# Official Journal C 178/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 178 |
| | |
| English edition | Information and Notices | Volume 4929 July 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 178

English edition

Information and Notices

Volume 4929 July 2006

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 178/1 | Joined Cases C-442/03 P and C-471/03 P: Judgement of the Court (Third Chamber) of 1 June 2006 — P&O European Ferries (Vizcaya) SA v Diputación Foral de Vizcaya, Commission of the European Communities (State aid — Appeals — Actions for annulment — Decision terminating a review procedure initiated under Article 88(2) EC — Concept of State aid — Force of res judicata — Aid which may be declared compatible with the common market — Social aid — Conditions) | 1 |
| 2006/C 178/2 | Joined Cases C-317/04 and C-318/04: Judgement of the Court (Grand Chamber) of 30 May 2006 — European Parliament v Council of the European Union (Protection of individuals with regard to the processing of personal data — Air transport — Decision 2004/496/EC — Agreement between the European Community and the United States of America — Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection — Directive 95/46/EC — Article 25 — Third countries — Decision 2004/535/EC — Adequate level of protection) | 1 |
| 2006/C 178/3 | Case C-430/04: Judgement of the Court (Second Chamber) of 8 June 2006 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Finanzamt Eisleben v Feuerbestattungsverein Halle eV (Sixth VAT Directive — Possibility of relying on the second subparagraph of Article 4(5) — Activities engaged in by a private taxable person in competition with a public authority — Body governed by public law — Treatment as a non-taxable person in respect of activities engaged in as a public authority) | 2 |
| 2006/C 178/4 | Case C-453/04: Judgement of the Court (Second Chamber) of 1 June 2006 (reference for a preliminary ruling from the Landgericht Berlin (Germany)) — innoventif Ltd (Freedom of establishment — Articles 43 EC and 48 EC — Branch of a limited company established in another Member State — Registration of the objects of a company in the national register of companies — Requirement to pay an advance on the cost of publication of the full text of the objects of a company — Compatibility) | 3 |
| 2006/C 178/5 | Case C-475/04: Judgement of the Court (Sixth Chamber) of 1 June 2006 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/58/EC — Electronic communications — Processing of personal data — Protection of privacy — Protection of natural persons — Failure to transpose within the prescribed period) | 3 |
| 2006/C 178/6 | Case C-517/04: Judgement of the Court (Second Chamber) of 8 June 2006 (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — Visserijbedrijf D.J. Koornstra & Zn. vof v Productschap Vis (Charge on the landing of shrimp with fishing vessels registered in a Member State intended to finance shrimp sieving and peeling equipment in the same Member State — Article 25 EC — Charges having an effect equivalent to customs duties — Article 90 EC — Internal taxation) | 4 |
| 2006/C 178/7 | Joined Cases C-7/05 to C-9/05: Judgement of the Court (Second Chamber) of 8 June 2006 (references for a preliminary ruling from the Bundesgerichtshof (Germany) — Saatgut-Treuhandverwaltungs GmbH v Ulrich Deppe, Hanne-Rose Deppe, Thomas Deppe, Matthias Deppe, Christine Urban (née Deppe) (C-7/05), Siegfried Hennings (C-8/05), Hartmut Lübbe (C-9/05), (Plant varieties — Level of equitable remuneration to be paid to the holder of a Community plant variety right — Article 5(2), (4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98 — Concept of level of remuneration sensibly lower than the amount charged for the licensed production of propagating material) | 4 |
| 2006/C 178/8 | Case C-60/05: Judegment of the Court (Second Chamber) of 8 June 2006 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy) — WWF Italia, Gruppo Ornitologico Lombardo (GOL), Lega abolizione della caccia (LAC), Lega antivivisezionista (LAV) v Regione Lombardia (Conservation of wild birds — Directive 79/409/EEC — Derogations from the system of protection) | 5 |
| 2006/C 178/9 | Case C-71/05: Judgement of the Court (Sixth Chamber) of 8 June 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/30/EC — Air transport — Noise-related operating restrictions at Community airports — Failure to transpose within the prescribed period) | 6 |
| 2006/C 178/0 | Case C-98/05: Judgement of the Court (First Chamber) of 1 June 2006 (reference for a preliminary ruling from the Østre Landsret — Denmark) — De Danske Bilimportører v Skatteministeriet (Sixth VAT Directive — Article 11(A)(2)(a) and (3)(c) — Taxable amount — Registration duty on new motor vehicles) | 7 |
| 2006/C 178/1 | Case C-106/05: Judgement of the Court (Third Chamber) of 8 June 2006 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — L.u.P. GmbH v Finanzamt Bochum-Mitte (Sixth VAT Directive — Exemptions — Article 13A(1)(b) and (c) and (2)(a) — Medical care provided by bodies other than those governed by public law — Medical care provided in the exercise of a medical profession — Medical tests carried out by a laboratory governed by private law outside a centre for treatment on prescription from general practitioners — Conditions for the exemption — Member States' discretion — Limits) | 7 |
| 2006/C 178/2 | Case C-164/05: Judgement of the Court (Sixth Chamber) of 8 June 2006 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — General system for the recognition of professional qualifications — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the prescribed period) | 8 |
| 2006/C 178/3 | Case C-169/05: Judgement of the Court (Third Chamber) of 1 June 2006 (reference for a preliminary ruling from the Cour de cassation, Belgium) — Uradex SCRL v Union Professionnelle de la Radio et de la Télédistribution (RTD), Société Intercommunale pour la Diffusion de la Télévision (BRUTELE) (Copyright and related rights — Directive 93/83/EEC — Article 9(2) — Scope of the powers of a collecting society deemed to be mandated to manage the rights of a copyright owner or holder of related rights which has not transferred the management of his rights to it — Exercise of the right to grant or refuse permission to a cable operator to retransmit a programme by cable) | 8 |
| 2006/C 178/4 | Case C-196/05: Judgement of the Court (Sixth Chamber) of 8 June 2006 (reference for a preliminary ruling from the Finanzgericht München (Germany)) — Sachsenmilch AG v Oberfinanzdirektion Nürnberg (Common Customs Tariff — Tariff classification — Combined Nomenclature — Subheading 0406 10 (fresh cheese) — Annex I to Regulation (EEC) No 2658/87 as amended by Regulation (EC) No 1832/2002 — Tariff classification of pizza mozzarella in block form that has been stored after its manufacture for one to two weeks at a low temperature) | 9 |
| 2006/C 178/5 | Case C-207/05: Judgement of the Court (First Chamber) of 1 June 2006 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Second subparagraph of Article 88(2) EC — Aid incompatible with the common market — Duty to recover — Non-fulfilment) | 10 |
| 2006/C 178/6 | Case C-343/05: Judgement of the Court (Fourth Chamber) of 18 May 2006 — Commission of the European Communities v Republic of Finland (Failure by a Member State to fulfil its obligations — Directive 2001/37/EC — Manufacture, presentation and sale of tobacco products — Prohibition on placing on the market of tobacco for oral use — Failure to transpose within the prescribed period) | 10 |
| 2006/C 178/7 | Joined Cases C-23/03, C-52/03, C-133/03, C-337/03 and C-473/03: Order of the Court (Second Chamber) of 4 May 2006 — (references for a preliminary ruling from the Tribunale ordinario di Milano and the Tribunale ordinario di Torino (Italy)) — Criminal proceedings against Michel Mulliez and Others and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03) (First subparagraph of Article 104(3) of the Rules of Procedure — Company law — First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC — Annual accounts — Principle of a true and fair view — Penalties provided for in cases of false information on companies (false accounting) — Article 6 of First Directive 68/151/EEC — Requirement that penalties for breaches of Community law be appropriate) | 11 |
| 2006/C 178/8 | Case C-110/04 P: Order of the Court of 30 March 2006 — Strintzis Lines Shipping SA v Commission of the European Communities (Appeal — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Competition — Concerted practices — Agreement between undertakings — Commission's powers of investigation) | 11 |
| 2006/C 178/9 | Case C-291/04: Order of the Court (Fourth Chamber) of 2 May 2006 — (reference for a preliminary ruling from the Tribunal de police de Neufchâteau — Belgium) — Criminal proceedings against Henri Léon Schmitz (First subparagraph of Article 104(3) of the Rules of Procedure — Free movement of persons and services — Workers — Motor vehicle — Provided to worker by employer — Vehicle registered abroad — Employer established in another Member State ) | 12 |
| 2006/C 178/0 | Case C-435/04: Order of the Court (Fourth Chamber) of 30 May 2006 — (reference for a preliminary ruling from the Cour de cassation, Belgium) — Criminal proceedings against Sébastien Victor Leroy (First subparagraph of Article 104(3) of the Rules of Procedure — Vehicle leasing — Prohibition on using in a Member State a vehicle belonging to a leasing company established in another Member State and registered in that State — Permanent use on the territory of the first Member State) | 12 |
| 2006/C 178/1 | Case C-113/05 P: Order of the Court of 30 March 2006 — European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (Appeal — Directive 2003/15/EC — Action for annulment — Cosmetic products — Protection of public health — Experiments on animals — Prohibition of substances which are carcinogenic, mutagenic or toxic for reproduction — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 13 |
| 2006/C 178/2 | Case C-227/05: Order of the Court of 6 April 2006 (reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München- Germany) — Daniel Halbritter v Freistaat Bayern, represented by the Landesanwaltschaft Bayern (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 91/439/EEC — Mutual recognition of driving licences — Confiscation of driving licence in one Member State accompanied by temporary ban on acquiring a new licence — Licence issued in another Member State after the expiry of the temporary ban — Recognition and exchange of that licence in the first Member State — Presentation of a report on aptitude to drive required by national law) | 13 |
| 2006/C 178/3 | Case C-230/05 P: Order of the Court of 27 April 2006 — L v Commission of the European Communities (Appeal — Officials — Harassment — Commission's duty to provide assistance — Liability — Refusal by the Court of First Instance to allow the examination of witnesses — Offer of supplementary evidence which did not exist at the closing of the written procedure — Refusal to withdraw an allegedly defamatory document from the file — Obligation to provide reasons — Principal of sound administration — Appeal in part manifestly unfounded and in part manifestly inadmissible) | 14 |
| 2006/C 178/4 | Case C-407/05: Order of the Court (Fourth Chamber) of 6 April 2006 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Reyniers & Sogama BVBA v Belgisch Interventie- en Restitutiebureau, Belgische Staat (Reference for a preliminary ruling — First subparagraph of Article 104(3) of the Rules of Procedure — Recovery of import rights — Proof of the regularity of the operation or of the place of the offence or irregularity — Consequence of the lack of notification to the principal of the period for furnishing such proof) | 15 |
| 2006/C 178/5 | Case C-194/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 26 April 2006 — Staatssecretaris van Financiën v Orange European Smallcap Fund NV | 15 |
| 2006/C 178/6 | Case C-195/06: Reference for a preliminary ruling from the Bundeskommunikationssenats (Austria) lodged on 27 April 2006 — Österreichischer Rundfunk (ORF) | 16 |
| 2006/C 178/7 | Case C-202/06 P: Appeal brought on 4 May 2006 by Cementbouw Handel & Industrie BV against the judgement of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 23 February 2006 in Case T-282/02: Cementbouw Handel & Industrie B.V. v Commission of the European Communities | 17 |
| 2006/C 178/8 | Case C-206/06: Reference for a preliminary ruling from the Rechtbank Groningen (Netherlands) lodged on 2 May 2006 — Essent Netwerk Noord BV v Aluminium Delfzijl BV, Essent Netwerk Noord BV v 1. Saranne BV, and 2. BV Nederlands Elektriciteit Administratiekantoor, and Aluminium Delfzijl BV v State of the Netherlands (Ministry of Economic Affairs) | 17 |
| 2006/C 178/9 | Case C-212/06: Reference for a preliminary ruling from the Cour d'arbitrage de Belgique lodged on 10 May 2006 — Government of the French Community, Walloon Government v Flemish Government | 18 |
| 2006/C 178/0 | Case C-213/06 P: Appeal brought on 9 May 2006 by the European Agency for Reconstruction (EAR) against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-471/04: Georgios Karatzoglou v European Agency for Reconstruction (EAR) | 19 |
| 2006/C 178/1 | Case C-214/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia lodged on 11 May 2006 — Colasfalti srl v Provincia di Milano, ATI Legrenzi Srl,Impresa Costruzioni Edili e Stradali dei F. 11i Paccani Snc | 19 |
| 2006/C 178/2 | Case C-215/06: Action brought on 11 May 2006 — Commission of the European Communities v Ireland | 20 |
| 2006/C 178/3 | Case C-217/06: Action brought on 12 May 2006 — Commission of the European Communities v Italian Republic | 21 |
| 2006/C 178/4 | Case C-220/06: Reference for a preliminary ruling from the Audiencia Nacional, Sala de lo Contencioso-Administrativo (España) of 15 May 2006 — Asociacion Profesional de Empresas de Reparto y Manipulado de Correspondencia. v Administración del Estado (Ministerio de Educación y Ciencia) | 21 |
| 2006/C 178/5 | Case C-221/06: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 15 May 2006 — Stadtgemeinde Frohnleiten und Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land-und Forstwirtschaft, Umwelt und Wasserwirtschaft | 22 |
| 2006/C 178/6 | Case C-225/06 P: Appeal brought on 16 May 2006 by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on 15 March 2006 in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh | 22 |
| 2006/C 178/7 | Case C-234/06 P: Appeal brought on 24 May 2006 by Il Ponte Finanziaria SpA against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-194/03 Il Ponte Finanziaria SpA v OHIM and Marine Entreprise Project — Società Unipersonale di Alberto Fiorenzi Srl | 23 |
| 2006/C 178/8 | Case C-239/06: Action brought on 29 May 2006 — Commission of the European Communities v Italian Republic | 24 |
| 2006/C 178/9 | Case C-240/06: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 29 May 2006 — Fortum Project Finance SA | 25 |
| 2006/C 178/0 | Case C-244/06: Reference for a preliminary ruling from the Landgericht Koblenz (Germany) lodged on 31 May 2006 — Dynamic Medien Vertriebs GmbH v Avides Media AG | 25 |
| 2006/C 178/1 | Case C-245/06 P: Appeal brought on 1 June 2006 by Saiwa s.p.a. against the judgement of the Court of First Instance (First Chamber) delivered on 5 April 2006 in Case T-344/03 Saiwa s.p.a. v Office for Harmonisation in the Internal Market (OHIM) and Barilla Alimentare s.p.a. | 26 |
| 2006/C 178/2 | Case C-248/06: Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Spain | 26 |
| 2006/C 178/3 | Case C-249/06: Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Sweden | 27 |
| 2006/C 178/4 | Case C-252/06: Action brought on 6 June 2006 — Commission of the European Communities v Federal Republic of Germany | 27 |
| 2006/C 178/5 | Case C-258/06: Action brought on 12 June 2006 — Commission of the European Communities v Kingdom of Spain | 28 |
| 2006/C 178/6 | Case C-259/06: Action brought on 14 June 2006 — Commission of the European Communities v Kingdom of the Netherlands | 28 |
| 2006/C 178/7 | Case C-174/03: Order of the President of the Second Chamber of the Court of 23 March 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy)) — Impresa Portuale di Cagliari Srl v Tirrenia di Navigazione SpA | 28 |
| 2006/C 178/8 | Case C-216/04: Order of the President of the Fourth Chamber of the Court of 5 April 2006 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — SABA Italia SpA v Comune di Bolzano and SEAB SpA | 29 |
| 2006/C 178/9 | Case C-285/04: Order of the President of the Court of 4 May 2006 (reference for a preliminary ruling from the Tribunale civile di Oristano (Italy)) — Ignazio Medda v Banco di Napoli SpA, Regione autonoma della Sardegna | 29 |
| 2006/C 178/0 | Case C-99/05: Order of the President of the Fourth Chamber of the Court of 18 May 2006 — Commission of the European Communities v Republic of Finland | 29 |
| 2006/C 178/1 | Case C-271/05: Order of the President of the Court of 5 April 2006 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Francesco Rauty v Ministero per i Beni Culturali e Ambientali, Soprintendenza B.A.A. di Firenze, Prato e Pistoia; intervener: Consiglio Nazionale degli Ingegneri; and Ordine degli Ingegneri della Provincia di Pistoia v Francesco Rauty and Ministero per i Beni e le Attività Culturali; intervener: Consiglio Nazionale degli Ingegneri | 29 |
| 2006/C 178/2 | Case C-352/05: Order of the President of the Court of 5 May 2006 — Commission of the European Communities v Hellenic Republic | 29 |
| 2006/C 178/3 | Case C-410/05: Order of the President of the Court of 15 May 2006 — Commission of the European Communities v Hellenic Republic | 29 |
| 2006/C 178/4 | Case C-20/06: Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg | 30 |
| 2006/C 178/5 | Case C-21/06: Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg | 30 |
| | COURT OF FIRST INSTANCE |
| 2006/C 178/6 | Case T-354/99: Judgement of the Court of First Instance of 31 May 2006 — Kuwait Petroleum (Nederland) BV v Commission of the European Communities (State aid — Commission notice on the de minimis rule for State aid — Increase in excise duties on fuel — Aid to service stations — Oil companies — Risk of cumulation of aid — Price management system clause — Principle of sound administration) | 31 |
| 2006/C 178/7 | Case T-198/03: Judgement of the Court of First Instance of 30 May 2006 — Bank Austria Creditanstalt AG v Commission of the European Communities (Competition — Administrative procedure — Publication of a decision finding an infringement of Article 81 EC and imposing fines — Fixing of deposit and borrowing rates by Austrian banks (Lombard Club) — Rejection of a request to omit certain passages) | 31 |
| 2006/C 178/8 | Case T-15/05: Judgement of the Court of First Instance of 31 May 2006 — De Waele v OHIM (Shape of sausage) (Community trade mark — Three-dimensional mark — Shape of a sausage — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94) | 32 |
| 2006/C 178/9 | Case T-241/03: Order of the Court of First Instance of 17 May 2006 — Marcuccio v Commission (Officials — Reassignment — Accommodation provided by employer — Decision to remove the applicant's personal effects — Action for annulment — Action for damages — Act adversely affecting an official — Inadmissibility) | 32 |
| 2006/C 178/0 | Case T-194/05: Order of the Court of First Instance of 11 May 2006 — TeleTech Holdings v OHIM — Teletech International (TELETECH INTERNATIONAL) (Community trade mark — Opposition proceedings — Extent of the examination required — Conversion of a Community trade mark application to a national trade mark application — Article 58 of Regulation (EC) No 40/94) | 32 |
| 2006/C 178/1 | Case T-141/06: Action brought on 18 May 2006 — Glaverbel v OHIM (design applied to the surface of goods) | 33 |
| 2006/C 178/2 | Case T-142/06: Action brought on 12 May 2006 — ECZG v Commission | 33 |
| 2006/C 178/3 | Case T-143/06: Action brought on 19 May 2006 — MTZ Polyfilms v Council | 34 |
| 2006/C 178/4 | Case T-147/06: Action brought on 19 May 2006 — En Route International Limited v OHIM | 35 |
| 2006/C 178/5 | Case T-149/06: Action brought on 17 May 2006 — Castellani v OHIM — Markant Handels und Service (CASTELLANI) | 35 |
| 2006/C 178/6 | Case T-151/06: Action brought on 9 June 2006 — Aluminium Silicon Mill Products v Commission | 36 |
| 2006/C 178/7 | Case T-152/06: Action brought on 6 June 2006 — NDSHT Nya Destination Stockholm Hotell & Teaterpaket v Commission | 37 |
| 2006/C 178/8 | Case T-153/06: Action brought on 13 June 2006 — European Association of Euro-Pharmaceutical Companies v Commission | 38 |
| 2006/C 178/9 | Case T-154/06: Action brought on 5 June 2006 — Italian Republic v Commission of the European Communities | 38 |
| 2006/C 178/0 | Case T-156/06: Action brought on 5 June 2006 — Regione Siciliana v Commission of the European Communities | 39 |
| 2006/C 178/1 | Case T -42/02: Order of the Court of First Instance of 31 May 2006 — Banca Monte dei Paschi di Siena v Commission | 40 |
| 2006/C 178/2 | Case T -121/02: Order of the Court of First Instance of 31 May 2006 — Compagnia di San Paolo v Commission | 40 |
| 2006/C 178/3 | Case T -319/04: Order of the Court of First Instance of 1 June 2006 — Port Support Customs Rotterdam v Commission | 40 |
| 2006/C 178/4 | Case T -72/05: Order of the Court of First Instance of 13 June 2006 — Deutsche Telekom v OHIM (Telekom Global Net) | 40 |
| 2006/C 178/5 | Case T -179/05: Order of the Court of First Instance of 31 May 2006 — Stradeblu v Commission | 40 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 178/6 | Case F-25/05: Judgement of the Civil Service Tribunal of 15 June 2006 (Second Chamber) — Mc Sweeny and Armstrong v Commission (Open competition — Competition notice — Guide for candidates — Non-admission to the tests — Diplomas required — Power of the Appointing Authority) | 41 |
| 2006/C 178/7 | Case F-34/05: Order of the Civil Service Tribunal (First Chamber) of 14 June 2006 — Lebedef and Others v Commission (Work environment — Language of computer tools made available to Commission staff — Inadmissibility — Legal interest in bringing proceedings — Act adversely affecting an official — Internal organisation measures) | 41 |
| 2006/C 178/8 | Case F-57/06: Action brought on 12 May 2006 — Hinderyckx v Council | 42 |
| 2006/C 178/9 | Case F-63/06: Action brought on 5 May 2006 — Mascheroni v Commission | 42 |
| 2006/C 178/0 | Case F-66/06: Action brought on 16 June 2006 — Kyriazi v Commission | 43 |
| 2006/C 178/1 | Case F-67/06: Action brought on 16 June 2006 — Lesniak v Commission | 43 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 178/1

