# Official Journal C 94/2004

| | ISSN 1725-2423 |
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| Official Journal
  of the European Union | C 94 |
| | |
| English edition | Information and Notices | Volume 4717 April 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 94

English edition

Information and Notices

Volume 4717 April 2004

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| Notice No | Contents |
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| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 094/1 | Judgment of the Court (Second Chamber) 4 March 2004 In Joined Cases C-19/01, C-50/01 and C-84/01 (Reference for a preliminary ruling from the Tribunale di Pisa, the Tribunale di Siena and the Corte Suprema di Cassazione): Istituto nazionale della previdenza sociale (INPS) v Alberto Barsotti and Others, Milena Castellani v Istituto nazionale della previdenza sociale (INPS), Istituto nazionale della previdenza sociale (INPS) v Anna Maria Venturi |
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Notice No

Contents

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 094/1

Judgment of the Court (Second Chamber) 4 March 2004 In Joined Cases C-19/01, C-50/01 and C-84/01 (Reference for a preliminary ruling from the Tribunale di Pisa, the Tribunale di Siena and the Corte Suprema di Cassazione): Istituto nazionale della previdenza sociale (INPS) v Alberto Barsotti and Others, Milena Castellani v Istituto nazionale della previdenza sociale (INPS), Istituto nazionale della previdenza sociale (INPS) v Anna Maria Venturi

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| | III   Notices |
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III   Notices

2004/C 094/4

| EN | |
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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 17.4.2004 | EN | Official Journal of the European Union | C 94/1 |
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17.4.2004

EN

Official Journal of the European Union

C 94/1

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JUDGMENT OF THE COURT

(Second Chamber)

4 March 2004

In Joined Cases C-19/01, C-50/01 and C-84/01 (Reference for a preliminary ruling from the Tribunale di Pisa, the Tribunale di Siena and the Corte Suprema di Cassazione): Istituto nazionale della previdenza sociale (INPS) v Alberto Barsotti and Others, Milena Castellani v Istituto nazionale della previdenza sociale (INPS), Istituto nazionale della previdenza sociale (INPS) v Anna Maria Venturi (1)

(Social policy - Protection of employees in the event of their employer's insolvency - Directive 80/987/EEC - Limitation of liability of the guarantee institutions - Ceiling to the liability - Part payments by the employer - Social objective of the directive)

(2004/C 94/01)

Language of the case: Italian

In Joined Cases C-19/01, C-50/01 and C-84/01: References to the Court under Article 234 EC by, respectively, the Tribunale di Pisa (Italy), the Tribunale di Siena (Italy) and the Corte Suprema di Cassazione (Italy) for preliminary rulings in the proceedings pending before those courts between Istituto nazionale della previdenza sociale (INPS) and Alberto Barsotti and Others (C-19/01), and between Milena Castellani and Istituto nazionale della previdenza sociale (INPS) (C-50/01), and between Istituto nazionale della previdenza sociale (INPS) and Anna Maria Venturi (C-84/01), on the interpretation of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23), the Court (Second Chamber), composed of: V. Skouris, acting for the President of the Second Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges; C. Stix-Hackl, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 23 October 2003, in which it has ruled:

Article 3(1) and the first subparagraph of Article 4(3) of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer are to be interpreted as meaning that they do not allow a Member State to limit the liability of the guarantee institutions to a sum which covers the basic needs of the employees concerned and from which are to be deducted payments made by the employer during the period covered by the guarantee.

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(1)  OJ C 79 of 10.03.2001,

OJ C 95 of 24.03.2001 and

OJ C 118 of 21.04.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/1 |
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17.4.2004

EN

Official Journal of the European Union

C 94/1

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JUDGMENT OF THE COURT

(Fifth Chamber)

11 March 2004

In Case C-182/01 (Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf): Saatgut-Treuhandverwaltungsgesellschaft mbH v Werner Jäger (1)

(Plant varieties - System of protection - Article 14(3) of Regulation (EC) No 2100/94 and Articles 3(2) and 8 of Regulation (EC) No 1768/95 - Organisation of holders - Meaning - Organisation's obligation to act only for its members - Use by farmers of the product of the harvest - Obligation to provide information to the holder of the Community right)

(2004/C 94/02)

Language of the case: German

In Case C-182/01: References to the Court under Article 234 EC by the Oberlandesgericht Düsseldorf (Germany) for a preliminary ruling in the proceedings pending before that court between Saatgut-Treuhandverwaltungsgesellschaft mbH and Werner Jäger, on the interpretation of the sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) and of Articles 3(2) and 8 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court (Fifth Chamber), composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 11 March 2004, in which it has ruled:

| 1. | Article 3(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 on Community plant variety rights must be interpreted as meaning that a limited company is capable of constituting an ‘organisation of holders’ of plant variety rights for the purposes of that provision. Such an organisation may invoke the rights of holders who are members of another organisation where the other organisation is itself a member of the first organisation. However, it may not invoke the rights of holders who, although not members of the first organisation or of another organisation which is, have appointed it to safeguard their interests in return for a consideration; |
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1.

Article 3(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 on Community plant variety rights must be interpreted as meaning that a limited company is capable of constituting an ‘organisation of holders’ of plant variety rights for the purposes of that provision. Such an organisation may invoke the rights of holders who are members of another organisation where the other organisation is itself a member of the first organisation. However, it may not invoke the rights of holders who, although not members of the first organisation or of another organisation which is, have appointed it to safeguard their interests in return for a consideration;

| 2. | The provisions of the sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights in conjunction with Article 8(2) of Regulation No 1768/95 cannot be construed as meaning that the holder of a Community plant variety right can require a farmer to provide the information specified in those provisions where there is no indication that the farmer has used or will use, for propagating purposes in the field, on his own holding, the product of the harvest obtained by planting, on his own holding, propagating material of a variety other than a hybrid or synthetic variety which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94. |
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2.

The provisions of the sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights in conjunction with Article 8(2) of Regulation No 1768/95 cannot be construed as meaning that the holder of a Community plant variety right can require a farmer to provide the information specified in those provisions where there is no indication that the farmer has used or will use, for propagating purposes in the field, on his own holding, the product of the harvest obtained by planting, on his own holding, propagating material of a variety other than a hybrid or synthetic variety which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94.

