# Official Journal C 168/26 J

| | ISSN 1725-2423 |
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| Official Journal
  of the European Union | C 168 |
| | |
| English edition | Information and Notices | Volume 4726 June 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 168

English edition

Information and Notices

Volume 4726 June 2004

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 168/1 | Case C-138/04: Action brought on 15 March 2004 against the Kingdom of Denmark by the Commission of the European Communities | 1 |
| 2004/C 168/2 | Case C-179/04: Action brought on 16 April 2004 by the Commission of the European Communities against the Hellenic Republic | 2 |
| 2004/C 168/3 | Case C-181/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by judgment of that court of 3 March 2004 in the case of Elmeka N.E. against the Minister for Economic Affairs | 2 |
| 2004/C 168/4 | Case C-188/04: Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic | 2 |
| 2004/C 168/5 | Case C-196/04: Reference for a preliminary ruling by the Special Commissioners by order of that court dated 29 April 2004, in the case of Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd against the Commissioners of Inland Revenue | 3 |
| 2004/C 168/6 | Case C-197/04: Action brought on 30 April 2004 by the Commission of the European Communities against the Federal Republic of Germany | 3 |
| 2004/C 168/7 | Case C-198/04: Action brought on 4 May 2004 by the Commission of the European Communities against the French Republic | 4 |
| 2004/C 168/8 | Case C-205/04: Action brought on 7 May 2004 by Commission of the European Communities against Kingdom of Spain | 4 |
| | COURT OF FIRST INSTANCE |
| 2004/C 168/9 | Assignment of Judges to Chambers and composition of the Grand Chamber | 5 |
| 2004/C 168/0 | Case T-123/04: Action brought on 31 March 2004 by Cargo Partner AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 6 |
| 2004/C 168/1 | Case T-129/04: Action brought on 1 April 2004 by Develey Holding GmbH & Co. Beteiligungs KG against the Office for Harmonisation in the Internal Market | 6 |
| 2004/C 168/2 | Case T-132/04: Action brought on 2 April 2004 by André Bonnet against Court of Justice of the European Communities | 7 |
| 2004/C 168/3 | Case T-139/04: Action brought on 8 April 2004 by Kelvin William Stephens against the Commission of the European Communities | 7 |
| 2004/C 168/4 | Case T-142/04: Action brought on 14 April 2004 by Cargill B.V. against the Commission of the European Communities | 8 |
| 2004/C 168/5 | Case T-144/04: Action brought on 13 April 2004 by Télévision Française 1 SA against the Commission of the European Communities | 8 |
| 2004/C 168/6 | Case T-146/04: Action brought on 20 April 2004 by Koldo Gorostiaga Atxalandabaso against the European Parliament | 9 |
| 2004/C 168/7 | Case T-147/04: Action brought on 23 April 2004 by Brian M. Ross against the Commission of the European Communities | 9 |
| 2004/C 168/8 | Case T-149/04: Action brought on 26 April 2004 by Imre Czigany, Isabel Alves, Georgette Henningsen and Michel Lucas against Commission of the European Communities | 10 |
| 2004/C 168/9 | Case T-151/04: Action brought on 16 April 2004 by Bernard Nonat against Commission of the European Communities | 10 |
| 2004/C 168/0 | Case T-153/04: Action brought on 23 April 2004 by Ferriere Nord SpA against the Commission of the European Communities | 11 |
| 2004/C 168/1 | Case T-154/04: Action brought on 22 April 2004 by Daniel Bauwens against Commission of the European Communities | 11 |
| 2004/C 168/2 | Case T-157/04: Action brought on 22 April 2004 by Joël De Bry against Commission of the European Communities | 12 |
| 2004/C 168/3 | Case T-160/04: Action brought on 26 April 2004 by Gerasimos Potamianos against Commission of the European Communities | 12 |
| 2004/C 168/4 | Case T-161/04: Action brought on 26 April 2004 by Gregorio Valero Jordana against Commission of the European Communities | 12 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 168/1

Case C-138/04: Action brought on 15 March 2004 against the Kingdom of Denmark by the Commission of the European Communities

1

2004/C 168/2

Case C-179/04: Action brought on 16 April 2004 by the Commission of the European Communities against the Hellenic Republic

2

2004/C 168/3

Case C-181/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by judgment of that court of 3 March 2004 in the case of Elmeka N.E. against the Minister for Economic Affairs

2

2004/C 168/4

Case C-188/04: Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic

2

2004/C 168/5

Case C-196/04: Reference for a preliminary ruling by the Special Commissioners by order of that court dated 29 April 2004, in the case of Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd against the Commissioners of Inland Revenue

3

2004/C 168/6

Case C-197/04: Action brought on 30 April 2004 by the Commission of the European Communities against the Federal Republic of Germany

3

2004/C 168/7

Case C-198/04: Action brought on 4 May 2004 by the Commission of the European Communities against the French Republic

4

2004/C 168/8

Case C-205/04: Action brought on 7 May 2004 by Commission of the European Communities against Kingdom of Spain

4

COURT OF FIRST INSTANCE

2004/C 168/9

Assignment of Judges to Chambers and composition of the Grand Chamber

5

2004/C 168/0

Case T-123/04: Action brought on 31 March 2004 by Cargo Partner AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

6

2004/C 168/1

Case T-129/04: Action brought on 1 April 2004 by Develey Holding GmbH & Co. Beteiligungs KG against the Office for Harmonisation in the Internal Market

6

2004/C 168/2

Case T-132/04: Action brought on 2 April 2004 by André Bonnet against Court of Justice of the European Communities

7

2004/C 168/3

Case T-139/04: Action brought on 8 April 2004 by Kelvin William Stephens against the Commission of the European Communities

7

2004/C 168/4

Case T-142/04: Action brought on 14 April 2004 by Cargill B.V. against the Commission of the European Communities

8

2004/C 168/5

Case T-144/04: Action brought on 13 April 2004 by Télévision Française 1 SA against the Commission of the European Communities

8

2004/C 168/6

Case T-146/04: Action brought on 20 April 2004 by Koldo Gorostiaga Atxalandabaso against the European Parliament

9

2004/C 168/7

Case T-147/04: Action brought on 23 April 2004 by Brian M. Ross against the Commission of the European Communities

9

2004/C 168/8

Case T-149/04: Action brought on 26 April 2004 by Imre Czigany, Isabel Alves, Georgette Henningsen and Michel Lucas against Commission of the European Communities

10

2004/C 168/9

Case T-151/04: Action brought on 16 April 2004 by Bernard Nonat against Commission of the European Communities

10

2004/C 168/0

Case T-153/04: Action brought on 23 April 2004 by Ferriere Nord SpA against the Commission of the European Communities

11

2004/C 168/1

Case T-154/04: Action brought on 22 April 2004 by Daniel Bauwens against Commission of the European Communities

11

2004/C 168/2

Case T-157/04: Action brought on 22 April 2004 by Joël De Bry against Commission of the European Communities

12

2004/C 168/3

Case T-160/04: Action brought on 26 April 2004 by Gerasimos Potamianos against Commission of the European Communities

12

2004/C 168/4

Case T-161/04: Action brought on 26 April 2004 by Gregorio Valero Jordana against Commission of the European Communities

12

| | III   Notices |
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| 2004/C 168/5 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 156, 12.6.2004 | 14 |

III   Notices

2004/C 168/5

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 156, 12.6.2004

Official Journal of the European Union

14

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 26.6.2004 | EN | Official Journal of the European Union | C 168/1 |
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26.6.2004

EN

Official Journal of the European Union

C 168/1

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Action brought on 15 March 2004 against the Kingdom of Denmark by the Commission of the European Communities

(Case C-138/04)

(2004/C 168/01)

An action was brought before the Court of Justice of the European Communities on 15 March 2004 by the Commission of the European Communities, represented by R. Lyal and T. Fich, acting as Agents, against the Kingdom of Denmark.