Joined Cases C-442/03 P and C-471/03 P: Judgement of the Court (Third Chamber) of 1 June 2006 — P&O European Ferries (Vizcaya) SA v Diputación Foral de Vizcaya, Commission of the European Communities (State aid — Appeals — Actions for annulment — Decision terminating a review procedure initiated under Article 88(2) EC — Concept of State aid — Force of res judicata — Aid which may be declared compatible with the common market — Social aid — Conditions)

1

2006/C 178/2

Joined Cases C-317/04 and C-318/04: Judgement of the Court (Grand Chamber) of 30 May 2006 — European Parliament v Council of the European Union (Protection of individuals with regard to the processing of personal data — Air transport — Decision 2004/496/EC — Agreement between the European Community and the United States of America — Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection — Directive 95/46/EC — Article 25 — Third countries — Decision 2004/535/EC — Adequate level of protection)

1

2006/C 178/3

Case C-430/04: Judgement of the Court (Second Chamber) of 8 June 2006 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Finanzamt Eisleben v Feuerbestattungsverein Halle eV (Sixth VAT Directive — Possibility of relying on the second subparagraph of Article 4(5) — Activities engaged in by a private taxable person in competition with a public authority — Body governed by public law — Treatment as a non-taxable person in respect of activities engaged in as a public authority)

2

2006/C 178/4

Case C-453/04: Judgement of the Court (Second Chamber) of 1 June 2006 (reference for a preliminary ruling from the Landgericht Berlin (Germany)) — innoventif Ltd (Freedom of establishment — Articles 43 EC and 48 EC — Branch of a limited company established in another Member State — Registration of the objects of a company in the national register of companies — Requirement to pay an advance on the cost of publication of the full text of the objects of a company — Compatibility)

3

2006/C 178/5

Case C-475/04: Judgement of the Court (Sixth Chamber) of 1 June 2006 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/58/EC — Electronic communications — Processing of personal data — Protection of privacy — Protection of natural persons — Failure to transpose within the prescribed period)

3

2006/C 178/6

Case C-517/04: Judgement of the Court (Second Chamber) of 8 June 2006 (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — Visserijbedrijf D.J. Koornstra & Zn. vof v Productschap Vis (Charge on the landing of shrimp with fishing vessels registered in a Member State intended to finance shrimp sieving and peeling equipment in the same Member State — Article 25 EC — Charges having an effect equivalent to customs duties — Article 90 EC — Internal taxation)

4

2006/C 178/7

Joined Cases C-7/05 to C-9/05: Judgement of the Court (Second Chamber) of 8 June 2006 (references for a preliminary ruling from the Bundesgerichtshof (Germany) — Saatgut-Treuhandverwaltungs GmbH v Ulrich Deppe, Hanne-Rose Deppe, Thomas Deppe, Matthias Deppe, Christine Urban (née Deppe) (C-7/05), Siegfried Hennings (C-8/05), Hartmut Lübbe (C-9/05), (Plant varieties — Level of equitable remuneration to be paid to the holder of a Community plant variety right — Article 5(2), (4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98 — Concept of level of remuneration sensibly lower than the amount charged for the licensed production of propagating material)

4

2006/C 178/8

Case C-60/05: Judegment of the Court (Second Chamber) of 8 June 2006 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy) — WWF Italia, Gruppo Ornitologico Lombardo (GOL), Lega abolizione della caccia (LAC), Lega antivivisezionista (LAV) v Regione Lombardia (Conservation of wild birds — Directive 79/409/EEC — Derogations from the system of protection)

5

2006/C 178/9

Case C-71/05: Judgement of the Court (Sixth Chamber) of 8 June 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/30/EC — Air transport — Noise-related operating restrictions at Community airports — Failure to transpose within the prescribed period)

6

2006/C 178/0

Case C-98/05: Judgement of the Court (First Chamber) of 1 June 2006 (reference for a preliminary ruling from the Østre Landsret — Denmark) — De Danske Bilimportører v Skatteministeriet (Sixth VAT Directive — Article 11(A)(2)(a) and (3)(c) — Taxable amount — Registration duty on new motor vehicles)

7

2006/C 178/1

Case C-106/05: Judgement of the Court (Third Chamber) of 8 June 2006 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — L.u.P. GmbH v Finanzamt Bochum-Mitte (Sixth VAT Directive — Exemptions — Article 13A(1)(b) and (c) and (2)(a) — Medical care provided by bodies other than those governed by public law — Medical care provided in the exercise of a medical profession — Medical tests carried out by a laboratory governed by private law outside a centre for treatment on prescription from general practitioners — Conditions for the exemption — Member States' discretion — Limits)

7

2006/C 178/2

Case C-164/05: Judgement of the Court (Sixth Chamber) of 8 June 2006 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — General system for the recognition of professional qualifications — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the prescribed period)

8

2006/C 178/3

Case C-169/05: Judgement of the Court (Third Chamber) of 1 June 2006 (reference for a preliminary ruling from the Cour de cassation, Belgium) — Uradex SCRL v Union Professionnelle de la Radio et de la Télédistribution (RTD), Société Intercommunale pour la Diffusion de la Télévision (BRUTELE) (Copyright and related rights — Directive 93/83/EEC — Article 9(2) — Scope of the powers of a collecting society deemed to be mandated to manage the rights of a copyright owner or holder of related rights which has not transferred the management of his rights to it — Exercise of the right to grant or refuse permission to a cable operator to retransmit a programme by cable)

8

2006/C 178/4

Case C-196/05: Judgement of the Court (Sixth Chamber) of 8 June 2006 (reference for a preliminary ruling from the Finanzgericht München (Germany)) — Sachsenmilch AG v Oberfinanzdirektion Nürnberg (Common Customs Tariff — Tariff classification — Combined Nomenclature — Subheading 0406 10 (fresh cheese) — Annex I to Regulation (EEC) No 2658/87 as amended by Regulation (EC) No 1832/2002 — Tariff classification of pizza mozzarella in block form that has been stored after its manufacture for one to two weeks at a low temperature)

9

2006/C 178/5

Case C-207/05: Judgement of the Court (First Chamber) of 1 June 2006 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Second subparagraph of Article 88(2) EC — Aid incompatible with the common market — Duty to recover — Non-fulfilment)

10

2006/C 178/6

Case C-343/05: Judgement of the Court (Fourth Chamber) of 18 May 2006 — Commission of the European Communities v Republic of Finland (Failure by a Member State to fulfil its obligations — Directive 2001/37/EC — Manufacture, presentation and sale of tobacco products — Prohibition on placing on the market of tobacco for oral use — Failure to transpose within the prescribed period)

10

2006/C 178/7

Joined Cases C-23/03, C-52/03, C-133/03, C-337/03 and C-473/03: Order of the Court (Second Chamber) of 4 May 2006 — (references for a preliminary ruling from the Tribunale ordinario di Milano and the Tribunale ordinario di Torino (Italy)) — Criminal proceedings against Michel Mulliez and Others and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03) (First subparagraph of Article 104(3) of the Rules of Procedure — Company law — First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC — Annual accounts — Principle of a true and fair view — Penalties provided for in cases of false information on companies (false accounting) — Article 6 of First Directive 68/151/EEC — Requirement that penalties for breaches of Community law be appropriate)

11

2006/C 178/8

Case C-110/04 P: Order of the Court of 30 March 2006 — Strintzis Lines Shipping SA v Commission of the European Communities (Appeal — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Competition — Concerted practices — Agreement between undertakings — Commission's powers of investigation)

11

2006/C 178/9

Case C-291/04: Order of the Court (Fourth Chamber) of 2 May 2006 — (reference for a preliminary ruling from the Tribunal de police de Neufchâteau — Belgium) — Criminal proceedings against Henri Léon Schmitz (First subparagraph of Article 104(3) of the Rules of Procedure — Free movement of persons and services — Workers — Motor vehicle — Provided to worker by employer — Vehicle registered abroad — Employer established in another Member State )

12

2006/C 178/0

Case C-435/04: Order of the Court (Fourth Chamber) of 30 May 2006 — (reference for a preliminary ruling from the Cour de cassation, Belgium) — Criminal proceedings against Sébastien Victor Leroy (First subparagraph of Article 104(3) of the Rules of Procedure — Vehicle leasing — Prohibition on using in a Member State a vehicle belonging to a leasing company established in another Member State and registered in that State — Permanent use on the territory of the first Member State)

12

2006/C 178/1

Case C-113/05 P: Order of the Court of 30 March 2006 — European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (Appeal — Directive 2003/15/EC — Action for annulment — Cosmetic products — Protection of public health — Experiments on animals — Prohibition of substances which are carcinogenic, mutagenic or toxic for reproduction — Appeal in part manifestly inadmissible and in part manifestly unfounded)

13

2006/C 178/2

Case C-227/05: Order of the Court of 6 April 2006 (reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München- Germany) — Daniel Halbritter v Freistaat Bayern, represented by the Landesanwaltschaft Bayern (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 91/439/EEC — Mutual recognition of driving licences — Confiscation of driving licence in one Member State accompanied by temporary ban on acquiring a new licence — Licence issued in another Member State after the expiry of the temporary ban — Recognition and exchange of that licence in the first Member State — Presentation of a report on aptitude to drive required by national law)

13

2006/C 178/3

Case C-230/05 P: Order of the Court of 27 April 2006 — L v Commission of the European Communities (Appeal — Officials — Harassment — Commission's duty to provide assistance — Liability — Refusal by the Court of First Instance to allow the examination of witnesses — Offer of supplementary evidence which did not exist at the closing of the written procedure — Refusal to withdraw an allegedly defamatory document from the file — Obligation to provide reasons — Principal of sound administration — Appeal in part manifestly unfounded and in part manifestly inadmissible)

14

2006/C 178/4

Case C-407/05: Order of the Court (Fourth Chamber) of 6 April 2006 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Reyniers & Sogama BVBA v Belgisch Interventie- en Restitutiebureau, Belgische Staat (Reference for a preliminary ruling — First subparagraph of Article 104(3) of the Rules of Procedure — Recovery of import rights — Proof of the regularity of the operation or of the place of the offence or irregularity — Consequence of the lack of notification to the principal of the period for furnishing such proof)

15

2006/C 178/5

Case C-194/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 26 April 2006 — Staatssecretaris van Financiën v Orange European Smallcap Fund NV

15

2006/C 178/6

Case C-195/06: Reference for a preliminary ruling from the Bundeskommunikationssenats (Austria) lodged on 27 April 2006 — Österreichischer Rundfunk (ORF)

16

2006/C 178/7

Case C-202/06 P: Appeal brought on 4 May 2006 by Cementbouw Handel & Industrie BV against the judgement of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 23 February 2006 in Case T-282/02: Cementbouw Handel & Industrie B.V. v Commission of the European Communities

17

2006/C 178/8

Case C-206/06: Reference for a preliminary ruling from the Rechtbank Groningen (Netherlands) lodged on 2 May 2006 — Essent Netwerk Noord BV v Aluminium Delfzijl BV, Essent Netwerk Noord BV v 1. Saranne BV, and 2. BV Nederlands Elektriciteit Administratiekantoor, and Aluminium Delfzijl BV v State of the Netherlands (Ministry of Economic Affairs)

17

2006/C 178/9

Case C-212/06: Reference for a preliminary ruling from the Cour d'arbitrage de Belgique lodged on 10 May 2006 — Government of the French Community, Walloon Government v Flemish Government

18

2006/C 178/0

Case C-213/06 P: Appeal brought on 9 May 2006 by the European Agency for Reconstruction (EAR) against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-471/04: Georgios Karatzoglou v European Agency for Reconstruction (EAR)

19

2006/C 178/1

Case C-214/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia lodged on 11 May 2006 — Colasfalti srl v Provincia di Milano, ATI Legrenzi Srl,Impresa Costruzioni Edili e Stradali dei F. 11i Paccani Snc

19

2006/C 178/2

Case C-215/06: Action brought on 11 May 2006 — Commission of the European Communities v Ireland

20

2006/C 178/3

Case C-217/06: Action brought on 12 May 2006 — Commission of the European Communities v Italian Republic

21

2006/C 178/4

Case C-220/06: Reference for a preliminary ruling from the Audiencia Nacional, Sala de lo Contencioso-Administrativo (España) of 15 May 2006 — Asociacion Profesional de Empresas de Reparto y Manipulado de Correspondencia. v Administración del Estado (Ministerio de Educación y Ciencia)

21

2006/C 178/5

Case C-221/06: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 15 May 2006 — Stadtgemeinde Frohnleiten und Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land-und Forstwirtschaft, Umwelt und Wasserwirtschaft

22

2006/C 178/6

Case C-225/06 P: Appeal brought on 16 May 2006 by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on 15 March 2006 in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh

22

2006/C 178/7

Case C-234/06 P: Appeal brought on 24 May 2006 by Il Ponte Finanziaria SpA against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-194/03 Il Ponte Finanziaria SpA v OHIM and Marine Entreprise Project — Società Unipersonale di Alberto Fiorenzi Srl

23

2006/C 178/8

Case C-239/06: Action brought on 29 May 2006 — Commission of the European Communities v Italian Republic

24

2006/C 178/9

Case C-240/06: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 29 May 2006 — Fortum Project Finance SA

25

2006/C 178/0

Case C-244/06: Reference for a preliminary ruling from the Landgericht Koblenz (Germany) lodged on 31 May 2006 — Dynamic Medien Vertriebs GmbH v Avides Media AG

25

2006/C 178/1

Case C-245/06 P: Appeal brought on 1 June 2006 by Saiwa s.p.a. against the judgement of the Court of First Instance (First Chamber) delivered on 5 April 2006 in Case T-344/03 Saiwa s.p.a. v Office for Harmonisation in the Internal Market (OHIM) and Barilla Alimentare s.p.a.

26

2006/C 178/2

Case C-248/06: Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Spain

26

2006/C 178/3

Case C-249/06: Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Sweden

27

2006/C 178/4

Case C-252/06: Action brought on 6 June 2006 — Commission of the European Communities v Federal Republic of Germany

27

2006/C 178/5

Case C-258/06: Action brought on 12 June 2006 — Commission of the European Communities v Kingdom of Spain

28

2006/C 178/6

Case C-259/06: Action brought on 14 June 2006 — Commission of the European Communities v Kingdom of the Netherlands

28

2006/C 178/7

Case C-174/03: Order of the President of the Second Chamber of the Court of 23 March 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy)) — Impresa Portuale di Cagliari Srl v Tirrenia di Navigazione SpA

28

2006/C 178/8

Case C-216/04: Order of the President of the Fourth Chamber of the Court of 5 April 2006 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — SABA Italia SpA v Comune di Bolzano and SEAB SpA

29

2006/C 178/9

Case C-285/04: Order of the President of the Court of 4 May 2006 (reference for a preliminary ruling from the Tribunale civile di Oristano (Italy)) — Ignazio Medda v Banco di Napoli SpA, Regione autonoma della Sardegna

29

2006/C 178/0

Case C-99/05: Order of the President of the Fourth Chamber of the Court of 18 May 2006 — Commission of the European Communities v Republic of Finland

29

2006/C 178/1

Case C-271/05: Order of the President of the Court of 5 April 2006 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Francesco Rauty v Ministero per i Beni Culturali e Ambientali, Soprintendenza B.A.A. di Firenze, Prato e Pistoia; intervener: Consiglio Nazionale degli Ingegneri; and Ordine degli Ingegneri della Provincia di Pistoia v Francesco Rauty and Ministero per i Beni e le Attività Culturali; intervener: Consiglio Nazionale degli Ingegneri

29

2006/C 178/2

Case C-352/05: Order of the President of the Court of 5 May 2006 — Commission of the European Communities v Hellenic Republic

29

2006/C 178/3

Case C-410/05: Order of the President of the Court of 15 May 2006 — Commission of the European Communities v Hellenic Republic

29

2006/C 178/4

Case C-20/06: Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

30

2006/C 178/5

Case C-21/06: Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

30

COURT OF FIRST INSTANCE

2006/C 178/6

Case T-354/99: Judgement of the Court of First Instance of 31 May 2006 — Kuwait Petroleum (Nederland) BV v Commission of the European Communities (State aid — Commission notice on the de minimis rule for State aid — Increase in excise duties on fuel — Aid to service stations — Oil companies — Risk of cumulation of aid — Price management system clause — Principle of sound administration)

de minimis

31

2006/C 178/7

Case T-198/03: Judgement of the Court of First Instance of 30 May 2006 — Bank Austria Creditanstalt AG v Commission of the European Communities (Competition — Administrative procedure — Publication of a decision finding an infringement of Article 81 EC and imposing fines — Fixing of deposit and borrowing rates by Austrian banks (Lombard Club) — Rejection of a request to omit certain passages)

31

2006/C 178/8

Case T-15/05: Judgement of the Court of First Instance of 31 May 2006 — De Waele v OHIM (Shape of sausage) (Community trade mark — Three-dimensional mark — Shape of a sausage — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

32

2006/C 178/9

Case T-241/03: Order of the Court of First Instance of 17 May 2006 — Marcuccio v Commission (Officials — Reassignment — Accommodation provided by employer — Decision to remove the applicant's personal effects — Action for annulment — Action for damages — Act adversely affecting an official — Inadmissibility)

32

2006/C 178/0

Case T-194/05: Order of the Court of First Instance of 11 May 2006 — TeleTech Holdings v OHIM — Teletech International (TELETECH INTERNATIONAL) (Community trade mark — Opposition proceedings — Extent of the examination required — Conversion of a Community trade mark application to a national trade mark application — Article 58 of Regulation (EC) No 40/94)

32

2006/C 178/1

Case T-141/06: Action brought on 18 May 2006 — Glaverbel v OHIM (design applied to the surface of goods)

33

2006/C 178/2

Case T-142/06: Action brought on 12 May 2006 — ECZG v Commission

33

2006/C 178/3

Case T-143/06: Action brought on 19 May 2006 — MTZ Polyfilms v Council

34

2006/C 178/4

Case T-147/06: Action brought on 19 May 2006 — En Route International Limited v OHIM

35

2006/C 178/5

Case T-149/06: Action brought on 17 May 2006 — Castellani v OHIM — Markant Handels und Service (CASTELLANI)

35

2006/C 178/6

Case T-151/06: Action brought on 9 June 2006 — Aluminium Silicon Mill Products v Commission

36

2006/C 178/7

Case T-152/06: Action brought on 6 June 2006 — NDSHT Nya Destination Stockholm Hotell & Teaterpaket v Commission

37

2006/C 178/8

Case T-153/06: Action brought on 13 June 2006 — European Association of Euro-Pharmaceutical Companies v Commission

38

2006/C 178/9

Case T-154/06: Action brought on 5 June 2006 — Italian Republic v Commission of the European Communities

38

2006/C 178/0

Case T-156/06: Action brought on 5 June 2006 — Regione Siciliana v Commission of the European Communities

39

2006/C 178/1

Case T -42/02: Order of the Court of First Instance of 31 May 2006 — Banca Monte dei Paschi di Siena v Commission

40

2006/C 178/2

Case T -121/02: Order of the Court of First Instance of 31 May 2006 — Compagnia di San Paolo v Commission

40

2006/C 178/3

Case T -319/04: Order of the Court of First Instance of 1 June 2006 — Port Support Customs Rotterdam v Commission

40

2006/C 178/4

Case T -72/05: Order of the Court of First Instance of 13 June 2006 — Deutsche Telekom v OHIM (Telekom Global Net)

40

2006/C 178/5

Case T -179/05: Order of the Court of First Instance of 31 May 2006 — Stradeblu v Commission

40

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 178/6

Case F-25/05: Judgement of the Civil Service Tribunal of 15 June 2006 (Second Chamber) — Mc Sweeny and Armstrong v Commission (Open competition — Competition notice — Guide for candidates — Non-admission to the tests — Diplomas required — Power of the Appointing Authority)

41

2006/C 178/7

Case F-34/05: Order of the Civil Service Tribunal (First Chamber) of 14 June 2006 — Lebedef and Others v Commission (Work environment — Language of computer tools made available to Commission staff — Inadmissibility — Legal interest in bringing proceedings — Act adversely affecting an official — Internal organisation measures)

41

2006/C 178/8

Case F-57/06: Action brought on 12 May 2006 — Hinderyckx v Council

42

2006/C 178/9

Case F-63/06: Action brought on 5 May 2006 — Mascheroni v Commission

42

2006/C 178/0

Case F-66/06: Action brought on 16 June 2006 — Kyriazi v Commission

43

2006/C 178/1

Case F-67/06: Action brought on 16 June 2006 — Lesniak v Commission

43

| | III   Notices |
| --- | --- |
| 2006/C 178/2 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 165, 15.7.2006. | 45 |

III   Notices

2006/C 178/2

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 165, 15.7.2006.

Official Journal of the European Union

45

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 29.7.2006 | EN | Official Journal of the European Union | C 178/1 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/1

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Judgement of the Court (Third Chamber) of 1 June 2006 — P&O European Ferries (Vizcaya) SA v Diputación Foral de Vizcaya, Commission of the European Communities

(Joined Cases C-442/03 P and C-471/03 P) (1)

(State aid - Appeals - Actions for annulment - Decision terminating a review procedure initiated under Article 88(2) EC - Concept of State aid - Force of res judicata - Aid which may be declared compatible with the common market - Social aid - Conditions)

(2006/C 178/01)

Languages of the case: English and Spanish

Parties

Appellant (in Case C-442/03 P): P&O European Ferries (Vizcaya) SA (represented by: J. Lever QC, J. Ellison, solicitor, and M. Pickford, barrister, assisted by E. Bourtzalas, abogado)

Appellant (in Case C-471/03 P): Diputación Foral de Vizcaya (represented by: I. Sáenz-Cortabarría Fernández, M. Morales Isasi and J. Forguera Crespo, abogados)

Other party to the proceedings: Commission of the European Communities (represented by: N. Khan and J. Buendía Sierra, Agents)

Re:

Appeals against the judgment of the Court of First Instance (First Chamber, Extended Composition) of 5 August 2003 in Joined Cases T-116/01 and T-118/01 P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission dismissing an application seeking the annulment of Article 2 of Commission Decision 2001/247/EC of 29 November 2000 on the aid scheme implemented by Spain in favour of the shipping company Ferries Golfo de Vizcaya SA, now P&O European Ferries (Vizcaya) SA, and ordering the repayment of the aid held to be incompatible with the common market

Operative part of the judgment

The Court:

| 1. | Dismisses the appeals; |
| --- | --- |

1.