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(1)  OJ C 200 of 14.07.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/2 |
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17.4.2004

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Official Journal of the European Union

C 94/2

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JUDGMENT OF THE COURT

(Fifth Chamber)

16 March 2004

In Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 (Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf and from the Bundesgerichtshof): AOK Bundesverband and Others v Ichthyol-Gesellschaft Cordes, Hermani & Co., Mundipharma GmbH, Gödecke GmbH, Intersan, Institut für pharmazeutische und klinische Forschung GmbH (1)

(Competition - Undertakings - Sickness funds - Agreements, decisions and concerted practices - Interpretation of Articles 81 EC, 82 EC and 86 EC - Decisions of groups of sickness funds determining maximum amounts paid in respect of medicinal products))

(2004/C 94/03)

Language of the case: German

In Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01: References to the Court under Article 234 EC by the Oberlandesgericht Düsseldorf (Germany) and by the Bundesgerichtshof (Germany) for preliminary rulings in the proceedings pending before those courts between AOK Bundesverband, Bundesverband der Betriebskrankenkassen (BKK), Bundesverband der Innungskrankenkassen, Bundesverband der landwirtschaftlichen Krankenkassen, Verband der Angestelltenkrankenkassen eV, Verband der Arbeiter-Ersatzkassen, Bundesknappschaft, See-Krankenkasse and Ichthyol-Gesellschaft Cordes, Hermani & Co. (C-264/01), Mundipharma GmbH (C-306/01), Gödecke GmbH (C-354/01), Intersan, Institut für pharmazeutische und klinische Forschung GmbH (C-355/01), on the interpretation of Articles 81 EC, 82 EC and 86 EC, the Court (Fifth Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and A. Rosas (Presidents of Chambers), J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr (Rapporteur), Judges; F.G. Jacobs, Advocate General; H.A. Rühl, Principal Administrator, for the Registrar, has given a judgment on 16 March 2004, in which it has ruled:

Groups of sickness funds, such as the AOK Bundesverband, the Bundesverband der Betriebskrankenkassen (BKK), the Bundesverband der Innungskrankenkassen, the Bundesverband der landwirtschaftlichen Krankenkassen, the Verband der Angestelltenkrankenkassen eV, the Verband der Arbeiter-Ersatzkassen, the Bundesknappschaft and the See-Krankenkasse, do not constitute undertakings or associations of undertakings within the meaning of Article 81 EC when they determine fixed maximum amounts corresponding to the upper limit of the price of medicinal products whose cost is borne by sickness funds.

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(1)  OJ C 303 of 27.10.2001, and OJ L 348 of 08.12.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/3 |
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17.4.2004

EN

Official Journal of the European Union

C 94/3

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JUDGMENT OF THE COURT

(Fifth Chamber)

4 March 2004

In Case C-290/01 (Reference for a preliminary ruling from the Cour de cassation): Receveur principal des douanes de Villepinte v Derudder & Cie SA (1)

(Free movement of goods - Release for free circulation - Taking of a sample - Possibility of challenging the representativeness of that sample)

(2004/C 94/04)

Language of the case: French

In Case C-290/01: References to the Court under Article 234 EC by the Cour de cassation (France) for a preliminary ruling in the proceedings pending before that court between Receveur principal des douanes de Villepinte and Derudder & Cie SA; third party: Tang Frères, on the interpretation of Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), the Court (Fifth Chamber), composed of: C.W.A. Timmermans (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges; F.G. Jacobs, Advocate General; H.A. Rühl, Principal Administrator, for the Registrar, has given a judgment on 4 March 2004, in which it has ruled:

Council Directive 79/695/EEC of 24 July 1979 on the harmonisation of procedures for the release of goods for free circulation and Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Directive 79/695, as amended by Commission Directive 83/371/EEC of 14 July 1983, together with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, must be interpreted as meaning that it is permissible for a customs declarant or his representative present when a sample was taken by the customs authorities of imported goods and who did not at the time challenge the representativeness of that sample to challenge its representativeness when requested by those authorities to pay additional import duties following their analysis of that sample, provided that the goods concerned have not been released or, if they have been released, that they have not been altered in any way whatsoever, which is for that declarant to prove.

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(1)  OJ C 289 of 13.10.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/3 |
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17.4.2004

EN

Official Journal of the European Union

C 94/3

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JUDGMENT OF THE COURT

(Sixth Chamber)

19 February 2004

In Case C-329/01 (Reference for a preliminary ruling from the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court)): The Queen v Intervention Board for Agricultural Produce (1)

(Agriculture - Common organisation of the markets - Sugar - Regulation (EEC) No 2670/81 - Proof of export - Regulation (EEC) No 3719/88 - Correction of an export licence - Obvious inaccuracy - Principle of proportionality)

(2004/C 94/05)

Language of the case: English

In Case C-329/01: References to the Court under Article 234 EC by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) for a preliminary ruling in the proceedings pending before that court The Queen, on the application of British Sugar plc, and Intervention Board for Agricultural Produce, on the interpretation of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14), as amended by Commission Regulation (EC) No 158/96 of 30 January 1996 (OJ 1996 L 24, p. 3), and on the interpretation and validity of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products (OJ 1988 L 331, p. 1), as amended by Commission Regulation (EC) No 1199/95 of 29 May 1995 (OJ 1995 L 119, p. 4), the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken and N. Colneric (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 19 February 2004, in which it has ruled:

| 1. | The proof provided for in Article 2(2)(a) of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota, as amended by Commission Regulation (EC) No 158/96 of 30 January 1996, has not been supplied in respect of a quantity of C sugar actually exported where that quantity exceeds the total quantity stated on the export licence or where the export takes place after the period of that licence's validity has expired. The fact that the C sugar concerned did actually leave the Community's customs territory is not conclusive in that respect. The same is true where the customs authorities have endorsed the licence extract for a quantity applied for, but which does not reflect the manufacturer's real intentions having regard to a customs declaration in a corrected form corresponding to the amount actually exported. |
| --- | --- |

1.

The proof provided for in Article 2(2)(a) of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota, as amended by Commission Regulation (EC) No 158/96 of 30 January 1996, has not been supplied in respect of a quantity of C sugar actually exported where that quantity exceeds the total quantity stated on the export licence or where the export takes place after the period of that licence's validity has expired. The fact that the C sugar concerned did actually leave the Community's customs territory is not conclusive in that respect. The same is true where the customs authorities have endorsed the licence extract for a quantity applied for, but which does not reflect the manufacturer's real intentions having regard to a customs declaration in a corrected form corresponding to the amount actually exported.

| 2. | On a proper construction of Article 24 of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products, as amended by Commission Regulation (EC) No 1199/95 of 29 May 1995, the competent authority is not permitted to carry out a correction of the tonnage stated on the export licence or extract therefrom where there is no inaccuracy in the entries made in those documents themselves. |
| --- | --- |

2.

On a proper construction of Article 24 of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products, as amended by Commission Regulation (EC) No 1199/95 of 29 May 1995, the competent authority is not permitted to carry out a correction of the tonnage stated on the export licence or extract therefrom where there is no inaccuracy in the entries made in those documents themselves.

| 3. | Examination of Article 24 of Regulation No 3719/88, as amended by Regulation No 1199/95, has disclosed nothing which might affect its validity. |
| --- | --- |

3.