The Commission claims that the Court should:

| 1. | Declare that, by not allowing persons transferring definitively their normal residence to Denmark to benefit from the exemption provided for in Article 1(1) of Directive 83/183/EEC with respect to the ‘registration fee’ which is, in reality, a tax on consumption, the Kingdom of Denmark has failed to fulfil its obligations under Article 249 EC and Directive 83/183/EEC (1). |
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1.

Declare that, by not allowing persons transferring definitively their normal residence to Denmark to benefit from the exemption provided for in Article 1(1) of Directive 83/183/EEC with respect to the ‘registration fee’ which is, in reality, a tax on consumption, the Kingdom of Denmark has failed to fulfil its obligations under Article 249 EC and Directive 83/183/EEC (1).

| 2. | Order the Kingdom of Denmark to pay the costs. |
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2.

Order the Kingdom of Denmark to pay the costs.

Pleas in law and principal arguments:

The registration fee on motor vehicles is charged when the vehicle is registered for the first time in Denmark, so that persons importing their vehicles with a view to using them in Denmark as part of their transferring their normal residence from another country to Denmark are also subject to the tax.

| — | The Commission is of the view that the registration fee thereby constitutes a ‘consumption tax normally charged on personal property imported permanently from another Member State by private individuals’, for which the Member States are to grant an exemption pursuant to Article 1(1) of the directive. |
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The Commission is of the view that the registration fee thereby constitutes a ‘consumption tax normally charged on personal property imported permanently from another Member State by private individuals’, for which the Member States are to grant an exemption pursuant to Article 1(1) of the directive.

The registration fee is without doubt a ‘consumption tax’, since it is charged on a consumer good, it is calculated on the basis of the economic value of that good and it is charged only once.

Nor can there be any doubt that it is ‘normally charged on personal property imported permanently ... by private individuals’. The fact that it is not charged until the vehicle is registered does not change the fact that the registration is a prerequisite to being able to use the vehicle on the roads in Denmark. The import of a vehicle by a person transferring his residence can only have as its purpose the use of that vehicle for its intended purpose.

| — | The Commission is also of the view that the registration fee cannot be considered as being one of the ‘specific and/or periodical duties and taxes connected with the use of such property within the country’ which Article 1(2) of the directive excludes from the scope of the exemption. |
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The Commission is also of the view that the registration fee cannot be considered as being one of the ‘specific and/or periodical duties and taxes connected with the use of such property within the country’ which Article 1(2) of the directive excludes from the scope of the exemption.

That exclusion applies only to taxes relating to the actual use of the property in question and taxes which may be charged to ensure payment for services which are closely connected to the use of that property.

Article 1(2) gives three examples of such taxes which fall outside the exemption, namely ‘motor vehicle registration fees, road taxes and television licences’. A common trait of those examples is that they are not consumption taxes but rather relate to the ongoing use of the property in question or ensure that the public authorities do not bear the costs associated with the use of that property.

According to the Commission, the reference to motor vehicle registration fees must, therefore, be interpreted as referring only to the taxes relating to the actual registration of the vehicle.

This view is also supported by an examination of the different language versions of Article 1 of the directive. Apart from the German and Danish texts, which both use the same term in Article 1(1) and (2), that is, ‘Abgaben’ and ‘afgifter’, respectively, all of the other language versions use different terms in Article 1(1) and (2), namely ‘taxes’ et ‘droits’ in French, ‘taxes’ and ‘fees’ in English, etc. It is obvious that the terms ‘droits’ and ‘fees’ can only refer to fees paid for a service.

It is not possible to consider the registration fee as payment for a service, since it is calculated on the basis of the value of the motor vehicle, currently 105 % of the value, up to DKK 57 400 (corresponding to EUR 7 735) and 180 % of the residual value of the motor vehicle at the time of registration, including VAT.

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(1)  Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (OJ 1983 L 105, 23 April 1983, p. 64).

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/2 |
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26.6.2004

EN

Official Journal of the European Union

C 168/2

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Action brought on 16 April 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-179/04)

(2004/C 168/02)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 16 April 2004 by the Commission of the European Communities, represented by Georgios Zavvos, a member of its Legal Service.

The Commission claims that the Court should:

| — | declare that, by failing to adopt the necessary laws, regulations and administrative provisions to comply with Directive 2000/64/EC (1) of the European Parliament and of the Council of 7 November 2000 amending Directives 85/611/EEC, 92/96/EEC and 93/22/EEC as regards exchange of information with third countries, and in any event by failing to communicate such provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that Directive. |
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declare that, by failing to adopt the necessary laws, regulations and administrative provisions to comply with Directive 2000/64/EC (1) of the European Parliament and of the Council of 7 November 2000 amending Directives 85/611/EEC, 92/96/EEC and 93/22/EEC as regards exchange of information with third countries, and in any event by failing to communicate such provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that Directive.

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

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

According to the settled case-law of the Court of Justice of the European Communities, a Member State may not rely on domestic circumstances or difficulties to justify failure to comply with its obligations and the time-limits prescribed by Community law.

