005/C 315/5

Judgment of the Court (Third Chamber) of 20 October 2005 in Joined Cases C-327/03 and C-328/03: References for a preliminary ruling from the Bundesverwaltungsgericht in Bundesrepublik Deutschland v ISIS Multimedia Net GmbH und Co. KG, and Others (Telecommunications services — Directive 97/13/EC — Article 11(2) — Charge for the allocation of new telephone numbers — Stock of numbers available free of charge to the undertaking succeeding the former monopoly)

3

2005/C 315/6

Judgment of the Court (Grand Chamber) of 18 October 2005 in Case C-405/03: Reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage in Class International BV v Colgate-Palmolive Company, Unilever NV, SmithKline Beecham plc, Beecham Group plc (Trade marks — Directive 89/104/EEC — Regulation (EC) No 40/94 — Rights conferred by the trade mark — Use of the mark in the course of trade — Importation of original goods into the Community — Goods placed under the external transit procedure or the customs warehousing procedure — Opposition of the trade mark proprietor — Offering for sale or selling goods placed under the external transit procedure or the customs warehousing procedure — Opposition of the trade mark proprietor — Onus of proof)

3

2005/C 315/7

Judgment of the Court (Second Chamber) of 20 October 2005 in Case C-468/03: reference for a preliminary ruling from the VAT and Duties Tribunal, London Overland Footwear Ltd v Commissioners of Customs & Excise (Common customs tariff — Import customs duties — Declared customs value including a buying commission — Payment of customs duty on full amount declared — Revision of the customs declaration — Conditions — Refund of customs duties paid on the buying commission)

4

2005/C 315/8

Judgment of the Court (Third Chamber) of 20 October 2005 in Case C-511/03: reference for a preliminary ruling from the Hoge Raad der Nederlanden Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) v Ten Kate Holding Musselkanaal BV and Others (Human and animal health — Protection against bovine spongiform encephalopathy (mad cow disease) — Feeding of ruminants with proteins derived from species other than ruminants — Liability of a Member State for damage caused to individuals by breaches of Community law for which it may be held responsible — Applicable law — Obligation to bring an action against the Commission for failure to act)

5

2005/C 315/9

Judgment of the Court (Second Chamber) of 20 October 2005 in Case C-6/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fufil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora)

5

2005/C 315/0

Judgment of the Court (First Chamber) of 13 October 2005 in Case C-73/04 (Reference for a preliminary ruling from the Oberlandesgericht Hamm): Brigitte and Marcus Klein v Rhodos Management Ltd (Brussels Convention — Jurisdiction in proceedings regarding tenancies of immoveable property — Time-share in immoveable property)

6

2005/C 315/1

Judgment of the Court (First Chamber) of 15 September 2005 in Case C-258/04: Reference for a preliminary ruling from the Cour de travail de Liège in Office national de l'emploi v Ioannis Ioannidis (Job-seekers — European citizenship — Principle of non-discrimination — Article 39 EC — Tideover allowances for young people seeking their first employment — Grant conditional on completion of secondary education in the Member State concerned)

6

2005/C 315/2

Judgment of the Court (Sixth Chamber) of 20 October 2005 in Case C-505/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the period prescribed — Gibraltar)

7

2005/C 315/3

Judgment of the Court (Fourth Chamber) of 20 October 2005 in Case C-70/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2000/78/EC — Equal treatment in employment and occupation — Failure to transpose within the prescribed period)

7

2005/C 315/4

Case C-333/05: Reference for a preliminary ruling from the Bács-Kiskun Megyei Bíróság by order of that court of 12 July 2005 in Ilona Németh v Vám- és Pénzügyőrség Dél-Alföldi Regionális Parancsnoksága

8

2005/C 315/5

Case C-335/05: Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 24 August 2005 in Rizeni Letoveho Provozu UR SP v Bundesamt für Finanzen

8

2005/C 315/6

Case C-338/05 P: Appeal brought on 19 September 2005 by le Front National, M.F. Stirbois, B. Gollnisch, C. Lang, J.C. Martinez, Ph. Claeys, K. Dillen and M. Borghezio against the judgment delivered on 11 July 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-17/04 between Le Front National and Others and the European Parliament and the Counsel of the European Union

9

2005/C 315/7

Case C-346/05: Reference for a preliminary ruling from the Cour du travail de Liège by judgment of that court of 6 September 2005 in the case of Monique Chateignier v Office national de L'emploi (O.N.Em)

9

2005/C 315/8

Case C-356/05: Reference for a preliminary ruling from the High Court, Ireland by order of that court of 30 July 2004 in Elaine Farrell v Alan Whitty, Minister for the Environment, Ireland and the Attorney General and Motor Insurers' Bureau of Ireland

10

2005/C 315/9

Case C-359/05: Reference for a preliminary ruling from the Tribunal de Grande Instance de Brive-La-Gaillarde by order of that court of 9 September 2005 in Estager SA v Receveur Principal de la Recette des Douanes de Brive

10

2005/C 315/0

Case C-370/05: Reference for a preliminary ruling from the Vestre Landsret, Denmark by order of that court of 5 October 2005 in Anklagemyndigheden v Uwe Kay Festersen

10

2005/C 315/1

Case C-374/05: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 21 July 2005 in Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb e.V.

11

COURT OF FIRST INSTANCE

2005/C 315/2

Case T-349/05: Action brought on 13 September 2005 — Ott and Others v Commission

12

2005/C 315/3

Case T-354/05: Action brought on 19 September 2005 — TF1 v Commission of the European Communities

12

2005/C 315/4

Case T-355/05: Action brought on 12 September 2005 — Vandaele v Commission

13

2005/C 315/5

Case T-359/05: Action brought on 26 September 2005 — Franklin and Others v Commission

13

2005/C 315/6

Case T-361/05: Action brought on 26 September 2005 — Genette v Commission

14

2005/C 315/7

Case T-364/05: Action brought on 26 September 2005 — Saint-Gobain Pam SA v OHIM

14

2005/C 315/8

Case T-365/05: Action brought on 26 September 2005 — Mische/Parliament

15

2005/C 315/9

Case T-367/05: Action brought on 23 September 2005 — UPC France v Commission

15

2005/C 315/0

Case T-370/05: Action brought on 30 September 2005 — France v Commission

16

2005/C 315/1

Case T-372/05: Action brought on 5 October 2005 — Giant (China)/Council

17

2005/C 315/2

Case T-376/05: Action brought on 13 October 2005 — Tea-Cegos and STG v Commission

18

2005/C 315/3

Case T-383/05: Action brought on 20 October 2005 — GHK Consulting/Commission

18

2005/C 315/4

Case T -270/04: Order of the Court of First Instance of 29 September 2005 — BIC v Commission

19

2005/C 315/5

Case T-125/05: Order of the Court of First Instance of 7 October 2005 — Umwelt- und Ingenieurtechnik v Commission

19

2005/C 315/6

Case T-289/05: Order of the Court of First Instance of 13 October 2005 — Milella and Campanella v Commission

19

| | III   Notices |
| --- | --- |
| 2005/C 315/7 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 296, 26.11.2005 | 20 |

III   Notices

2005/C 315/7

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 296, 26.11.2005

Official Journal of the European Union

20

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 10.12.2005 | EN | Official Journal of the European Union | C 315/1 |
| --- | --- | --- | --- |

10.12.2005

EN

Official Journal of the European Union

C 315/1

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JUDGMENT OF THE COURT

(First Chamber)

of 15 September 2005

in Case C-464/02: Commission of the European Communities v Kingdom of Denmark (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for workers - Motor vehicles - Making available to the employee by the employer - Vehicle registered in the Member State of the employer - Employee resident in another Member State - Taxation of the motor vehicle)

(2005/C 315/01)

Language of the case: Danish

In Case C-464/02, Commission of the European Communities (Agents: N.B. Rasmussen and D. Martin) v Kingdom of Denmark (Agent: J. Molde), supported by Republic of Finland, (Agent: T. Pynnä) — action under Article 226 EC for failure to fulfil obligations, brought on 23 December 2002 — the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric (Rapporteur), K. Schiemann, E. Juhász and E. Levits, Judges; F.G. Jacobs, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 15 September 2005, in which it:

| 1. | Declares that, in so far as






  — | its legislation and administrative practice do not allow workers resident in Denmark and employed in another Member State in work which is not their principal employment to use for business or private purposes a company vehicle registered in that other Member State where the undertaking of their employer is established, and |
| --- | --- | --- |

1.

Declares that, in so far as

—

its legislation and administrative practice do not allow workers resident in Denmark and employed in another Member State in work which is not their principal employment to use for business or private purposes a company vehicle registered in that other Member State where the undertaking of their employer is established, and

| — | its legislation and administrative practice allow employees resident in Denmark and employed in another Member State to use for business purposes or business and private purposes a company vehicle registered in that other Member State in which their employer has its registered office or principal establishment, the vehicle neither being intended to be essentially used in Denmark on a permanent basis nor being actually so used, only subject to the condition that the employment with that employer is their main employment and that a tax is paid for that purpose, |
| --- | --- |

—

its legislation and administrative practice allow employees resident in Denmark and employed in another Member State to use for business purposes or business and private purposes a company vehicle registered in that other Member State in which their employer has its registered office or principal establishment, the vehicle neither being intended to be essentially used in Denmark on a permanent basis nor being actually so used, only subject to the condition that the employment with that employer is their main employment and that a tax is paid for that purpose,

the Kingdom of Denmark has failed to fulfil its obligations under Article 39 EC;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the parties to bear their own costs; |
| --- | --- |

3.

Orders the parties to bear their own costs;

| 4. | Orders the Republic of Finland to bear its own costs. |
| --- | --- |

4.

Orders the Republic of Finland to bear its own costs.