Examination of Article 24 of Regulation No 3719/88, as amended by Regulation No 1199/95, has disclosed nothing which might affect its validity.

| 4. | In circumstances such as those in the case in the main proceedings neither the national court nor the competent authorities enjoy any discretion to vary downwards the charge to be paid pursuant to Article 3 of Regulation No 2670/81, as amended by Regulation No 158/96. |
| --- | --- |

4.

In circumstances such as those in the case in the main proceedings neither the national court nor the competent authorities enjoy any discretion to vary downwards the charge to be paid pursuant to Article 3 of Regulation No 2670/81, as amended by Regulation No 158/96.

| 5. | Article 3 of Regulation No 2670/81 as amended is to be interpreted as applying to an export of C sugar effected after the corresponding export licence has expired, if the export was made after the expiry of the corresponding export licence. |
| --- | --- |

5.

Article 3 of Regulation No 2670/81 as amended is to be interpreted as applying to an export of C sugar effected after the corresponding export licence has expired, if the export was made after the expiry of the corresponding export licence.

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(1)  OJ C 303 of 27.10.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/4 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

4 March 2004

In Case C-344/01: Federal Republic of Germany v Commission of the European Communities (1)

(EAGGF - Expenditure excluded from Community financing - Suckler cow premium - Checks carried out by the Commission in certain Länder - Extrapolation of findings to other Länder - Burden of proof - Duty of cooperation in good faith)

(2004/C 94/06)

Language of the case: German

In Case C-344/01: Federal Republic of Germany (Agents: W.-D. Plessing and M. Lumma) against Commission of the European Communities (Agent: M. Niejahr), with an address for service in Luxembourg: APPLICATION for the annulment of Commission Decision 2001/557/EC of 11 July 2001excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2001 L 200, p. 28), in so far as it makes financial corrections in respect of suckler cow premiums granted in 1995 and 1996, which correspond to the 1996 and 1997 financial years, the Court (Fifth Chamber), composed of: C.W.A. Timmermans (Rapporteur), acting for the President of the Fifth Chamber, A. Rosas and A. La Pergola, Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 4 March 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 317 of 10.11.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/4 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

11 March 2004

In Case C-396/01: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil its obligations - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Identification of waters affected by pollution and waters which could be affected by pollution - Designation of vulnerable zones which contribute to pollution - Establishment of action programmes in respect of designated vulnerable zones - Monitoring and review)

(2004/C 94/07)

Language of the case: English

In Case C-396/01: Commission of the European Communities (Agent: R.B. Wainwright), with an address for service in Luxembourg, against Ireland (Agent: D.J. O'Hagan), with an address for service in Luxembourg: Application for a declaration that: by failing, within the time-limits provided for in Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1),

| — | to identify completely waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I and to notify these to the Commission, |
| --- | --- |

—

to identify completely waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I and to notify these to the Commission,

| — | to designate vulnerable zones pursuant to Article 3(2) and/or Article 3(4) thereof, |
| --- | --- |

—

to designate vulnerable zones pursuant to Article 3(2) and/or Article 3(4) thereof,

| — | to establish action programmes in accordance with Article 5 of the Directive, and |
| --- | --- |

—

to establish action programmes in accordance with Article 5 of the Directive, and

| — | to carry out correctly and completely monitoring and review of waters in accordance with Article 6(1)(a), (b) and (c) of the Directive, |
| --- | --- |

—

to carry out correctly and completely monitoring and review of waters in accordance with Article 6(1)(a), (b) and (c) of the Directive,

Ireland has failed to fulfil its obligations thereunder, the Court (Fifth Chamber), composed of: P. Jann, acting for the President of the Chamber, C.W.A. Timmermans and S. von Bahr (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 23 October 2003, in which:

| 1) | declares that by failing, within the time-limits provided for in Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources,






  — | to identify completely waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I, |
| --- | --- | --- |

1)

declares that by failing, within the time-limits provided for in Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources,

—

to identify completely waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I,

| — | to designate vulnerable zones pursuant to Article 3(2) and/or Article 3(4) thereof, |
| --- | --- |

—

to designate vulnerable zones pursuant to Article 3(2) and/or Article 3(4) thereof,

| — | to establish action programmes in accordance with Article 5 of the Directive, and |
| --- | --- |

—

to establish action programmes in accordance with Article 5 of the Directive, and

| — | to carry out correctly and completely monitoring and review of waters in accordance with Article 6(1)(a), (b) and (c) of the Directive, |
| --- | --- |

—

to carry out correctly and completely monitoring and review of waters in accordance with Article 6(1)(a), (b) and (c) of the Directive,

Ireland has failed to fulfil its obligations thereunder.

| 2) | Orders Ireland to bear the costs. |
| --- | --- |

2)

Orders Ireland to bear the costs.

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(1)  OJ C 369 of 22.12.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/5 |
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JUDGMENT OF THE COURT

(Sixth Chamber)

11 March 2004

In Case C-496/01: Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil its obligations - France - Freedom to provide services - Right of establishment - Rules governing bio-medical analysis laboratories - Conditions for the grant of an administrative operating authorisation - Place of business in France)

(2004/C 94/08)

Language of the case: French

In Case C-496/01: Commission of the European Communities (Agent: M. Patakia), with an address for service in Luxembourg, against French Republic (Agents: G. de Bergues and C. Bergeot-Nunes):

| — | Application for a declaration that, |
| --- | --- |

—

Application for a declaration that,

| — | by requiring that bio-medical analysis laboratories established in other Member States have their place of business in France in order to obtain the requisite operating authorisation; |
| --- | --- |

—

by requiring that bio-medical analysis laboratories established in other Member States have their place of business in France in order to obtain the requisite operating authorisation;

by precluding any reimbursement of the costs of bio-medical analyses carried out by a bio-medical analysis laboratory established in another Member State,

| the French Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC, the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges; J. Mischo, Advocate General; R. Grass, Registrar, has given a judgment on 11 March 2004, in which it: | 1.






  — | Declares that, by imposing on bio-medical analysis laboratories established in other Member States, a requirement that they have a place of business in France in order to obtain the necessary operating authorisation and by precluding any reimbursement of the costs of bio-medical analyses carried out by a bio-medical analysis laboratory established in another Member State, the French Republic has failed to fulfil its obligations under Article 49 EC; |
| --- | --- | --- |

the French Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC, the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges; J. Mischo, Advocate General; R. Grass, Registrar, has given a judgment on 11 March 2004, in which it:

1.

—

Declares that, by imposing on bio-medical analysis laboratories established in other Member States, a requirement that they have a place of business in France in order to obtain the necessary operating authorisation and by precluding any reimbursement of the costs of bio-medical analyses carried out by a bio-medical analysis laboratory established in another Member State, the French Republic has failed to fulfil its obligations under Article 49 EC;

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

2.