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(1)  OJ L 290 of 17.11.200, p. 27.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/2 |
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26.6.2004

EN

Official Journal of the European Union

C 168/2

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Reference for a preliminary ruling by the Simvoulio tis Epikratias by judgment of that court of 3 March 2004 in the case of Elmeka N.E. against the Minister for Economic Affairs

(Case C-181/04)

(2004/C 168/03)

Reference has been made to the Court of Justice of the European Communities by judgment of the Simvoulio tis Epikratias (Council of State, Greece) of 3 March 2004, received at the Court Registry on 19 April 2004, for a preliminary ruling in the case of Elmeka N.E. against the Minister for Economic Affairs on the following questions:

| (1) | Does Article 15(4)(a) of the 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, to which Article 15(5) of that directive refers, concern the chartering of both vessels used on the high seas which carry passengers for reward and vessels used for the purpose of commercial, industrial or fishing activities, or does it concern the chartering of vessels used on the high seas alone, when, in the latter case, Article 22(1)(d) of Law 1642/1986 appears wider than the directive as regards the category of vessels to which the chartering relates? |
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(1)

Does Article 15(4)(a) of the 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, to which Article 15(5) of that directive refers, concern the chartering of both vessels used on the high seas which carry passengers for reward and vessels used for the purpose of commercial, industrial or fishing activities, or does it concern the chartering of vessels used on the high seas alone, when, in the latter case, Article 22(1)(d) of Law 1642/1986 appears wider than the directive as regards the category of vessels to which the chartering relates?

| (2) | For the exemption from tax in accordance with Article 15(8) of the Sixth Directive, is the service required to be supplied to the vessel owner himself, or is the exemption granted also in respect of a service supplied to a third party, subject only to the condition that it meets the direct needs of the vessels referred to in Article 15(5), that is to say of the vessels covered by Article 15(4)(a) and (b)? |
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(2)

For the exemption from tax in accordance with Article 15(8) of the Sixth Directive, is the service required to be supplied to the vessel owner himself, or is the exemption granted also in respect of a service supplied to a third party, subject only to the condition that it meets the direct needs of the vessels referred to in Article 15(5), that is to say of the vessels covered by Article 15(4)(a) and (b)?

| (3) | Under the Community rules and principles which govern value added tax, is it permitted, and subject to what preconditions, for tax to be charged for a past period where the person liable did not pass tax on to the other contracting party during that period, and, therefore, tax was not paid to the State, because of the conviction of the person liable, brought about by conduct of the tax authorities, that he did not have to pass on tax? |
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(3)

Under the Community rules and principles which govern value added tax, is it permitted, and subject to what preconditions, for tax to be charged for a past period where the person liable did not pass tax on to the other contracting party during that period, and, therefore, tax was not paid to the State, because of the conviction of the person liable, brought about by conduct of the tax authorities, that he did not have to pass on tax?

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/2 |
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26.6.2004

EN

Official Journal of the European Union

C 168/2

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Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic

(Case C-188/04)

(2004/C 168/04)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 22 April 2004 by the Commission of the European Communities, represented by K. Wiedner and G. Bambara, acting as Agents.

The applicant claims that the Court should:

| — | Declare that, since ANAS S.p.A. awarded the concession for the construction and management of the ‘Pedemontana Veneta Ovest’ motorway to the Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a., by direct concession by means of a contract signed on 7 December 1999 without prior publication of a notice, and where the requirements for such a concession were not met, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC (1) of 14 June 1993 coordinating the procedures for the award of public works contracts and in particular Articles 3(1) and 11(3), (6) and (7) thereof; |
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Declare that, since ANAS S.p.A. awarded the concession for the construction and management of the ‘Pedemontana Veneta Ovest’ motorway to the Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a., by direct concession by means of a contract signed on 7 December 1999 without prior publication of a notice, and where the requirements for such a concession were not met, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC (1) of 14 June 1993 coordinating the procedures for the award of public works contracts and in particular Articles 3(1) and 11(3), (6) and (7) thereof;

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

—

Order the Italian Republic to pay to the costs.

Pleas in law and main arguments:

According to the Commission, ANAS's concession relating to the construction and management of the ‘Pedemontana Veneta Ovest’ motorway without prior publication of a notice does not comply with Directive 93/37/EEC and in particular with Articles 3(1) and 11(3), (6) and (7) thereof.

Article 3 of the Directive provides for the application of certain advertising rules at Community level where the contracting authorities conclude a public works concession contract if the value of that contract exceeds EUR 5 million. In particular, under Article 11(3) of the directive, contracting authorities wishing to award a works concession contract must make known that intention by means of a notice to be sent, pursuant to Article 11(7) of the directive, to the Office for Official Publications of the European Communities.

Since the contract for the construction and management of the ‘Pedemontana Veneta Ovest’ motorway is worth approximately EUR 350 million, it clearly should have been the subject of publication in the Official Journal of the European Communities.

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(1)  OJ L 199 of 9.8.1993, p. 54.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/3 |
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26.6.2004

EN

Official Journal of the European Union

C 168/3

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Reference for a preliminary ruling by the Special Commissioners by order of that court dated 29 April 2004, in the case of Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd against the Commissioners of Inland Revenue

(Case C-196/04)

(2004/C 168/05)

Reference has been made to the Court of Justice of the European Communities by an order of the Special Commissioners dated 29 April 2004, which was received at the Court Registry on 3 May 2004, for a preliminary ruling in the case of Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd and the Commissioners of Inland Revenue on the following question:

‘Do articles 43, 49 and 56 of the EC Treaty preclude national tax legislation such as that in an issue in the main proceedings, which provides in specified circumstances for the imposition of a charge upon a company resident in that Member State in respect of the profits of a subsidiary company resident in another Member State and subject to a lower level of taxation?’

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/3 |
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26.6.2004

EN

Official Journal of the European Union

C 168/3

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Action brought on 30 April 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-197/04)

(2004/C 168/06)

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 30 April 2004 by the Commission of the European Communities, represented by K. Gross, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by applying the tax rate for fine-cut tobacco for self-rolled cigarettes to rolls of tobacco sold under the name ‘West Single Packs’, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 95/59/EC (1) on taxes other than turnover taxes which affect the consumption of manufactured tobacco and under the first paragraph of Article 2 of Council Directive 92/79/EEC (2) of 19 October 1992 on the approximation of taxes on cigarettes; |
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1.

declare that, by applying the tax rate for fine-cut tobacco for self-rolled cigarettes to rolls of tobacco sold under the name ‘West Single Packs’, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 95/59/EC (1) on taxes other than turnover taxes which affect the consumption of manufactured tobacco and under the first paragraph of Article 2 of Council Directive 92/79/EEC (2) of 19 October 1992 on the approximation of taxes on cigarettes;

| 2. | order the Federal Republic of Germany to pay the costs. |
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2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments:

In the Commission's view, the rolls of tobacco sold on the German market under the name ‘West Single Packs’, which consumers can wrap in a separately sold cigarette paper with a filter by simple non-industrial handling, are cigarettes within the meaning of Article 4(1)(b) of Council Directive 95/59/EG and, accordingly, must be taxed as such.

The German provisions applying the tax rate for fine-cut tobacco for self-rolled cigarettes to ‘West Single Packs’ thus infringe Article 4(1) of Council Directive 95/59/EC and the first paragraph of Article 2 of Council Directive 92/79/EEC.

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(1)  OJ 1995 L 291, p. 40.