Dismisses the appeals;

| 2. | Orders P&O Ferries (Vizcaya) SA and the Diputación Foral de Vizcaya to pay the costs. |
| --- | --- |

2.

Orders P&O Ferries (Vizcaya) SA and the Diputación Foral de Vizcaya to pay the costs.

---

(1)  OJ C 7, 10.1.2004 and OJ C 21, 24.1.2004.

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/1 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/1

---

Judgement of the Court (Grand Chamber) of 30 May 2006 — European Parliament v Council of the European Union

(Joined Cases C-317/04 and C-318/04) (1)

(Protection of individuals with regard to the processing of personal data - Air transport - Decision 2004/496/EC - Agreement between the European Community and the United States of America - Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection - Directive 95/46/EC - Article 25 - Third countries - Decision 2004/535/EC - Adequate level of protection)

(2006/C 178/02)

Language of the case: French

Parties

Applicant: European Parliament (represented by: R. Passos, N. Lorenz, H. Duintjer Tebbens and A. Caiola, Agents)

Intervener in support of the applicant: European Data Protection Supervisor (EDPS) (represented by: H. Hijmans and V. Perez Asinari, Agents)

Defendant (in Case C-317/04): Council of the European Union (represented by: M.C. Giorgi Fort and M. Bishop, Agents)

Defendant (in Case C-318/04): Commission of the European Communities (represented by: P.J. Kuijper, A. van Solinge, C Docksey and F. Benyon, Agents)

Interveners in support of the defendant (in Case C-317/04): Commission of the European Communities (represented by: P.J. Kuijper, A. van Solinge and C. Docksey, Agents); United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, C. White and T. Harris, Agents, and by T. Ward, Barrister)

Intervener in support of the defendant (in Case C-318/04): United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, C. White and T. Harris, Agents, and by T. Ward, Barrister)

Re:

Action for annulment: annulment of Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection (OJ L 183, 2004, p. 83) (C-317/04)

Action for annulment: annulment of Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection (OJ L 235, 2004, p. 11) (C-318/04)

Operative part of the judgement

The Court:

| 1. | Annuls Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, and Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection; |
| --- | --- |

1.

Annuls Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, and Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection;

| 2. | Preserves the effect of Decision 2004/535 until 30 September 2006, but not beyond the date upon which that Agreement comes to an end; |
| --- | --- |

2.

Preserves the effect of Decision 2004/535 until 30 September 2006, but not beyond the date upon which that Agreement comes to an end;

| 3. | Orders the Council of the European Union to pay the costs in Case C-317/04; |
| --- | --- |

3.

Orders the Council of the European Union to pay the costs in Case C-317/04;

| 4. | Orders the Commission of the European Communities to pay the costs in Case C-318/04; |
| --- | --- |

4.

Orders the Commission of the European Communities to pay the costs in Case C-318/04;

| 5. | Orders the Commission of the European Communities to bear its own costs in Case C-317/04; |
| --- | --- |

5.

Orders the Commission of the European Communities to bear its own costs in Case C-317/04;

| 6. | Orders the United Kingdom of Great Britain and Northern Ireland and the European Data Protection Supervisor to bear their own costs. |
| --- | --- |

6.

Orders the United Kingdom of Great Britain and Northern Ireland and the European Data Protection Supervisor to bear their own costs.

---

(1)  OJ C 228, 11.9.2004.

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/2 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/2

---

Judgement of the Court (Second Chamber) of 8 June 2006 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Finanzamt Eisleben v Feuerbestattungsverein Halle eV

(Case C-430/04) (1)

(Sixth VAT Directive - Possibility of relying on the second subparagraph of Article 4(5) - Activities engaged in by a private taxable person in competition with a public authority - Body governed by public law - Treatment as a non-taxable person in respect of activities engaged in as a public authority)

(2006/C 178/03)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Eisleben

Defendant: Feuerbestattungsverein Halle eV

Joined party: Lutherstadt Eisleben

Re:

Reference for a preliminary ruling from the Bundesfinanzhof — Interpretation of the second subparagraph of Article 4(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Taxation of public bodies in respect of activities or transactions in which they engage as public authorities where their non-taxation would lead to significant distortions of competition — Possibility for a taxable private-law association to rely on that provision where it is operating a crematorium in competition with a municipality carrying on a similar activity that is exempt or taxed more advantageously

Operative part of the judgement

A private person who is in competition with a body governed by public law and alleges that that body is, in respect of the activities in which it engages as a public authority, treated as a non-taxable person for value added tax purposes or undertaxed is entitled to rely, before the national court, on the second subparagraph of Article 4(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment in proceedings, such as the main proceedings, between a private person and the national tax authorities.

---

(1)  OJ C 300, 4.12.2004.

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/3 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/3

---

Judgement of the Court (Second Chamber) of 1 June 2006 (reference for a preliminary ruling from the Landgericht Berlin (Germany)) — innoventif Ltd

(Case C-453/04) (1)

(Freedom of establishment - Articles 43 EC and 48 EC - Branch of a limited company established in another Member State - Registration of the objects of a company in the national register of companies - Requirement to pay an advance on the cost of publication of the full text of the objects of a company - Compatibility)

(2006/C 178/04)

Language of the case: German

Referring court

Landgericht Berlin

Parties to the main proceedings

Applicant: innoventif Ltd

Re:

Reference for a preliminary ruling — Landgericht Berlin — Interpretation of Article 43 EC and Article 48 EC — Entry in the register of companies of a branch of a company limited by shares established in another Member State subject to the payment of an advance on the costs of publication of the objects of the company as set out in its instrument of constitution

Operative part of the judgement

Article 43 EC and Article 48 EC do not preclude legislation of a Member State which makes registration, in the register of companies, of a branch of a limited company established in another Member State subject to the payment of an advance on the anticipated cost of the publication of the objects of the company as set out in its instrument of constitution.

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(1)  OJ C 6, 8.1.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/3 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/3

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Judgement of the Court (Sixth Chamber) of 1 June 2006 — Commission of the European Communities v Hellenic Republic

(Case C-475/04) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/58/EC - Electronic communications - Processing of personal data - Protection of privacy - Protection of natural persons - Failure to transpose within the prescribed period)

(2006/C 178/05)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and M. Shotter, Agents)

Defendant: Hellenic Republic (represented by: N. Dafniou and M. Tassopoulou, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to transpose, within the prescribed period, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37)

Operative part of the judgement

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the Hellenic Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the Hellenic Republic has failed to fulfil its obligations under that directive.

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

2.

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 314, 18.12.2004.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/4 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/4

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Judgement of the Court (Second Chamber) of 8 June 2006 (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — Visserijbedrijf D.J. Koornstra & Zn. vof v Productschap Vis

(Case C-517/04) (1)

(Charge on the landing of shrimp with fishing vessels registered in a Member State intended to finance shrimp sieving and peeling equipment in the same Member State - Article 25 EC - Charges having an effect equivalent to customs duties - Article 90 EC - Internal taxation)

(2006/C 178/06)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: Visserijbedrijf D.J. Koornstra & Zn. vof

Defendant: Productschap Vis

Re:

Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Compatibility with Community law, in particular Articles 25 EC and 90 EC, of a charge imposed in a Member State on operators landing shrimp with a vessel registered in that State — Charge also payable by such an operator in respect of shrimp transported elsewhere in the Community — Charge intended to finance shrimp sieving and peeling in that State — Charge having an equivalent effect — Whether a charge applicable to operators or to products

Operative part of the judgment

A charge levied by an association governed by public law of a Member State, on the basis of identical criteria, on national products intended for the national market or for export to other Member States constitutes a charge having an effect equivalent to an export duty, prohibited by Articles 23 EC and 25 EC, if the revenue from that charge is used to finance activities which benefit only the national products intended for the national market and the advantages stemming from the use of the revenue from that charge fully offset the burden borne by those products. On the other hand, if the advantages accruing to the national products processed or marketed on the national market from the use of the revenue generated by that charge offset only partially the burden borne by those products, such a charge would constitute a breach of the prohibition on discrimination laid down by Article 90 EC.

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(1)  OJ C 69, 19.3.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/4 |
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29.7.2006

EN

Official Journal of the European Union

C 178/4

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Judgement of the Court (Second Chamber) of 8 June 2006 (references for a preliminary ruling from the Bundesgerichtshof (Germany) — Saatgut-Treuhandverwaltungs GmbH v Ulrich Deppe, Hanne-Rose Deppe, Thomas Deppe, Matthias Deppe, Christine Urban (née Deppe) (C-7/05), Siegfried Hennings (C-8/05), Hartmut Lübbe (C-9/05),

(Joined Cases C-7/05 to C-9/05) (1)

(Plant varieties - Level of equitable remuneration to be paid to the holder of a Community plant variety right - Article 5(2), (4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98 - Concept of ‘level of remuneration sensibly lower than the amount charged for the licensed production of propagating material’)

(2006/C 178/07)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Saatgut-Treuhandverwaltungs GmbH

Defendants: Ulrich Deppe, Hanne-Rose Deppe, Thomas Deppe, Matthias Deppe, Christine Urban (née Deppe) (C-7/05), Siegfried Hennings (C-8/05), Hartmut Lübbe (C-9/05)

Re:

Preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(2), (4) and (5) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights (OJ 1995 L 173, p. 14), as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998 (OJ 1998 L 328, p. 6) — Level of equitable remuneration to be paid to the holder of a Community plant variety right — Concept of a level ‘sensibly lower’ than the amount charged for the licensed production of propagating material — Remuneration of 80 % of the amounts payable for such production

Operative part of the judgement

| 1. | Without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80 % of the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area, in the event of recourse to the agricultural exemption referred to in Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights does not satisfy the condition that remuneration has to be ‘sensibly lower’ than the amount charged for the licensed production of propagating material within the meaning of Article 5(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998. |
| --- | --- |

1.

Without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80 % of the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area, in the event of recourse to the agricultural exemption referred to in Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights does not satisfy the condition that remuneration has to be ‘sensibly lower’ than the amount charged for the licensed production of propagating material within the meaning of Article 5(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998.

| 2. | The criteria for determining the remuneration to be paid to the holder of a Community plant variety right are set out in Article 5(4) and (5) of Regulation No 1768/95, as amended by Regulation No 2605/98. Those criteria have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98. |
| --- | --- |

2.

The criteria for determining the remuneration to be paid to the holder of a Community plant variety right are set out in Article 5(4) and (5) of Regulation No 1768/95, as amended by Regulation No 2605/98. Those criteria have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98.

| 3. | In order for an agreement concluded between organisations of holders and of farmers, as referred to in Article 5(4) of Regulation No 1768/95, as amended by Regulation No 2605/98, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission of the European Communities and published in the Official Bulletin of the Community Plant Variety Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98. |
| --- | --- |

3.

In order for an agreement concluded between organisations of holders and of farmers, as referred to in Article 5(4) of Regulation No 1768/95, as amended by Regulation No 2605/98, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission of the European Communities and published in the Official Bulletin of the Community Plant Variety Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98.

| 4. | In the absence of an applicable agreement between organisations of holders and of farmers, the remuneration of a holder of a Community plant variety right has to be established, pursuant to Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98, as a fixed amount which constitutes neither an upper limit nor a lower limit. |
| --- | --- |

4.

In the absence of an applicable agreement between organisations of holders and of farmers, the remuneration of a holder of a Community plant variety right has to be established, pursuant to Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98, as a fixed amount which constitutes neither an upper limit nor a lower limit.

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(1)  OJ C 82, 2.4.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/5 |
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29.7.2006

EN

Official Journal of the European Union

C 178/5

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Judegment of the Court (Second Chamber) of 8 June 2006 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy) — WWF Italia, Gruppo Ornitologico Lombardo (GOL), Lega abolizione della caccia (LAC), Lega antivivisezionista (LAV) v Regione Lombardia

(Case C-60/05) (1)

(Conservation of wild birds - Directive 79/409/EEC - Derogations from the system of protection)

(2006/C 178/08)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: WWF Italia, Gruppo Ornitologico Lombardo (GOL), Lega abolizione della caccia (LAC), Lega antivivisezionista (LAV)

Defendant: Regione Lombardia

Intervener: Associazione migratoristi italiani

Re:

Reference for a preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Conditions for exercise by the Member States of the derogation from the prohibition on killing and capture of protected species — Finch and brambling species

Operative part of the judgement

| 1. | Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds requires the Member States, irrespective of the internal allocation of powers prescribed by the national legal system, upon adoption of measures implementing that provision to ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers imposed by that provision, and that ceiling must be determined on the basis of strict scientific data. |
| --- | --- |

1.

Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds requires the Member States, irrespective of the internal allocation of powers prescribed by the national legal system, upon adoption of measures implementing that provision to ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers imposed by that provision, and that ceiling must be determined on the basis of strict scientific data.

| 2. | National implementing provisions concerning the ‘small numbers’ referred to in Article 9(1)(c) of Directive 79/409 must enable the authorities responsible for authorising hunting derogations in respect of birds of a given species to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with. |
| --- | --- |

2.

National implementing provisions concerning the ‘small numbers’ referred to in Article 9(1)(c) of Directive 79/409 must enable the authorities responsible for authorising hunting derogations in respect of birds of a given species to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with.

| 3. | Upon implementation of Article 9(1)(c) of Directive 79/409, the Member States are required to ensure that, irrespective of the number and identity of the authorities within their territory responsible for applying that provision, the amount of authorised hunting derogations in respect of each protected species by each of those authorities does not exceed the ceiling compatible with the restriction on that hunting to ‘small numbers’, fixed for that species for the entire national territory. |
| --- | --- |

3.

Upon implementation of Article 9(1)(c) of Directive 79/409, the Member States are required to ensure that, irrespective of the number and identity of the authorities within their territory responsible for applying that provision, the amount of authorised hunting derogations in respect of each protected species by each of those authorities does not exceed the ceiling compatible with the restriction on that hunting to ‘small numbers’, fixed for that species for the entire national territory.

| 4. | The obligation on the Member States to ensure that hunting of birds is carried out only in ‘small numbers’, in accordance with Article 9(1)(c) of Directive 79/409, requires that the administrative procedures provided for are organised in such a way that both the decisions of the competent authorities authorising hunting derogations and the manner in which those decisions are applied are subject to effective control exercised in a timely manner. |
| --- | --- |

4.

The obligation on the Member States to ensure that hunting of birds is carried out only in ‘small numbers’, in accordance with Article 9(1)(c) of Directive 79/409, requires that the administrative procedures provided for are organised in such a way that both the decisions of the competent authorities authorising hunting derogations and the manner in which those decisions are applied are subject to effective control exercised in a timely manner.

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(1)  OJ C 93, 16.4.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/6 |
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29.7.2006

EN

Official Journal of the European Union

C 178/6

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Judgement of the Court (Sixth Chamber) of 8 June 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-71/05) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/30/EC - Air transport - Noise-related operating restrictions at Community airports - Failure to transpose within the prescribed period)

(2006/C 178/09)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Huttunen, Agent)

Defendant: Grand Duchy of Luxembourg (represented by: S. Schreiner, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to transpose, within the prescribed period, Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (OJ 2002 L 85, p. 40)

Operative part of the judgement

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2002/30/EC of the European Parliament and the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2002/30/EC of the European Parliament and the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports, 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, 2.4.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/7 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/7

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Judgement of the Court (First Chamber) of 1 June 2006 (reference for a preliminary ruling from the Østre Landsret — Denmark) — De Danske Bilimportører v Skatteministeriet

(Case C-98/05) (1)

(Sixth VAT Directive - Article 11(A)(2)(a) and (3)(c) - Taxable amount - Registration duty on new motor vehicles)

(2006/C 178/10)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: De Danske Bilimportører

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of Article 11(A)(2)(a) and (3)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145 p. 1) — Inclusion in the taxable amount relating to the sale of a new motor vehicle of a tax payable on registration of the vehicle

Operative part of the judgement

In the context of a contract of sale providing that, in accordance with the buyer's intended use of the vehicle, the dealer will supply it registered and for a price which includes the registration duty on new motor vehicles he paid before supplying the vehicle, that duty, for which the occurrence triggering liability is not the supply of the vehicle but its first registration in national territory, is not covered by the concept of taxes, duties, levies and charges within the meaning of Article 11(A)(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment. Such a duty corresponds to an amount received by the taxable person from the purchaser of the vehicle as repayment for expenses paid out in the name and for the account of the latter within the meaning of Article 11(A)(3)(c).

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(1)  OJ C 106, 20.4.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/7 |
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29.7.2006

EN

Official Journal of the European Union

C 178/7

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Judgement of the Court (Third Chamber) of 8 June 2006 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — L.u.P. GmbH v Finanzamt Bochum-Mitte

(Case C-106/05) (1)

(Sixth VAT Directive - Exemptions - Article 13A(1)(b) and (c) and (2)(a) - Medical care provided by bodies other than those governed by public law - Medical care provided in the exercise of a medical profession - Medical tests carried out by a laboratory governed by private law outside a centre for treatment on prescription from general practitioners - Conditions for the exemption - Member States' discretion - Limits)

(2006/C 178/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: L.u.P. GmbH

Defendant: Finanzamt Bochum-Mitte

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 13A(1)(b) and (2) of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p.1) — Exemptions — Activities closely related to hospital or medical care — Medical laboratory analyses ordered by general practitioners

Operative part of the judgement

The Court hereby rules:

| | Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that medical tests which have as their purpose the observation and examination of patients for prophylactic purposes, carried out, like those at issue in the main proceedings, by a laboratory governed by private law outside a centre for treatment on prescription from general practitioners, may come within the exemption provided for by that provision as medical care provided by another duly recognised establishment of a similar nature within the meaning of that provision. |
| --- | --- |

Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that medical tests which have as their purpose the observation and examination of patients for prophylactic purposes, carried out, like those at issue in the main proceedings, by a laboratory governed by private law outside a centre for treatment on prescription from general practitioners, may come within the exemption provided for by that provision as medical care provided by another duly recognised establishment of a similar nature within the meaning of that provision.

| | Article 13A(1)(b) and (2)(a) of that directive does not preclude national legislation which makes the exemption of such medical tests subject to conditions which, first, do not apply to the exemption of care provided by the general practitioners who prescribed them and, second, are different from those applicable to closely related activities to medical care within the meaning of the first-mentioned provision. |
| --- | --- |

Article 13A(1)(b) and (2)(a) of that directive does not preclude national legislation which makes the exemption of such medical tests subject to conditions which, first, do not apply to the exemption of care provided by the general practitioners who prescribed them and, second, are different from those applicable to closely related activities to medical care within the meaning of the first-mentioned provision.

| | Article 13A(1)(b) of the same directive precludes national legislation which makes the exemption of medical tests carried out by a laboratory governed by private law outside a centre for treatment subject to the condition that they be carried out under medical supervision. However, that provision permits such legislation to make the exemption of those tests subject to the condition that at least 40 % of those services must be intended for persons insured by a social security authority. |
| --- | --- |

Article 13A(1)(b) of the same directive precludes national legislation which makes the exemption of medical tests carried out by a laboratory governed by private law outside a centre for treatment subject to the condition that they be carried out under medical supervision. However, that provision permits such legislation to make the exemption of those tests subject to the condition that at least 40 % of those services must be intended for persons insured by a social security authority.

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(1)  OJ C 115, 14.5.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/8 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/8

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Judgement of the Court (Sixth Chamber) of 8 June 2006 — Commission of the European Communities v French Republic

(Case C-164/05) (1)

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

(2006/C 178/12)

Language of the case: French

Parties

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

Defendant: French Republic (represented by: G. De Bergues and C. Bergeot-Nunes, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt the measures 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 concerning the general system for the recognition of professional qualifications, and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2001 L 206, p. 1)

Operative part of the judgement

The Court:

| 1. | Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Articles 1 to 4 and 9 to 13 of Directive 2001/19/EC of the European Parliament and of the Council 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 on the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, the French Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Articles 1 to 4 and 9 to 13 of Directive 2001/19/EC of the European Parliament and of the Council 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 on the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, the French Republic has failed to fulfil its obligations under that directive.

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

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 115, 14.5.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/8 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/8

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Judgement of the Court (Third Chamber) of 1 June 2006 (reference for a preliminary ruling from the Cour de cassation, Belgium) — Uradex SCRL v Union Professionnelle de la Radio et de la Télédistribution (RTD), Société Intercommunale pour la Diffusion de la Télévision (BRUTELE)

(Case C-169/05) (1)

(Copyright and related rights - Directive 93/83/EEC - Article 9(2) - Scope of the powers of a collecting society deemed to be mandated to manage the rights of a copyright owner or holder of related rights which has not transferred the management of his rights to it - Exercise of the right to grant or refuse permission to a cable operator to retransmit a programme by cable)

(2006/C 178/13)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Uradex SCRL

Defendant: Union Professionnelle de la Radio et de la Télédistribution (RTD), Société Intercommunale pour la Diffusion de la Télévision (BRUTELE)

Re:

Reference for a preliminary ruling — Belgian Court of Cassation — Interpretation of Article 9(2) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ L 248, 1993, p. 15) — Extent of the powers of a collecting society deemed to be mandated to manage the rights of a copyright owner or holder of related rights who has not transferred the management of his rights to a collecting society — Exercise of the right to grant or refuse authorisation to a cable operator for cable retransmission

Operative part of the judgement

Article 9(2) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission is to be interpreted as meaning that, where a collecting society is deemed to be mandated to manage the rights of a copyright owner or holder of related rights who has not transferred the management of his rights to a collecting society, that society has the power to exercise that rightholder's right to grant or refuse authorisation to a cable operator for cable retransmission and, consequently, its mandate is not limited to management of the pecuniary aspects of those rights.