Dismisses the remainder of the application;

| 3. | Orders each party to bear its own costs. |
| --- | --- |

3.

Orders each party to bear its own costs.

---

(1)  OJ C 44 of 16.02.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/5 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

11 March 2004

In Case C-9/02 (Reference for a preliminary ruling from the Conseil d'État): Hughes de Lasteyrie du Saillant v Ministère de l'Économie, des Finances et de l'Industrie (1)

(Freedom of establishment - Article 52 of the EC Treaty (now, after amendment, Article 43 EC) - Tax legislation - Transfer of residence for tax purposes to another Member State - Methods of taxing increased value of securities)

(2004/C 94/09)

Language of the case: French

In Case C-9/02: References to the Court under Article 234 EC by the Conseil d'État (France) for a preliminary ruling in the proceedings pending before that court between Hughes de Lasteyrie du Saillant and Ministère de l'Économie, des Finances et de l'Industrie, on the interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC), the Court (Fifth Chamber), composed of: C.W.A. Timmermans (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges; J. Mischo, Advocate General; H.A. Rühl, Principal Administrator, for the Registrar, has given a judgment on 11 March 2004, in which it has ruled:

The principle of freedom of establishment laid down by Article 52 of the EC Treaty (now, after amendment, Article 43 EC) must be interpreted as precluding a Member State from establishing, in order to prevent a risk of tax avoidance, a mechanism for taxing as yet unrealised increases in value such as that laid down by Article 167a of the French Code Général des Impôts, where a taxpayer transfers his tax residence outside that State.

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(1)  OJ C 56 of 2.03.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/6 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

4 March 2004

In Case C-130/02 (Reference for a preliminary ruling from the Finanzgericht München): Krings GmbH v Oberfinanzdirektion Nürnberg (1)

(Common Customs Tariff - Combined Nomenclature - Tariff heading - Preparation with a basis of extract of tea)

(2004/C 94/10)

Language of the case: German

In Case C-130/02: References to the Court under Article 234 EC by the Finanzgericht München (Germany) for a preliminary ruling in the proceedings pending before that court between Krings GmbH and Oberfinanzdirektion Nürnberg, first, on the interpretation of the Combined Nomenclature of the Common Customs Tariff (‘the CN’) in the version set out in Commission Regulation (EC) No 2031/2001 of 6 August 2001, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2001 L 279, p. 1) and, second, on the validity of Commission Regulation (EC) No 306/2001 of 12 February 2001 concerning the classification of certain goods in the Combined Nomenclature (OJ 2001 L 44, p. 25), the Court (Fifth Chamber), composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 4 March 2004, in which it has ruled:

| 1. | Examination of the second question has not revealed any factors affecting the validity of Commission Regulation (EC) No 306/2001 of 12 February 2001 concerning the classification of certain goods in the Combined Nomenclature, in so far as it classifies the products described in points 2 and 3 of the table set out in the annex thereto under subheading 2101 20 92 of the Combined Nomenclature of the Common Customs Tariff in the version set out in Commission Regulation (EC) No 2031/2001 of 6 August 2001, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. |
| --- | --- |

1.

Examination of the second question has not revealed any factors affecting the validity of Commission Regulation (EC) No 306/2001 of 12 February 2001 concerning the classification of certain goods in the Combined Nomenclature, in so far as it classifies the products described in points 2 and 3 of the table set out in the annex thereto under subheading 2101 20 92 of the Combined Nomenclature of the Common Customs Tariff in the version set out in Commission Regulation (EC) No 2031/2001 of 6 August 2001, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff.

| 2. | The classification decided by the Commission of the European Communities in Regulation No 306/2001 in respect of the products identified at points 2 and 3 of the table set out in the annex to that regulation is applicable by analogy to two mixtures intended for the production of beverages with a basis of tea, both composed of 64 % granulated sugar and 1.9 % extract of tea and water, to which is added, in one of the two mixtures, 0.8 % citric acid. |
| --- | --- |

2.

The classification decided by the Commission of the European Communities in Regulation No 306/2001 in respect of the products identified at points 2 and 3 of the table set out in the annex to that regulation is applicable by analogy to two mixtures intended for the production of beverages with a basis of tea, both composed of 64 % granulated sugar and 1.9 % extract of tea and water, to which is added, in one of the two mixtures, 0.8 % citric acid.

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(1)  OJ C 144 of 15.06.2002.

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JUDGMENT OF THE COURT

(Fifth Chamber)

4 March 2004

In Joined Cases C-238/02 and C-246/02 (Reference for a preliminary ruling from the Bundesfinanzhof): PARTIE 1 v PARTIE 2 (1)

(Community Customs Code - Extent of the obligation as to presentation of goods arriving at customs - National legislation providing for an express declaration in respect of hidden goods at the time of presentation of goods at customs - Persons having brought in the goods and being under a duty to declare them - Concept of customs debtor)

(2004/C 94/11)

Language of the case: German

In Joined Cases C-238/02 and C-246/02: References to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between Hauptzollamt Hamburg-Stadt and Kazimieras Viluckas (C-238/02), Ricardas Jonusas (C-246/02), on the interpretation of Article 4(19), Article 40 and the first indent of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), the Court (Fifth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 4 March 2004, in which it has ruled:

| 1. | The presentation to customs of goods introduced into the Community, in terms of Article 4(19) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code concerns all goods, including those hidden in a secret compartment specially made for that purpose. The obligation to present goods as set out in Article 38 of that Code rests, as provided by Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the goods were hidden in the vehicle without their knowledge. |
| --- | --- |

1.

The presentation to customs of goods introduced into the Community, in terms of Article 4(19) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code concerns all goods, including those hidden in a secret compartment specially made for that purpose. The obligation to present goods as set out in Article 38 of that Code rests, as provided by Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the goods were hidden in the vehicle without their knowledge.

| 2. | The person who has introduced goods into the customs territory of the Community without mentioning them in the notification of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Community Customs Code. |
| --- | --- |

2.

The person who has introduced goods into the customs territory of the Community without mentioning them in the notification of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Community Customs Code.

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(1)  OJ C 202 of 24.08.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/7 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

11 March 2004

In Case C-240/02 (Reference for a preliminary ruling from the Tribunal Supremo): PARTIE 1 v PARTIE 2 (1)

(Postal Services - Directive 97/67/EC - Services reserved for the providers of the universal postal service - Definition of self-provision - Inclusion of money order services)

(2004/C 94/12)

Language of the case: Spanish

In Case C-240/02: References to the Court under Article 234 EC by the Tribunal Supremo (Spain) for a preliminary ruling in the proceedings pending before that court between Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia (Asempre), Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería and Entidad Pública Empresarial Correos y Telégrafos, Administración General del Estado, on the interpretation of Directive 97/67/EC of the European Parliament and of the Council, of 15 December 1997, on the common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), the Court (Fifth Chamber), composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr, Judges; A. Tizzano, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 11 March 2004, in which it has ruled:

| 1. | Article 7 of Directive 97/67/EC of the European Parliament and of the Council, of 15 December 1997, on the common rules for the development of the internal market of Community postal services and the improvement of quality of service, read in the light of recital 21 thereof, must be interpreted as meaning that it does not permit self-provision to be subject to the following conditions:






  — | the receiver must be the same person as the sender; |
| --- | --- | --- |

1.