(2)  OJ 1992 L 316, p. 8.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/4 |
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26.6.2004

EN

Official Journal of the European Union

C 168/4

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Action brought on 4 May 2004 by the Commission of the European Communities against the French Republic

(Case C-198/04)

(2004/C 168/07)

An action against the French Republic was brought before the Court of Justice of the European Communities on 4 May 2004 by the Commission of the European Communities, represented by M. Patakia and H. Stovlbæk, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by reason of incomplete transposition, in regard to the profession of tourist guide, of Directives 89/48/EEC (1) and 92/51/EEC (2), the French Republic has failed to fulfil its obligations under those directives and under the Treaty establishing the European Community; |
| --- | --- |

1.

declare that, by reason of incomplete transposition, in regard to the profession of tourist guide, of Directives 89/48/EEC (1) and 92/51/EEC (2), the French Republic has failed to fulfil its obligations under those directives and under the Treaty establishing the European Community;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments:

The French legislation applicable to the profession of tourist guide makes no provision for a procedure for the recognition of qualifications in accordance with Directives 89/48/EEC and 92/51/EEC.

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(1)  Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ L 19 of 24.01.1989, p. 16).

(2)  Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ L 209 of 24.07.1992, p. 25).

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/4 |
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26.6.2004

EN

Official Journal of the European Union

C 168/4

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Action brought on 7 May 2004 by Commission of the European Communities against Kingdom of Spain

(Case C-205/04)

(2004/C 168/08)

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 7 May 2004 by the Commission of the European Communities, represented by G. Rozet, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare that, by failing to adopt a law which expressly provides, in respect of the Spanish civil service, for account to be taken, for financial purposes, of previous periods of employment in the public service of another Member State, the Kingdom of Spain has failed to fulfil its obligations under Article 39 of the EC Treaty and Article 7 of Regulation (EEC) No 1612/681 of the Council of 15 October 1968 on freedom of movement for workers within the Community; |
| --- | --- |

—

declare that, by failing to adopt a law which expressly provides, in respect of the Spanish civil service, for account to be taken, for financial purposes, of previous periods of employment in the public service of another Member State, the Kingdom of Spain has failed to fulfil its obligations under Article 39 of the EC Treaty and Article 7 of Regulation (EEC) No 1612/681 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

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

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order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In accordance with the case-law of the Court of Justice, Article 39 of the EC Treaty and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (1) require Member States to take account of the seniority and experience acquired in the public service of another Member State by Community citizens for the purpose of their access, grading and determination of seniority in its civil service. Currently, in the Spanish legal system, there is no measure which ensures with the necessary legal certainty that account is taken for financial purposes of periods of employment in the public service of another Member State.

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(1)  OJ, English Special Edition, 1968 (II), p. 475.

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COURT OF FIRST INSTANCE

| 26.6.2004 | EN | Official Journal of the European Union | C 168/5 |
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26.6.2004

EN

Official Journal of the European Union

C 168/5

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Assignment of Judges to Chambers and composition of the Grand Chamber

(2004/C 168/09)

The Court of First Instance decided, at its Plenary Meeting on 13 May 2004, following the entry into office as Judges of Ms Cremona, Mr Czúcz, Ms Wiszniewska-Białecka, Ms Pelikánová, Mr Šváby, Mr Vadapalas, Ms Jürimäe, Ms Labucka and Mr Papasavvas and the amendment of 21 April 2004 of Article 10(1) of the Rules of Procedure, to amend its decision of 2 July 2003 on the assignment of Judges to Chambers and on the composition of the Grand Chamber, as follows:

The following are appointed for the period from 13 May 2004 to 31 August 2004

to the First Chamber, sitting with three Judges:

Mr Vesterdorf, President, Mr Mengozzi, Ms Martins Ribeiro and Ms Labucka, Judges;

to the First Chamber, Extended Composition, sitting with five Judges:

Mr Vesterdorf, President, Mr Jaeger, Mr Mengozzi, Ms Martins Ribeiro, Mr Dehousse and Ms Labucka, Judges;

to the Second Chamber, sitting with three Judges:

Mr Pirrung, President of Chamber, Mr Meij, Mr Forwood, Ms Pelikánová and Mr Papasavvas, Judges;

to the Second Chamber, Extended Composition, sitting with five Judges:

Mr Pirrung, President of Chamber, Mr Meij, Mr Forwood, Ms Pelikánová and Mr Papasavvas, Judges;

to the Third Chamber, sitting with three Judges:

Mr Azizi, President of Chamber, Mr Jaeger, Mr Dehousse, Ms Cremona and Mr Czúcz, Judges;

to the Third Chamber, Extended Composition, sitting with five Judges:

Mr Azizi, President of Chamber, Mr Jaeger, Mr Dehousse, Ms Cremona and Mr Czúcz, Judges;

to the Fourth Chamber, sitting with three Judges:

Mr Legal, President of Chamber, Ms Tiili, Mr Vilaras, Ms Wiszniewska-Białecka and Mr Vadapalas, Judges;

to the Fourth Chamber, Extended Composition, sitting with five Judges:

Mr Legal, President of Chamber, Ms Tiili, Mr Vilaras, Ms Wiszniewska-Białecka and Mr Vadapalas, Judges;

to the Fifth Chamber, sitting with three Judges:

Ms Lindh, President of Chamber, Mr García-Valdecasas, Mr Cooke, Mr Šváby and Ms Jürimäe, Judges;

to the Fifth Chamber, Extended Composition, sitting with five Judges:

Ms Lindh, President of Chamber, Mr García-Valdecasas, Mr Cooke, Mr Šváby and Ms Jürimäe, Judges.

Where any of those Chambers is composed of a greater number of Judges than that with which it sits under Article 10(1) of the Rules of Procedure of the Court of First Instance, the President of Chamber shall designate, when the preliminary report referred to in Article 52 of the Rules of Procedure is presented, the Judge or Judges other than the Judge Rapporteur who will not take part in the proceedings, by rota for each case, taking account of the seniority in office of the Judges attached to the Chamber, as provided for by Article 6 of the Rules of Procedure of the Court of First Instance.

The Grand Chamber shall be composed, for the period from 1 June 2004 to 31 August 2004, of President Vesterdorf, Judges Lindh, Azizi, Pirrung and Legal, Presidents of Chamber, the Judges of the Extended Composition Chamber, who would have had to hear the case in question if it had been assigned to a Chamber composed of five Judges, and of four other Judges nominated by the President of the Court of First Instance in turn from among the Judges of each of the other Chambers in order of their seniority in office under Article 6 of the Rules of Procedure of the Court of First Instance.

With regard to cases in which the written procedure was completed and a hearing for the oral procedure held or fixed before 13 May 2004, the Chambers shall continue to sit with the same composition as before for the oral procedure, the deliberations and the judgment.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/6 |
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Action brought on 31 March 2004 by Cargo Partner AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-123/04)

(2004/C 168/10)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 March 2004 by Cargo Partner AG, Fischamend (Austria), represented by M. Wolner, lawyer.