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(1)  OJ C 44, 22.02.2003.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/1 |
| --- | --- | --- | --- |

10.12.2005

EN

Official Journal of the European Union

C 315/1

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JUDGMENT OF THE COURT

(Second Chamber)

of 20 October 2005

in Case C-111/03: Commission of the European Communities v Kingdom of Sweden (1)

(Failure of a Member State to fulfil obligations - Free movement of agricultural products - Directive 89/662/EEC - Article 5 - Veterinary checks in the Member State of destination of the goods - National system of prior notification imposed on importers of certain products of animal origin from other Member States)

(2005/C 315/02)

Language of the case: Swedish

In Case C-111/03: Commission of the European Communities (Agents: L. Ström van Lier and A. Bordes) v Kingdom of Sweden (Agent: A. Kruse) supported by Republic of Finland (Agent: A. Guimaraes-Purokoski) — action under Article 226 EC for failure to fulfil obligations, brought on 12 March 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kūris and G. Arestis, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 20 October 2005, in which it:

| 1. | Declares that, by maintaining a system of compulsory prior notification for imports of certain food products of animal origin from other Member States, the Kingdom of Sweden has failed to fulfil its obligations under Article 5 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market; |
| --- | --- |

1.

Declares that, by maintaining a system of compulsory prior notification for imports of certain food products of animal origin from other Member States, the Kingdom of Sweden has failed to fulfil its obligations under Article 5 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market;

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

2.

Orders the Kingdom of Sweden to pay the costs;

| 3. | Orders the Republic of Finland to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Finland to bear its own costs.

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(1)  OJ C 112, 10.05.2003.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/2 |
| --- | --- | --- | --- |

10.12.2005

EN

Official Journal of the European Union

C 315/2

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JUDGMENT OF THE COURT

(Grand Chamber)

of 13 September 2005

in Case C-176/03: Commission of the European Communities v Council of the European Union (1)

(Action for annulment - Articles 29 EU, 31(e) EU, 34 EU and 47 EU - Framework Decision 2003/80/JHA - Protection of the environment - Criminal penalties - Community competence - Legal basis - Article 175 EC)

(2005/C 315/03)

Language of the case: French

In Case C-176/03: Commission of the European Communities (Agent: M. Petite, J. F. Pasquier and W. Bogensberger) supported by: European Parliament, (Agents: G. Garzón Clariana, H. Duintjer Tebbens and A. Baas, and M. Gómez-Leal) v Council of the European Union (Agent: J.-C. Piris, J. Schutte and K. Michoel) supported by: Kingdom of Denmark (Agent: J. Molde), Federal Republic of Germany (Agents: W.-D. Plessing and A. Dittrich), Hellenic Republic (Agents: E.-M. Mamouna and M. Tassopoulou), Kingdom of Spain (Agent: N. Díaz Abad), French Republic (Agents: G. de Bergues, F. Alabrune and E. Puisais), Ireland (Agent: D. O'Hagan, and P. Gallagher, E. Fitzsimons SC and E. Regan BL), Kingdom of the Netherlands (Agents: H.G. Sevenster and C. Wissels), Portuguese Republic (Agent: L. Fernandes and A. Fraga Pires), Republic of Finland (Agent: A. Guimaraes-Purokoski), Kingdom of Sweden (Agents: A. Kruse, K. Wistrand and A. Falk), United Kingdom of Great Britain and Northern Ireland (Agent: C. Jackson and R. Plender QC) — Application for annulment pursuant to Article 35 EU brought on 15 April 2003, — the Court (Grand Chamber), composed of P. Jann, President of the Chamber, C.W.A. Timmermans, A. Rosas, R. Silva de Lapuerta and A. Borg Barthet, Presidents of Chambers, R. Schintgen (Rapporteur), N. Colneric, S. von Bahr, J. N. Cunha Rodrigues, G. Arestis, M. Ilešič and J. Malenovský, Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 13 September 2005, in which it:

| 1. | Annuls Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law; |
| --- | --- |

1.

Annuls Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law;

| 2. | Orders the Council of the European Union to pay the costs; |
| --- | --- |

2.

Orders the Council of the European Union to pay the costs;

| 3. | Orders the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs.

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(1)  OJ C 135 of 07.06.2003.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/2 |
| --- | --- | --- | --- |

10.12.2005

EN

Official Journal of the European Union

C 315/2

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JUDGMENT OF THE COURT

(Third Chamber)

of 20 October 2005

in Case C-264/03: Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil obligations - Public contracts - Directive 92/50/EEC - Procedures for the award of public service contracts - Freedom to provide services - Agency of delegated project contracting - Persons to whom the task of delegated project contracting may be entrusted - Exhaustive list of legal persons created under French law)

(2005/C 315/04)

Language of the case: French

In Case C-264/03: ACTION under Article 226 EC for failure to fulfil obligations, brought on 17 June 2003, Commission of the European Communities (Agents: B. Stromsky, K. Wiedner and F. Simonetti) v French Republic (Agents: G. de Bergues and D. Petrausch — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J. Malenovský, J.-P. Puissochet, A. Borg Barthet and U. Lõhmus, Judges; Advocate General: M. Poiares Maduro, Registrar: K. Sztranc, Administrator, gave a judgment on 20 October 2005, in which it:

Declares that, by reserving, in Article 4 of Law No 85-704 of 12 July 1985 on public project contracting and its relationship to private project management, as amended by Law No 96-987 of 14 November 1996 on the implementation of the urban revival pact, the task of delegated project contracting to an exhaustive list of legal persons created under French law, the French Republic has failed to fulfil its obligations under Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and under Article 49 EC.

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(1)  OJ C 200 of 23.08.2003.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/3 |
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10.12.2005

EN

Official Journal of the European Union

C 315/3

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JUDGMENT OF THE COURT

(Third Chamber)

of 20 October 2005

in Joined Cases C-327/03 and C-328/03: References for a preliminary ruling from the Bundesverwaltungsgericht in Bundesrepublik Deutschland v ISIS Multimedia Net GmbH und Co. KG, and Others (1)

(Telecommunications services - Directive 97/13/EC - Article 11(2) - Charge for the allocation of new telephone numbers - Stock of numbers available free of charge to the undertaking succeeding the former monopoly)

(2005/C 315/05)

Language of the case: German

In Joined Cases C-327/03 and C-328/03: two references for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decisions of 30 April 2003, received at the Court on 28 July 2003, in the proceedings between Bundesrepublik Deutschland and ISIS Multimedia Net GmbH und Co. KG, represented by ISIS Multimedia Net Verwaltungs GmbH (C-327/03), Firma O2 (Germany) GmbH und Co. OHG (C-328/03) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr (Rapporteur), A. Borg Barthet and U. Lõhmus, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 20 October 2005, the operative part of which is as follows:

Article 11(2) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services must be interpreted as precluding national legislation such as that at issue in the main proceedings which provides that a new operator on the telecommunications market is required to pay a charge in respect of the allocation of telephone numbers taking account of their economic value, even though a telecommunications undertaking having a dominant position on the same market took over free of charge the very large stock of numbers which were available to its predecessor, the former monopoly, and national law precludes retrospective payment of such a charge in respect of that stock.

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(1)  OJ C 251 of 18.10.2003.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/3 |
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10.12.2005

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Official Journal of the European Union

C 315/3

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JUDGMENT OF THE COURT

(Grand Chamber)

of 18 October 2005

in Case C-405/03: Reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage in Class International BV v Colgate-Palmolive Company, Unilever NV, SmithKline Beecham plc, Beecham Group plc (1)

(Trade marks - Directive 89/104/EEC - Regulation (EC) No 40/94 - Rights conferred by the trade mark - Use of the mark in the course of trade - Importation of original goods into the Community - Goods placed under the external transit procedure or the customs warehousing procedure - Opposition of the trade mark proprietor - Offering for sale or selling goods placed under the external transit procedure or the customs warehousing procedure - Opposition of the trade mark proprietor - Onus of proof)

(2005/C 315/06)

Language of the case: Dutch

In Case C-405/03: reference for a preliminary ruling under Article 234 EC from the Gerechtshof te 's-Gravenhage (Netherlands), made by decision of 28 August 2003, received at the Court on 29 September 2003, in the proceedings pending before that court between Class International BV and Colgate-Palmolive Company, Unilever NV, SmithKline Beecham plc, Beecham Group plc — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Malenovský, Presidents of Chambers, C. Gulmann (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, A. Borg Barthet, M. Ilešič, and J. Klučka, Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 18 October 2005, the operative part of which is as follows:

| 1. | Article 5(1) and (3)(c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1) and (2)(c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor cannot oppose the mere entry into the Community, under the external transit procedure or the customs warehousing procedure, of original goods bearing that mark which had not already been put on the market in the Community previously by that proprietor or with his consent. The trade mark proprietor cannot make the placing of the goods at issue under the external transit procedure or the customs warehousing procedure conditional on the existence, at the time of the introduction of those goods into the Community, of a final destination already specified in a third country, possibly pursuant to a sale agreement. |
| --- | --- |

1.

Article 5(1) and (3)(c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1) and (2)(c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor cannot oppose the mere entry into the Community, under the external transit procedure or the customs warehousing procedure, of original goods bearing that mark which had not already been put on the market in the Community previously by that proprietor or with his consent. The trade mark proprietor cannot make the placing of the goods at issue under the external transit procedure or the customs warehousing procedure conditional on the existence, at the time of the introduction of those goods into the Community, of a final destination already specified in a third country, possibly pursuant to a sale agreement.

| 2. | ‘Offering’ and ‘putting on the market’ the goods, within the meaning of Article 5(3)(b) of Directive 89/104 and Article 9(2)(b) of Regulation No 40/94, may include, respectively, the offering and sale of original goods bearing a trade mark and having the customs status of non-Community goods, when the offering is done and/or the sale is effected while the goods are placed under the external transit procedure or the customs warehousing procedure. The trade mark proprietor may oppose the offering or the sale of such goods when it necessarily entails the putting of those goods on the market in the Community. |
| --- | --- |

2.