Article 7 of Directive 97/67/EC of the European Parliament and of the Council, of 15 December 1997, on the common rules for the development of the internal market of Community postal services and the improvement of quality of service, read in the light of recital 21 thereof, must be interpreted as meaning that it does not permit self-provision to be subject to the following conditions:

—

the receiver must be the same person as the sender;

| — | the services must not be provided to third parties in the course of commercial or business activity of the service provider; |
| --- | --- |

—

the services must not be provided to third parties in the course of commercial or business activity of the service provider;

| — | the services must not be provided by the mailbag system or other similar methods; and |
| --- | --- |

—

the services must not be provided by the mailbag system or other similar methods; and

| — | such operations must not disrupt the services reserved to the universal service provider. |
| --- | --- |

—

such operations must not disrupt the services reserved to the universal service provider.

| 2. | Money order services, which consist in making payments through the public postal network to natural or legal persons on behalf of and on the order of others, are not within the scope of Directive 97/67. |
| --- | --- |

2.

Money order services, which consist in making payments through the public postal network to natural or legal persons on behalf of and on the order of others, are not within the scope of Directive 97/67.

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(1)  OJ C 202 of 24.08.2002.

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JUDGMENT OF THE COURT

(Fifth Chamber)

4 March 2004

In Case C-264/02 (Reference for a preliminary ruling from the Tribunal d'instance de Vienne): Cofinoga Mérignac SA v Sylvain Sachithanathan (1)

(Directives 87/102/EEC and 90/88/EEC - Consumer credit - Consumer information - Annual percentage rate of charge - Variable interest rate - Renewal of an agreement)

(2004/C 94/13)

Language of the case: French

In Case C-264/02: References to the Court under Article 234 EC by the Tribunal d'instance de Vienne (France) for a preliminary ruling in the proceedings pending before that court between Cofinoga Mérignac SA and Sylvain Sachithanathan, on the interpretation of Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48), as amended by Council Directive 90/88/EEC of 22 February 1990 (OJ 1990 L 61, p. 14), the Court (Fifth Chamber), composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr, Judges; A. Tizzano, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 4 March 2004, in which it has ruled:

Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, as amended by Council Directive 90/88/EEC of 22 February 1990, does not require, before each renewal, on the existing terms and conditions, of a credit agreement for a specified period entered into in the form of a credit facility that may be drawn down in instalments and is linked to a credit card, that is repayable in monthly instalments and bears an interest rate that is expressed to be variable, that the lender inform the borrower in writing of the current annual percentage rate of charge and of the conditions under which the latter may be amended.

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(1)  OJ C 233 of 28.09.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/8 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

of 4 March 2004

in Case C-303/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Peter Haackert v Pensionsversicherungsanstalt der Angestellten (1)

(Equality of treatment between men and women - Social security - Early old-age pension for the unemployed - Different pension age according to sex)

(2004/C 94/14)

Language of the case: German

In Case C-303/02: reference to the Court under Article 234 EC by the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between Peter Haackert and the Pensionsversicherungsanstalt der Angestellten on the interpretation of Article 7(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), the Court (Fifth Chamber), composed of P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola (Rapporteur) and S. von Bahr, Judges; S. Alber, Advocate-General; R. Grass, Registrar, gave a judgment on 4 March 2004, the operative part of which is as follows:

The derogation provided for in Article 7(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as applying to a benefit such as early old-age pension on account of unemployment, for which a different age condition by reference to sex has been established, since such a condition may be regarded, within the meaning of that provision, as a consequence which may follow from the enactment in national legislation of a different age condition by reference to sex for the granting of old-age pensions.

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(1)  OJ No C 289, 23. 11. 2002

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JUDGMENT OF THE COURT

(Fifth Chamber)

4 March 2004

In Case C-334/02: Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil its obligations - Freedom to provide services - Free movement of capital - Tax on income arising from investments - Debtor not resident or established in France - Exclusion of the fixed levy as the rate - National legislation contrary to the terms of the Treaty)

(2004/C 94/15)

Language of the case: French

In Case C-334/02: Commission of the European Communities, (Agents: R. Lyal and C. Giolito), with an address for service in Luxembourg, against French Republic, (Agents: G. de Bergues and P. Boussaroque): Application for a declaration that by excluding altogether application of the rate of the fixed levy to income arising from the investments and contracts referred to in Articles 125-0 A and 125 A of the Code général des impôts where the debtor is not resident or established in France, the French Republic has failed to fulfil its obligations under Articles 49 and 56 EC, the Court (Third Chamber), composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate General;. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 4 March 2003, in which it:

| 1. | Declares that by excluding altogether application of the rate of the fixed levy to income arising from the investments and contracts referred to in Articles 125-0 A and 125 A of the Code général des impôts where the debtor is not resident or established in France, the French Republic has failed to fulfil its obligations under Articles 49 and 56 EC; |
| --- | --- |

1.

Declares that by excluding altogether application of the rate of the fixed levy to income arising from the investments and contracts referred to in Articles 125-0 A and 125 A of the Code général des impôts where the debtor is not resident or established in France, the French Republic has failed to fulfil its obligations under Articles 49 and 56 EC;

| 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 261 of 26.10.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/9 |
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17.4.2004

EN

Official Journal of the European Union

C 94/9

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JUDGMENT OF THE COURT

(Third Chamber)

19 February 2004

In Case C-310/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Failure to implement Directive 1999/44/EC)

(2004/C 94/16)

Language of the case: French

In Case C-310/03: Commission of the European Communities (Agent: D. Martin), against Grand Duchy of Luxembourg (Agent: S. Schreiner): Application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive, the Court (Third Chamber), composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 19 February 2004, in which it:

| 1. | Declares that, by failing to adopt, within the period prescribed in the reasoned opinion, the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed in the reasoned opinion, the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, 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 213 of 6.09.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/9 |
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17.4.2004

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Official Journal of the European Union

C 94/9

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JUDGMENT OF THE COURT

(Third Chamber)

19 February 2004

In Case C-312/03: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations - Failure to implement Directive 1999/44/EC)

(2004/C 94/17)