The applicant claims that the Court should:

| — | vary the contested decision so as to allow registration of the trade mark sought; |
| --- | --- |

—

vary the contested decision so as to allow registration of the trade mark sought;

| — | in the alternative, refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs); and, |
| --- | --- |

—

in the alternative, refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs); and,

| — | in any event, award costs to the applicant. |
| --- | --- |

—

in any event, award costs to the applicant.

Pleas in law and main arguments:

| Community trade mark sought: | The word mark CARGO PARTNER — Application No 2697290. |
| --- | --- |
| Goods or services: | Goods and services in Classes 36 (insurance) and 39 (transport; packaging and storage of goods; travel arrangement). |
| Decision contested before the Board of Appeal: | The examiner's partial refusal to register the mark in respect of the transport, packaging and storage services in Class 39. |
| Decision of the Board of Appeal: | Dismissal of the appeal. |
| Pleas in law: | The mark is distinctive and therefore registrable. |

Community trade mark sought:

The word mark CARGO PARTNER — Application No 2697290.

Goods or services:

Goods and services in Classes 36 (insurance) and 39 (transport; packaging and storage of goods; travel arrangement).

Decision contested before the Board of Appeal:

The examiner's partial refusal to register the mark in respect of the transport, packaging and storage services in Class 39.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

The mark is distinctive and therefore registrable.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/6 |
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Action brought on 1 April 2004 by Develey Holding GmbH & Co. Beteiligungs KG against the Office for Harmonisation in the Internal Market

(Case T-129/04)

(2004/C 168/11)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 1 April 2004 by Develey Holding GmbH & Co. Beteiligungs KG, Unterhaching (Germany), represented by H.P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers.

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 January 2004; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 January 2004;

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

—

order the defendant Office to pay the costs.

Pleas in law and main arguments:

| Community trade mark sought: | A three dimensional mark in the shape of a plastic bottle – Application No 2579381. |
| --- | --- |
| Goods or services: | Goods in Classes 29, 30 and 32 (inter alia, tomato pulp, milk and milk products, mayonnaises, ketchup, fruit drinks). |
| Decision contested before the Board of Appeal: | Refusal by the examiner to register the mark. |
| Decision of the Board of Appeal: | Dismissal of the appeal. |
| Pleas in law: | Infringement of Articles 74(1) and 45 of Regulation (EC) No 40/94 (1), infringement of Article 73 of Regulation (EC) No 40/94, insofar as the defendant Office stated that it is not bound by earlier registrations in Member States, and infringement of Article 7(1) of Regulation (EC) No 40/94. |

Community trade mark sought:

A three dimensional mark in the shape of a plastic bottle – Application No 2579381.

Goods or services:

Goods in Classes 29, 30 and 32 (inter alia, tomato pulp, milk and milk products, mayonnaises, ketchup, fruit drinks).

Decision contested before the Board of Appeal:

Refusal by the examiner to register the mark.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

Infringement of Articles 74(1) and 45 of Regulation (EC) No 40/94 (1), infringement of Article 73 of Regulation (EC) No 40/94, insofar as the defendant Office stated that it is not bound by earlier registrations in Member States, and infringement of Article 7(1) of Regulation (EC) No 40/94.

---

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

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/7 |
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Action brought on 2 April 2004 by André Bonnet against Court of Justice of the European Communities

(Case T-132/04)

(2004/C 168/12)

Language of the case: French

An action against the Court of Justice of the European Communities was brought before the Court of First Instance of the European Communities on 2 April 2004 by André Bonnet, residing in Saint Pierre de Vassols (France), represented by Hervé de Lepinau, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decisions of 11 February 2004 and 4 March 2004, and also the decision appointing another person to the post which should have been filled by the applicant; |
| --- | --- |

—

Annul the decisions of 11 February 2004 and 4 March 2004, and also the decision appointing another person to the post which should have been filled by the applicant;

| — | Hold declare that the recruitment of 4 February 2004 is to take full effect as from 1 March 2004; |
| --- | --- |

—

Hold declare that the recruitment of 4 February 2004 is to take full effect as from 1 March 2004;

| — | Order the Court of Justice of the European Communities to pay the applicant the sum of EUR 100,000 for non-pecuniary harm and also the sum of EUR 5,000 per month with effect from 1 March until such time as the applicant actually takes up his duties; |
| --- | --- |

—

Order the Court of Justice of the European Communities to pay the applicant the sum of EUR 100,000 for non-pecuniary harm and also the sum of EUR 5,000 per month with effect from 1 March until such time as the applicant actually takes up his duties;

| — | In the alternative, should the decision of the Court of First Instance not make it inevitable that the applicant takes up his duties, order the Court of Justice to pay the applicant a total sum of EUR 260,000 plus interest at the statutory rate as from the date of the present application; |
| --- | --- |

—

In the alternative, should the decision of the Court of First Instance not make it inevitable that the applicant takes up his duties, order the Court of Justice to pay the applicant a total sum of EUR 260,000 plus interest at the statutory rate as from the date of the present application;

| — | In any event, order the Court of Justice of the European Communities to pay the costs. |
| --- | --- |

—

In any event, order the Court of Justice of the European Communities to pay the costs.

Pleas in law and main arguments

The applicant applied for the post as lecteur d'arrêts in the cabinet of the President of the Court of Justice. He claims that he was chosen following the selection procedure but that, following the contested decisions, he was not appointed to the post.

In support of his action, the applicant claims that the chef de cabinet was not competent to act in connection with the appointment of a law clerk at the Court. The applicant further claims that there has been a breach of essential procedural requirements such as the principle of parallelism of forms, a failure to state reasons and a breach of the rights of the defence.

The applicant also alleges a breach of acquired rights, of the principle of non-retroactivity and of the principle of legal certainty and also a breach of the principle of respect for private life and of the principle of political neutrality. Last, the applicant claims that there has been a misuse of powers.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/7 |
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C 168/7

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Action brought on 8 April 2004 by Kelvin William Stephens against the Commission of the European Communities

(Case T-139/04)

(2004/C 168/13)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 April 2004 by Kelvin William Stephens, resident in Brussels, represented by N. Lhoëst, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the appointing authority of 14 April 2003 inasmuch as it:






  — | did not classify the applicant in Grade A6, step 3, at the time of his recruitment; |
| --- | --- | --- |

—

annul the decision of the appointing authority of 14 April 2003 inasmuch as it:

—

did not classify the applicant in Grade A6, step 3, at the time of his recruitment;

| — | did not reconstitute the career in terms of the applicant's grade by bringing forward the date of his promotions to Grades A5 and A4; |
| --- | --- |

—

did not reconstitute the career in terms of the applicant's grade by bringing forward the date of his promotions to Grades A5 and A4;

| — | limited the date of effect of the reclassification decision in regard to its pecuniary effects to 5 October 1995; |
| --- | --- |

—

limited the date of effect of the reclassification decision in regard to its pecuniary effects to 5 October 1995;

| — | annul the decision of the appointing authority of 15 January 2004, served on the applicant on 30 January 2004, rejecting his complaint R/521/03; |
| --- | --- |

—

annul the decision of the appointing authority of 15 January 2004, served on the applicant on 30 January 2004, rejecting his complaint R/521/03;

| — | order the defendant to pay compensation provisionally set in the amount of EUR 125 000 in the event that, owing to impossibility, it is unable to reconstitute the applicant's career in terms of his grade; |
| --- | --- |

—

order the defendant to pay compensation provisionally set in the amount of EUR 125 000 in the event that, owing to impossibility, it is unable to reconstitute the applicant's career in terms of his grade;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments

In these proceedings, the applicant, who, on his recruitment in October 1985, was classified in Grade A7, step 3, challenges the decision of the appointing authority refusing to revise that classification, placing him in Grade A6, step 2, and not in Grade A6, step 3, refusing to reconstitute his career and limiting the date of effect of the decision on his reclassification to 5 October 1995.