‘Offering’ and ‘putting on the market’ the goods, within the meaning of Article 5(3)(b) of Directive 89/104 and Article 9(2)(b) of Regulation No 40/94, may include, respectively, the offering and sale of original goods bearing a trade mark and having the customs status of non-Community goods, when the offering is done and/or the sale is effected while the goods are placed under the external transit procedure or the customs warehousing procedure. The trade mark proprietor may oppose the offering or the sale of such goods when it necessarily entails the putting of those goods on the market in the Community.

| 3. | In a situation such as the one at issue in the main proceedings, it is for the trade mark proprietor to prove the facts which would give grounds for exercising the right of prohibition provided for in Article 5(3)(b) and (c) of Directive 89/104 and Article 9(2)(b) and (c) of Regulation No 40/94, by proving either release for free circulation of the non-Community goods bearing his mark or an offering or sale of the goods which necessarily entails their being put on the market in the Community. |
| --- | --- |

3.

In a situation such as the one at issue in the main proceedings, it is for the trade mark proprietor to prove the facts which would give grounds for exercising the right of prohibition provided for in Article 5(3)(b) and (c) of Directive 89/104 and Article 9(2)(b) and (c) of Regulation No 40/94, by proving either release for free circulation of the non-Community goods bearing his mark or an offering or sale of the goods which necessarily entails their being put on the market in the Community.

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(1)  OJ C 304 of 13.12.2003.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/4 |
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Official Journal of the European Union

C 315/4

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JUDGMENT OF THE COURT

(Second Chamber)

of 20 October 2005

in Case C-468/03: reference for a preliminary ruling from the VAT and Duties Tribunal, London Overland Footwear Ltd v Commissioners of Customs & Excise (1)

(Common customs tariff - Import customs duties - Declared customs value including a buying commission - Payment of customs duty on full amount declared - Revision of the customs declaration - Conditions - Refund of customs duties paid on the buying commission)

(2005/C 315/07)

Language of the case: English

In Case C-468/03: reference for a preliminary ruling under Article 234 EC from the VAT and Duties Tribunal, London (United Kingdom), made by decision of 29 September 2003, received at the Court on 6 November 2003, in the proceedings between Overland Footwear Ltd and Commissioners of Customs & Excise — the Court (Second Chamber), composed of C.W.A. Timmermans and J. Makarczyk, Presidents of Chambers, C. Gulmann (Rapporteur), R. Schintgen and J. Klučka, Judges; M. Poiares Maduro, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 20 October 2005, the operative part of which is as follows:

| 1. | Articles 29, 32 and 33 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that a buying commission included in the declared customs value and not distinguished from the sale price of the goods in the customs declaration is to be regarded as forming part of the transaction value within the meaning of Article 29 of the Code and therefore dutiable. |
| --- | --- |

1.

Articles 29, 32 and 33 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that a buying commission included in the declared customs value and not distinguished from the sale price of the goods in the customs declaration is to be regarded as forming part of the transaction value within the meaning of Article 29 of the Code and therefore dutiable.

| 2. | On a proper interpretation of Articles 78 and 236 of Regulation No 2913/92:






  — | after the release of the imported goods, the customs authorities, presented with an application from the declarant seeking revision of his customs declaration in relation to those goods, are required, subject to the possibility of a subsequent court action, either to reject the application by a reasoned decision or to carry out the revision applied for; |
| --- | --- | --- |

2.

On a proper interpretation of Articles 78 and 236 of Regulation No 2913/92:

—

after the release of the imported goods, the customs authorities, presented with an application from the declarant seeking revision of his customs declaration in relation to those goods, are required, subject to the possibility of a subsequent court action, either to reject the application by a reasoned decision or to carry out the revision applied for;

| — | where they find, at the conclusion of that revision, that the declared customs value erroneously included a buying commission, they are required to regularise the situation by reimbursing the import duties applied to that commission. |
| --- | --- |

—

where they find, at the conclusion of that revision, that the declared customs value erroneously included a buying commission, they are required to regularise the situation by reimbursing the import duties applied to that commission.

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(1)  OJ C 7, 10.01.2004.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/5 |
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10.12.2005

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Official Journal of the European Union

C 315/5

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JUDGMENT OF THE COURT

(Third Chamber)

of 20 October 2005

in Case C-511/03: reference for a preliminary ruling from the Hoge Raad der Nederlanden Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) v Ten Kate Holding Musselkanaal BV and Others (1)

(Human and animal health - Protection against bovine spongiform encephalopathy (mad cow disease) - Feeding of ruminants with proteins derived from species other than ruminants - Liability of a Member State for damage caused to individuals by breaches of Community law for which it may be held responsible - Applicable law - Obligation to bring an action against the Commission for failure to act)

(2005/C 315/08)

Language of the case: Dutch

In Case C-511/03: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 5 December 2003, received at the Court on 8 December 2003, in the proceedings between Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) and Ten Kate Holding Musselkanaal BV, Ten Kate Europrodukten BV, Ten Kate Produktie Maatschappij BV — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J.-P. Puissochet, S. von Bahr, U. Lõhmus and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 20 October 2005, the operative part of which is as follows:

| 1. | Community law does not impose any obligation on a Member State to bring an action for annulment, pursuant to Article 230 EC, or for failure to act, pursuant to Article 232 EC, for the benefit of one of its citizens. Community law does not, however, in principle preclude national law from containing such an obligation or providing for liability to be imposed on the Member State for not having acted in such a way. |
| --- | --- |

1.

Community law does not impose any obligation on a Member State to bring an action for annulment, pursuant to Article 230 EC, or for failure to act, pursuant to Article 232 EC, for the benefit of one of its citizens. Community law does not, however, in principle preclude national law from containing such an obligation or providing for liability to be imposed on the Member State for not having acted in such a way.

| 2. | Article 1(2) of Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein, read in conjunction with Article 17 of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market and with Article 17 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market, must be construed as meaning that, if the material available to the Commission does not enable it to establish that the controls carried out within the framework of a system which makes it possible to distinguish between animal protein of ruminant origin and that of non-ruminant origin, submitted for its appraisal by a Member State with a view to obtaining authorisation, offer adequate guarantees in regard to the protection of public health, and if the matter has been referred to the Standing Veterinary Committee at the request of a Member State but that Committee has not taken a position, particularly by reason of new information altering the perception of the risk to public health, the Commission is not obliged to submit to the Council a proposal relating to the measures to be taken. |
| --- | --- |

2.

Article 1(2) of Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein, read in conjunction with Article 17 of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market and with Article 17 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market, must be construed as meaning that, if the material available to the Commission does not enable it to establish that the controls carried out within the framework of a system which makes it possible to distinguish between animal protein of ruminant origin and that of non-ruminant origin, submitted for its appraisal by a Member State with a view to obtaining authorisation, offer adequate guarantees in regard to the protection of public health, and if the matter has been referred to the Standing Veterinary Committee at the request of a Member State but that Committee has not taken a position, particularly by reason of new information altering the perception of the risk to public health, the Commission is not obliged to submit to the Council a proposal relating to the measures to be taken.

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(1)  OJ C 59 of 06.03.2004.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/5 |
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C 315/5

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JUDGMENT OF THE COURT

(Second Chamber)

of 20 October 2005

in Case C-6/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

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

(2005/C 315/09)

Language of the case: English

In Case C-6/04, Commission of the European Communities (Agents: M. van Beek and L. Flynn) v United Kingdom of Great Britain and Northern Ireland (Agent: C. Jackson, assisted by K. Smith, Barrister) — Action under Article 226 EC for failure to fulfil obligations, brought on 9 January 2004 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, R. Silva de Lapuerta, G. Arestis and J. Klučka (Rapporteur), Judges; J. Kokott, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 20 October 2005, in which it:

| 1. | Declares that, by failing to adopt, within the prescribed period, all the measures necessary in order to implement completely and correctly the requirements of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and in particular of:






  — | Article 6(2), as regards Gibraltar, |
| --- | --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, all the measures necessary in order to implement completely and correctly the requirements of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and in particular of:

—

Article 6(2), as regards Gibraltar,

| — | Article 6(3) and (4), as regards water abstraction plans and projects and land use plans, |
| --- | --- |

—

Article 6(3) and (4), as regards water abstraction plans and projects and land use plans,

| — | Article 11, |
| --- | --- |

—

Article 11,

| — | Article 12(1)(d), as regards Gibraltar, |
| --- | --- |

—

Article 12(1)(d), as regards Gibraltar,

| — | Article 12(2), |
| --- | --- |

—

Article 12(2),

| — | Article 12(4), |
| --- | --- |

—

Article 12(4),

| — | Article 13(1), |
| --- | --- |

—

Article 13(1),

| — | Article 14(2), |
| --- | --- |

—

Article 14(2),

| — | Article 15, |
| --- | --- |

—

Article 15,

| — | Article 16, |
| --- | --- |

—

Article 16,

| — | the whole of Directive 92/43 beyond its territorial waters, |
| --- | --- |

—

the whole of Directive 92/43 beyond its territorial waters,

the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs. |
| --- | --- |

3.