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(1)  OJ C 143, 11.6.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/9 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/9

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Judgement of the Court (Sixth Chamber) of 8 June 2006 (reference for a preliminary ruling from the Finanzgericht München (Germany)) — Sachsenmilch AG v Oberfinanzdirektion Nürnberg

(Case C-196/05) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Subheading 0406 10 (fresh cheese) - Annex I to Regulation (EEC) No 2658/87 as amended by Regulation (EC) No 1832/2002 - Tariff classification of pizza mozzarella in block form that has been stored after its manufacture for one to two weeks at a low temperature)

(2006/C 178/14)

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: Sachsenmilch AG

Defendant: Oberfinanzdirektion Nürnberg

Re:

Reference for a preliminary ruling — Finanzgericht Munchen — Interpretation of Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and the Common Customs Tariff (OJ 1987 L 256, p.1) — Subheading 0406 10 CN (fresh cheese) — Mozzarella for pizza that has been stored after production for one to two weeks at low temperature

Operative part of the judgement

The Court:

Subheading 0406 10 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1832/2002 of 1 August 2002, must be interpreted as meaning that it applies to pizza mozzarella in block form that was stored after its manufacture for one to two weeks at 2 to 4 °C unless that storage is sufficient for such mozzarella to undergo a process at the end of which it has acquired one or more new objective characteristics or properties, in particular with regard to its composition, appearance or taste. It is for the national court to determine whether those conditions are satisfied.

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(1)  OJ C 182, 23.7.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/10 |
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29.7.2006

EN

Official Journal of the European Union

C 178/10

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Judgement of the Court (First Chamber) of 1 June 2006 — Commission of the European Communities v Italian Republic

(Case C-207/05) (1)

(Failure of a Member State to fulfil obligations - State aid - Second subparagraph of Article 88(2) EC - Aid incompatible with the common market - Duty to recover - Non-fulfilment)

(2006/C 178/15)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: V. Di Bucci and L. Pignataro, Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, Agent, assisted by M. Fiorilli, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 3 and 4 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding [C-27/99 (ex NN 69/98)] (OJ L 77,2003, p. 21) — Failure to adopt, within the prescribed period, the necessary measures to recover aid declared incompatible with the common market

Operative part of the judgement

The Court:

| 1. | Declares that by failing to adopt, within the prescribed period, the necessary measures to recover aid declared unlawful land incompatible with the common market by Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding, the Italian Republic has failed to fulfil its obligations under Articles 3 and 4 of that decision. |
| --- | --- |

1.

Declares that by failing to adopt, within the prescribed period, the necessary measures to recover aid declared unlawful land incompatible with the common market by Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding, the Italian Republic has failed to fulfil its obligations under Articles 3 and 4 of that decision.

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

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 182, 23.7.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/10 |
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29.7.2006

EN

Official Journal of the European Union

C 178/10

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Judgement of the Court (Fourth Chamber) of 18 May 2006 — Commission of the European Communities v Republic of Finland

(Case C-343/05) (1)

(Failure by a Member State to fulfil its obligations - Directive 2001/37/EC - Manufacture, presentation and sale of tobacco products - Prohibition on placing on the market of tobacco for oral use - Failure to transpose within the prescribed period)

(2006/C 178/16)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: L. Pignataro-Nolin and M. Huttunen, Agents)

Defendant: Republic of Finland (represented by: J. Himmanen, Agent)

Re:

Failure by a Member State to fulfil its obligations — Failure to transpose Article 8a of Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products (OJ 1989 L 359, p.1) as inserted by Council Directive 92/41/EEC of 15 May 1992 amending that directive (OJ 1992 L 158, p. 30), and Article 8 of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products — Commission statement (OJ L 194, p. 26) — Prohibition on placing on the market of tobacco for oral use in relation to Åland and vessels registered in Finland

Operative part of the judgement

The Court:

| 1. | Declares that, by failing to ensure transposition by Åland of Article 8a of Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, as amended by Council Directive 92/41/EEC of 15 May 1992, amended by Article 8 of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, and observance on vessels registered in Finland of the prohibition on placing on the market of snuff laid down by that provision, the Republic of Finland has failed to fulfil its obligations under the EC Treaty and Directive 2001/37; |
| --- | --- |

1.

Declares that, by failing to ensure transposition by Åland of Article 8a of Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, as amended by Council Directive 92/41/EEC of 15 May 1992, amended by Article 8 of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, and observance on vessels registered in Finland of the prohibition on placing on the market of snuff laid down by that provision, the Republic of Finland has failed to fulfil its obligations under the EC Treaty and Directive 2001/37;

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

2.

Orders the Republic of Finland to pay the costs.

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(1)  OJ C 281, 12.11.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/11 |
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29.7.2006

EN

Official Journal of the European Union

C 178/11

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Order of the Court (Second Chamber) of 4 May 2006 — (references for a preliminary ruling from the Tribunale ordinario di Milano and the Tribunale ordinario di Torino (Italy)) — Criminal proceedings against Michel Mulliez and Others and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03)

(Joined Cases C-23/03, C-52/03, C-133/03, C-337/03 and C-473/03) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Company law - First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC - Annual accounts - Principle of a true and fair view - Penalties provided for in cases of false information on companies (false accounting) - Article 6 of First Directive 68/151/EEC - Requirement that penalties for breaches of Community law be appropriate)

(2006/C 178/17)

Language of the case: Italian

Referring courts

Tribunale ordinario di Milano, Tribunale ordinario di Torino

Criminal proceedings against

Michel Mulliez, Patrick Lesaffre, Peter Hordjk, Michel Hoste, Christophe Dubrulle, Benoit Lheureux, Guy Geffroy, Gregory Sartorius and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03)

Re:

References for a preliminary ruling — Tribunale ordinario di Milano, Tribunale ordinario di Torino — Interpretation of Article 6 of First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ L 65, p. 8) — Annual accounts — Offences of failure to publish, and publication of false information — Appropriate penalties

Operative part of the order

In situations such as those in issue in the main proceedings, First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, cannot be relied on as such against accused persons by the authorities of a Member State within the context of criminal proceedings, in view of the fact that a directive cannot, of itself and independently of national legislation adopted by a Member State for its implementation, have the effect of determining or increasing the criminal liability of those accused persons.

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(1)  OJ C 70, 22.3.2003.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/11 |
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29.7.2006

EN

Official Journal of the European Union

C 178/11

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Order of the Court of 30 March 2006 — Strintzis Lines Shipping SA v Commission of the European Communities

(Case C-110/04 P) (1)

(Appeal - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Competition - Concerted practices - Agreement between undertakings - Commission's powers of investigation)

(2006/C 178/18)

Language of the case: Greek

Parties

Applicant: Strintzis Lines Shipping SA (represented by: A. Kalogeropoulos, K. Adamantopoulos, M. Nissen and E. Petritsi, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: R. Lyal and T. Christoforou, Agents, assisted by G. Athanassiou, lawyer)

Re:

Appeal brought against the decision of the Court of First Instance (Fifth Chamber) of 11 December 2003, Strintzis Lines Shipping SA v Commission (T-65/99) dismissing as unfounded an action for annulment of the Commission's Decision of 9 December 1998 relating to a proceeding under Article 85 of the EC Treaty (IV/34466 — Greek Ferry Boats)

Operative part of the order

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

1.

The appeal is dismissed;

| 2. | The cross-appeal of the Commission of the European Communities is dismissed; |
| --- | --- |

2.

The cross-appeal of the Commission of the European Communities is dismissed;

| 3. | Strintzis Lines Shipping SA is ordered to bear 90 % of the costs; |
| --- | --- |

3.

Strintzis Lines Shipping SA is ordered to bear 90 % of the costs;

| 4. | The Commission of the European Communities is ordered to bear 10 % of the costs. |
| --- | --- |

4.

The Commission of the European Communities is ordered to bear 10 % of the costs.

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(1)  OJ C 106, 30.4.2004.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/12 |
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29.7.2006

EN

Official Journal of the European Union

C 178/12

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Order of the Court (Fourth Chamber) of 2 May 2006 — (reference for a preliminary ruling from the Tribunal de police de Neufchâteau — Belgium) — Criminal proceedings against Henri Léon Schmitz

(Case C-291/04) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Free movement of persons and services - Workers - Motor vehicle - Provided to worker by employer - Vehicle registered abroad - Employer established in another Member State )

(2006/C 178/19)

Language of the case: French

National court

Tribunal de police de Neufchâteau

Criminal proceedings against

Henri Léon Schmitz

Re:

Reference for a preliminary ruling — Tribunal de police de Neufchâteau — Interpretation of Arts. 10, 39, 43 and 49 EC — National measure requiring a motor vehicle to be registered in that Member State if it is to be used by a resident even if it has been provided to that resident by the latter's employer, established in another Member State — Worker bound to his employer by an employment contract and simultaneously performing the functions of shareholder, administrator and person responsible for day-to-day administration, or an equivalent function

Operative part of the judgment

Article 43 EC precludes the national legislation of one Member State from obliging, as the legislation in the current criminal proceedings does, a self-employed person residing in that Member State to register a company vehicle provided to him by the company, established in another Member State, that employs him, when the company vehicle is neither actually intended to be used permanently in the first Member State nor is in fact used in that way.

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(1)  OJ C 217, 28.8.2004.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/12 |
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29.7.2006

EN

Official Journal of the European Union

C 178/12

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Order of the Court (Fourth Chamber) of 30 May 2006 — (reference for a preliminary ruling from the Cour de cassation, Belgium) — Criminal proceedings against Sébastien Victor Leroy

(Case C-435/04) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Vehicle leasing - Prohibition on using in a Member State a vehicle belonging to a leasing company established in another Member State and registered in that State - Permanent use on the territory of the first Member State)

(2006/C 178/20)

Language of the case: French

Referring court

Cour de cassation

Criminal proceedings against

Sébastien Victor Leroy

Action

Reference for a preliminary ruling — Cour de cassation, Belgium — Interpretation of Articles 49 to 55 of the EC Treaty with regard to national legislation prohibiting, on pain of criminal penalties, a person who resides and works in the national territory from using a vehicle which belongs to a leasing company established in another Member State and registered in that State

Operative part of the judgment

Articles 49 EC to 55 EC do not preclude the domestic legislation of a Member State, such as that at issue in the main proceedings, from prohibiting a person who resides and works in that State from using, in that State, a vehicle which he has rented from a leasing company established in another Member State, when that vehicle has not been registered in the first State and it is intended that it should be used there essentially on a permanent basis or is, in fact, used in that manner.

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(1)  OJ C 300, 4.12.2004.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/13 |
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29.7.2006

EN

Official Journal of the European Union

C 178/13

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Order of the Court of 30 March 2006 — European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union

(Case C-113/05 P) (1)

(Appeal - Directive 2003/15/EC - Action for annulment - Cosmetic products - Protection of public health - Experiments on animals - Prohibition of substances which are carcinogenic, mutagenic or toxic for reproduction - Appeal in part manifestly inadmissible and in part manifestly unfounded)

(2006/C 178/21)

Language of the case: English

Parties

Applicant: European Federation for Cosmetic Ingredients (EFfCI) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Other parties to the proceedings: European Parliament (represented by: K. Bradley and M. Moore, Agents), Council of the European Union (represented by E. Karlson and C. Giorgi Fort, Agents)

Re:

Appeal brought against the Order of the Court of First Instance (Third Chamber) of 10 December 2004 in Case T-196/03 EFfCI v Parliament and Council — Admissibility of an action for partial annulment of Article 1 of Directive 2003/15/EC of the European Parliament and of the Council of 27 February 2003 amending Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ L 2003 66, p. 26) — Person directly and individually concerned within the meaning of the fourth paragraph of Article 230 EC

Operative part of the order

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

1.

The appeal is dismissed;

| 2. | The European Federation for Cosmetic Ingredients is ordered to pay the costs. |
| --- | --- |

2.

The European Federation for Cosmetic Ingredients is ordered to pay the costs.

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(1)  OJ C 115, 14.5.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/13 |
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29.7.2006

EN

Official Journal of the European Union

C 178/13

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Order of the Court of 6 April 2006 (reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München- Germany) — Daniel Halbritter v Freistaat Bayern, represented by the Landesanwaltschaft Bayern

(Case C-227/05) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Directive 91/439/EEC - Mutual recognition of driving licences - Confiscation of driving licence in one Member State accompanied by temporary ban on acquiring a new licence - Licence issued in another Member State after the expiry of the temporary ban - Recognition and exchange of that licence in the first Member State - Presentation of a report on aptitude to drive required by national law)

(2006/C 178/22)

Language of the case: German

National court

Bayerisches Verwaltungsgericht München

Parties

Applicant: Daniel Halbritter

Defendant: Freistaat Bayern (represented by the Landesanwaltschaft Bayern)

Re:

Reference for a preliminary ruling — Bayerisches Verwaltungsgericht München — Interpretation of Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1) — Refusal to recognise the validity or the exchange of a driving licence issued, after the expiry of the temporary ban, by another Member State, against a holder whose national driving licence had been confiscated for driving under the influence of narcotics — Duty to take aptitude tests

Operative part of the order

| 1. | The combined provisions of Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 97/26/EC of 2 June 1997, preclude a Member State from refusing to recognise, within its territory, the right to drive conferred by a driving licence issued in another Member State and, accordingly, the validity of that licence, on the ground that the holder of that licence, whose licence had previously been confiscated within the territory of the first Member State, did not take the test for aptitude to drive required by the law of that State in order for a new licence to be supplied following the confiscation of the previous licence, where the temporary ban on obtaining a new licence imposed at the same time as that confiscation had expired when the driving licence was supplied in the other Member State; |
| --- | --- |

1.

The combined provisions of Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 97/26/EC of 2 June 1997, preclude a Member State from refusing to recognise, within its territory, the right to drive conferred by a driving licence issued in another Member State and, accordingly, the validity of that licence, on the ground that the holder of that licence, whose licence had previously been confiscated within the territory of the first Member State, did not take the test for aptitude to drive required by the law of that State in order for a new licence to be supplied following the confiscation of the previous licence, where the temporary ban on obtaining a new licence imposed at the same time as that confiscation had expired when the driving licence was supplied in the other Member State;

| 2. | The combined provisions of Article 1(1) and Article 8(2) and (4) of Council Directive 91/439, as amended by Council Directive 97/26, preclude a Member State, which has received a request, in circumstances such as those in the present case, to exchange a valid driving licence supplied in another Member State for a national driving licence, from making such an exchange subject to the condition that the applicant take a new test of his aptitude to drive, required by the law of the first Member State in order to remove any doubts in that regard by reason of circumstances predating the acquisition of the licence in the other Member State. |
| --- | --- |

2.

The combined provisions of Article 1(1) and Article 8(2) and (4) of Council Directive 91/439, as amended by Council Directive 97/26, preclude a Member State, which has received a request, in circumstances such as those in the present case, to exchange a valid driving licence supplied in another Member State for a national driving licence, from making such an exchange subject to the condition that the applicant take a new test of his aptitude to drive, required by the law of the first Member State in order to remove any doubts in that regard by reason of circumstances predating the acquisition of the licence in the other Member State.

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(1)  OJ C 182, 23.7.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/14 |
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29.7.2006

EN

Official Journal of the European Union

C 178/14

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Order of the Court of 27 April 2006 — L v Commission of the European Communities

(Case C-230/05 P) (1)

(Appeal - Officials - Harassment - Commission's duty to provide assistance - Liability - Refusal by the Court of First Instance to allow the examination of witnesses - Offer of supplementary evidence which did not exist at the closing of the written procedure - Refusal to withdraw an allegedly defamatory document from the file - Obligation to provide reasons - Principal of sound administration - Appeal in part manifestly unfounded and in part manifestly inadmissible)

(2006/C 178/23)

Language of the case: French

Parties

Applicant: L (represented by: P. Legros and S. Rodrigues, avocats)

Other party to the proceedings: Commission of the European Communities (represented by: J. Curral, Agent, assisted by D. Waelbroeck, avocat)

Re:

Appeal brought against the judgment of the Court of First Instance (Fourth Chamber) of 9 March 2005 in Case T-254/02 L v Commission in which the Court of First Instance dismissed, first, the action for annulment of the decisions of the Commission rejecting the request for assistance, access to documents and compensation and refusing to recognise an occupational disease and, secondly, the claim for damages for the loss suffered as a result of those decisions

Operative part of the order

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

1.

The appeal is dismissed;

| 2. | The applicant is ordered to pay the costs. |
| --- | --- |

2.

The applicant is ordered to pay the costs.

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(1)  OJ C 182, 23.7.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/15 |
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29.7.2006

EN

Official Journal of the European Union

C 178/15

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Order of the Court (Fourth Chamber) of 6 April 2006 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Reyniers & Sogama BVBA v Belgisch Interventie- en Restitutiebureau, Belgische Staat

(Case C-407/05) (1)

(Reference for a preliminary ruling - First subparagraph of Article 104(3) of the Rules of Procedure - Recovery of import rights - Proof of the regularity of the operation or of the place of the offence or irregularity - Consequence of the lack of notification to the principal of the period for furnishing such proof)

(2006/C 178/24)

Language of the case: Dutch

National court

Hof van Cassatie van België

Parties

Applicant: Reyniers & Sogama BVBA

Defendant: Belgisch Interventie- en Restitutiebureau, Belgische Staat

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Art. 11a of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1987 L 107, p. 1), inserted by Art. 1 of Commission Regulation (EEC) No 1429/90 of 29 May 1990, amending Regulation (EEC) No 1062/87 (OJ 1990 L 137, p. 1), Art. 34 of Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit (OJ 1990 L 262, p. 1) and Art. 49 of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1992 L 132, p. 1) — Recovery of import rights — Notification addressed, by the office of departure, to the principal inviting him to furnish the proof of the regularity of the operation or of the place of the offence — Failure to notify time-limit — Consequences in terms of the validity of the notification and the recovery of the customs debt

Operative part of the order

Article 36(2 of Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit, as amended by Council Regulation (EEC) No 474/90 of 22 February 1990, with a view to abolishing lodgement of the transit advice note on crossing an internal frontier of the Community, read in conjunction with Article 11a of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, as amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990, and Article 34 of Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit, read in conjunction with Article 49 of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, must be interpreted as meaning that the office of departure must notify to the declarer the period of three months in which proof of the regularity of the transit operation or of the place where the offence or the irregularity was actually committed may be furnished to that office, to the satisfaction of the competent authorities, so that the competent authority can proceed with recovery only after having expressly indicated to the declarer that the latter has three months in which to furnish that proof, and that that proof has not been furnished within that period.

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(1)  OJ C 22 of 28.1.2006.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/15 |
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29.7.2006

EN

Official Journal of the European Union

C 178/15

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 26 April 2006 — Staatssecretaris van Financiën v Orange European Smallcap Fund NV

(Case C-194/06)

(2006/C 178/25)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Orange European Smallcap Fund NV

Question(s) referred

| 1. | Must Article 56 EC, in conjunction with Article 58(1) EC, be interpreted as meaning that the prohibition in Article 56 EC is incompatible with a rule in a Member State under which — for the reasons set out in at the end of section 5.2.1 of this judgment — a concession to be granted to a fiscal investment enterprise on account of taxation at source deducted in another Member State from dividends received by the fiscal investment enterprise is restricted:






  (a) | to the amount which a natural person resident in the Netherlands could have had credited on the basis of a tax treaty concluded with the other Member State; |
| --- | --- | --- |

1.

Must Article 56 EC, in conjunction with Article 58(1) EC, be interpreted as meaning that the prohibition in Article 56 EC is incompatible with a rule in a Member State under which — for the reasons set out in at the end of section 5.2.1 of this judgment — a concession to be granted to a fiscal investment enterprise on account of taxation at source deducted in another Member State from dividends received by the fiscal investment enterprise is restricted:

(a)

to the amount which a natural person resident in the Netherlands could have had credited on the basis of a tax treaty concluded with the other Member State;

| (b) | where and to the extent to which the shareholders of the fiscal investment enterprise are not natural persons resident in the Netherlands or bodies subject to Netherlands corporation tax? |
| --- | --- |

(b)

where and to the extent to which the shareholders of the fiscal investment enterprise are not natural persons resident in the Netherlands or bodies subject to Netherlands corporation tax?

| 2. | If the answer to Question 1 is wholly or partly in the affirmative:






  (a) | Does ‘direct investment’ in Article 57(1) EC also include the holding of a block of shares in a company if the holder of the shares holds them only as an investment and the size of the block does not put the holder in a position to exercise a decisive influence over the management or control of the company? |
| --- | --- | --- |

2.