The pleas relied on by the applicant in support of his claims are the same as those relied on by the applicant in Case T-125/04 Rousseaux v Commission.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/8 |
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Action brought on 14 April 2004 by Cargill B.V. against the Commission of the European Communities

(Case T-142/04)

(2004/C 168/14)

Language of the case: Dutch

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 14 April 2004 by Cargill B.V., having its registered office in The Hague (Netherlands), represented by H.J. Bronkhorst and J.F. van Nouhuys.

The applicant claims that the Court should:

| I. | annul the decision of 5 January 2004 addressed to it by the Commission of the European Communities; |
| --- | --- |

I.

annul the decision of 5 January 2004 addressed to it by the Commission of the European Communities;

| II. | order the European Commission to pay the costs of the proceedings. |
| --- | --- |

II.

order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

The applicant takes issue with the Commission's decision that remission of import duties was not justified in a particular case. That decision was adopted following annulment by the Court of Justice of Commission Decision C/2000/485 final in Case C-156/00 Kingdom of the Netherlands v Commission. (1)

The applicant imported maize into the EC under the inward processing arrangements. The maize was to be processed into glucose, which in turn was re-exported. For that purpose the applicant had the necessary authorisations for the system of equivalent compensation. The Commission states in the contested decision that the exported glucose was not obtained entirely from maize but also from wheat originating on the EC market. The Netherlands authorities thereupon recovered the import duties owing. In the contested decision the Commission turned down the request for remission of that debt.

In support of its application the applicant first submits that there has been a breach of the rights of the defence. More specifically, it pleads infringement of the audi alteram partem rule and of the right of access to the case-file.

The applicant submits further that there has been a breach of Regulation No 1430/79 (2) on the repayment or remission of import or export duties, as well as a breach of Article 239 of Regulation No 2913/92 (3) establishing the Community Customs Code, and of Articles 905 to 909 inclusive of Regulation No 2454/93 (4) laying down provisions for the implementation of Regulation No 2913/92. The applicant also alleges breach of the obligation under Article 253 EC to state reasons.

The Commission, the applicant argues, erred in finding that the applicant was manifestly negligent in regard to meeting the conditions governing its authorisation for inward processing. According to the applicant, the glucose to be exported, produced from wheat and maize, had the same characteristics as glucose obtained solely from maize. The applicant submits further that both products come under one single CN code. It claims that the only reproach which may be made against it is that it exported the glucose in part after expiry of the six-month period set out in the authorisation.

The applicant concludes by arguing that there has been an infringement of the principle of proportionality.

---

(1)  Judgment in Case C-156/00 Netherlands v Commission [2003] ECR I-2527.

(2)  Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1).

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

(4)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/8 |
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Action brought on 13 April 2004 by Télévision Française 1 SA against the Commission of the European Communities

(Case T-144/04)

(2004/C 168/15)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 April 2004 by Télévision Française 1 SA, established in Boulogne (France), represented by J.-P. Hordies, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Decision C (2003) 4497 final of the Commission of the European Communities of 10 December 2003 on State aid implemented by France for the benefit of ‘France 2’ and ‘France 3’ from 1988 to 1994, insofar as it declares that aid to be compatible with the common market under Article 86(2) of the Treaty; |
| --- | --- |

—

annul Decision C (2003) 4497 final of the Commission of the European Communities of 10 December 2003 on State aid implemented by France for the benefit of ‘France 2’ and ‘France 3’ from 1988 to 1994, insofar as it declares that aid to be compatible with the common market under Article 86(2) of the Treaty;

| — | 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:

Following a complaint made by the applicant, the Commission decided to initiate a formal investigation procedure pursuant to Article 88(2) EC into investment subsidies and capital grants received by the television channels ‘France 2’ and ‘France 3’ from 1988 to 1994. By the contested decision, the Commission decided to treat those measures as State aid within the meaning of Article 87 EC but declared them compatible with the EC Treaty under Article 86(2).

By its first plea, the applicant alleges that the statement of reasons for the contested decision is erroneous and that the decision infringes Article 86(2) EC and the provisions on State aid. It disputes the Commission's finding that the activities of the two channels in question are a service in the general interest within the meaning of Article 86(2) and points out that, although its own activities are almost identical, they are not regarded as being in the general interest. It also calls into question the financial assessment of the aid made by the Commission in the contested decision.

By its second plea, the applicant submits that the Commission misapplied Directive 80/723 (1) when it decided that that directive did not apply to the broadcasting activities of public channels before 2000. On the same basis, the applicant alleges misapplication of the Protocol on the system of public broadcasting in the Member States, which is annexed to the EC Treaty.

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(1)  Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35).

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/9 |
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Action brought on 20 April 2004 by Koldo Gorostiaga Atxalandabaso against the European Parliament

(Case T-146/04)

(2004/C 168/16)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 April 2004 by Koldo Gorostiaga Atxalandabaso, residing in Saint Pierre d'Irube (France), represented by Didier Rouget, lawyer.

The applicant claims that the Court should:

| — | Annul European Parliament decision of 24 February 2004 to make deductions on the allowances owing to the applicant until his alleged debt to the Parliament is paid off; |
| --- | --- |

—

Annul European Parliament decision of 24 February 2004 to make deductions on the allowances owing to the applicant until his alleged debt to the Parliament is paid off;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

By the contested decision, the European Parliament found that, in the absence of vouchers attesting to the use of the various parliamentary allowances, the applicant, a Member of Parliament, owed the sum of EUR 118 360.18 and proceeded to make deductions on those allowances.