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

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(1)  OJ C 59, 06.03.2004.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/6 |
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Official Journal of the European Union

C 315/6

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JUDGMENT OF THE COURT

(First Chamber)

of 13 October 2005

in Case C-73/04 (Reference for a preliminary ruling from the Oberlandesgericht Hamm): Brigitte and Marcus Klein v Rhodos Management Ltd (1)

(Brussels Convention - Jurisdiction in proceedings regarding tenancies of immoveable property - Time-share in immoveable property)

(2005/C 315/10)

Language of the case: German

In Case C-73/04, reference for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, from the Oberlandesgericht Hamm (Germany), by Decision of 27 January 2004, received at the Court on 17 February 2004, in the proceedings pending before that court between Brigitte and Marcus Klein and Rhodos Management Ltd, the Court: (First Chamber) composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, J.N. Cunha Rodrigues and E. Levits, Judges; L.A. Geelhoed, Advocate General, R. Grass, Registrar, gave a judgment on 13 October 2005, the operative part of which is as follows:

On a proper construction of Article 16(1)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, that Article does not apply to a club membership contract which, in return for a membership fee which represents the major part of the total price, allows members to acquire a right to use on a time-share basis immoveable property of a specified type in a specified location and provides for the affiliation of members to a service which enables them to exchange their right of use.

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(1)  OJ C 106 of 30.04.2004.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/6 |
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C 315/6

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JUDGMENT OF THE COURT

(First Chamber)

of 15 September 2005

in Case C-258/04: Reference for a preliminary ruling from the Cour de travail de Liège in Office national de l'emploi v Ioannis Ioannidis (1)

(Job-seekers - European citizenship - Principle of non-discrimination - Article 39 EC - Tideover allowances for young people seeking their first employment - Grant conditional on completion of secondary education in the Member State concerned)

(2005/C 315/11)

Language of the case: French

In Case C-258/04: reference for a preliminary ruling under Article 234 EC from the Cour de travail de Liège (Belgium), made by decision of 7 June 2004, received at the Court on 17 June 2004, in the proceedings between Office national de l'emploi and Ioannis Ioannidis — the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues (Rapporteur), M. Ilešič and E. Levits, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 15 September 2005, in which it ruled:

It is contrary to Article 39 EC for a Member State to refuse to grant a tideover allowance to a national of another Member State seeking his first employment, who is not the dependent child of a migrant worker residing in the Member State granting the allowance, on the sole ground that he completed his secondary education in another Member State.

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(1)  OJ C 201 of 07.08.2004.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/7 |
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10.12.2005

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Official Journal of the European Union

C 315/7

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 20 October 2005

in Case C-505/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

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

(2005/C 315/12)

Language of the case: English

In Case C-505/04, Commission of the European Communities (Agent: H. Støvlbæk) v United Kingdom of Great Britain and Northern Ireland (Agent: S. Nwaokolo) — action under Article 226 EC for failure to fulfil obligations, brought on 8 December 2004 — the Court (Sixth Chamber), composed of J.-P. Puissochet, acting for the President of the Sixth Chamber, President of the Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 20 October 2005, in which it:

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

1.

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

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

2.

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

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(1)  OJ C 31, 05.02.2005.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/7 |
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C 315/7

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 20 October 2005

in Case C-70/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 2000/78/EC - Equal treatment in employment and occupation - Failure to transpose within the prescribed period)

(2005/C 315/13)

Language of the case: French

In Case C-70/05 Commission of the European Communities (Agent: D. Martin) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to fulfil obligations — the Court (Fourth Chamber), composed of N. Colneric (Rapporteur), acting as President of the Chamber, K. Lenaerts and E. Juhász, Judges; L. A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 20 October 2005, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 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.

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(1)  OJ C 82 of 02.04.2005

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/8 |
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C 315/8

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Reference for a preliminary ruling from the Bács-Kiskun Megyei Bíróság by order of that court of 12 July 2005 in Ilona Németh v Vám- és Pénzügyőrség Dél-Alföldi Regionális Parancsnoksága

(Case C-333/05)

(2005/C 315/14)

Language of the case: Hungarian

Reference has been made to the Court of Justice of the European Communities by order of the Bács-Kiskun Megyei Bíróság of 12 July 2005, received at the Court Registry on 14 September 2005, for a preliminary ruling in the proceedings between Ilona Németh and Vám- és Pénzügyőrség Dél-Alföldi Regionális Parancsnoksága on the following questions:

| 1. | May a tax imposed by a Member State, such as the Hungarian registration tax, be considered to be a customs duty or a levy having equivalent effect? |
| --- | --- |

1.

May a tax imposed by a Member State, such as the Hungarian registration tax, be considered to be a customs duty or a levy having equivalent effect?

| 2. | If Question 1 is answered in the negative, may a tax imposed by a Member State, such as the Hungarian registration tax — which requires payment of a tax as a precondition for the registration and placing into circulation of a passenger car — be considered to be a type of tax? |
| --- | --- |

2.

If Question 1 is answered in the negative, may a tax imposed by a Member State, such as the Hungarian registration tax — which requires payment of a tax as a precondition for the registration and placing into circulation of a passenger car — be considered to be a type of tax?

| 3. | If Question 2 is answered in the negative, is a tax imposed by a Member State, such as the Hungarian registration tax, compatible with the requirements of Article 90 EC or with Article 33 of Directive 77/388/EEC (1), or does the Hungarian registration tax infringe the common system of value added tax? |
| --- | --- |

3.

If Question 2 is answered in the negative, is a tax imposed by a Member State, such as the Hungarian registration tax, compatible with the requirements of Article 90 EC or with Article 33 of Directive 77/388/EEC (1), or does the Hungarian registration tax infringe the common system of value added tax?

| 4. | As Community law now stands, is a tax imposed by a Member State, such as the Hungarian registration tax, compatible with the provisions of Community law when the amount of the registration tax payable on new and used passenger cars — without taking into account the environmental classification of the vehicles — does not in any way reflect the depreciation in value of used vehicles and is wholly independent of the date on which the vehicle was placed in circulation and of the time during which it remained in (lawful) circulation? |
| --- | --- |

4.

As Community law now stands, is a tax imposed by a Member State, such as the Hungarian registration tax, compatible with the provisions of Community law when the amount of the registration tax payable on new and used passenger cars — without taking into account the environmental classification of the vehicles — does not in any way reflect the depreciation in value of used vehicles and is wholly independent of the date on which the vehicle was placed in circulation and of the time during which it remained in (lawful) circulation?

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

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Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 24 August 2005 in Rizeni Letoveho Provozu UR SP v Bundesamt für Finanzen

(Case C-335/05)

(2005/C 315/15)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Köln (Finance Court, Cologne) of 24 August 2005, received at the Court Registry on 15 September 2005, for a preliminary ruling in the proceedings between Rizeni Letoveho Provozu UR SP and Bundesamt für Finanzen (Federal Finance Office) on the following question:

Is Article 2(2) of Thirteenth Council Directive 86/560/EEC of 17 November 1986 (1) on the harmonization of the laws of the Member States relating to turnover taxes to be interpreted restrictively as meaning that the possibility thereby afforded the Member States of making refunds of value added tax conditional on the grant by non-Member States of comparable advantages in regard to turnover taxes, does not refer to States which, as contracting parties to the General Agreement on Trade in Services — GATS — (BGBl. II 1994, 1473, 1643), may rely on the most-favoured nation clause contained therein (Art. II(1) GATS)?

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(1)  OJ L 326, p. 40.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/9 |
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Appeal brought on 19 September 2005 by le Front National, M.F. Stirbois, B. Gollnisch, C. Lang, J.C. Martinez, Ph. Claeys, K. Dillen and M. Borghezio against the judgment delivered on 11 July 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-17/04 between Le Front National and Others and the European Parliament and the Counsel of the European Union

(Case C-338/05 P)

(2005/C 315/16)

Language of the case: French

An appeal against the judgment delivered on 11 July 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-17/04 between Le Front National and Others and the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 19 September 2005 by Le Front National and Others, represented by W. De Saint-Just, avocat.

The applicants claim that the Court should:

set aside, with all the legal consequences flowing therefrom, the judgment under appeal dated 11 July 2005.

Pleas in law and main arguments

The appellants, le Front National, a political party, and European members of various national political groupings (Front National, Lega Nord, Vlaams Blok) brought an application before the Court of First Instance for the annulment of Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding (1), in particular on the grounds that it is unlawful, it infringes the principles of equality, transparency, political pluralism and subsidiarity and that there is a presumption of abuse of process.

In the judgment under appeal of 11 July 2005, the Court of First Instance decided, firstly (paragraph 48), that the Front National is directly affected by the contested regulation. However, the Court of First Instance decided (paragraph 52) that those appellants who are elected members of political groupings are not themselves directly concerned by the contested regulation. It is, however, clear that those members, who are elected representatives, can be distinguished by their activities and involvement within their political parties from ‘any other citizen’. They therefore have grounds on which to challenge a measure which would undermine the rights pertaining to and the rules governing the political groupings of which they are members. The Cour of First Instance decided, however (paragraph 66), that the Front National is not individually concerned by the contested regulation.

On this point, the Court of First Instance accepted the European Parliament's arguments that Article 4 of that regulation was not intended to be immediately applicable and thus ‘there is therefore no effect flowing directly from Regulation 2004/2003 as regards the Front National’.

Nevertheless, Article 13 of that regulation states that ‘Articles 4 to 10 shall apply from the date of the opening of the first session held after the European Parliament elections of June 2004’. In view of the fact that the Front National submits a list of candidates in all the major French regions for the European elections and that there is no doubt that some of its candidates will be elected in view of the fact that it is a body with a high level of representation within France, it would not be an extrapolation or ‘speculation’ to state that the Front National will have representatives in the European Parliament. On this view, it is directly concerned by the provisions of the regulation on ‘the regulations governing political parties at European level and the rules regarding their funding’.

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(1)  (OJ 2003 L 297, p. 1).