If the answer to Question 1 is wholly or partly in the affirmative:

(a)

Does ‘direct investment’ in Article 57(1) EC also include the holding of a block of shares in a company if the holder of the shares holds them only as an investment and the size of the block does not put the holder in a position to exercise a decisive influence over the management or control of the company?

| (b) | Under Article 56 EC, is any restriction of the movement of capital connected with the levying of tax that would be impermissible if it related to cross-border movement of capital within the EC similarly impermissible in the case of the same movement of capital — in otherwise similar circumstances — to and from third countries? |
| --- | --- |

(b)

Under Article 56 EC, is any restriction of the movement of capital connected with the levying of tax that would be impermissible if it related to cross-border movement of capital within the EC similarly impermissible in the case of the same movement of capital — in otherwise similar circumstances — to and from third countries?

| (c) | If the answer to Question 2(b) is in the negative, must Article 56 EC then be interpreted as meaning that a restriction by a Member State of a tax concession granted to a fiscal investment enterprise with regard to taxation at source of a dividend received from a third country, that restriction being based on the fact that not all shareholders of the fiscal investment enterprise have their place of residence in the Member State concerned, is incompatible with that article? |
| --- | --- |

(c)

If the answer to Question 2(b) is in the negative, must Article 56 EC then be interpreted as meaning that a restriction by a Member State of a tax concession granted to a fiscal investment enterprise with regard to taxation at source of a dividend received from a third country, that restriction being based on the fact that not all shareholders of the fiscal investment enterprise have their place of residence in the Member State concerned, is incompatible with that article?

| 3. | Is the answer to the above questions affected by whether:






  (a) | the tax deducted in another country from the dividend received from that country is higher than the tax on the payment of that dividend to foreign shareholders in the Member State of establishment of the fiscal investment enterprise; |
| --- | --- | --- |

3.

Is the answer to the above questions affected by whether:

(a)

the tax deducted in another country from the dividend received from that country is higher than the tax on the payment of that dividend to foreign shareholders in the Member State of establishment of the fiscal investment enterprise;

| (b) | the shareholders of the fiscal investment enterprise who have their place of residence outside the Member State of establishment of the fiscal investment enterprise are resident or established in a country with which the above-mentioned Member State has a treaty providing for reciprocal credit of taxation of dividends at source; |
| --- | --- |

(b)

the shareholders of the fiscal investment enterprise who have their place of residence outside the Member State of establishment of the fiscal investment enterprise are resident or established in a country with which the above-mentioned Member State has a treaty providing for reciprocal credit of taxation of dividends at source;

| (c) | the shareholders of the fiscal investment enterprise who have their place of residence outside the Member State of establishment of the fiscal investment enterprise are resident or established in another country of the EC? |
| --- | --- |

(c)

the shareholders of the fiscal investment enterprise who have their place of residence outside the Member State of establishment of the fiscal investment enterprise are resident or established in another country of the EC?

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/16 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/16

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Reference for a preliminary ruling from the Bundeskommunikationssenats (Austria) lodged on 27 April 2006 — Österreichischer Rundfunk (ORF)

(Case C-195/06)

(2006/C 178/26)

Language of the case: German

Referring court

Bundeskommunikationssenats (Austria)

Party to the main proceedings

Österreichischer Rundfunk (ORF)

Questions referred

| 1. | Should Article 1(f) of Council Directive 89/552/EEC (1) of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in the version of Directive 97/36/EC (2) of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities be interpreted to the effect that ‘teleshopping’ includes broadcasts or parts of broadcasts in which the broadcaster offers viewers the opportunity to participate in the broadcaster's prize games by means of immediately dialling premium rate telephone numbers, and thus in return for payment? |
| --- | --- |

1.

Should Article 1(f) of Council Directive 89/552/EEC (1) of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in the version of Directive 97/36/EC (2) of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities be interpreted to the effect that ‘teleshopping’ includes broadcasts or parts of broadcasts in which the broadcaster offers viewers the opportunity to participate in the broadcaster's prize games by means of immediately dialling premium rate telephone numbers, and thus in return for payment?

| 2. | In the event that the answer to that question is no: should Article 1(c) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in the version of Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, be interpreted to the effect that ‘television advertising’ includes announcements in broadcasts or parts of broadcasts where the broadcaster offers viewers the opportunity to participate in the broadcaster's prize games by means of immediately dialling premium rate telephone numbers, and thus in return for payment? |
| --- | --- |

2.

In the event that the answer to that question is no: should Article 1(c) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in the version of Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, be interpreted to the effect that ‘television advertising’ includes announcements in broadcasts or parts of broadcasts where the broadcaster offers viewers the opportunity to participate in the broadcaster's prize games by means of immediately dialling premium rate telephone numbers, and thus in return for payment?

---

(1)  OJ 298, p. 23.

(2)  OJ 202, p. 60.

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/17 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/17

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Appeal brought on 4 May 2006 by Cementbouw Handel & Industrie BV against the judgement of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 23 February 2006 in Case T-282/02: Cementbouw Handel & Industrie B.V. v Commission of the European Communities

(Case C-202/06 P)

(2006/C 178/27)

Language of the case: English

Parties

Appellant: Cementbouw Handel & Industrie BV (represented by: W. Knibbeler, O. Brouwer and P.J. Kreijger, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | set aside the judgement of the Court of First Instance of 23 February 2006 by which it:






  a) | dismissed the action brought by the Appellant |
| --- | --- | --- |

—

set aside the judgement of the Court of First Instance of 23 February 2006 by which it:

a)

dismissed the action brought by the Appellant

| b) | ordered the Appellant to pay the costs of the proceedings |
| --- | --- |

b)

ordered the Appellant to pay the costs of the proceedings

| — | if considered appropriate, refer the case back to the Court of First Instance for judgment; |
| --- | --- |

—

if considered appropriate, refer the case back to the Court of First Instance for judgment;

| — | order the Commission to pay the costs, including the costs incurred by eventual intervening parties. |
| --- | --- |

—

order the Commission to pay the costs, including the costs incurred by eventual intervening parties.

Pleas in law and main arguments

The appellant maintains that the Court of First Instance in its judgement of 23 February 2006:

| a. | misinterpreted and misapplied Articles 1, 2 and 3(1) of the Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings, as amended by Regulation (EC) No. 1310/97 (the Merger Regulation) (1) and: |
| --- | --- |

a.

misinterpreted and misapplied Articles 1, 2 and 3(1) of the Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings, as amended by Regulation (EC) No. 1310/97 (the Merger Regulation) (1) and:

| b. | violated the principle of proportionality and misinterpreted and misapplied Article 8(2) of the Merger Regulation; |
| --- | --- |

b.

violated the principle of proportionality and misinterpreted and misapplied Article 8(2) of the Merger Regulation;

which led it wrongly to dismiss the Appellant's application and to uphold the decision of the Commission in so far as it rejected the first set of commitments offered by the Appellant and Haniel as insufficient.

---

(1)  OJ L 180, p. 1.

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/17 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/17

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Reference for a preliminary ruling from the Rechtbank Groningen (Netherlands) lodged on 2 May 2006 — Essent Netwerk Noord BV v Aluminium Delfzijl BV, Essent Netwerk Noord BV v 1. Saranne BV, and 2. BV Nederlands Elektriciteit Administratiekantoor, and Aluminium Delfzijl BV v State of the Netherlands (Ministry of Economic Affairs)

(Case C-206/06)

(2006/C 178/28)

Language of the case: Dutch

Referring court

Rechtbank Groningen

Parties to the main proceedings

Claimant: Essent Netwerk Noord B.V.

Defendant: Aluminium Delfzijl B.V.

Other parties: B.V. Nederlands Elektriciteit Administratiekantoor, Saranne BV, BV Nederlands Elektriciteit Administratiekantoor, State of the Netherlands (Ministry for Economic Affairs)

Questions referred

| 1. | Must Articles 25 EC and 90 EC be construed as precluding a statutory rule under which domestic purchasers of electricity are required during a transitional period (31 August 2000 to 31 December 2000 inclusive) to pay to their net operator a price surcharge on the amounts of electricity delivered for their use, in the case where that surcharge is to be paid by the net operator to an undertaking designated by the legislature for the purpose of defraying non-market-compatible costs which have arisen as a result of obligations incurred, or investments made, by that undertaking prior to liberalisation of the electricity market, and that undertaking:






  — | is the joint subsidiary of the four domestic generating undertakings; |
| --- | --- | --- |

1.

Must Articles 25 EC and 90 EC be construed as precluding a statutory rule under which domestic purchasers of electricity are required during a transitional period (31 August 2000 to 31 December 2000 inclusive) to pay to their net operator a price surcharge on the amounts of electricity delivered for their use, in the case where that surcharge is to be paid by the net operator to an undertaking designated by the legislature for the purpose of defraying non-market-compatible costs which have arisen as a result of obligations incurred, or investments made, by that undertaking prior to liberalisation of the electricity market, and that undertaking:

—

is the joint subsidiary of the four domestic generating undertakings;

| — | was solely responsible, in the period in question (2000), for the non-market-compatible costs which arose during that year; |
| --- | --- |

—

was solely responsible, in the period in question (2000), for the non-market-compatible costs which arose during that year;

| — | requires, by general agreement, an amount of NLG 400 million (EUR 181 512 086.40) in order to cover those costs incurred in that year; and |
| --- | --- |

—

requires, by general agreement, an amount of NLG 400 million (EUR 181 512 086.40) in order to cover those costs incurred in that year; and

| — | so far as the income generated by the price surcharge exceeds the aforementioned amount, is required to forward such surplus to the Minister? |
| --- | --- |

—

so far as the income generated by the price surcharge exceeds the aforementioned amount, is required to forward such surplus to the Minister?

| 2. | Does the rule mentioned in the first question satisfy the requirements of Article 87(1) EC? |
| --- | --- |

2.

Does the rule mentioned in the first question satisfy the requirements of Article 87(1) EC?

---

| 29.7.2006 | EN | Official Journal of the European Union | C 178/18 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/18

---

Reference for a preliminary ruling from the Cour d'arbitrage de Belgique lodged on 10 May 2006 — Government of the French Community, Walloon Government v Flemish Government

(Case C-212/06)

(2006/C 178/29)

Language of the case: French

Referring court

Cour d'arbitrage de Belgique (Belgium)

Parties to the main proceedings

Applicant: Government of the French Community, Walloon Government

Defendant: Flemish Government

Question(s) referred

| 1. | Does a care insurance scheme — which (a) has been established by an autonomous Community of a federal Member State of the European Community, (b) applies to persons who are resident in the part of the territory of that federal State for which that autonomous Community is competent, (c) provides for reimbursement, under that scheme, of the costs incurred for non-medical assistance and services to persons with serious, long-term reduced autonomy, affiliated to the scheme, in the form of a fixed contribution to the related costs and (d) is financed by members' annual contributions and by a grant paid out of the budget for expenditure of the autonomous Community concerned — constitute a scheme falling within the scope ratione materiae of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1), as defined in Article 4 thereof? |
| --- | --- |

1.

Does a care insurance scheme — which (a) has been established by an autonomous Community of a federal Member State of the European Community, (b) applies to persons who are resident in the part of the territory of that federal State for which that autonomous Community is competent, (c) provides for reimbursement, under that scheme, of the costs incurred for non-medical assistance and services to persons with serious, long-term reduced autonomy, affiliated to the scheme, in the form of a fixed contribution to the related costs and (d) is financed by members' annual contributions and by a grant paid out of the budget for expenditure of the autonomous Community concerned — constitute a scheme falling within the scope ratione materiae of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1), as defined in Article 4 thereof?

| 2. | If the first question referred for a preliminary ruling is to be answered in the affirmative: must the regulation cited above, in particular Articles 2, 3 and 13 thereof and, in so far as they are applicable, Articles 18, 19, 20, 25 and 28 be interpreted as precluding an autonomous Community of a federal Member State of the European Community from adopting provisions which, in the exercise of its powers, allow only persons residing in the territory for which that autonomous Community is competent and, in relation to citizens of the European Union, persons employed in the territory and who are resident in another Member State to be insured under and covered by a social security scheme within the meaning of that regulation, to the exclusion of persons, whatever their nationality, who reside in a part of the territory of the federal State for which another autonomous Community is competent? |
| --- | --- |

2.

If the first question referred for a preliminary ruling is to be answered in the affirmative: must the regulation cited above, in particular Articles 2, 3 and 13 thereof and, in so far as they are applicable, Articles 18, 19, 20, 25 and 28 be interpreted as precluding an autonomous Community of a federal Member State of the European Community from adopting provisions which, in the exercise of its powers, allow only persons residing in the territory for which that autonomous Community is competent and, in relation to citizens of the European Union, persons employed in the territory and who are resident in another Member State to be insured under and covered by a social security scheme within the meaning of that regulation, to the exclusion of persons, whatever their nationality, who reside in a part of the territory of the federal State for which another autonomous Community is competent?

| 3. | Must Articles 18 EC, 39 EC and 43 EC be interpreted as precluding an autonomous Community of a federal Member State of the European Community from adopting provisions which, in the exercise of its powers, allow only persons residing in the territory for which that autonomous Community is competent and, in relation to citizens of the European Union, persons employed in that territory and who are resident in another Member State to be insured under and covered by a social security scheme within the meaning of that regulation, to the exclusion of persons, whatever their nationality, who reside in a part of the territory of the federal State for which another autonomous Community is competent? |
| --- | --- |

3.

Must Articles 18 EC, 39 EC and 43 EC be interpreted as precluding an autonomous Community of a federal Member State of the European Community from adopting provisions which, in the exercise of its powers, allow only persons residing in the territory for which that autonomous Community is competent and, in relation to citizens of the European Union, persons employed in that territory and who are resident in another Member State to be insured under and covered by a social security scheme within the meaning of that regulation, to the exclusion of persons, whatever their nationality, who reside in a part of the territory of the federal State for which another autonomous Community is competent?

| 4. | Must Articles 18 EC, 39 EC and 43 EC be interpreted as not permitting the scope of such a system to be limited to persons who are resident in the territorial components of a federal Member State of the European Community which are covered by that system? |
| --- | --- |

4.

Must Articles 18 EC, 39 EC and 43 EC be interpreted as not permitting the scope of such a system to be limited to persons who are resident in the territorial components of a federal Member State of the European Community which are covered by that system?

---

(1)  OJ, English Special Edition 1971(II), p. 416.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/19 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/19

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Appeal brought on 9 May 2006 by the European Agency for Reconstruction (EAR) against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-471/04: Georgios Karatzoglou v European Agency for Reconstruction (EAR)

(Case C-213/06 P)

(2006/C 178/30)

Language of the case: English

Parties

Appellant: European Agency for Reconstruction (EAR) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers and K. Niafas, agent)

Other party to the proceedings: Georgios Karatzoglou

Form of order sought

The applicant claims that the Court should:

| — | Set aside the judgement of the Fourth Chamber of the Court of First Instance of 23 February 2006 in Case T-471/04 (Georgios Karatzoglou v European Agency for Reconstruction (EAR) ) in full; |
| --- | --- |

—

Set aside the judgement of the Fourth Chamber of the Court of First Instance of 23 February 2006 in Case T-471/04 (Georgios Karatzoglou v European Agency for Reconstruction (EAR) ) in full;

| — | Give judgement itself; |
| --- | --- |

—

Give judgement itself;

| — | Dismiss the action for annulment of the decision of the EAR of 26 February 2004 terminating the contract of the applicant at first instance as a member of the termporary staff; |
| --- | --- |

—

Dismiss the action for annulment of the decision of the EAR of 26 February 2004 terminating the contract of the applicant at first instance as a member of the termporary staff;

| — | Order the applicant at first instance and respondent on appeal to pay the costs of the appeal. |
| --- | --- |

—

Order the applicant at first instance and respondent on appeal to pay the costs of the appeal.

Pleas in law and main arguments

The applicant submits that the Court of First Instance erred in law when, having qualified the contract signed by the defendant as a contract for an indefinite period of employment, it decided that the European Agency for Reconstruction (hereinafter EAR) could only terminate that contract in two circumstances — substantial reduction or winding-up of EAR's operation — which would be tantamount to considering the contract as a contract for a fixed term of employment the duration of which depended upon those criteria.

The applicant further maintains that the Court of First Instance erred in law in so deciding because Council Regulation No 2667/2000 (1) which lays down rules concerning the functioning of EAR forbids the EAR to contract such an obligation since it is obliged to limit the recruitment of staff to what is strictly necessary with regard to the evolving needs of the EAR.

The applicant finally submits that should the EAR have created a legitimate expectation not to terminate the defendant's contract except in the specific circumstance of a significant reduction of its operation, such an expectation would be illegitimate with regard to the obligation deriving from the Conditions of Employment of Other Servants of the European Communities and from the Council regulations governing the creation and functioning of the EAR.

---

(1)  OJ L 305, p. 7.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/19 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/19

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia lodged on 11 May 2006 — Colasfalti srl v Provincia di Milano, ATI Legrenzi Srl,Impresa Costruzioni Edili e Stradali dei F. 11i Paccani Snc

(Case C-214/06)

(2006/C 178/31)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant(s): Colasfalti srl

Defendant(s): Provincia di Milano, ATI Legrenzi Srl,Impresa Costruzioni Edili e Stradali dei F. 11i Paccani Snc

Question(s) referred

| 1. | Does the rule laid down in Article 30(4) of Directive 93/37/EEC (1) or the similar rule contained in Article 55 (1) and (2) of Directive 2004/18/EC (2) (where that is regarded as the relevant provision), that, where tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, constitute a fundamental principle of Community law, such as to transcend the formal bounds set by the value of the contracts mentioned in Article 6 of Directive 93/37/EC and is it, therefore, capable of applying also to contracts when their value does not cross that threshold? |
| --- | --- |

1.

Does the rule laid down in Article 30(4) of Directive 93/37/EEC (1) or the similar rule contained in Article 55 (1) and (2) of Directive 2004/18/EC (2) (where that is regarded as the relevant provision), that, where tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, constitute a fundamental principle of Community law, such as to transcend the formal bounds set by the value of the contracts mentioned in Article 6 of Directive 93/37/EC and is it, therefore, capable of applying also to contracts when their value does not cross that threshold?

| 2. | Is the rule established by Article 30(4) of Directive 93/37/EEC or the similar rule contained in Article 55(1) and (2) of Directive 2004/18/EC (where that is regarded as the relevant provision), according to which, if tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, while not presenting the characteristics of a fundamental principle of Community law, nevertheless an implied consequence of or a ‘principle deriving from’ the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality and is it therefore, as such, directly binding, taking precedence over possibly incompatible national provisions adopted by the Member States to regulate public works contracts to which Community law is not directly applicable? |
| --- | --- |

2.

Is the rule established by Article 30(4) of Directive 93/37/EEC or the similar rule contained in Article 55(1) and (2) of Directive 2004/18/EC (where that is regarded as the relevant provision), according to which, if tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, while not presenting the characteristics of a fundamental principle of Community law, nevertheless an implied consequence of or a ‘principle deriving from’ the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality and is it therefore, as such, directly binding, taking precedence over possibly incompatible national provisions adopted by the Member States to regulate public works contracts to which Community law is not directly applicable?

---

(1)  OJ 199, p. 54.

(2)  OJ 134, p. 114.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/20 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/20

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Action brought on 11 May 2006 — Commission of the European Communities v Ireland

(Case C-215/06)

(2006/C 178/32)

Language of the case: English

Parties

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

Defendant: Ireland

The applicant claims that the Court should:

| 1. | declare that, by failing to adopt all measures necessary to ensure that projects which are within the scope of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (1) either before or after modification by Directive 97/11/EC (2) are, before they are executed are in whole or in part, first considered with regard to the need for an environmental impact as assessment and, secondly, where likely to have significant effects on the environment by virtue, of their nature, size or location, made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337/EEC, Ireland has failed to comply with the obligations that it has under Articles 2, 4 and 5 to 10 of Directive 85/337/EEC, and






  — | by failing to adopt all measures necessary to ensure that the development consents given for and the execution of wind-farm developments and associated works at Derrybrien, County Galway were preceded by an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337/EEC, Ireland has failed to comply with the obligations that it has under Articles 2, 4 and 5 to 10 of the said Directive 85/337/EEC; |
| --- | --- | --- |

1.

declare that, by failing to adopt all measures necessary to ensure that projects which are within the scope of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (1) either before or after modification by Directive 97/11/EC (2) are, before they are executed are in whole or in part, first considered with regard to the need for an environmental impact as assessment and, secondly, where likely to have significant effects on the environment by virtue, of their nature, size or location, made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337/EEC, Ireland has failed to comply with the obligations that it has under Articles 2, 4 and 5 to 10 of Directive 85/337/EEC, and

—

by failing to adopt all measures necessary to ensure that the development consents given for and the execution of wind-farm developments and associated works at Derrybrien, County Galway were preceded by an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337/EEC, Ireland has failed to comply with the obligations that it has under Articles 2, 4 and 5 to 10 of the said Directive 85/337/EEC;

| 2. | order Ireland to pay the costs of these proceedings. |
| --- | --- |

2.

order Ireland to pay the costs of these proceedings.

Pleas in law and main arguments

The Commission submits that Ireland's implementation of Council directive 85/337/CEE (the Impact Assessment Directive) is and has been deficient for the following reasons:

Ireland has failed to take measures to ensure that checks are made to ascertain whether proposed works are liable to have significant effects on the environment in accordance with Article 2(1) of the Impact Assessment Directive. Ireland's legislation does not provide that those effects are assessed in accordance with Articles 5 to 10 of the directive.

The system in Ireland which allows an application for retention permission to be made after a development has been executed in whole or in part without consent undermines the preventive objectives of the Impact Assessment Directive.

The enforcement regime in Ireland does not guarantee the effectiveness of the application of the Impact Assessment Directive. Consequently Ireland has failed to fulfil its general obligation under article 249 of the Treaty to ensure that the directive is applied effectively

There have been a number of particular deficiencies in relation to the undertaking of environmental impact assessments for a wind farm at Derrybrien, County Galway, which amount to a manifest breach of the directive.

---

(1)  OJ L 175, p. 40.