Language of the case: French

In Case C-312/03, Commission of the European Communities (Agent: D. Martin) against Kingdom of Belgium (Agent: E. Dominkovits): Application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12), the Kingdom of Belgium has failed to fulfil its obligations under that directive, the Court (Third Chamber), composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 19 February 2004, in which it:

| 1. | Declares that, by failing to adopt, within the period prescribed in the reasoned opinion, the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed in the reasoned opinion, the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 213 of 6.09.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/9 |
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17.4.2004

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Official Journal of the European Union

C 94/9

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JUDGMENT OF THE COURT

(Fifth Chamber)

9 March 2004

In Case C-314/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Failure to transpose Directive 2000/52/EC - Transparency of financial relations between Member States and public undertakings)

(2004/C 94/18)

Language of the case: French

In Case C-314/03: Commission of the European Communities (Agent: G. Rozet), with an address for service in Luxembourg, against Grand Duchy of Luxembourg (Agent: S. Schreiner): Application for a declaration that, by failing to adopt and, in any event, by failing to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (OJ 2000 L 193, p. 75), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive, the Court (Fifth Chamber), composed of: C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 9 March 2004, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings, 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 213 of 6.09.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/10 |
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17.4.2004

EN

Official Journal of the European Union

C 94/10

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ORDER OF THE COURT

(Third Chamber)

29 January 2004

in Case C-253/01 (Reference for a preliminary ruling from the Arrondissementsrechtbank te Rotterdam): S.A. Krüger v Directie van de rechtspersoonlijkheid bezittende Dienst Wegverkeer, (1)

(Article 104(3) of the Rules of Procedure - Freedom of movement for persons - Directive 91/439/EEC - Driving licences - Mutual recognition - Compulsory exchange)

(2004/C 94/19)

Language of the case: Dutch

In Case C-253/01: Reference to the Court under Article 234 EC by the Arrondissementsrechtbank te Rotterdam (Netherlands) for a preliminary ruling in the proceedings pending before that court between S.A. Krüger and Directie van de rechtspersoonlijkheid bezittende Dienst Wegverkeer, on the interpretation of Article 1(1) and (2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1), as amended by Council Directive 96/47/EC of 23 July 1996 (OJ 1996 L 235, p. 1), and of the provisions of the EC Treaty on freedom of movement for persons, the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges; P. Léger, Advocate General; R. Grass, Registrar, has made an order on 29 January 2004, the operative part of which is as follows:

Article 1(1) and (2) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 96/47/EC of 23 July 1996, must be interpreted as precluding legislation of a Member State which requires, under certain circumstances, holders of driving licences issued by another Member State who are established in their territory to exchange that licence for a national driving licence on the ground that a driving licence issued by another Member State which does not comply with the provisions on the period of validity which apply in the host Member State cannot be registered in its registry of driving licences.

It is for the holder of a driving licence issued by a Member State who takes up normal residence in another Member State which has exercised its discretion under Article 1(3) of Directive 91/439 to prove that he fulfils the conditions set out in the legislation of the host Member State on the renewal of driving licences. However, once that has been proven, it is a matter for the authorities of the host Member State to give due effect thereto and authorise the holder to drive a vehicle under his original driving licence.

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(1)  OJ C 289 of 13.10.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/11 |
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C 94/11

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ORDER OF THE COURT

(Fourth Chamber)

of 5 February 2004

in Case C-326/01: Telefon & Buch VerlagsgmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Absolute ground for refusal to register - Distinctive character - Marks consisting exclusively of descriptive signs or indications - Word marks ‘Universaltelefonbuch’ and ‘Universalkommunikationsverzeichnis’)

(2004/C 94/20)

Language of the case: German

In Case C-326/01 P: Telefon & Buch VerlagsgmbH (Lawyer: H.G. Zeiner), with an address for service in Luxembourg — Appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 14 June 2001 in Joined Cases T-357/99 and T-358/99 Telefon & Buch v OHIM (Universaltelefonbuch and Universalkommunikationsverzeichnis) [2001] ECR II-1705, by which the Court of First Instance dismissed the actions brought against two decisions of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 October 1999 refusing to register the words ‘Universaltelefonbuch’ and ‘Universalkommunikationsverzeichnis’ as Community trade marks (Cases R 351/1999-3 and R 352/1999-3), seeking to have that judgment set aside, the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Agents: E. Joly and S. Bonne) – the Court (Fourth Chamber), composed of J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Judge-Rapporteur) and F. Macken, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 5 February 2004, the operative part of which is as follows:

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

1.

The appeal is dismissed;

| 2. | Telefon & Buch VerlagsgmbH shall pay the costs. |
| --- | --- |

2.

Telefon & Buch VerlagsgmbH shall pay the costs.

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(1)  OJ 2001 C 317.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/11 |
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17.4.2004

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Official Journal of the European Union

C 94/11

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ORDER OF THE COURT

(Fourth Chamber)

of 27 January 2004

in Case C-428/01 (reference for a preliminary ruling from the Tribunale di Catania): Fratelli Costanzo SpA v Elettrica SpA (1)

(Article 104(3) of the Rules of Procedure - Questions identical to questions on which the Court has already ruled)

(2004/C 94/21)

Language of the case: Italian

In Case C-428/01: reference to the Court under Article 234 EC from the Tribunale di Catania (Italy) for a preliminary ruling in the proceedings pending before that court between Fratelli Costanzo SpA and Elettrica SpA — on the interpretation of Article 87 EC and 88 EC — the Court (Fourth Chamber), composed of: J. N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet and K. Lenaerts (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has made an order on 27 January 2004, the operative part of which is as follows:

| 1. | Transitional rules, such as those laid down in Article 106 of Legislative Decree No 270/99 of 8 July 1999, introducing new rules for the extraordinary management of large-scale undertakings in a state of insolvency and maintaining the effect of a new State aid scheme which had not been notified to the Commission of the European Communities and had been declared incompatible with Community law, constitute themselves a new State aid scheme for the purposes of Article 87 EC and 88 EC. |
| --- | --- |

1.

Transitional rules, such as those laid down in Article 106 of Legislative Decree No 270/99 of 8 July 1999, introducing new rules for the extraordinary management of large-scale undertakings in a state of insolvency and maintaining the effect of a new State aid scheme which had not been notified to the Commission of the European Communities and had been declared incompatible with Community law, constitute themselves a new State aid scheme for the purposes of Article 87 EC and 88 EC.

| 2. | Questions in which the Court is asked to examine the compatibility with the common market of transitional rules such as those provided for by Article 106 of Legislative Decree No 270/99 are inadmissible. |
| --- | --- |

2.

Questions in which the Court is asked to examine the compatibility with the common market of transitional rules such as those provided for by Article 106 of Legislative Decree No 270/99 are inadmissible.