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Reference for a preliminary ruling from the Cour du travail de Liège by judgment of that court of 6 September 2005 in the case of Monique Chateignier v Office national de L'emploi (O.N.Em)

(Case C-346/05)

(2005/C 315/17)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour du travail de Liège of 6 September 2005, received at the Court Registry on 22 September 2005, for a preliminary ruling in the proceedings between Monique Chateignier and Office national de L'emploi, (O.N.Em) on the following question:

Do Article 39(2) of the Treaty and Article 3(1) of Regulation No 1408/71 which guarantee equal treatment for workers of the Member States and the free movement of persons (including workers), permit Article 67(3) of Regulation No 1408/71 (1) to be interpreted as imposing an obligation on a worker who is a national of a Member State to complete a period of employment giving the right to unemployment benefits in the State of residence even where the internal law of that State does not impose such an obligation in the case of a foreign worker whether he is from a Member State or not?

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

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/10 |
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Reference for a preliminary ruling from the High Court, Ireland by order of that court of 30 July 2004 in Elaine Farrell v Alan Whitty, Minister for the Environment, Ireland and the Attorney General and Motor Insurers' Bureau of Ireland

(Case C-356/05)

(2005/C 315/18)

Language of the case: English

Reference has been made to the Court of Justice of the European Communities by order of the High Court, Ireland of 30.07.2004, received at the Court Registry on 23.09.2005, for a preliminary ruling in the proceedings between Elaine Farrell and Alan Whitty, The Minister for the Environment, Ireland and the Attorney General and The Motor Insurers' Bureau of Ireland on the following questions:

| 1. | As of December 31st 1995 the date by which Ireland was obliged to implement the provisions of the Third Directive (1) in respect of passengers on vehicles other than motorcycles, did Article 1 of the Third Directive oblige Ireland to render insurance compulsory in respect of civil liability for injury to individuals travelling in that part of a motor vehicle not designed and constructed with seating accommodation for passengers? |
| --- | --- |

1.

As of December 31st 1995 the date by which Ireland was obliged to implement the provisions of the Third Directive (1) in respect of passengers on vehicles other than motorcycles, did Article 1 of the Third Directive oblige Ireland to render insurance compulsory in respect of civil liability for injury to individuals travelling in that part of a motor vehicle not designed and constructed with seating accommodation for passengers?

| 2. | If the answer to Question (1) is in the positive, does Article 1 of the Third Directive confer rights on individuals that may be relied upon directly before the national courts? |
| --- | --- |

2.

If the answer to Question (1) is in the positive, does Article 1 of the Third Directive confer rights on individuals that may be relied upon directly before the national courts?

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(1)  Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liabilty in respect of the use of motor vehicles, Official Journal L 129, 19/05/1990 P.0033-0035.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/10 |
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Reference for a preliminary ruling from the Tribunal de Grande Instance de Brive-La-Gaillarde by order of that court of 9 September 2005 in Estager SA v Receveur Principal de la Recette des Douanes de Brive

(Case C-359/05)

(2005/C 315/19)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal de Grande Instance (Regional Court) of Brive-La-Gaillarde of 9 September 2005, received at the Court Registry on 26 September 2005, for a preliminary ruling in the proceedings between Estager SA and Receveur Principal de la Recette des Douanes de Brive (Principal Collector of Customs Revenue of Brive) on the following question:

Are the provisions of Order No 2000-916 of 19 September 2000, adapting the value to euros of certain amounts expressed in francs in the legislation, that concern the conversion of the BAPSA tax applied to the production of flour, meal and groats of common wheat, from FRF 100 francs to EUR 16 in conformity with the Community regulations in relation to the introduction of the euro?

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/10 |
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Reference for a preliminary ruling from the Vestre Landsret, Denmark by order of that court of 5 October 2005 in Anklagemyndigheden v Uwe Kay Festersen

(Case C-370/05)

(2005/C 315/20)

Language of the case: Danish

Reference has been made to the Court of Justice of the European Communities by order of the Vestre Landsret, Denmark, of 5 October 2005, received at the Court Registry on 10 October 2005, for a preliminary ruling in the proceedings between Anklagemyndigheden and Uwe Kay Festersen on the following questions:

| 1. | Do Article 43 EC and Article 56 EC preclude a Member State from laying down as a condition for acquiring an agricultural property the requirement that the acquirer take up fixed residence on that property? |
| --- | --- |

1.

Do Article 43 EC and Article 56 EC preclude a Member State from laying down as a condition for acquiring an agricultural property the requirement that the acquirer take up fixed residence on that property?

| 2. | Does it matter, as regards the answer to Question 1, that the property cannot constitute a self-sustaining unit and that the property's residential building is situated in an urban zone? |
| --- | --- |

2.

Does it matter, as regards the answer to Question 1, that the property cannot constitute a self-sustaining unit and that the property's residential building is situated in an urban zone?

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/11 |
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Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 21 July 2005 in Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb e.V.

(Case C-374/05)

(2005/C 315/21)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof of 21 July 2005, received at the Court Registry on 12 October 2005, for a preliminary ruling in the proceedings between Gintec International Import-Export GmbH and Verband Sozialer Wettbewerb e.V. on the following questions:

| 1. | Do the provisions of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (1), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 (2), concerning a reference to statements of third parties who lack professional knowledge of the subject and advertising with a prize draw, set not only a minimum standard for the prohibition on advertising of a medicinal product to the general public, but also a definitive maximum standard? |
| --- | --- |

1.

Do the provisions of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (1), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 (2), concerning a reference to statements of third parties who lack professional knowledge of the subject and advertising with a prize draw, set not only a minimum standard for the prohibition on advertising of a medicinal product to the general public, but also a definitive maximum standard?

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






  (a) | Is there an improper or misleading reference to a ‘claim of recovery’ within the meaning of Article 90(j) of Directive 2001/83/EC where the advertiser reports the result of a survey of third parties who lack professional knowledge of the subject with a positive overall evaluation of the medicinal product advertised, without attributing the evaluation to individual fields of application? |
| --- | --- | --- |

2.

If the answer to the first question is in the affirmative:

(a)

Is there an improper or misleading reference to a ‘claim of recovery’ within the meaning of Article 90(j) of Directive 2001/83/EC where the advertiser reports the result of a survey of third parties who lack professional knowledge of the subject with a positive overall evaluation of the medicinal product advertised, without attributing the evaluation to individual fields of application?

| (b) | Does the lack of an express prohibition on advertising with a prize draw in Directive 2001/83/EC mean that this is basically permitted, or does Article 87(3) of Directive 2001/83/EC contain a catch-all provision on which the prohibition of internet advertising with a monthly low-value prize draw may be based? |
| --- | --- |

(b)

Does the lack of an express prohibition on advertising with a prize draw in Directive 2001/83/EC mean that this is basically permitted, or does Article 87(3) of Directive 2001/83/EC contain a catch-all provision on which the prohibition of internet advertising with a monthly low-value prize draw may be based?

| 3. | Are the above questions to be answered analogously in respect of Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use (3)? |
| --- | --- |

3.

Are the above questions to be answered analogously in respect of Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use (3)?

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(1)  OJ 2001 L 311, p. 67.

(2)  OJ 2004 L 136, p. 34.

(3)  OJ 1992 L 113, p. 13.

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COURT OF FIRST INSTANCE

| 10.12.2005 | EN | Official Journal of the European Union | C 315/12 |
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Action brought on 13 September 2005 — Ott and Others v Commission

(Case T-349/05)

(2005/C 315/22)

Language of the case: French

Parties

Applicant(s): Martial Ott (Oberanven, Luxembourg), Fernando Lopez Tola (Luxembourg, Grand Duchy of Luxembourg), Francis Weiler (Itzig, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the list of officials promoted in 2004 (1), since that list does not include the names of the applicants, and, as an incidental plea, that the Court should annul the travaux preparatoires of that decision; |
| --- | --- |

—

annul the list of officials promoted in 2004 (1), since that list does not include the names of the applicants, and, as an incidental plea, that the Court should annul the travaux preparatoires of that decision;

| — | in the alternative, annul the allocation of promotion points for 2004, in particular, further to the recommendations made by the Promotion Committees; |
| --- | --- |

—

in the alternative, annul the allocation of promotion points for 2004, in particular, further to the recommendations made by the Promotion Committees;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The pleas relied on by the applicants are identical to those relied on by the applicants in Case T-327/05.

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(1)  List published in Administrative Notice No 130, 30.11.2004.

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Action brought on 19 September 2005 — TF1 v Commission of the European Communities

(Case T-354/05)

(2005/C 315/23)

Language of the case: French

Parties

Applicant(s): Télévision Française 1 SA (Boulogne, France) (represented by: J.-P. Hordies, C. Smits, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the decision given by the Commission on 20 April 2005 regarding the licence fee system in favour of France Télévision; |
| --- | --- |

—

annul the decision given by the Commission on 20 April 2005 regarding the licence fee system in favour of France Télévision;

| — | make an order as to costs in accordance with the law. |
| --- | --- |

—

make an order as to costs in accordance with the law.

Pleas in law and main arguments

By the present action, Télévision Française 1 seeks the annulment of the Commission decision of 20 April 2005 by which it declared compatible with the common market under Article 86(2) EC the licence fee system granted by the French authorities to France Télévision.