The applicant contests that decision, arguing that the Parliament infringed the Rules governing the payment of expenses and allowances to Members, inter alia on the grounds that it was taken by the Secretary-General of the Parliament and not by the Bureau of the Parliament, as provided for by Article 27 of those rules. The applicant also alleges that the contested decision infringes the principles of objectivity, impartiality, equality and non-discrimination and also the principle that both parties must be heard and the rights of the defence. He also alleges that the contested decision did not contain sufficient reasons and that it is a misuse of powers, since it was adopted to attain purely political objectives. Lastly, the applicant states that there has been a manifest error of appreciation by the Parliament.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/9 |
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Action brought on 23 April 2004 by Brian M. Ross against the Commission of the European Communities

(Case T-147/04)

(2004/C 168/17)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 April 2004 by Brian M. Ross, residing in Morpeth (United Kingdom), represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

| — | Annul the decision of 31 March 2003 definitively adopting the applicant's career development report for the period 2001/2002; |
| --- | --- |

—

Annul the decision of 31 March 2003 definitively adopting the applicant's career development report for the period 2001/2002;

| — | Annul the said report; |
| --- | --- |

—

Annul the said report;

| — | Annul the implicit decision to dismiss the applicant's claim, brought on 24 September 2002 (R/562/03) for annulment of the contested decision; |
| --- | --- |

—

Annul the implicit decision to dismiss the applicant's claim, brought on 24 September 2002 (R/562/03) for annulment of the contested decision;

| — | Order the defendant to pay the applicant damages for non-material loss, assessed on equitable grounds at EUR 10 000, subject to increase or decrease in the course of the proceedings; |
| --- | --- |

—

Order the defendant to pay the applicant damages for non-material loss, assessed on equitable grounds at EUR 10 000, subject to increase or decrease in the course of the proceedings;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant pleads infringement of Article 25(2) and Articles 26 to 43 of the Staff Regulations and the General provisions for implementing Article 43 of the Staff Regulations, as adopted by the Commission on 26 April 2002. He also pleads misuse of powers, infringement of general principles of law, such as the rights of the defence, the principle of sound administration and the principle of equal treatment, and a manifest error of assessment.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/10 |
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Action brought on 26 April 2004 by Imre Czigany, Isabel Alves, Georgette Henningsen and Michel Lucas against Commission of the European Communities

(Case T-149/04)

(2004/C 168/18)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 April 2004 by Imre Czigany, residing in Rhode St. Genèse, Belgium, Isabel Alves, residing in Luxembourg, Georgette Henningsen, residing in Brussels and Michel Lucas, residing in Brussels, represented by Gilles Bounéou and Frédéric Frabetti, lawyers, with an address for service in Luxembourg.

The applicants claim that the Court should:

| — | Annul the appraisal exercise 2001-2002 in respect of the applicants; |
| --- | --- |

—

Annul the appraisal exercise 2001-2002 in respect of the applicants;

| — | Alternatively, annul the applicants' career development reports (REC/CDR) for the period 1.7.2001- 31.12.2002; |
| --- | --- |

—

Alternatively, annul the applicants' career development reports (REC/CDR) for the period 1.7.2001- 31.12.2002;

| — | Make an order as to the costs, expenses and fees and require the Commission of the European Communities to pay them. |
| --- | --- |

—

Make an order as to the costs, expenses and fees and require the Commission of the European Communities to pay them.

Pleas in law and main arguments

The pleas and principal arguments relied on by the applicants in this case are identical to those put forward in Cases T-43/04 and T-47/04.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/10 |
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Official Journal of the European Union

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Action brought on 16 April 2004 by Bernard Nonat against Commission of the European Communities

(Case T-151/04)

(2004/C 168/19)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 April 2004 by Bernard Nonat, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Nöel Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision establishing the final career development report for the period from 1 July to 31 December 2002; |
| --- | --- |

—

Annul the decision establishing the final career development report for the period from 1 July to 31 December 2002;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to his career development report, as drawn up for the period from 1 July to 31 December 2002.

In support of his claims, the applicant argues:

| — | failure to observe the obligation to state reasons; |
| --- | --- |

—

failure to observe the obligation to state reasons;

| — | infringement of Article 43 of the Staff Regulations and the transitional measures applicable to the appraisal exercise 2001-2002; |
| --- | --- |

—

infringement of Article 43 of the Staff Regulations and the transitional measures applicable to the appraisal exercise 2001-2002;

| — | infringement of Article 5(5)(c) of the General Provisions for Implementing Article 43 of the Staff Regulations; |
| --- | --- |

—

infringement of Article 5(5)(c) of the General Provisions for Implementing Article 43 of the Staff Regulations;

| — | manifest error of assessment; |
| --- | --- |

—

manifest error of assessment;

| — | infringement of the principle of equal treatment and non-discrimination; |
| --- | --- |

—

infringement of the principle of equal treatment and non-discrimination;

| — | lack of consistency between the comments and the mark awarded. |
| --- | --- |

—

lack of consistency between the comments and the mark awarded.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/11 |
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Official Journal of the European Union

C 168/11

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Action brought on 23 April 2004 by Ferriere Nord SpA against the Commission of the European Communities

(Case T-153/04)

(2004/C 168/20)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 April 2004 by Ferriere Nord SpA, represented by Wilma Viscardini and Gabriele Donà.

The applicant claims that the Court should:

| — | Annul, pursuant to Article 230 EC, the decisions of the Commission of the European Communities contained in the registered letter BUDG/C-5/DS (D2004) / 51138 of 5 February 2004, received by the applicant on 13 February 2004, and the fax BUDG/C-05/DS (D2004) 53883, received by the applicant on 13 April 2004, by which Ferriere Nord was requested to pay the sums of EUR 564 402.26 and EUR 341 932.32 respectively in relation to the proceeding IV/31.553 – Welded steel mesh; |
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Annul, pursuant to Article 230 EC, the decisions of the Commission of the European Communities contained in the registered letter BUDG/C-5/DS (D2004) / 51138 of 5 February 2004, received by the applicant on 13 February 2004, and the fax BUDG/C-05/DS (D2004) 53883, received by the applicant on 13 April 2004, by which Ferriere Nord was requested to pay the sums of EUR 564 402.26 and EUR 341 932.32 respectively in relation to the proceeding IV/31.553 – Welded steel mesh;

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

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

Pleas in law and main arguments:

In support of its complaints, the applicant submits that the decisions referred to above, which enforce the Commission decision of 2 August 1989 (in which the applicant was ordered to pay a fine of ECU 320 000 for infringement of Article 85(1) of the EEC Treaty) are unlawful because they were adopted after expiry of the limitation period laid down in Article 4 of Regulation No 2988/74 of the Council concerning limitation periods in proceedings and enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (1). In particular:

| — | the Commission decision of 2 August 1989 became final with the judgment of the Court of Justice of 17 July 1997 and so, on that date, the limitation period of five years laid down by Article 4 of Regulation No 2988/74 began to run; |
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the Commission decision of 2 August 1989 became final with the judgment of the Court of Justice of 17 July 1997 and so, on that date, the limitation period of five years laid down by Article 4 of Regulation No 2988/74 began to run;

| — | that period was interrupted by the Commission's letter of 11 September 1997, notified to the applicant on 18 September 1997, with the result that a new limitation period of five years started to run (pursuant to Article 5 of Regulation No 2988/74); |
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that period was interrupted by the Commission's letter of 11 September 1997, notified to the applicant on 18 September 1997, with the result that a new limitation period of five years started to run (pursuant to Article 5 of Regulation No 2988/74);

| — | the Commission therefore should have enforced the decision imposing the fine by 11 September 2002 or, at the latest, by 18 September 2002; |
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the Commission therefore should have enforced the decision imposing the fine by 11 September 2002 or, at the latest, by 18 September 2002;

| — | the contested decisions by contrast are those of 5 February 2004 (received by the applicant on 13 February 2004) and 13 April 2004 (received by the applicant by fax on 13 April 2004); |
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—

the contested decisions by contrast are those of 5 February 2004 (received by the applicant on 13 February 2004) and 13 April 2004 (received by the applicant by fax on 13 April 2004);

| — | the Commission's power to bring legal proceedings to enforce its decision of 2 August 1989 is therefore time-barred. |
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the Commission's power to bring legal proceedings to enforce its decision of 2 August 1989 is therefore time-barred.