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(1)  OJ C 3 of 5.1.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/12 |
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17.4.2004

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Official Journal of the European Union

C 94/12

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ORDER OF THE COURT

(Fourth Chamber)

5 February 2004

in Case C-150/02 P: Streamserve Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Absolute ground for refusal to register - Distinctive character - Marks consisting exclusively of descriptive signs or indications - ‘Streamserve’)

(2004/C 94/22)

Language of the case: English

In Case C-150/02 P: Streamserve Inc., represented by J. Kääriäinen, advokat, with an address for service in Luxembourg: Appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 27 February 2002 in Case T-106/00 Streamserve v OHIM (Streamserve) [2002] ECR II-723, seeking the annulment of that judgment in so far as the Court of First Instance held that the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) had not infringed Article 7(1)(c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) in its decision of 28 February 2000 refusing registration of the word ‘Streamserve’ as a Community trade mark, other than as regards goods in the categories ‘manuals’ and ‘publications’ (Case R 423/1999-2), the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (Agent: E. Joly), the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has made an order on 5 February 2004, the operative part of which is as follows:

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

1.

The appeal is dismissed.

| 2. | The appellant is to pay the costs. |
| --- | --- |

2.

The appellant is to pay the costs.

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(1)  OJ C 169 of 13.07.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/12 |
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Official Journal of the European Union

C 94/12

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ORDER OF THE COURT

(First Chamber)

28 January 2004

in Case C-164/02: Kingdom of the Netherlands v Commission of the European Communities, (1)

(State aid - Aid for the processing of dredging silt - Measure notified to and authorised by the Commission - Action for annulment - Inadmissibility)

(2004/C 94/23)

Language of the case: Dutch

In Case C-164/02: Kingdom of the Netherlands, represented by H.G. Sevenster, acting as Agent, Commission of the European Communities (Agents: V. Di Bucci and H. van Vliet), with an address for service in Luxembourg: Application for the annulment of Commission Decision SG (2002) D/228533 of 15 February 2002 relating to State aid No N 812/2001 concerning the Stimuleringsregeling verwerking baggerspecie (Rules on incentives to encourage the processing of dredging silt), in so far as the Commission takes the view therein that the contributions paid to port authorities pursuant to those rules constitute State aid for the purposes of Article 87(1) EC, the Court (First Chamber), composed of: P. Jann (Rapporteur), President of the Chamber, A. La Pergola, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has made an order on 28 January 2004, the operative part of which is as follows:

| 1. | The application is dismissed as inadmissible |
| --- | --- |

1.

The application is dismissed as inadmissible

| 2. | The Kingdom of the Netherlands shall pay the costs. |
| --- | --- |

2.

The Kingdom of the Netherlands shall pay the costs.

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(1)  OJ C 156 of 29.06.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/13 |
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17.4.2004

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Official Journal of the European Union

C 94/13

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ORDER OF THE COURT

(Third Chamber)

10 December 2003

in Case C-204/02 P: Colin Joynson v Commission of the European Communities (1)

(Appeal - Agreements - Standard leases for public houses - Appeal manifestly inadmissible and manifestly unfounded)

(2004/C 94/24)

Language of the case: English

In Case C-204/02 P: Colin Joynson, residing in Manchester (United Kingdom), represented by S. Ferdinand, Solicitor: Appeal against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 21 March 2002 in Case T 231/99 Joynson v Commission [2002] ECR II 2085, seeking to have that judgment set aside, the other parties to the proceedings being: Commission of the European Communities (Agents: K. Wiedner, assisted by N. Khan), with an address for service in Luxembourg, Six Continents plc, formerly Bass plc, established in London (Agents: J. Block and J. Baxter), with an address for service in Luxembourg, the Court (Third Chamber), composed of: C. Gulmann (Rapporteur), acting for the President of the Third Chamber, J.N. Cunha Rodrigues and J. P. Puissochet, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has made an order on 10 December 2003, the operative part of which is as follows:

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

1.

The appeal is dismissed.

| 2. | Mr Joynson shall pay the costs. |
| --- | --- |

2.

Mr Joynson shall pay the costs.

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(1)  OJ C 191 of 10.08.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/13 |
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17.4.2004

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Official Journal of the European Union

C 94/13

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ORDER OF THE COURT

(Third Chamber)

15 January 2004

in Case C-235/02 (Reference for a preliminary ruling by the Giudice per le indagini preliminari of the Tribunale di Gela): in the criminal proceedings against Mario Antonio Saetti and Andrea Frediani (1),

(Article 104(3) of the Rules of Procedure - Directives 75/442/EEC and 91/156/EEC - Waste management - Definition of ‘waste’ - Petroleum coke)

(2004/C 94/25)

Language of the case: Italian

In Case C-235/02: Reference to the Court under Article 234 EC by the Giudice per le indagini preliminari of the Tribunale di Gela (Italy) for a preliminary ruling in the criminal proceedings before that court against Mario Antonio Saetti and Andrea Frediani, on the interpretation of Articles 1(a) and (f), 2(1)(b) and 4 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), the Court (Third Chamber), composed of: C. Gulmann, acting as President of the Third Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges; J. Kokott, Advocate General; R. Grass, Registrar, has made an order on 15 January 2004, the operative part of which is as follows:

Petroleum coke which is produced intentionally or in the course of producing other petroleum fuels in an oil refinery and is certain to be used as fuel to meet the energy needs of the refinery and those of other industries does not constitute waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991.

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(1)  OJ C 202 of 24.08.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/13 |
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C 94/13

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ORDER OF THE COURT

(Fifth Chamber)

12 December 2003

in Case C-258/02 P: Bactria Industriehygiene-Service Verwaltungs GmbH v Commission of the European Communities (1)

(Appeal - Regulation (EC) No 1896/2000 - Biocidal products - Action for annulment - Inadmissible - Appeal manifestly unfounded)

(2004/C 94/26)

Language of the case: English

In Case C-258/02 P: Bactria Industriehygiene-Service Verwaltungs GmbH, whose registered office is in Kirchheimbolanden (Germany), represented by K. van Maldegem and C. Mereu, avocats: APPEAL against the order of the Court of First Instance of the European Communities (Second Chamber) of 29 April 2002 in Case T-339/00 Bactria v Commission [2002] ECR II-2287, seeking to have that order set aside, the other parties to the proceedings being: Commission of the European Communities (Agents: R.B. Wainwright and L. Ström), with an address for service in Luxembourg, Eurobrom BV, established in Rijswijk (Netherlands), Lonza GmbH, established in Wuppertal (Germany), Arch Chemicals SA, established in Paris (France), and Troy Chemical Company BV, established in Maassluis (Netherlands), the Court (Fifth Chamber), composed of: C. Gulmann (Rapporteur), President of the Chamber, A. La Pergola and R. Silva de Lapuerta, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has made an order on 12 December 2003, the operative part of which is as follows:

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

1.