The applicant relies on five pleas in support of its action for annulment, alleging, essentially:

| — | insufficient statement of reasons for the decision; |
| --- | --- |

—

insufficient statement of reasons for the decision;

| — | failure to respect the right to be heard; the applicant complains that the Commission did not give it notice to submit its comments, in particular on the appropriateness and scope of undertakings made by the French State under the procedure for examining the aid in question, in spite of the existence of a dialogue and previous contacts between the applicant and the Commission; |
| --- | --- |

—

failure to respect the right to be heard; the applicant complains that the Commission did not give it notice to submit its comments, in particular on the appropriateness and scope of undertakings made by the French State under the procedure for examining the aid in question, in spite of the existence of a dialogue and previous contacts between the applicant and the Commission;

| — | the insufficient scope of the undertakings given by the French State; according to the applicant, the undertakings proposed are incapable of guaranteeing the compatibility of the French licence fee system with the applicable Community rules on State aid, in particular the rule of proportionality of public service funding and the obligation of transparency in the use of public funds; |
| --- | --- |

—

the insufficient scope of the undertakings given by the French State; according to the applicant, the undertakings proposed are incapable of guaranteeing the compatibility of the French licence fee system with the applicable Community rules on State aid, in particular the rule of proportionality of public service funding and the obligation of transparency in the use of public funds;

| — | abuse of process; the applicant criticises the conduct of the defendant which seems to remit to the national authorities responsibility for assessing whether a State support measure constitutes aid within the meaning of Community law, whereas that control comes within the exclusive competence of the Commission; |
| --- | --- |

—

abuse of process; the applicant criticises the conduct of the defendant which seems to remit to the national authorities responsibility for assessing whether a State support measure constitutes aid within the meaning of Community law, whereas that control comes within the exclusive competence of the Commission;

| — | an error in law as to the applicability of Article 86(2) of the EC Treaty to aid resulting from overcompensation of the cost of public service obligations. The applicant challenges the Commission's interpretation of the decision in Altmark
   (1) and its application in the present case. It claims that the defendant erred in law by examining whether a State measure to compensate for public service costs could be justified under Article 86(2) of the EC Treaty, when the Commission had itself found that that measure did not fulfil the conditions set out in the Altmark judgment. |
| --- | --- |

—

an error in law as to the applicability of Article 86(2) of the EC Treaty to aid resulting from overcompensation of the cost of public service obligations. The applicant challenges the Commission's interpretation of the decision in Altmark
   (1) and its application in the present case. It claims that the defendant erred in law by examining whether a State measure to compensate for public service costs could be justified under Article 86(2) of the EC Treaty, when the Commission had itself found that that measure did not fulfil the conditions set out in the Altmark judgment.

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(1)  Case C-280/00 [2003] ECR I-7747.

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Action brought on 12 September 2005 — Vandaele v Commission

(Case T-355/05)

(2005/C 315/24)

Language of the case: French

Parties

Applicant(s): Vandaele (Bertem, Belgium) (represented by: S.Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the decision appointing the applicant a member of the temporary staff of the European Communities in so far as it fixes her recruitment grade in accordance with Article 2 of the decision of 28 April 2004 on the engagement of temporary staff. |
| --- | --- |

—

annul the decision appointing the applicant a member of the temporary staff of the European Communities in so far as it fixes her recruitment grade in accordance with Article 2 of the decision of 28 April 2004 on the engagement of temporary staff.

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant took part in selection procedure OLAF/T/B/02 initiated by the Commission to fill temporary staff positions at Grade B in the Anti-fraud Office. By letter of 28 October 2002, she was informed that her name had been included on the list of suitable candidates. However, she did not begin working for the Commission, for OLAF, until 1 September 2004, although the procedure for her engagement had begun at the end of 2003. Her contract, signed on 3 November 2004, classified her at Grade B*4, in accordance with the Commission's decision of 28 April 2004 on the engagement of temporary staff, under which temporary personnel are engaged at Grade A*8 or B*4.

By her action, the applicant challenges her classification. She submits that the Commission, by its decision of 28 April 2004, amended the call for candidatures to Category B, where the minimum grade, at the time of that call's publication, was Grade B5 (renamed B*5 under the new Staff Regulations). Such an amendment, which occurred after the list of successful candidates had been drawn up, infringes Article 29(1) of the Staff Regulations and the third paragraph of Article 10 of the Conditions of employment of other servants of the European Communities, as well as the applicant's prospects of being recruited to one of the vacant posts intended to be filled by successful candidates in the selection procedure to which she had been admitted.

In addition, the applicant claims infringement of the principle of equal treatment to the extent that successful candidates in the same procedure who were recruited prior to 1 May 2004, and classified in accordance with the previous rules, were classified at higher grades and benefit from better conditions for career progress.

Lastly, the applicant alleges infringement of her legitimate expectation that she will be recruited at Grade B2 or B3 without unjustified delay.

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Action brought on 26 September 2005 — Franklin and Others v Commission

(Case T-359/05)

(2005/C 315/25)

Language of the case: French

Parties

Applicant(s): Franklin and Others (Sorée, Belgium) (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the implied decision refusing assistance under Article 24 of the Staff Regulations; |
| --- | --- |

—

annul the implied decision refusing assistance under Article 24 of the Staff Regulations;

| — | order the Commission to pay collective compensation for the damage suffered by the applicants as a result; |
| --- | --- |

—

order the Commission to pay collective compensation for the damage suffered by the applicants as a result;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants, all Commission officials or other servants, had applied for their pension rights acquired in Belgium to be transferred to the Community scheme, in accordance with the provisions of a Belgian law adopted in 1991. In 2003, Belgium adopted a new law which, according to the applicants, prescribes more advantageous conditions for new transfers of that type. However, the applicants, having already transferred their rights, could not use the provisions of the 2003 law.

Following a meeting to provide information, which took place on 9 December 2004, the applicants learned that the Commission did not propose to help its officials and temporary agents to obtain the transfer which was most satisfactory for them.

By their action, they challenge that Commission decision, which they classify as a refusal of assistance in breach of Article 24 of the Staff Regulations. In addition to that article, they also rely in support of their action on infringement of the principle of non-discrimination, the prohibition on arbitrary conduct, the obligation to give reasons, the principle of legitimate expectations and the rule 'patere legem quam ipse fecisti', and an abuse of powers.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/14 |
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Action brought on 26 September 2005 — Genette v Commission

(Case T-361/05)

(2005/C 315/26)

Language of the case: French

Parties

Applicant(s): Genette (Gorze, France) (represented by: M.-A. Lucas, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the decision of the Head of the ‘Pensions’ Unit of 25 January 2005 rejecting the applicant's application of 31 October 2004 for the transfer of his pension rights acquired in Belgium (No D/1106/2004); |
| --- | --- |

—

annul the decision of the Head of the ‘Pensions’ Unit of 25 January 2005 rejecting the applicant's application of 31 October 2004 for the transfer of his pension rights acquired in Belgium (No D/1106/2004);

| — | annul the decision of the Director General of the ADMIN DG of 10 June 2005 dismissing the applicant's complaint of 22 April 2005 against the decision of the Head of the ‘Pensions’ Unit of 2 February 2005 rejecting his application of 31 October 2004; |
| --- | --- |

—

annul the decision of the Director General of the ADMIN DG of 10 June 2005 dismissing the applicant's complaint of 22 April 2005 against the decision of the Head of the ‘Pensions’ Unit of 2 February 2005 rejecting his application of 31 October 2004;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Following an application by the applicant, a Commission official, the pension rights he had acquired in Belgium were transferred to the Community scheme in 2002, in accordance with the provisions of a Belgian law on that subject adopted in 1991. In 2003, Belgium adopted a new law governing those transfers, whose provisions, according to the applicant, were more advantageous for him.

The 1991 law provided for the possibility to withdraw the transfer application, with the institution's agreement. The applicant therefore submitted an application for the Commission to record its agreement on the withdrawal of the application he had submitted under the regime governed by the 1991 law, so that he might, subsequently, submit a new application governed by the 2003 law. That application was rejected by the contested decision, on the ground that the Community provisions do not provide for the possibility to withdraw an application.

By his action, the applicant challenges the rejection of his application. He points out a number of obvious errors in the assessment of the subject of his application, the final nature of the decisions called into question by his application, the existence of new and substantial facts and the time-limit for submitting the application. He also alleges infringement of Article 11(2) of Annex VIII to the Staff Regulations, and of the general provisions for its implementation. In addition, the applicant submits that the contested decisions infringe his fundamental right to effective judicial protection and the duty of assistance laid down in Article 24 of the Staff Regulations.

Lastly, the applicant pleads that the Belgian law of 1991 conflicts with Community law, specifically Article 11(2) of Annex VIII and the principle of equal treatment.

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EN

Official Journal of the European Union

C 315/14

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Action brought on 26 September 2005 — Saint-Gobain Pam SA v OHIM

(Case T-364/05)

(2005/C 315/27)

Language in which the application was lodged: French

Parties

Applicant: Saint-Gobain Pam SA (Nancy, France) (represented by: J. Blanchard, 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: Propamsa SA

Form of order sought

The applicant claims that the Court should:

| — | annul the decision given on 15 April 2005 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs); |
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annul the decision given on 15 April 2005 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. |
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order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Saint-Gobain Pam SA

Community trade mark concerned: word mark ‘PAM PLUVIAL’ for goods in Class 6 (‘pipes and tubes of metal or based on metal, pipes and tubes of cast iron, fittings of metal for the aforesaid goods’) and Class 17 (‘fittings, not of metal, for rigid pipes and tubes, not of metal’).

Proprietor of the mark or sign cited in the opposition proceedings: Propamsa SA

Mark or sign cited in opposition: Spanish trade mark registration No 737 992 of the semi-figurative mark ‘PAM PAM’, for goods in Class 19 (‘construction materials’), Spanish trade mark registration No 120 075 of the word mark ‘PAM’ for goods in Class 19 (‘cements’) and International trade mark registration No 463 089 ‘PAM’ for goods in Class 1 (‘adhesive substances destined for industry’) and Class 19 (‘materials for construction (non-metallic), wrought or unwrought’).

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

Decision of the Board of Appeal: dismissed the appeal.