(2)  OJ L 73, p. 5.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/21 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/21

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Action brought on 12 May 2006 — Commission of the European Communities v Italian Republic

(Case C-217/06)

(2006/C 178/33)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: X. Lewis, agent, M. Mollica, lawyer)

Defendant: Italian Republic

Form of order sought

| — | Declare that, as the commune of Stintino awarded directly to Maresar, through Agreement No 7/91 of 2 October 1991 and connected measures, a public works contract concerning the execution of the works mentioned in Resolution No 48 of the municipal council of Stintino of 14 December 1989, particularly the 'detailed design and construction of the works for the technological and structural adaptation, rehauling and completion of the water supply and drainage networks, the road network, the buildings and service facilities in the town centre, the tourist areas in and outside the territory of the commune of Stintino, including the clean-up and depollution of the coast and the tourist centres situated in that commune', without following the procedures laid down by Council Directive 71/305/EEC (1) and, in particular, without publishing a notice of invitation to tender in the Official Journal of the European Communities, the Commission of the European Communities considers that the Italian Republic has failed to fulfil its obligations under Council Directive 71/305/EEC, which co-ordinates the procedures for the award of public works contracts, in particular under Articles 3 and 12 thereof. |
| --- | --- |

—

Declare that, as the commune of Stintino awarded directly to Maresar, through Agreement No 7/91 of 2 October 1991 and connected measures, a public works contract concerning the execution of the works mentioned in Resolution No 48 of the municipal council of Stintino of 14 December 1989, particularly the 'detailed design and construction of the works for the technological and structural adaptation, rehauling and completion of the water supply and drainage networks, the road network, the buildings and service facilities in the town centre, the tourist areas in and outside the territory of the commune of Stintino, including the clean-up and depollution of the coast and the tourist centres situated in that commune', without following the procedures laid down by Council Directive 71/305/EEC (1) and, in particular, without publishing a notice of invitation to tender in the Official Journal of the European Communities, the Commission of the European Communities considers that the Italian Republic has failed to fulfil its obligations under Council Directive 71/305/EEC, which co-ordinates the procedures for the award of public works contracts, in particular under Articles 3 and 12 thereof.

| — | Order the Italian Republic to pay the costs of the proceedings. |
| --- | --- |

—

Order the Italian Republic to pay the costs of the proceedings.

Pleas in law and main arguments

The Commission considers that the Agreement of 2 October 1991 between the commune of Stintino and Maresar is a public works contract under Community law. The said contract, the subject of which is works with a value (around EUR 16 million) clearly greater than the threshold for the application of the Directive, which was in force at that time, should have been awarded in accordance with the rules laid down by that Directive.

As regards the Italian authority's arguments put forward to justify their non-fulfilment, the Commission recalls that, in accordance with settled case-law, a Member State cannot rely on internal difficulties to justify failure to fulfil obligations derived from Community law.

---

(1)  OJ L 185, p. 5.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/21 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/21

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Reference for a preliminary ruling from the Audiencia Nacional, Sala de lo Contencioso-Administrativo (España) of 15 May 2006 — Asociacion Profesional de Empresas de Reparto y Manipulado de Correspondencia. v Administración del Estado (Ministerio de Educación y Ciencia)

(Case C-220/06)

(2006/C 178/34)

Language of the case: Spanish.

Referring court

Audiencia Nacional, Sala de lo Contencioso-Administrativo (National High Court, Chamber for Contentious Administrative Proceedings)

Parties to the main proceedings

Applicant: Asociacion Profesional de Empresas de Reparto y Manipulado de Correspondencia

Defendant: Ministerio de Educación y Ciencia

Question(s) referred

Are Articles 43 and 49 of the EC Treaty in conjunction with Article 86 thereof, as applied within the framework of the liberalisation of the postal services established by Directives 1997/67/EC (1) and 2002/39/EC (2) and within the framework of the rules governing public procurement introduced by the ad hoc Directives, to be interpreted as precluding an agreement whose subject-matter includes the provision of postal services, both reserved and unreserved and, therefore, liberalised, concluded between a department of the State Administration and a state company whose capital is wholly state-owned and which is furthermore, the universal postal service provider?

---

(1)  Directive 97/67/EC of the European Parliament and the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service. (OJ L 1998 15, p. 14).

(2)  Directive 2002/39/EC of the European Parliament and the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services. (OJ L 2002 176, p. 21).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/22 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/22

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 15 May 2006 — Stadtgemeinde Frohnleiten und Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land-und Forstwirtschaft, Umwelt und Wasserwirtschaft

(Case C-221/06)

(2006/C 178/35)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Stadtgemeinde Frohnleiten und Gemeindebetriebe Frohnleiten GmbH

Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

Question referred

Do Articles 10 EC, 12 EC, 23 EC, 25 EC, 49 EC or 90 EC preclude a national tax provision which makes the deposit of waste at a waste disposal site subject to a tax (Altlastenbeitrag; disused hazardous site levy), but provides for exemption from that tax for the deposit of waste which demonstrably derives from the safeguarding or rehabilitation of contaminated sites (potentially hazardous sites or disused hazardous sites) if the sites (potentially hazardous sites or disused hazardous sites) are entered in official registers provided for by law (Verdachtsflächenkataster; register of potentially hazardous sites, or Altlastenatlas; disused hazardous sites register), and only sites in Austria may be entered in those registers, with the result that the tax exemption is also possible only in respect of the deposit of waste which originates from potentially hazardous sites or disused hazardous sites located in Austria?

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/22 |
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29.7.2006

EN

Official Journal of the European Union

C 178/22

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Appeal brought on 16 May 2006 by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on 15 March 2006 in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh

(Case C-225/06 P)

(2006/C 178/36)

Language of the case: English

Parties

Appellant: Athinaïki Oikogeniaki Artopoiia AVEE (represented by: A. Tsavdaridis, Attorney at Law)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferrero OHG mbh

Form of order sought

The applicant claim that the Court should:

| — | Annul the contested decision of the Court of First Instance |
| --- | --- |

—

Annul the contested decision of the Court of First Instance

| — | Reject definitely and in its entirety the opposition to registration of the mark applied |
| --- | --- |

—

Reject definitely and in its entirety the opposition to registration of the mark applied

| — | Order the Office and intervener to pay the costs, including those incurred in opposition proceedings and before the Board of Appeal and the Court of First Instance. |
| --- | --- |

—

Order the Office and intervener to pay the costs, including those incurred in opposition proceedings and before the Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

The appellant maintains that the Court of First Instance erred in interpreting article 8 (1) (b) of Regulation (EC) No 40/94 (1) because:

The Court of First Instance ignored the fact that the appreciation of the likelihood of confusion depends on numerous elements, mentioned in the seventh recital of the preamble to Council Regulation (EC) No 41/94 (2) and, in particular, on the recognition of the trade mark on the market and not only on the degree of similarity between the trade mark and the sign and between the goods and services identified.

The earlier trade mark ‘Ferrero’ is not being used to identify products sold on the German market. As a result there is no likelihood of confusion for the average German consumer who does not associate the trademark ‘Ferrero’ with its products, whatever the degree of similarity between the two signs.

The Court of First Instance also ignored the fact that, according to the settled case-law of the Court of Justice, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case. Furthermore, a global assessment of the likelihood of confusion implies some interdependence between the relevant factors. The appellant submits that, had the Court of First Instance taken into account the interdependence of the relevant factors, it would have concluded that there is little risk of confusion.

---

(1)  OJ L 11, p. 1-36.

(2)  OJ L 209, p. 18-19.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/23 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/23

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Appeal brought on 24 May 2006 by Il Ponte Finanziaria SpA against the judgement of the Court of First Instance (Fourth Chamber) delivered on 23 February 2006 in Case T-194/03 Il Ponte Finanziaria SpA v OHIM and Marine Entreprise Project — Società Unipersonale di Alberto Fiorenzi Srl

(Case C-234/06 P)

(2006/C 178/37)

Language of the case: Italian

Parties

Appellant: Il Ponte Finanziaria SpA (represented by: P. Roncaglia, A. Torrigiani Malaspina, M. Boletto, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Marina Entreprise Project — Società Unipersonale di Alberto Fiorenzi

Form of order sought

| (1) | Set aside the judgement of the Court of First Instance (Fourth Chamber) of 23 February 2003 in Case T-194/03 which dismisses the applicant's action and orders it to pay the costs. |
| --- | --- |

(1)

Set aside the judgement of the Court of First Instance (Fourth Chamber) of 23 February 2003 in Case T-194/03 which dismisses the applicant's action and orders it to pay the costs.

| (2) | Uphold the action brought by the applicant before the Court of First Instance:






  (a) | by annulling the decision of the Fourth Board of Appeal of the OHIM of 17 March 2003 in Case R 1015/2001-4, on the ground that, by dismissing the applicant's action, it allowed the Community trade mark No 940007 BAINBRIDGE (figurative) for products in Classes 18 to 25; |
| --- | --- | --- |

(2)

Uphold the action brought by the applicant before the Court of First Instance:

(a)

by annulling the decision of the Fourth Board of Appeal of the OHIM of 17 March 2003 in Case R 1015/2001-4, on the ground that, by dismissing the applicant's action, it allowed the Community trade mark No 940007 BAINBRIDGE (figurative) for products in Classes 18 to 25;

| (b) | by ordering the OHIM and the intervener to pay the costs of the proceedings at first instance and of the present appeal. |
| --- | --- |

(b)

by ordering the OHIM and the intervener to pay the costs of the proceedings at first instance and of the present appeal.

Pleas in law and main arguments

The applicant submits that the judgement under appeal is vitiated due to:

| (1) | Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 in that there is a risk of confusion between the conflicting trade marks:






  — | the Court erred in considering that there was no minimum degree of similarity between the intervener's trade mark BAINBRIDGE and the applicant's family of trade marks including the term ‘THE BRIDGE’, when it itself recognised that the opposing trade mark BAINBRIDGE has a ‘significant’ phonetic similarity to some of the applicant's trade marks; a similarity which is not outweighed by a conceptual difference between between the opposing trade marks, given that the ‘premiss’ on which the Court based itself, according to which the average Italian consumer has sufficient knowledge of the English language to enable them to understand the meaning of the word ‘BRIDGE’ is clearly wrong; |
| --- | --- | --- |

(1)

Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 in that there is a risk of confusion between the conflicting trade marks:

—

the Court erred in considering that there was no minimum degree of similarity between the intervener's trade mark BAINBRIDGE and the applicant's family of trade marks including the term ‘THE BRIDGE’, when it itself recognised that the opposing trade mark BAINBRIDGE has a ‘significant’ phonetic similarity to some of the applicant's trade marks; a similarity which is not outweighed by a conceptual difference between between the opposing trade marks, given that the ‘premiss’ on which the Court based itself, according to which the average Italian consumer has sufficient knowledge of the English language to enable them to understand the meaning of the word ‘BRIDGE’ is clearly wrong;

| — | if therefore the opposing trade marks have at least a minimum degree of similarity, the identity of the goods and the highly distinctive character of the applicant's trade marks should have led to a finding of a risk of confusion. |
| --- | --- |

—

if therefore the opposing trade marks have at least a minimum degree of similarity, the identity of the goods and the highly distinctive character of the applicant's trade marks should have led to a finding of a risk of confusion.

| (2) | Misapplication of Article 43(2) and (3) of Regulation No 40/94 as the Court did not take into consideration the applicant's word mark No 642952 THE BRIDGE;






  — | as regards the word mark THE BRIDGE, the applicant has provided sufficient proof of use to establish the serious and effective use of the trade mark in question within the meaning of Rule 22(2) of Regulation (EC) No 2868/95; |
| --- | --- | --- |

(2)

Misapplication of Article 43(2) and (3) of Regulation No 40/94 as the Court did not take into consideration the applicant's word mark No 642952 THE BRIDGE;

—

as regards the word mark THE BRIDGE, the applicant has provided sufficient proof of use to establish the serious and effective use of the trade mark in question within the meaning of Rule 22(2) of Regulation (EC) No 2868/95;

| — | the Court misapplied Article 43(2) and (3) of Regulation No 40/94 in so far as it did not consider the suitability of the documents provided by the applicant to prove the use of its trade mark but limited itself to stating that the Board of Appeal was correct to not take such a trade mark into consideration as the applicant did not provide proof of continuous use thereof for all of the five reference years, which is not a legal requirement. |
| --- | --- |

—

the Court misapplied Article 43(2) and (3) of Regulation No 40/94 in so far as it did not consider the suitability of the documents provided by the applicant to prove the use of its trade mark but limited itself to stating that the Board of Appeal was correct to not take such a trade mark into consideration as the applicant did not provide proof of continuous use thereof for all of the five reference years, which is not a legal requirement.

| (3) | Misapplication of Articles 15(2)(a) and 43(2) and (3) of Regulation No 40/94 in that the Court did not take into consideration the applicant's figurative mark No 370836 BRIDGE;






  — | the proof of use produced by the applicant to demonstrate the effective use of the trade mark THE BRIDGE should have been considered sufficient to also demonstrate the use of the trade mark BRIDGE; |
| --- | --- | --- |

(3)

Misapplication of Articles 15(2)(a) and 43(2) and (3) of Regulation No 40/94 in that the Court did not take into consideration the applicant's figurative mark No 370836 BRIDGE;

—

the proof of use produced by the applicant to demonstrate the effective use of the trade mark THE BRIDGE should have been considered sufficient to also demonstrate the use of the trade mark BRIDGE;

| — | in any case, the applicant's figurative mark BRIDGE is to be considered as a ‘defensive’ trade mark for the purposes of the Italian law on trade marks and, as such, is exempt from proof of use; |
| --- | --- |

—

in any case, the applicant's figurative mark BRIDGE is to be considered as a ‘defensive’ trade mark for the purposes of the Italian law on trade marks and, as such, is exempt from proof of use;

| — | the Court erred in accepting the argument put forward for the first time by the OHIM (making it in any case inadmissible) that the concept of defensive trade mark is incompatible with the system of protection of the Community trade mark. In fact, several arguments militate in favour of the compatibility of the ‘defensive’ trade mark with the Community system. |
| --- | --- |

—

the Court erred in accepting the argument put forward for the first time by the OHIM (making it in any case inadmissible) that the concept of defensive trade mark is incompatible with the system of protection of the Community trade mark. In fact, several arguments militate in favour of the compatibility of the ‘defensive’ trade mark with the Community system.

| (4) | Misapplication of Article 8(1)(b) of Regulation No 40/94 in that the fact that the applicant is the proprietor of several trade marks all turning on the word ‘bridge’ (marks in a series) increases the risk of confusion between those trade marks taken as a whole and the trade mark BAINBRIDGE;






  — | the Court, while recognising the fact that the applicant is the proprietor of a ‘family’ of marks in a series turning on the sign ‘Bridge’ was in principle relevant for the purpose of evaluation of the existence of a risk of confusion, in the specific case, omitted to take those trade marks into consideration because they are registered but not used, when in fact the use of those trade marks is not relevant to the fact that they must be considered as a ‘series’. |
| --- | --- | --- |

(4)

Misapplication of Article 8(1)(b) of Regulation No 40/94 in that the fact that the applicant is the proprietor of several trade marks all turning on the word ‘bridge’ (marks in a series) increases the risk of confusion between those trade marks taken as a whole and the trade mark BAINBRIDGE;

—

the Court, while recognising the fact that the applicant is the proprietor of a ‘family’ of marks in a series turning on the sign ‘Bridge’ was in principle relevant for the purpose of evaluation of the existence of a risk of confusion, in the specific case, omitted to take those trade marks into consideration because they are registered but not used, when in fact the use of those trade marks is not relevant to the fact that they must be considered as a ‘series’.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/24 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/24

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Action brought on 29 May 2006 — Commission of the European Communities v Italian Republic

(Case C-239/06)

(2006/C 178/38)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: G. Wilms, C. Cattabriga, L. Visaggio, agents)

Defendant: Italian Republic

Form of order sought

| — | Declare that the Italian Republic, by refusing to calculate and pay the own resources which were improperly not collected as a result of the exemption from import duties unilaterally applied to material used for military purposes and the default interest due by reason of the failure to make those own resources available to the Commission in good time, the Italian Republic has failed to fulfil its obligations under Articles 2, 9, 10 and 11 of Regulation (EEC, Euratom) No 1552/89 and the corresponding provisions of Regulation (EC, Euratom) No 1150/2000. |
| --- | --- |

—

Declare that the Italian Republic, by refusing to calculate and pay the own resources which were improperly not collected as a result of the exemption from import duties unilaterally applied to material used for military purposes and the default interest due by reason of the failure to make those own resources available to the Commission in good time, the Italian Republic has failed to fulfil its obligations under Articles 2, 9, 10 and 11 of Regulation (EEC, Euratom) No 1552/89 and the corresponding provisions of Regulation (EC, Euratom) No 1150/2000.

| — | Order the Italian Republic to pay the costs. |
| --- | --- |

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

In the view of the Commission, the exemption from customs duties unilaterally granted by Italy during the period preceding the application of Council Regulation (EC) No 150/2003 (1) amounted to an unlawful derogation from Article 26 EC and from Community customs legislation, resulting in an unjustifiable reduction in customs revenue, which constitutes the Community's own resources. Despite the applicant's repeated requests, the Italian Government has refused to calculate and pay to the Community the amounts corresponding to the own resources consequently evaded during the period between 1 January 1998 and 31 December 2002, and to pay default interest on the said amounts, as laid down by the legislation in force in this area.

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(1)  OJ L 25, p. 1.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/25 |
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29.7.2006

EN

Official Journal of the European Union

C 178/25

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 29 May 2006 — Fortum Project Finance SA

(Case C-240/06)

(2006/C 178/39)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Fortum Project Finance SA

Question referred

Are Article 56 EC and Article 12(1)(c) of Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital to be interpreted as precluding the charging of transfer tax where securities are transferred, as described above, as a contribution to a share company which gives new shares of its own in return?

---

(1)  OJ, English Special Edition 1969 (II), p. 412.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/25 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/25

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Reference for a preliminary ruling from the Landgericht Koblenz (Germany) lodged on 31 May 2006 — Dynamic Medien Vertriebs GmbH v Avides Media AG

(Case C-244/06)

(2006/C 178/40)

Language of the case: German

Referring court

Landgericht Koblenz

Parties to the main proceedings

Applicant: Dynamic Medien Vertriebs GmbH

Defendant: Avides Media AG

Question referred

Does the principle of the free movement of goods within the meaning of Article 28 EC preclude a provision of German law prohibiting the sale by mail order of image storage media (DVDs, videos) that are not labelled as having been examined in Germany as to their availability to young persons?

In particular:

Does the prohibition of mail order sales of such image storage media constitute a measure having equivalent effect within the meaning of Article 28 EC?

If so:

Is such a prohibition justified under Article 30 EC, having regard to Directive 2000/31/EC, (1) even if the image storage medium has been examined as to its availability to young persons by another Member State of the EU and is labelled accordingly, or does such a check by another Member State of the EU constitute a less severe means for the purposes of that provision?

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(1)  OJ L 178, p. 1.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/26 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/26

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Appeal brought on 1 June 2006 by Saiwa s.p.a. against the judgement of the Court of First Instance (First Chamber) delivered on 5 April 2006 in Case T-344/03 Saiwa s.p.a. v Office for Harmonisation in the Internal Market (OHIM) and Barilla Alimentare s.p.a.

(Case C-245/06 P)

(2006/C 178/41)

Language of the case: Italian

Parties

Appellant: Saiwa s.p.a. (represented by: G. Sena, P. Tarchini, J.-P. Karsenty, M. Karsenty-Ricard, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Barilla Alimentare

Form of order sought

| — | Set aside the judgement under appeal. |
| --- | --- |

—

Set aside the judgement under appeal.

| — | Grant the form of order sought at first instance, and therefore annul, for infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), the decision of the Fourth Board of Appeal of the OHIM of 18 July 2003 in Case R 480/2002-4 and the rejection of the application for registration of Barilla Alimentare s.p.a. No 289.405. |
| --- | --- |

—

Grant the form of order sought at first instance, and therefore annul, for infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), the decision of the Fourth Board of Appeal of the OHIM of 18 July 2003 in Case R 480/2002-4 and the rejection of the application for registration of Barilla Alimentare s.p.a. No 289.405.

| — | Order the OHIM and Barilla Alimentare s.p.a. to pay the costs of all of the proceedings |
| --- | --- |

—

Order the OHIM and Barilla Alimentare s.p.a. to pay the costs of all of the proceedings

Pleas in law and main arguments

The applicant puts forward a single ground for annulment based on infringement of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant claims that the expression ‘ORO’ (of which the trade mark which is the subject of the dispute consists, or which in any case forms part thereof) has inherent distinctive character; that with reference to the international mark (which is also the subject of the present dispute) part of the relevant public is unaware of the meaning of the word ‘ORO’ and that this is common knowledge and does not have to be proved by the parties; that having regard to the principle of interdependence, given the identity of the goods covered and signs in question, it is sufficient that the earlier sign has only weak distinctiveness.

The applicant submits moreover that the distinctive character of the word ‘ORO’ is reinforced and/or acquired through use, with regard to both the trade mark ‘ORO’ and the trade mark ‘ORO SAIWA’.

The applicant finally submits that the trade marks ‘ORO’ and ‘ORO SAIWA’ on the one hand, and ‘Selezione ORO BARILLA’ on the other hand, are likely to be confused and that in any case there is a likelihood of association between them.