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(1)  OJ L 319 of 29.11.1974, p. 1.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/11 |
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26.6.2004

EN

Official Journal of the European Union

C 168/11

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Action brought on 22 April 2004 by Daniel Bauwens against Commission of the European Communities

(Case T-154/04)

(2004/C 168/21)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 April 2004 by Daniel Bauwens, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Nöel Louis and Etienne Marchal lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision to close the procedure for drawing up his career development report and to dismiss his request to refer the case to the Joint Evaluation Committee; |
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—

Annul the decision to close the procedure for drawing up his career development report and to dismiss his request to refer the case to the Joint Evaluation Committee;

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

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant made an application to refer the matter to the Joint Evaluation Committee contesting his career development report, as countersigned by the countersigning officer. That request was held to be out of time, since it was brought after the deadline of five working days provided for by Article 7 of the General Provisions for Implementing Articles 43 and 45 of the Staff Regulations.

The applicant challenges the decision dismissing his application and drawing up the final report, arguing that the deadline of five days should have been suspended, in accordance with the footnote to Article 7 of the General Provisions, on the ground that he was on leave for a period of two weeks starting from the day after the formal confirmation of the appraisal by the countersigning officer. In the same context, the applicant also relies on a manifest error of assessment and the infringement of the principles of sound management, sound administration and equal treatment.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/12 |
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26.6.2004

EN

Official Journal of the European Union

C 168/12

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Action brought on 22 April 2004 by Joël De Bry against Commission of the European Communities

(Case T-157/04)

(2004/C 168/22)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 April 2004 by Joël De Bry, residing in Woluwe-St-Lambert (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision establishing his career development report covering the period 1 July to 31 December 2002; |
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—

Annul the decision establishing his career development report covering the period 1 July to 31 December 2002;

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

Order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant states first of all that he was assessed by an assessor of the same grade as himself who was competing with the applicant for promotion. In the applicant's submission, that fact gives rise to a conflict of interests on the part of his assessor. The assessor did not inform the appointing authority of the position, contrary to Article 14 of the Staff Regulations.

The applicant then claims that there is an inconsistency between the assessments in the contested report and the marks awarded to him. He also claims that there has been a breach of the obligation to state reasons and of the rights of the defence in connection with a comment made by the validator concerning the applicant's alleged failure to observe normal working hours.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/12 |
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26.6.2004

EN

Official Journal of the European Union

C 168/12

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Action brought on 26 April 2004 by Gerasimos Potamianos against Commission of the European Communities

(Case T-160/04)

(2004/C 168/23)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 April 2004 by Gerasimos Potamianos, residing in Brimbergen (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision of the appointing authority not to renew his contract as a temporary servant; |
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—

Annul the decision of the appointing authority not to renew his contract as a temporary servant;

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

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is challenging the appointing authority's refusal to renew his contract as a member of the temporary staff.

In that regard, it is made clear that the contested decision is based exclusively on the policy limiting the services of non-permanent staff in force in DG RTD, which has the effect of excluding from the scope of recruitment all servants with more than six years' seniority in the service of the Commission, seniority which is greater than that of other servants allowed to take part.

In the applicant's submission, that limitation is contrary to the first subparagraph of Article 12(1) of the Conditions of Employment of other servants, which states that recruitment is to be directed to securing for the institution the service of persons of the highest standard of ability, efficiency and integrity. It is also contrary to the decision of DG ADMIN to authorise the extension of contracts of temporary servants 2(b) (operating budget) or 2(d) (research budget) of short duration until 30 April 2004.

In support of his claims, the applicant further alleges breach of the principle of non-discrimination and also misuse of powers in the present case.

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| 26.6.2004 | EN | Official Journal of the European Union | C 168/12 |
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26.6.2004

EN

Official Journal of the European Union

C 168/12

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Action brought on 26 April 2004 by Gregorio Valero Jordana against Commission of the European Communities

(Case T-161/04)

(2004/C 168/24)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 April 2004 by Gregorio Valero Jordana, residing in Brussels, represented by Massimo Merola, lawyer.

The applicant claims that the Court should:

| — | annul the decision of 10 February 2004 by which the European Commission refused the applicant access to the reserve list for general competition A7/A6 COM/A/637 and the individual decisions appointing officials in Grade A 6 from 5 October 1995; |
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annul the decision of 10 February 2004 by which the European Commission refused the applicant access to the reserve list for general competition A7/A6 COM/A/637 and the individual decisions appointing officials in Grade A 6 from 5 October 1995;

| — | order the Commission of the European Communities to pay the costs. |
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—

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

Pleas in law and main arguments

The applicant in these proceedings contests the defendant's decision denying him access to the reserve list for general competition A7/A6 COM/A/637 and the individual decisions appointing officials in Grade A 6 from 5 October 1995.

In support of his claims, the applicant alleges, first, misapplication of the exception under Article 4(1)(b) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1). That exception concerns privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data. The applicant states, in that connection, that it cannot be considered that the disclosure of the documents requested could infringe the privacy of the persons whose names appear in them, since belonging to the civil service is not a matter falling within the scope of privacy.

Moreover, to the extent that individual decisions regarding the appointment of European civil servants are in the public domain, the applicant alleges infringement of Article 5(b) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2). The applicant also alleges failure to fulfil the obligation to provide reasons and breach of the principle of sound administration.

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(1)  OJL 145, 31/05/2000, p. 43.

(2)  OJL 8, 12/01/2001, p. 1.

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III Notices

| 26.6.2004 | EN | Official Journal of the European Union | C 168/14 |
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26.6.2004

EN

Official Journal of the European Union

C 168/14

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(2004/C 168/25)

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

OJ C 156, 12.6.2004

Past publications

OJ C 146, 29.5.2004

OJ C 106, 30.4.2004

OJ C 94, 17.4.2004

OJ C 85, 3.4.2004

OJ C 71, 20.3.2004

OJ C 59, 6.3.2004

These texts are available on:

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

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

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