Pleas in law:

Infringement of the principle of continuity in terms of their functions between the various departments of the Office for Harmonisation in the Internal Market in that a decision that a party appearing before the authorities ruling at first instance which has failed to provide evidence as to matters of fact or law within the prescribed time-limits cannot, pursuant to Article 74(2) of Council Regulation No 40/94 on the Community trade mark, rely on such evidence before the Board of Appeal is contrary to that principle.

Infringement of Article 8(1)(b) of that Regulation.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/15 |
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10.12.2005

EN

Official Journal of the European Union

C 315/15

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Action brought on 26 September 2005 — Mische/Parliament

(Case T-365/05)

(2005/C 315/28)

Language of the case: English

Parties

Applicant(s): Harald Mische (Brussels, Belgium) [represented by: G. Vandersanden, L. Levi, lawyers]

Defendant(s): European Parliament

Form of order sought

| — | Order the cancellation of the grading given on the 4 October 2004 in the appointment decision of the Nominating Authority which was to take effect 16 November to grade him on his recruitment to DG Competition as ‘junior lawyer’ at category A*, grade 6, step 1, implying the reinstatement of all his rights as deriving from a legal and regular employment, i.e. a legal and regular grading as of 16 November 2004, which means at minimum an A7/3 grading (valid as of 1 November 2003) or its equivalent according to Articles 1-11 of Annex XIII of the Staff Regulations (A*8/3); |
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Order the cancellation of the grading given on the 4 October 2004 in the appointment decision of the Nominating Authority which was to take effect 16 November to grade him on his recruitment to DG Competition as ‘junior lawyer’ at category A*, grade 6, step 1, implying the reinstatement of all his rights as deriving from a legal and regular employment, i.e. a legal and regular grading as of 16 November 2004, which means at minimum an A7/3 grading (valid as of 1 November 2003) or its equivalent according to Articles 1-11 of Annex XIII of the Staff Regulations (A*8/3);

| — | grant the award of damages with (i) Aintérêts de retard@, compensation for his prejudice to his career, and (ii) other damages in form of a legal and regular pay, notably the application of the transitional provision contained in Article 21 of Annex XIII of the Staff Regulation in force as of 1 May 2004 or, alternatively, the lowering of contributions to the pension scheme based on the principle of equal pay. These rights will have to be duly evaluated at a later stage and are now evaluated, provisionally and ex aequo et bono, at a minimum of 10 000 euros per year; |
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grant the award of damages with (i) Aintérêts de retard@, compensation for his prejudice to his career, and (ii) other damages in form of a legal and regular pay, notably the application of the transitional provision contained in Article 21 of Annex XIII of the Staff Regulation in force as of 1 May 2004 or, alternatively, the lowering of contributions to the pension scheme based on the principle of equal pay. These rights will have to be duly evaluated at a later stage and are now evaluated, provisionally and ex aequo et bono, at a minimum of 10 000 euros per year;

| — | order that the Parliament pays all the costs. |
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order that the Parliament pays all the costs.

Pleas in law and main arguments

The applicant, an official appointed after the entry into force of the new Staff Regulations on 1st May 2004, but from a reserve list drawn up on the basis of a competition organised before that date, contests his appointment grade. He invokes the same pleas and arguments he had already invoked in Case T-288/05 (1).

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(1)  OJ C 229, 17/09/05, p. 35

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/15 |
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10.12.2005

EN

Official Journal of the European Union

C 315/15

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Action brought on 23 September 2005 — UPC France v Commission

(Case T-367/05)

(2005/C 315/29)

Language of the case: French

Parties

Applicant(s): UPC France Holding BV (Schiphol-Rijk, Netherlands) (represented by: M.D. Powell and N. Flandin, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul Commission Decision State Aid No 382/2004 — France; |
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annul Commission Decision State Aid No 382/2004 — France;

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

Pleas in law and main arguments

By the present action, the applicant requests the annulment of Commission Decision State Aid No 382/2004 — France of 3 May 2005 (1) declaring that the subsidy granted by the French authorities for the construction and operation of a high-throughput telecommunications network in Limousin (DORSAL) does not constitute aid.

In support of its action, the applicant relies on several pleas, alleging infringement of essential procedural requirements and infringement of Community law.

As regards infringement of essential procedural requirements, the applicant claims that the Commission infringed its procedural rights by wrongly refraining from initiating the formal investigation procedure provided for in Article 88(2) of the EC Treaty and Article 6 of Regulation No 659/99 (2), which would have enabled it, as an interested party, to submit comments before the Commission took the decision.

By its first plea, relating to infringement of Community law, the applicant claims that the Commission made a manifest error of assessment by considering that the measure in question did not contain aid because the subsidy had been granted in connection with compensation for public service and the criteria set out in the decision in Altmark
   (3) had been fulfilled in this case.

Moreover, the applicant challenges the contested decision inasmuch as it classifies the high output service as public service, when the definition of public service in relation to telecommunications, according to the ‘universal service’ directive, covers only low-throughput services.

The applicant then submits that if the obligations at issue must be regarded as a public service task, which they are not, the Commission made a manifest error of assessment by taking the view that, in the city of Limoges, there is a shortage of private initiative and absence of competitive forces. It also claims that the procedure used to choose the operator responsible for carrying out a supposed service task in the general interest did not make it possible to select the candidate able to provide the service at the lowest cost for the community. In any event, according to the applicant, in this case and as far as the city of Limoges is concerned the public subsidy cannot be justified as compensation for the carrying out of a public service task and Altmark cannot therefore apply.

By its next plea, the applicant also relies on substantial procedural irregularities in the procedure for delegation of the public service task which meant that the potential candidates for public service delegation were not accorded equal treatment.

The final plea raised by the applicant alleges a failure to give sufficient reasons, since the Commission did not explain why it took into consideration the region of Limousin as a whole without taking account of the particular features of urban areas which, like the city of Limoges, present real pockets of competition within the region, nor why it did not at any time in the contested decision refer to the presence of the applicant's network in Limoges.

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(1)  C (2005) 1170 final 1.

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83 of 27.03.1999, p. 1.

(3)  Case C-280/00 [2003] ECR I-7747.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/16 |
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10.12.2005

EN

Official Journal of the European Union

C 315/16

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Action brought on 30 September 2005 — France v Commission

(Case T-370/05)

(2005/C 315/30)

Language of the case: French

Parties

Applicant(s): French Republic (Paris, France) (represented by: G. de Bergues and A.Colomb, Agents)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul Commission Decision C (2005) 2756 final of 20 July 2005 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), in so far as it excludes from Community financing the sum of EUR 13 519 122,05 in respect of a correction relating to determination of the areas eligible for aid for restructuring and reconversion of vineyards for the 2001-2003 financial year; |
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annul Commission Decision C (2005) 2756 final of 20 July 2005 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), in so far as it excludes from Community financing the sum of EUR 13 519 122,05 in respect of a correction relating to determination of the areas eligible for aid for restructuring and reconversion of vineyards for the 2001-2003 financial year;

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

Pleas in law and main arguments

By the contested decision which is the subject-matter of these proceedings, the Commission made a decision on clearance of the applicant's accounts in the wine sector of an amount corresponding to the amount to be excluded from Community financing on account of, first, a correction for exceeding new planting rights and, secondly, a correction made by the Commission in respect of the areas declared eligible by France for reconversion/restructuring aid and the areas considered eligible for such aid by the Commission for the marketing years 2000-2001 and 2001-2002. Only the second part of the decision at issue, concerning the correction relating to the discrepancy in area, is challenged by the applicant.

In support of its claims, the applicant relies on two pleas. By the first, the applicant claims that the Commission misapplied Article 7(4) of Regulation No 1258/99 (1) since it did not prove the existence of an infringement of the Community rules by the French Government regarding the calculation of aid for restructuring and reconversion of vineyards, nor the existence of harm allegedly caused to the Community budget by the calculation method chosen by the French Government.

The second plea raised by the applicant alleged an insufficient statement of reasons, since the contested decision did not explain the rules which the Commission intended to be applied to the non-planted areas, capable of being taken into account in the calculation of aid, nor did it justify clearly application of a financial correction of 10 % to the amounts of aid for restructuring and reconversion of vineyards.

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(1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy, OJ L 160 of 26.06.1999, p. 103.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/17 |
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10.12.2005

EN

Official Journal of the European Union

C 315/17

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Action brought on 5 October 2005 — Giant (China)/Council

(Case T-372/05)

(2005/C 315/31)

Language of the case: English

Parties

Applicant(s): Giant (China) Co., Ltd (Kunshan City, People's Republic of China) [represented by: P. De Baere, lawyer]

Defendant(s): Council of the European Union

Form of order sought

| — | Annul Council Regulation (EC) No 1095/2005 (1), of 12 July 2005, imposing a definitive anti-dumping duty on imports of bicycles originating in Vietnam, and amending Regulation (EC) No 1524/2000, imposing a definitive anti-dumping duty on imports of bicycles originating in the People's Republic of China, insofar as it rejects the applicant's market economy status claim in breach of Article 2(7)(b), in connection with Article 2(7)(c), of Council Regulation 384/96 (‘the basic regulation’), violates Article 11(10), of the basic regulation, in that it rejects the applicant's claim for non-deduction of the anti-dumping duty from the constructed export price and violates Article 253 EC, inasmuch as it fails to state reasons; |
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Annul Council Regulation (EC) No 1095/2005 (1), of 12 July 2005, imposing a definitive anti-dumping duty on imports of bicycles originating in Vietnam, and amending Regulation (EC) No 1524/2000, imposing a definitive anti-dumping duty on imports of bicycles originating in the People's Republic of China, insofar as it rejects the applicant's market economy status claim in breach of Article 2(7)(b), in connection with Article 2(7)(c), of Council Regulation 384/96 (‘the basic regulation’), violates Article 11(10), of the basic regulation, in that it rejects the applicant's claim for non-deduction of the anti-dumping duty from the constructed export price and violates Article 253 EC, inasmuch as it fails to state reasons;

| — | order the Council to bear the costs of the proceedings. |
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order the Council to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant, a limited company incorporated under Chinese law, mainly produces bicycles and parts thereof, exporting to the Community. Being affected by the contested measures, the applicant submitted an application to the Commission, requesting to benefit from market economy status (‘MES’). The applicant also submitted anti-dumping questionnaires and engaged in correspondence with the Commission raising a number of issues.