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(1)  OJ L 22, p. 50.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/26 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/26

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Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Spain

(Case C-248/06)

(2006/C 178/42)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and L. Escobar Guerrero, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by maintaining in force rules for the deduction of costs in respect of research and development and technological innovation carried out abroad which is more onerous than the rules applicable to costs incurred in Spain, as amended by Article 35 of the Law on corporation tax, approved by Royal Legislative Decree 4/2004 of 5 March, the Kingdom of Spain has failed to fulfil its obligations under Articles 43 and 49 of the EC Treaty on freedom of establishment and freedom to provide services, and the corresponding articles in the Agreement on the European Economic Area; |
| --- | --- |

—

declare that, by maintaining in force rules for the deduction of costs in respect of research and development and technological innovation carried out abroad which is more onerous than the rules applicable to costs incurred in Spain, as amended by Article 35 of the Law on corporation tax, approved by Royal Legislative Decree 4/2004 of 5 March, the Kingdom of Spain has failed to fulfil its obligations under Articles 43 and 49 of the EC Treaty on freedom of establishment and freedom to provide services, and the corresponding articles in the Agreement on the European Economic Area;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Infringement of freedom of establishment (Articles 43 and 48 EC and Article 31 EEA): the territorial restriction, which consists of the fact that only expenses incurred in respect of R& D and IT activities actually carried out in Spain may benefit from the deduction of the corporation tax allowance, is a factor which restricts the freedom of establishment of Spanish companies which invest in R&D and IT outside Spain, benefiting companies making the same investment in Spain, in particular, undertakings which have their main office in another Member State and which operate in Spain via a secondary establishment.

Infringement of the freedom to provide services (Articles 49 EC and 36 EEA): the costs of R&D and IT activities subcontracted outside Spain are not eligible for the deduction of the corporation tax allowance. That limitation constitutes an obstacle to the freedom to provide services, provided for in the EC Treaty.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/27 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/27

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Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Sweden

(Case C-249/06)

(2006/C 178/43)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: C. Tufvesson, B. Martenczuk and H. Stølvbæk, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to take appropriate steps to eliminate the incompatibilities between Sweden's bilateral investment agreement with the Socialist Republic of Vietnam, together with 16 further bilateral investment agreements, and the EC Treaty, the Kingdom of Sweden has failed to fulfil its obligations under the second paragraph of Article 307 EC; |
| --- | --- |

—

Declare that, by failing to take appropriate steps to eliminate the incompatibilities between Sweden's bilateral investment agreement with the Socialist Republic of Vietnam, together with 16 further bilateral investment agreements, and the EC Treaty, the Kingdom of Sweden has failed to fulfil its obligations under the second paragraph of Article 307 EC;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The agreements are incompatible with Community law since they do not permit the application of Community measures based in Articles 57(2) EC, 59 EC and 60 EC. Further, Sweden has not taken steps to rectify the situation. Thus Sweden has failed to fulfil its obligations under the second paragraph of Article 307 EC to take all appropriate steps to eliminate all incompatibilities between the Treaty and the investment agreements.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/27 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/27

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

(Case C-252/06)

(2006/C 178/44)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and N. Yerrell)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2002/92/EC (1) of the European Parliament and of the Council of 9 December 2002 on insurance mediation, or, in any event, by not communicating these provisions to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2002/92/EC (1) of the European Parliament and of the Council of 9 December 2002 on insurance mediation, or, in any event, by not communicating these provisions to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

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

—

Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for implementing the Directive expired on 15 January 2005.

---

(1)  OJ L 9, 2003, p. 3.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/28 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/28

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Action brought on 12 June 2006 — Commission of the European Communities v Kingdom of Spain

(Case C-258/06)

(2006/C 178/45)

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/92/EC (1) of the European Parliament and of the Council of 9 December 2002 on insurance mediation or, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/92/EC (1) of the European Parliament and of the Council of 9 December 2002 on insurance mediation or, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2002/92/EC into Spanish law expired on 15 January 2005.

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(1)  OJ L 9, 2003, p. 3.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/28 |
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Action brought on 14 June 2006 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-259/06)

(2006/C 178/46)

Language of the case: Dutch

Parties

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

Defendant: Kingdom of the Netherlands

Form of order sought

| — | A declaration that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2002/87/EC (1) of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council, or in any event by failing to notify the Commission of those measures, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

—

A declaration that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2002/87/EC (1) of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council, or in any event by failing to notify the Commission of those measures, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

| — | An order requiring the Kingdom of the Netherlands to pay the costs. |
| --- | --- |

—

An order requiring the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be implemented expired on 11 August 2004.

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(1)  OJ L 35, 2003, p. 1.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/28 |
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Order of the President of the Second Chamber of the Court of 23 March 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy)) — Impresa Portuale di Cagliari Srl v Tirrenia di Navigazione SpA

(Case C-174/03) (1)

(2006/C 178/47)

Language of the case: Italian

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

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(1)  OJ C 213, 6.9.2003.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/29 |
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Order of the President of the Fourth Chamber of the Court of 5 April 2006 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — SABA Italia SpA v Comune di Bolzano and SEAB SpA

(Case C-216/04) (1)

(2006/C 178/48)

Language of the case: Italian

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

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(1)  OJ C 190, 24.7.2004.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/29 |
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C 178/29

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Order of the President of the Court of 4 May 2006 (reference for a preliminary ruling from the Tribunale civile di Oristano (Italy)) — Ignazio Medda v Banco di Napoli SpA, Regione autonoma della Sardegna

(Case C-285/04) (1)

(2006/C 178/49)

Language of the case: Italian

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

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(1)  OJ C 217, 28.8.2004.

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Order of the President of the Fourth Chamber of the Court of 18 May 2006 — Commission of the European Communities v Republic of Finland

(Case C-99/05) (1)

(2006/C 178/50)

Language of the case: Finnish

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

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(1)  OJ C 93, 16.4.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/29 |
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Order of the President of the Court of 5 April 2006 (reference for a preliminary ruling from the Consiglio di Stato (Italy)) — Francesco Rauty v Ministero per i Beni Culturali e Ambientali, Soprintendenza B.A.A. di Firenze, Prato e Pistoia; intervener: Consiglio Nazionale degli Ingegneri; and Ordine degli Ingegneri della Provincia di Pistoia v Francesco Rauty and Ministero per i Beni e le Attività Culturali; intervener: Consiglio Nazionale degli Ingegneri

(Case C-271/05) (1)

(2006/C 178/51)

Language of the case: Italian

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

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(1)  OJ C 229, 17.9.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/29 |
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Order of the President of the Court of 5 May 2006 — Commission of the European Communities v Hellenic Republic

(Case C-352/05) (1)

(2006/C 178/52)

Language of the case: Greek

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

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(1)  OJ C 281, 12.11.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/29 |
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Order of the President of the Court of 15 May 2006 — Commission of the European Communities v Hellenic Republic

(Case C-410/05) (1)

(2006/C 178/53)

Language of the case: Greek

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

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(1)  OJ C 36, 11.2.2006.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/30 |
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Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-20/06) (1)

(2006/C 178/54)

Language of the case: French

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

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(1)  OJ C 60, 11.3.2006.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/30 |
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Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-21/06) (1)

(2006/C 178/55)

Language of the case: French

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

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(1)  OJ C 60, 11.3.2006.

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COURT OF FIRST INSTANCE

| 29.7.2006 | EN | Official Journal of the European Union | C 178/31 |
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Judgement of the Court of First Instance of 31 May 2006 — Kuwait Petroleum (Nederland) BV v Commission of the European Communities

(Case T-354/99) (1)

(State aid - Commission notice on the de minimis rule for State aid - Increase in excise duties on fuel - Aid to service stations - Oil companies - Risk of cumulation of aid - Price management system clause - Principle of sound administration)

(2006/C 178/56)

Language of the case: Dutch

Parties

Applicant: Kuwait Petroleum (Nederland) BV (represented by: P. Mathijsen, lawyer)

Defendant: Commission of the European Communities (represented initially by G. Rozet and H. Speyart, and subsequently by G. Rozet and H. van Vliet, acting as Agents)

Intervening party supporting the applicant: Kingdom of the Netherlands, (represented initially by M. Fierstra, and subsequently by H. Sevenster, acting as Agents)

Re:

Application for partial annulment of Commission Decision 1999/705/EC of 20 July 1999 on the State aid implemented by the Netherlands for 633 Dutch service stations located near the German border (OJ 1999 L 280, p. 87)

Operative part of the judgement

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicant to pay its own costs and those of the Commission; |
| --- | --- |

2.

Orders the applicant to pay its own costs and those of the Commission;

| 3. | Orders the Kingdom of the Netherlands to pay its own costs. |
| --- | --- |

3.

Orders the Kingdom of the Netherlands to pay its own costs.

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(1)  OJ C 102, 8.4.2000.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/31 |
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C 178/31

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Judgement of the Court of First Instance of 30 May 2006 — Bank Austria Creditanstalt AG v Commission of the European Communities

(Case T-198/03) (1)

(Competition - Administrative procedure - Publication of a decision finding an infringement of Article 81 EC and imposing fines - Fixing of deposit and borrowing rates by Austrian banks (‘Lombard Club’) - Rejection of a request to omit certain passages)

(2006/C 178/57)

Language of the case: German

Parties

Applicant: Bank Austria Creditanstalt AG, established in Vienna (Austria) (represented by: C. Zschocke and J. Beninca, lawyers)

Defendant: Commission of the European Communities (represented initially by: S. Rating and subsequently by A. Bouquet, acting as Agents, and by D. Waelbroeck and U. Zinsmeister, lawyers)

Re:

Annulment of the decision of the Commission's Hearing Officer of 5 May 2003 to publish the non-confidential version of the Commission decision of 11 June 2002 in Case COMP/36.571/D-1 — Austrian banks (‘Lombard Club’)

Operative part of the judgement

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

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(1)  OJ C 213, 6.9.2003.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/32 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/32

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Judgement of the Court of First Instance of 31 May 2006 — De Waele v OHIM (Shape of sausage)

(Case T-15/05) (1)

(Community trade mark - Three-dimensional mark - Shape of a sausage - Absolute grounds for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2006/C 178/58)

Language of the case: Dutch

Parties

Applicant: Wim De Waele (Bruges, Belgium) (represented by: P. Maeyaert, S. Granata and R. Vermeire, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: W.Verburg, Agent)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 16 November 2004 (Case R 820/2004-1) concerning registration of a three-dimensional mark in the shape of a sausage as a Community trade mark.

Operative part of the judgement

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

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(1)  OJ C 57, 5.3.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/32 |
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C 178/32

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Order of the Court of First Instance of 17 May 2006 — Marcuccio v Commission

(Case T-241/03) (1)

(Officials - Reassignment - Accommodation provided by employer - Decision to remove the applicant's personal effects - Action for annulment - Action for damages - Act adversely affecting an official - Inadmissibility)

(2006/C 178/59)

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: L. Garofalo, lawyer)

Defendant: Commission of the European Communities (represented by: E. de March and C. Berardis-Kayser, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

First, an application for annulment of the note of 15 October 2002 concerning the removal of the applicant's personal effects from his former accommodation provided by his employer in Angola and, second, an application for damages for the harm allegedly caused the applicant by the contents of that note

Operative part of the order

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

1.

The action is dismissed as inadmissible;

| 2. | The applicant is to bear his own costs and pay those of the Commission. |
| --- | --- |

2.

The applicant is to bear his own costs and pay those of the Commission.

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(1)  OJ C 200, 23.8.2003.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/32 |
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29.7.2006

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Official Journal of the European Union

C 178/32

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Order of the Court of First Instance of 11 May 2006 — TeleTech Holdings v OHIM — Teletech International (TELETECH INTERNATIONAL)

(Case T-194/05) (1)

(Community trade mark - Opposition proceedings - Extent of the examination required - Conversion of a Community trade mark application to a national trade mark application - Article 58 of Regulation (EC) No 40/94)

(2006/C 178/60)

Language of the case: English

Parties

Applicant: TeleTech Holdings, Inc. (Denver, Colorado, United States) (represented by: A. Gould and M. Blair, Solicitors)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)

The other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Teletech International SA (Paris, France) (represented by: J.-F. Adelle and F. Zimeray, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 3 March 2005 (R 497/2004-1), relating to opposition proceedings between TeleTech Holdings, Inc. and Teletech International SA

Operative part of the order

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

1.

The action is dismissed.

| 2. | The applicant is ordered to pay the costs, with the exception of those incurred by the intervener. |
| --- | --- |

2.

The applicant is ordered to pay the costs, with the exception of those incurred by the intervener.

| 3. | The intervener shall bear its own costs. |
| --- | --- |

3.

The intervener shall bear its own costs.

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(1)  OJ C 171, 9.7.2005.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/33 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/33

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Action brought on 18 May 2006 — Glaverbel v OHIM (design applied to the surface of goods)

(Case T-141/06)

(2006/C 178/61)

Language of the case: English

Parties

Applicant: Glaverbel SA (Brussels, Belgium) (represented by: S. Möbus, T. Koerl, lawyers)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2006 (Case R 0986/2004-4) in so far as the decision applies to the contested goods; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2006 (Case R 0986/2004-4) in so far as the decision applies to the contested goods; and

| — | hold that, in respect of the contested goods, the evidence of use submitted was sufficient to demonstrate acquired distinctiveness in accordance with Article 7(3) CTMR, and that the Community trade mark application 003183068 has acquired distinctiveness in accordance with Article 7(3) CTMR; |
| --- | --- |

—

hold that, in respect of the contested goods, the evidence of use submitted was sufficient to demonstrate acquired distinctiveness in accordance with Article 7(3) CTMR, and that the Community trade mark application 003183068 has acquired distinctiveness in accordance with Article 7(3) CTMR;

| — | remit Community trade mark application 003183068 to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for acceptance and publication; |
| --- | --- |

—

remit Community trade mark application 003183068 to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for acceptance and publication;

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

—

order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark consisting of a design applied to the surface of goods for goods in classes 19 and 21 (unworked or semi-worked glass, patterned glass, glass sheets, etc.) (Community trade mark application 3 183 068)

Decision of the examiner: Refusal of the Community trade mark application for all the goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant contests the decision of the Board of Appeal only in relation to certain goods in class 21. The applicant invokes in that respect a violation of Article 7(3) of Regulation No 40/94.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/33 |
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29.7.2006

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Official Journal of the European Union

C 178/33

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Action brought on 12 May 2006 — ECZG v Commission

(Case T-142/06)

(2006/C 178/62)

Language of the case: English

Parties

Applicant: Elektrociepłownia Zielona Góra S.A. (Zielona Góra, Poland) (represented by: M. Powell, Solicitor, C. Arhold and K. Struckmann, lawyers)

Defendant: European Commission of the European Communities

Form of order sought

| — | Annul the decision of the European Commission to open the formal investigation procedure in Case State Aid C 43/2005 (ex N 99/2005) — Polish Stranded Costs — of 23 November 2005, or in the alternative, annul the decision as far as the PPA (power purchase agreement) concluded by the applicant is concerned; |
| --- | --- |

—

Annul the decision of the European Commission to open the formal investigation procedure in Case State Aid C 43/2005 (ex N 99/2005) — Polish Stranded Costs — of 23 November 2005, or in the alternative, annul the decision as far as the PPA (power purchase agreement) concluded by the applicant is concerned;

| — | award the applicant the costs of the present action. |
| --- | --- |

—

award the applicant the costs of the present action.

Pleas in law and main arguments

The applicant is a heat and power plant operator located in Poland. In the contested decision, the Commission decided to open a formal investigation procedure into alleged new State aid in the form of power purchase agreements concluded between power generators in Poland and the State owned network operator ‘PSE’ (1).

In support of its application, the applicant argues that the Commission had no jurisdiction to open a formal investigation procedure regarding aid measures granted before the accession of Poland to the European Union, which are not applicable after the date of accession. In doing so, the Commission violated the general legal principles of non-retroactivity and of the protection of legitimate expectations.

Furthermore, the applicant submits that the Commission has committed an error of law and of appreciation in classifying the measure as a new state aid. First, the Commission omitted to assess the measure in the light of the factual and legal circumstances existing at the time the agreements were concluded. Secondly, the Commission inadequately assessed the notion of economic advantage within the meaning of Article 87(1) EC by doing a global examination of all power purchase agreements instead of doing an individual examination. Thirdly, the Commission did not take into account the fact that, at the time the electricity markets of the Member States were opened to competition, the agreement concluded by the applicant could not distort competition in the common market as Poland was not yet a Member State. Finally, the applicant submits that the aid constitutes not new state aid, but existing aid according to both the Accession Treaty and the case law, by virtue of which aid already in application in a market closed to competition until its liberalisation is to be regarded as existing aid from the time of liberalisation. The applicant further states that the Commission did not examine whether the agreement in question was still in force after the Polish accession.

Finally, the applicant submits that the contested decision is inadequately reasoned and infringes Article 253 EC.

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(1)  State aid — Poland — State aid No C 43/2005 (ex N 99/2005) — Polish Stranded Costs — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (OJ C 52, 2006, p. 8).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/34 |
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29.7.2006

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Official Journal of the European Union

C 178/34

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Action brought on 19 May 2006 — MTZ Polyfilms v Council

(Case T-143/06)

(2006/C 178/63)

Language of the case: English

Parties

Applicant: MTZ Polyfilms Ltd. (Mumbai, India) (represented by: P. De Baere, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EC) No 366/2006 of 27 February 2006 imposing a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating, inter alia, in India; |
| --- | --- |

—

Annul Council Regulation (EC) No 366/2006 of 27 February 2006 imposing a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating, inter alia, in India;

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

—

order the Council to bear the costs of proceedings.

Pleas in law and main arguments

The applicant produces and exports polyethylene terephthalate film to the European Community.

In support of its application, it first claims that the contested regulation violates Article 2(8) and 2(9) of the basic regulation (1). The applicant contests that the contested regulation constructs the applicant's export price to the Community on the basis of its export prices to third countries, because the actual export prices to the Community are allegedly unreliable due to the existence of minimum import prices.

According to the applicant, its export prices are not unreliable in the meaning of Article 2(9) of the basic regulation. Furthermore, the applicant claims that the methodology used is incompatible with the basic regulation which spells out the methodologies that can be used for determining an export price. The applicant submits that Articles 2(8) and 2(9) of the basic regulation apply equally to review investigations, such as the contested proceedings, regardless of whether there were undertakings in place.

Second, the applicant invokes a breach of the agreement on implementation of Article VI of GATT 1994 (2). According to the applicant, its export price is not unreliable in the meaning of Articles 2.1 and 2.3 of that agreement. In addition, the applicant submits that the methodology used is incompatible with Articles 2.1, 2.3 and 11 of the agreement. The applicant submits finally that Articles 2.1 and 2.3 of the agreement apply equally to reviews carried out pursuant to Article 11 of the agreement, such as the partial interim review at hand.

Finally, the applicant invokes a lack of legal basis for the methodology applied to determine the applicant's export price to the Community and a breach of the principle of legal certainty by making it impossible for exporting producers to determine their behaviour in the context of a price undertaking.

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(1)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ L 56, 1996, p. 1).

(2)  Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (WTO-GATT 1994) - anti-dumping agreement (OJ L 336, 1994, p. 103).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/35 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/35

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Action brought on 19 May 2006 — En Route International Limited v OHIM

(Case T-147/06)

(2006/C 178/64)

Language of the case: German

Parties

Applicant: En Route International Limited (Berkshire, United Kingdom) (represented by: W. W. Göpfert, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of 7 March 2006 in Case R 352/2005-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of 7 March 2006 in Case R 352/2005-4;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark 'FRESHHH' for goods in Classes 29, 30 and 32 (Application No 3 198 165).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: The mark applied for is registrable; no grounds for refusal under Article 7(1)(b) and (c) or Article 7(2) of Regulation (EC) No 40/94 (1) stand in the way of its registration.

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

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/35 |
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29.7.2006

EN

Official Journal of the European Union

C 178/35

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Action brought on 17 May 2006 — Castellani v OHIM — Markant Handels und Service (CASTELLANI)

(Case T-149/06)

(2006/C 178/65)

Language in which the application was lodged: English

Parties

Applicant: Castellani SpA (Pontedera, Italy) (represented by: A. Di Maso, M. R. Di Maso, lawyers)

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

Other party to the proceedings before the Board of Appeal: Markant Handels und Service GmbH (Offemburg, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 February 2006 in Case R 449/2005-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 February 2006 in Case R 449/2005-1;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘CASTELLANI’ for goods in class 33 (alcoholic beverages except beer, liqueur, sparkling wine and Champagne) — application No 2 387 272

Proprietor of the mark or sign cited in the opposition proceedings: MARKANT Handels- und Service GmbH

Mark or sign cited: The national word marks ‘CASTELLUM’ for goods in class 33 (wines, with the exception of sparkling wine) and ‘CASTELLUCA’ for goods in class 33 (wines)

Decision of the Opposition Division: Rejection of the opposition in its entirety

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the application

Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as the conflicting marks are different and the applicant's mark can not cause confusion for German consumers.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/36 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/36

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Action brought on 9 June 2006 — Aluminium Silicon Mill Products v Commission

(Case T-151/06)

(2006/C 178/66)

Language of the case: English

Parties

Applicant: Aluminium Silicon Mill Products GmbH (Zug, Switzerland) (represented by: L. Ruessmann, A. Willems, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare the action admissible; |
| --- | --- |

—

Declare the action admissible;

| — | declare the contested decision invalid to the extent the Commission did not treat sales via ASMP consistently with the treatment of those sales in the initial anti-dumping investigation of silicon from Russia, and order the European Commission to recalculate the dumping margin (and thus the amount to be refunded) accordingly; |
| --- | --- |

—

declare the contested decision invalid to the extent the Commission did not treat sales via ASMP consistently with the treatment of those sales in the initial anti-dumping investigation of silicon from Russia, and order the European Commission to recalculate the dumping margin (and thus the amount to be refunded) accordingly;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

Council Regulation (EC) No 2229/2003 (1) imposed an anti-dumping duty on imports of silicon to the Community from two Russian exporting producers, related to the applicant: Sual-Kremny-Urals LLC and ZAO Kremny. Because the applicant believed that the dumping margin on the basis of which anti-dumping duties were paid had been eliminated, it lodged three requests for reimbursement of the duties with regard to subsequent imports.

In the contested decision, the requests were partially granted. The applicant seeks the annulment of the decision to the extent it reflects adjustment made without justification, with the result that the calculated dumping margin is more than de minimis, and does not authorize the national customs authorities to grant the full reimbursement requested of anti-dumping duties paid by the applicant on imports of silicon originating in Russia.

In support of its application, the applicant invokes, first, a manifest error of assessment and a breach of Council Regulation No 384/96 (2) (the Basic Regulation), in particular Article 11(9), as well as a violation of the principle of legal certainty. According to the applicant, the Commission erred in finding that there were changed circumstances requiring it to depart from the methodology relied on in the original investigation in relation to sales made via the applicant.

Second, the applicant invokes a manifest error of assessment and a breach of Article 253 EC with regard to the assessment of the existence of a single economic entity as between the applicant and the Russian factories and the adjustment for an agent`s commission.

Third, the applicant invokes a breach of the Basic Regulation as regards the deduction of an agent's commission, and in particular Article 2(10)(i) of the Basic Regulation as last modified by Regulation No 2238/2000 (3). According to the applicant, Article 2(10)(i), as modified by Regulation No 1972/2002 (4), is not applicable since the refund procedure at hand would concern the continuation of the original procedure. In the alternative, the applicant submits that the Commission infringed Article 2(10)(i) of the Basic Regulation as modified by Regulation No 1972/2002.

---

(1)  Council Regulation (EC) No 2229/2003 of 22 December 2003 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of silicon originating Russia (OJ L 339, p. 3).

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

(3)  Council Regulation (EC) No 2238/2000 of 9 October 2000 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community (OJ L 257, p. 2).

(4)  Council Regulation (EC) No 1972/2002 of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community (OJ L 305, p. 1).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/37 |
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29.7.2006

EN

Official Journal of the European Union

C 178/37

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Action brought on 6 June 2006 — NDSHT Nya Destination Stockholm Hotell & Teaterpaket v Commission

(Case T-152/06)

(2006/C 178/67)

Language of the case: English

Parties

Applicant: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB (Stockholm, Sweden) (represented by: M. Merola and L. Armati, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare the action admissible; |
| --- | --- |

—

Declare the action admissible;

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | order the Commission to open a formal investigation procedure under Article 88(2) EC; |
| --- | --- |

—

order the Commission to open a formal investigation procedure under Article 88(2) EC;

| — | order the Commission to pay the costs incurred by the applicant. |
| --- | --- |

—

order the Commission to pay the costs incurred by the applicant.

Pleas in law and main arguments

The applicant contests the decision of the Commission not to pursue its investigation of the applicant's complaint relating to three kinds of subsidies to Stockholm Visitors Board AB (‘SVB’), namely: the yearly appropriations from the City of Stockholm's budget in favour of SVB, the reimbursement on a regular basis of SVB's pre-tax losses by its parent company and the preferential access to public assets for the provision of services included in the Stockholm Card. The Commission found that the measures did not constitute unlawful aid.

The applicant submits that, by adopting the contested decision, the Commission has infringed several provisions in the Treaty and Regulation No 659/1999 (1).

The applicant invokes, first, that, by not opening the formal investigation procedure, the Commission infringed Article 88(3) EC as well as Article 4 of Regulation No 659/1999. According to the applicant, the Commission was aware of the existence of aid and did not have sufficient elements to establish that all measures at stake qualified as existing aid.

Second, the applicant submits that the Commission misapplied Articles 87 and 86(2) EC insofar as it stated that the compensation for carrying out the tourist information activities fell within the rules on services of general economic interest.

Third, the applicant submits that the Commission misapplied Articles 87 and 88 EC, as well as Article 1(b) of Regulation No 659/1999, in stating that, if the compensation for tourist information activities was to be considered as aid, it constituted existing aid and not unlawful aid, and in any case was compatible with the common market.

Fourth, the applicant claims that the Commission erred in the application of Article 87(1) and 88(3) EC in establishing that SVB's commercial activities were carried out under market conditions and were, therefore, not financed from state aid. The applicant submits in particular that the Commission failed to take a position in relation to the reimbursement of SVB's losses by its parent company, wholly owned by the City Council.

Finally, the applicant invokes an infringement of the duty to state reasons, as well as an infringement of the general principle of sound administration in that the duration of the preliminary investigation would have been excessive.

---

(1)  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 L 83, p. 1).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/38 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/38

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Action brought on 13 June 2006 — European Association of Euro-Pharmaceutical Companies v Commission

(Case T-153/06)

(2006/C 178/68)

Language of the case: English

Parties

Applicant: European Association of Euro-Pharmaceutical Companies (Brussels, Belgium) (represented by: W. Rehmann, M. Hartmann-Rüppel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare the application for annulment admissible; |
| --- | --- |

—

Declare the application for annulment admissible;

| — | annul Commission Decision D/201953, dated 10 April 2006, rejecting three complaints of EAEPC against GlaxoSmithKline for infringement of Article 82 EC; |
| --- | --- |

—

annul Commission Decision D/201953, dated 10 April 2006, rejecting three complaints of EAEPC against GlaxoSmithKline for infringement of Article 82 EC;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of the Commission's decision in cases COMP/38.181, 38.274 and 38.275 — EAEPC/Glaxo Greece (Imigran, Lamictal, Severent) relating to three complaints of the applicant arguing that the Greek subsidiary of GlaxoSmithKline would infringe Article 82 EC by refusing to supply the three products Imigran, Lamictal and Severent to Greek pharmaceutical wholesalers and therewith limiting parallel trade. The contested decision informs the complainant that the Greek Competition Authority is dealing with the case and rejects the complaints pursuant to Article 13 of Council Regulation No 1/2003 (1).

In support of its application, the applicant submits that the Commission has infringed the obligation to give a sufficient statement of reasons. According to the applicant, a mere reference to the wording of Article 13 of Regulation No 1/2003 is not sufficient to allow the complainant to assess whether the Commission has taken into account all facts and circumstances and the judiciary to exercise its power of review.

The applicant furthermore submits that the Commission has infringed Article 211 and 85 EC and Regulation No 1/2003 by not taking back the responsibility of a case from the Greek Competition Authority under Article 11(6) of Regulation 1/2003. According to the applicant, the Commission failed to take into account that the national procedure takes too long to achieve a sufficient result, that the complaints raised new and fundamental questions of EC competition law and addressed problems that exist in more than one Member State, and that the Commission has to assure the efficient enforcement of EC competition law.

---

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

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/38 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/38

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Action brought on 5 June 2006 — Italian Republic v Commission of the European Communities

(Case T-154/06)

(2006/C 178/69)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

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

—

Annul the contested decision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The present action is brought against Commission Decision C(2006)1171 of 23 March 2006 concerning a reduction in assistance from the European Social Fund (ESF) granted by Decision C(95) 2194 of 28 September 1995, subsequently amended by Decision C(2000) 2862 of 26 January 2001, for an operational programme in the Region of Sicily forming part of the Community support framework for structural assistance under Objective 1 in Italy for the period 1994 to 1999. In that decision, the defendant decided to reduce the financing of that programme by approximately EUR 115 million because the national authorities had failed to provide adequate clarification on certain aspects of their request for final payment.

In support of its claims, the applicant submits:

| — | Infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, (1) on the basis that the Commission did not reduce the funding following a ‘suitable examination of the case’, as required under that provision. It merely adopted the conclusions of an internal control body in the Sicilian regional administration, which had raised doubts as to whether certain projects were being properly managed. |
| --- | --- |

—

Infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, (1) on the basis that the Commission did not reduce the funding following a ‘suitable examination of the case’, as required under that provision. It merely adopted the conclusions of an internal control body in the Sicilian regional administration, which had raised doubts as to whether certain projects were being properly managed.

| — | Infringement of the same provision of the abovementioned regulation in that the defendant based its decision merely on the fact that the national authorities did not deal with its requests for observations in detail and did not ascertain whether there were in fact any actual irregularities. |
| --- | --- |

—

Infringement of the same provision of the abovementioned regulation in that the defendant based its decision merely on the fact that the national authorities did not deal with its requests for observations in detail and did not ascertain whether there were in fact any actual irregularities.

| — | Infringement of Articles 23 and 24 of the abovementioned Regulation No 4253/88 and Article 8 of Commission Regulation (EC) No 2064/97 of 15 October 1997 establishing detailed arrangements for the implementation of Council Regulation (EEC) No 4253/88 as regards the financial control by Member States of operations co-financed by the Structural Funds. (2) The applicant submits that, in essence, the Commission adopted the conclusions set out by the national internal control body in the statement required under Article 8 of Regulation No 2064/97, even though that statement was merely an indicatory summary. The Commission should, instead, have carried out its own independent inquiries. |
| --- | --- |

—

Infringement of Articles 23 and 24 of the abovementioned Regulation No 4253/88 and Article 8 of Commission Regulation (EC) No 2064/97 of 15 October 1997 establishing detailed arrangements for the implementation of Council Regulation (EEC) No 4253/88 as regards the financial control by Member States of operations co-financed by the Structural Funds. (2) The applicant submits that, in essence, the Commission adopted the conclusions set out by the national internal control body in the statement required under Article 8 of Regulation No 2064/97, even though that statement was merely an indicatory summary. The Commission should, instead, have carried out its own independent inquiries.

| — | Infringement of essential procedural requirements in that, firstly, the defendant did not allow the national authorities sufficient time to carry out an adequate examination of the documentation and, secondly, the contested decision was based on only some of the documents produced by the national authorities in the course of that procedure and disregarded the most relevant of those documents. |
| --- | --- |

—

Infringement of essential procedural requirements in that, firstly, the defendant did not allow the national authorities sufficient time to carry out an adequate examination of the documentation and, secondly, the contested decision was based on only some of the documents produced by the national authorities in the course of that procedure and disregarded the most relevant of those documents.

---

(1)  OJ L 374, 31.12.1998, p. 1.

(2)  OJ L 290, 23.10.1997, p. 1.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/39 |
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29.7.2006

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Official Journal of the European Union

C 178/39

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Action brought on 5 June 2006 — Regione Siciliana v Commission of the European Communities

(Case T-156/06)

(2006/C 178/70)

Language of the case: Italian

Parties

Applicant: Regione Siciliana (represented by: P. Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

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

—

Annul the contested decision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The present action is brought against Commission Decision C(2006)1171 of 23 March 2006 concerning a reduction in assistance from the European Social Fund (ESF) granted by Decision C(95) 2194 of 28 September 1995, subsequently amended by Decision C(2000) 2862 of 26 January 2001, for an operational programme in the Region of Sicily forming part of the Community support framework for structural assistance under Objective 1 in Italy for the period 1994 to 1999. This matter is also the subject of a challenge in Case T-154/06 Italy v Commission. (1)

The pleas in law and main arguments are similar to those relied on in that case.

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(1)  Not yet published in the OJ.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/40 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/40

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Order of the Court of First Instance of 31 May 2006 — Banca Monte dei Paschi di Siena v Commission

(Case T -42/02) (1)

(2006/C 178/71)

Language of the case: Italian

The President of the Fourth Chamber (Extended Composition) has ordered that the case be removed from the register.

---

(1)  OJ C 109, 4.5.2002.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/40 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/40

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Order of the Court of First Instance of 31 May 2006 — Compagnia di San Paolo v Commission

(Case T -121/02) (1)

(2006/C 178/72)

Language of the case: Italian

The President of the Fourth Chamber (Extended Composition) has ordered that the case be removed from the register.

---

(1)  OJ C 144, 15.6.2000.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/40 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/40

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Order of the Court of First Instance of 1 June 2006 — Port Support Customs Rotterdam v Commission

(Case T -319/04) (1)

(2006/C 178/73)

Language of the case: Dutch

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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| 29.7.2006 | EN | Official Journal of the European Union | C 178/40 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/40

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Order of the Court of First Instance of 13 June 2006 — Deutsche Telekom v OHIM (Telekom Global Net)

(Case T -72/05) (1)

(2006/C 178/74)

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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| 29.7.2006 | EN | Official Journal of the European Union | C 178/40 |
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29.7.2006

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Official Journal of the European Union

C 178/40

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Order of the Court of First Instance of 31 May 2006 — Stradeblu v Commission

(Case T -179/05) (1)

(2006/C 178/75)

Language of the case: Italian

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

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(1)  OJ C 155, 25.6.2005.

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EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 29.7.2006 | EN | Official Journal of the European Union | C 178/41 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/41

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Judgement of the Civil Service Tribunal of 15 June 2006 (Second Chamber) — Mc Sweeny and Armstrong v Commission

(Case F-25/05) (1)

(Open competition - Competition notice - Guide for candidates - Non-admission to the tests - Diplomas required - Power of the Appointing Authority)

(2006/C 178/76)

Language of the case: French

Parties

Applicants: Dypna Mc Sweeny (Brussels, Belgium) and Pauline Armstrong (Overijse, Belgium) (represented by: S. Orlandi, X. Martin, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe and K. Hermann, Agents)

Re:

Annulment of the decisions of the selection board of 6 and 7 September 2004 not to admit the applicants to the EPSO/C/11/03 competition tests (OJ 2003 C 267 A, p. 1.), organised for the purposes of drawing up a reserve list of English-language secretaries (C 5/ C4).

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decisions of the selection board of 6 and 7 September 2004 not to admit the applicants to the tests for Competition EPSO/C/11/03. |
| --- | --- |

1.

Annuls the decisions of the selection board of 6 and 7 September 2004 not to admit the applicants to the tests for Competition EPSO/C/11/03.

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 182, of 23.7.2005 (case initially registered before the Court of First Instance of the European Communities under number T-184/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/41 |
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29.7.2006

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Official Journal of the European Union

C 178/41

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Order of the Civil Service Tribunal (First Chamber) of 14 June 2006 — Lebedef and Others v Commission

(Case F-34/05) (1)

(Work environment - Language of computer tools made available to Commission staff - Inadmissibility - Legal interest in bringing proceedings - Act adversely affecting an official - Internal organisation measures)

(2006/C 178/77)

Language of the case: French

Parties

Applicants: Giorgio Lebedef (Luxembourg, Luxembourg), Armand Imbert (Brussels, Belgium), Jean-Marie Rousseau (Brussels, Belgium) and Maria Rosario Domenech Cobo (Brussels, Belgium) (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant: Commission of the European Communities (represented by: V. Joris and P. Costa de Oliveira, Agents)

Re:

Annulment of the decision of the Commission of the European Communities rejecting the applicants' request to have computer tools made available to them in their mother tongue or in another official language of the European Union of their choice and not only in English.

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible.

| 2. | Each of the parties shall bear its own costs. |
| --- | --- |

2.

Each of the parties shall bear its own costs.

---

(1)  OJ C 193 of 6.8.2005 (Case initially registered before the Court of First Instance of the European Communities under number T-204/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/42 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/42

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Action brought on 12 May 2006 — Hinderyckx v Council

(Case F-57/06)

(2006/C 178/78)

Language of the case: French

Parties

Applicant: Jacques Hinderyckx (Brussels, Belgium) (represented by: J.A. Martin, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul the decision not to promote the applicant to grade B*8 in the 2005 promotions procedure; |
| --- | --- |

—

Annul the decision not to promote the applicant to grade B*8 in the 2005 promotions procedure;

| — | Promote the applicant to grade B*8; |
| --- | --- |

—

Promote the applicant to grade B*8;

| — | Order the defendant to pay to the applicant EUR 2 400 in compensation for all damage suffered; |
| --- | --- |

—

Order the defendant to pay to the applicant EUR 2 400 in compensation for all damage suffered;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who entered into the service of the European Parliament on 1 April 1994, was transferred to the General Secretariat of the Council on 16 July 2004, as a grade B*7 official. In his application, he disputes the Appointing Authority's decision not to promote him to grade B*8 in the 2005 promotions procedure.

The applicant raises two pleas, the first of which is based on the combination of his length of service in the grade and the excellence of his services to the European Parliament.

In relation to his second plea, the applicant claims that the Appointing Authority should have explained how the procedure used by the Consultative Commission on Promotions (CCP) took into account the differences between the structures of the standard Staff Reports of the European Parliament and the Council. The applicant further maintains that in order to ensure equal opportunity between candidates coming from different institutions, the Council should have provided itself with precise rules, in compliance with the Staff Regulations and capable of guaranteeing equal treatment in the comparative assessment of the merits. The absence of such rules has led the Council to adopt decisions of a discretionary nature.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/42 |
| --- | --- | --- | --- |

29.7.2006

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Official Journal of the European Union

C 178/42

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Action brought on 5 May 2006 — Mascheroni v Commission

(Case F-63/06)

(2006/C 178/79)

Language of the case: Italian

Parties

Applicant: Luigi Mascheroni (Vergiate, Italy) (represented by: A. Vianello and G. Orelli, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Find and declare that the conduct of the applicant's hierarchical superior is unlawful. |
| --- | --- |

—

Find and declare that the conduct of the applicant's hierarchical superior is unlawful.

| — | Find and declare that such conduct is harmful and that the applicant suffered serious harm as a result thereof. |
| --- | --- |

—

Find and declare that such conduct is harmful and that the applicant suffered serious harm as a result thereof.

| — | Declare that the applicant is entitled to be assisted by the Community in the proceedings that he intends to bring before the national court in respect of the harm suffered. |
| --- | --- |

—

Declare that the applicant is entitled to be assisted by the Community in the proceedings that he intends to bring before the national court in respect of the harm suffered.

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

—

Order the defendant to pay the costs

Pleas in law and main arguments

In support of his action, the applicant claims that the conduct of his hierarchical superior was assessed by the appointing authority on the basis of unsubstantiated claims. The appointing authority moreover infringed various principles of law, such as the principles of non-discrimination, proportionality, non-abuse of powers, impartiality, objectivity, coherence, fairness and reasonableness.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/43 |
| --- | --- | --- | --- |

29.7.2006

EN

Official Journal of the European Union

C 178/43

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Action brought on 16 June 2006 — Kyriazi v Commission

(Case F-66/06)

(2006/C 178/80)

Language of the case: French

Parties

Applicant: Kalliopi Kyriazi (Clabecq, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of 12 September 2005 to appoint the applicant as a probationary official with classification in Grade C*1, step 2, and all consecutive and/or related measures such as the decision to cancel her secretarial allowance and not to restore it following her appointment as an established official; |
| --- | --- |

—

Annul the decision of 12 September 2005 to appoint the applicant as a probationary official with classification in Grade C*1, step 2, and all consecutive and/or related measures such as the decision to cancel her secretarial allowance and not to restore it following her appointment as an established official;

| — | Annul the Appointing Authority's decision of 6 March 2006 rejecting the applicant's complaint seeking annulment of the above decision; |
| --- | --- |

—

Annul the Appointing Authority's decision of 6 March 2006 rejecting the applicant's complaint seeking annulment of the above decision;

| — | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments

The applicant, a successful candidate in the internal competition for change of category COM/PC/04, was a member of the Commission's temporary staff in Grade C*2 (former grade C5) at the time of her inclusion on the list of suitable candidates of that competition and until 31 July 2004. Subsequently, she worked as a temporary employee at the same institution until 1 November 2004, the date on which she was again recruited as a member of the temporary staff and classified in Grade C*1, without the benefit of the secretarial allowance which she had received under the previous contract. On 16 April 2005, she was appointed as a probationary official, with that same classification.

In support of her action, the applicant claims that the administration has infringed Article 31(1) and the second paragraph of Article 25 of the Staff Regulations and Articles 5 and 18 of Annex XIII thereto. She also alleges infringement of essential procedural requirements and the provisions of the competition notice and disregard of a number of general principles of law, in particular the principle of the protection of legitimate expectations, the principle of legal certainty, the principle of sound administration and the principle of equal treatment.

The applicant considers further that Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1) is unlawful as to the part which inserts Article 5(4) of Annex XIII to the Staff Regulations, in so far as the Appointing Authority construes that provision as allowing it to classify the applicant in Grade C*1, step 2, in breach of the requirements laid down by Article 31 of the Staff Regulations and a number of principles of law.

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(1)  OJ L 124, 27.4.2004, p. 1.

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/43 |
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C 178/43

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Action brought on 16 June 2006 — Lesniak v Commission

(Case F-67/06)

(2006/C 178/81)

Language of the case: French

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | declare that Article 12 of Annex XIII to the Staff Regulations is unlawful; |
| --- | --- |

—

declare that Article 12 of Annex XIII to the Staff Regulations is unlawful;

| — | annul the decision of 8 August 2005 appointing the applicant as an official of the European Communities, inasmuch as it fixes his classification at Grade A*6, step 2, and the taking effect of his seniority in step at 1 September 2005; |
| --- | --- |

—

annul the decision of 8 August 2005 appointing the applicant as an official of the European Communities, inasmuch as it fixes his classification at Grade A*6, step 2, and the taking effect of his seniority in step at 1 September 2005;

| — | order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments

As a successful candidate in competition PE/99/A, the notice of which had been published under the former Staff Regulations, the applicant, at the time a member of the temporary staff in Grade A6 (now A*10), was recruited as an official after the entry into force of the new Staff Regulations and classified in Grade A*6.

In addition to raising pleas very similar to those raised in Case F-12/06 (1), the applicant maintains that the Commission should have awarded him the same classification which he enjoyed as a member of the temporary staff in accordance with Article 5(4) of Annex XIII to the Staff Regulations. According to the applicant, that provision should also apply to successful candidates in open competitions.

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(1)  OJ C 86, 8.4.2006, p. 48.

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III Notices

| 29.7.2006 | EN | Official Journal of the European Union | C 178/45 |
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29.7.2006

EN

Official Journal of the European Union

C 178/45

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(2006/C 178/82)

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

OJ C 165, 15.7.2006.

Past publications

OJ C 154, 1.7.2006.

OJ C 143, 17.6.2006.

OJ C 131, 3.6.2006.

OJ C 121, 20.5.2006.

OJ C 108, 6.5.2006.

OJ C 96, 22.4.2006.

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 |
| --- | --- |

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

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