The applicant now challenges the contested Regulation, first addressing the rejection of its MES claim. According to the applicant, its claim was rejected on the consideration that, due to the existence of an export licensing system, the applicant's decisions regarding sales prices and quantities, were not taken in response to market signals and without significant state interference. The applicant argues that Article 2(7)(b), of the basic regulation, should be interpreted in the sense that MES should be granted if in a particular case market economy conditions prevail, notwithstanding the existence of national legislation or mechanisms not conforming with those in place in market economies. Since the contested Regulation failed to address its own particular situation, the applicant considers that there has been a manifest error of assessment leading to a violation of Article 2(7)(b). In the same context, the applicant invokes a violation of Article 253 EC inasmuch as the contested Regulation allegedly fails to state the reasons for which the MES claim was rejected.

The applicant also challenges the rejection of his claim that the amount of the anti-dumping duty should not be deducted from the constructed export price, as a cost between importation and resale, in accordance with Article 11(10) of the basic regulation. The applicant considers that the Council erred in law, insofar as it considered that there was no movement in the resale and subsequent selling prices by reference to the applicant's export prices established in the previous investigations. According to the applicant, there was no export price established for it in previous investigations. Further, the applicant argues that Article 11(10) does not require the movement to be assessed by reference to export prices established in the previous investigations.

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(1)  OJ L 183, p. 1.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/18 |
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10.12.2005

EN

Official Journal of the European Union

C 315/18

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Action brought on 13 October 2005 — Tea-Cegos and STG v Commission

(Case T-376/05)

(2005/C 315/32)

Language of the case: French

Parties

Applicant(s): TEA-CEGOS (Madrid, Spain) and Services Techniques Globaux (STG) (Brussels, Belgium) (represented by: G.Vandersanden and L. Levi, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the decision of 12 October 2005 rejecting the candidature and bid of the TEA-CEGOS consortium and withdrawing the decision awarding the framework contract to the TEA-CEGOS consortium under the call for tenders EuropeAid -2/119860/C-LOT No 7; |
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annul the decision of 12 October 2005 rejecting the candidature and bid of the TEA-CEGOS consortium and withdrawing the decision awarding the framework contract to the TEA-CEGOS consortium under the call for tenders EuropeAid -2/119860/C-LOT No 7;

| — | annul all the other decisions taken by the defendant under that call for tenders following the decision of 12 October 2005 and, in particular, the award decisions and the contracts concluded by the Commission implementing those decisions; |
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annul all the other decisions taken by the defendant under that call for tenders following the decision of 12 October 2005 and, in particular, the award decisions and the contracts concluded by the Commission implementing those decisions;

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

Pleas in law and main arguments

The applicants in these proceedings are members of the consortium constituted for the purposes of the call for tenders ‘EuropeAid/119860/C/SV/MULTI’ launched by the defendant. It tendered for lot No 7 ‘Culture, Governance and Home Affairs’.

On 20 May 2004, the consortium was informed by post that its candidature had been accepted. By letter of 18 July 2005, the defendant informed it that it considered it necessary to review its decision awarding it the framework contract, and justified that change by the fact that the decision in question had been taken on the basis of inaccurate information communicated during the procedure. On 12 October 2005, the Commission took a decision confirming rejection of the applicant's candidature and bid on the basis of the exclusion clause provided for in Article 13 of the contract notice (1). To justify its decision, it relied on the fact that one of the members of the consortium was part of another group, one of the members of which was taking part in another candidature for the same contract. That is the contested decision.

In support of their action for annulment, the applicants rely on several pleas in law.

By the first, they claim that the defendant was in breach of the contractual documents inasmuch as it misapplied Article 13 of the contract notice and Article 14 of the instructions to tenderers. The applicants claim that Article 13 of the contract notice was not applicable when an award decision had already been taken. They also submit that they did not fail to communicate the documents requested by the defendant or supply false information, so the conditions for applying Article 14 of the instructions to tenderers, which would alone justify the decision awarding the contract being challenged at that stage of the procedure, had not been fulfilled.

Secondly, the applicants claim that the defendant made a manifest error of assessment of the concept of ‘legal group’ in Article 13 of the contract notice, by taking into account only the structural criterion and excluding application of the test of conflict of interest between candidates in the same call for tenders. In the applicants' opinion, the defendant's assessment is such as to undermine the principles of legal certainty. The applicants also rely on a plea alleging breach of the duty to state reasons.

The third plea raised by the applicants relates to the alleged breach of the principle of good administration and a failure to take steps. The applicants claim that, where there is uncertainty, the defendant ought to have informed the consortium within a reasonable time, and questioned them during the tendering procedure and not after its decision awarding the contract, which would have made it possible to save the costs associated with their participation in the later stages of the procedure.

By the final plea, the applicants submit that regard was not had to their legitimate expectations and also rely on the theory of retrait des actes adminstratifs (cancellation of administrative acts). They claim that, in this case, the decision awarding the contract was not unlawful and, accordingly, could not be withdrawn by the defendant.

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(1)  Contract notice for a multiple framework contract ‘Multiple framework contract to recruit technical assistance for short-term expertise for the exclusive benefit of third countries benefiting from the European Commission's external aid’ 2004/S 132-111932, OJ S 132.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/18 |
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10.12.2005

EN

Official Journal of the European Union

C 315/18

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Action brought on 20 October 2005 — GHK Consulting/Commission

(Case T-383/05)

(2005/C 315/33)

Language of the case: English

Parties

Applicant(s): GHK Consulting Limited (London, United Kingdom) [represented by: J-E. Svensson, M. Dittmer, lawyers]

Defendant(s): Commission of the European Communities

Form of order sought

| — | Annul the European Commission's Decision of 12 October 2005 excluding the candidacy and the offer of the consortium headed by the applicant, whereby the Commission revoked its decision on allocating the framework contract to the consortium, in relation to Tender EuropeAid//119860/C/ — Lot No. 7; |
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Annul the European Commission's Decision of 12 October 2005 excluding the candidacy and the offer of the consortium headed by the applicant, whereby the Commission revoked its decision on allocating the framework contract to the consortium, in relation to Tender EuropeAid//119860/C/ — Lot No. 7;

| — | annul any decision by the Commission following the Commission's Decision of 12 October 2005 and, in particular, any decision by the Commission to enter into contract with other tenderers; |
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annul any decision by the Commission following the Commission's Decision of 12 October 2005 and, in particular, any decision by the Commission to enter into contract with other tenderers;

| — | order the Commission to pay all costs related to the case. |
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order the Commission to pay all costs related to the case.

Pleas in law and main arguments

The Commission issued, under reference EuropeAid//119860/C — Lot No. 7, an invitation to tender for a multiple framework contract to recruit technical assistance for short-term expertise for the exclusive benefit of third countries benefiting from European Commission external aid. The applicant, acting as leader of a consortium, submitted a bid.

By the contested Decision the Commission excluded the applicant's consortium on the grounds that the Danish Institute of International Studies (‘DIIS’), a member of the applicant's consortium, was part of the same group as the Danish Institute of Human Rights (‘DIHR’), which participated in another consortium bidding for the same contract. Article 13 of the public procurement notice in question prohibited legal persons within the same legal group from submitting more than one application per lot.

In support of its request to annul the contested Decision the applicant disputes the Commission's conclusion that DIIS, DIHR and a third institute constitute a legal group. According to the applicant, none of these entities controls the others as the institutes are completely self-governing and each have a separate statute, share no academic staff, have their own management and board elected by completely different bodies, and share no common economic interests or objectives. The applicant further submits that any unclear points in the procurement notice must be interpreted in favour of the tenderers and that the Commission is responsible for not making the conditions for participation clear beforehand.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/19 |
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EN

Official Journal of the European Union

C 315/19

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Order of the Court of First Instance of 29 September 2005 — BIC v Commission

(Case T -270/04) (1)

(2005/C 315/34)

Language of the case: French

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

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(1)  OJ C 262, 23.10.2004.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/19 |
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10.12.2005

EN

Official Journal of the European Union

C 315/19

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Order of the Court of First Instance of 7 October 2005 — Umwelt- und Ingenieurtechnik v Commission

(Case T-125/05) (1)

(2005/C 315/35)

Language of the case: German

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

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(1)  OJ C 115, 14.5.2005.

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| 10.12.2005 | EN | Official Journal of the European Union | C 315/19 |
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Official Journal of the European Union

C 315/19

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Order of the Court of First Instance of 13 October 2005 — Milella and Campanella v Commission

(Case T-289/05)

(2005/C 315/36)

Language of the case: French

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

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III Notices

| 10.12.2005 | EN | Official Journal of the European Union | C 315/20 |
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10.12.2005

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Official Journal of the European Union

C 315/20

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(2005/C 315/37)

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

OJ C 296, 26.11.2005

Past publications

OJ C 281, 12.11.2005

OJ C 271, 29.10.2005

OJ C 257, 15.10.2005

OJ C 243, 1.10.2005

OJ C 229, 17.9.2005

OJ C 217, 3.9.2005

These texts are available on:

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

| | CELEX:http://europa.eu.int/celex |
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CELEX:http://europa.eu.int/celex

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