The appeal is dismissed.

| 2. | Bactria Industriehygiene-Service Verwaltungs GmbH is ordered to pay the costs. |
| --- | --- |

2.

Bactria Industriehygiene-Service Verwaltungs GmbH is ordered to pay the costs.

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(1)  OJ C 233 of 28.09.2002.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/14 |
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17.4.2004

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Official Journal of the European Union

C 94/14

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ORDER OF THE COURT

(Third Chamber)

27 January 2004

in Case C-259/02 (Reference for a preliminary ruling by the High Court of Justice of England and Wales, Chancery Division): La Mer Technology Inc. v Laboratoires Goemar SA, (1)

(Article 104(3) of the Rules of Procedure - Trade marks - Directive 89/104/EEC - Articles 10(1) and 12(1) - Revocation of a trade mark - Notion of genuine use of a trade mark)

(2004/C 94/27)

Language of the case: English

In Case C-259/02: Reference to the Court under Article 234 EC by the High Court of Justice of England and Wales, Chancery Division for a preliminary ruling in the proceedings pending before that court between La Mer Technology Inc. and Laboratoires Goemar SA, on the interpretation of Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the Court (Third Chamber), composed of: J.N. Cunha Rodrigues, acting as President of the Third Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has made an order on 27 January 2004, the operative part of which is as follows:

| 1. | Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that there is ‘genuine use’ of a trade mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by that mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real in the course of trade, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark. When it serves a real commercial purpose, in the circumstances cited above, even minimal use of the mark or use by only a single importer in the Member State concerned can be sufficient to establish genuine use within the meaning of the Directive. |
| --- | --- |

1.

Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that there is ‘genuine use’ of a trade mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by that mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real in the course of trade, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark. When it serves a real commercial purpose, in the circumstances cited above, even minimal use of the mark or use by only a single importer in the Member State concerned can be sufficient to establish genuine use within the meaning of the Directive.

| 2. | While First Directive 89/104 makes the classification of use of the trade mark as ‘genuine use’ consequential only on consideration of the circumstances which pertain in respect of the relevant period and which predate the filing of the application for revocation, it does not preclude, in assessing the genuineness of use during the relevant period, account being taken, where appropriate, of any circumstances subsequent to that filing. It is for the national court to determine whether such circumstances confirm that the use of the mark during the relevant period was genuine or whether, conversely, they reflect an intention on the part of the proprietor to defeat that claim. |
| --- | --- |

2.

While First Directive 89/104 makes the classification of use of the trade mark as ‘genuine use’ consequential only on consideration of the circumstances which pertain in respect of the relevant period and which predate the filing of the application for revocation, it does not preclude, in assessing the genuineness of use during the relevant period, account being taken, where appropriate, of any circumstances subsequent to that filing. It is for the national court to determine whether such circumstances confirm that the use of the mark during the relevant period was genuine or whether, conversely, they reflect an intention on the part of the proprietor to defeat that claim.

---

(1)  OJ C 219 of 14.09.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/14 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/14

---

ORDER OF THE COURT

(Second Chamber)

of 5 February 2004

in Case C-357/02 (reference for a preliminary ruling from the Supremo Tribunal Administrativo):
  Fazenda Pública
  v
  SONAE Distribuição SGPS SA

   (1)

(Article 104(3) of the Rules of Procedure - Directive 69/335/EEC - Indirect taxes on the raising of capital - Tax on over-the-counter share transfers)

(2004/C 94/28)

Language of the case: Portuguese

In Case C-357/02: reference to the Court under Article 234 EC by the Supremo Tribunal Administrativo (Supreme Administrative Court) (Portugal) in the proceedings pending before that court between Fazenda Pública and SONAE Distribuição SGPS SA for a preliminary ruling on the interpretation of Articles 11 and 12 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) the Court (Second Chamber), composed of: V. Skouris, acting for the President of the Second Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges; A.Tizzano, Advocate General; R. Grass, Registrar made an order on 5 February 2004, the operative part of which is as follows:

Articles 11 and 12 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that they do not preclude the imposition of a tax on over-the-counter share transfers where the amount of the tax increases directly, and without an upper limit, in proportion to the amount of the underlying transaction.

---

(1)  OJ C 289 of 23 November 2002

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/15 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/15

---

ORDER OF THE COURT

(First Chamber)

of 29 January 2004

in Case C-381/02 (reference for a preliminary ruling from the Cour d'appel de Caen): Association comité économique régional agricole fruits et légumes de Bretagne (Cerafel) v François Faou, GAEC de Kerlidou (1)

(Article 104(3) of the Rules of Procedure - Agriculture - Common organisation of the markets - Fruit and vegetables - Producers' organisations - Scope of the rules governing production and marketing - Imposition of fees - Non-member producers)

(2004/C 94/29)

Language of the case: French

In Case C-381/02: reference to the Court under Article 234 EC from the Cour d'appel de Caen (France) for a preliminary ruling in the proceedings pending before that court between Association comité économique régional agricole fruits et légumes de Bretagne (Cerafel) and François Faou, GAEC de Kerlidou — on the interpretation of Article 15b(8) of Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organisation of the market in fruit and vegetables (OJ, English Special Edition 1972 (II), p. 437), as amended by Regulation (EEC) No 3284/83 of the Council of 14 November 1983 (OJ 1983 L 325, p. 1) — the Court (First Chamber), composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, A. La Pergola, S. von Bahr and K. Lenaerts, Judges; J. Kokott, Advocate General; R. Grass, Registrar, has made an order on 29 January 2004, the operative part of which is as follows:

Article 15b(1) and (8) of Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organisation of the market in fruit and vegetables, as amended by Regulation No 3284/83 (EEC) of the Council of 14 November 1983, is to be interpreted in the following manner:

| — | a Member State which has applied Article 15b(1), by making certain production and marketing rules laid down by a producers' organisation mandatory for producers who are established in the district of that organisation and who are not members of it may not, without infringing the principle of non-discrimination, apply Article 15b(8) by making them liable for all or part of the fees paid by member producers, without distinguishing according to whether or not those non-member producers are in an objectively different situation from that of the member producers; |
| --- | --- |

—

a Member State which has applied Article 15b(1), by making certain production and marketing rules laid down by a producers' organisation mandatory for producers who are established in the district of that organisation and who are not members of it may not, without infringing the principle of non-discrimination, apply Article 15b(8) by making them liable for all or part of the fees paid by member producers, without distinguishing according to whether or not those non-member producers are in an objectively different situation from that of the member producers;

| — | non-member producers are in an objectively different situation from that of the member producers when the rules adopted by that organisation do not apply or apply only marginally to their products and the actions undertaken by the organisation are of no benefit or only of marginal benefit to those products; |
| --- | --- |

—

non-member producers are in an objectively different situation from that of the member producers when the rules adopted by that organisation do not apply or apply only marginally to their products and the actions undertaken by the organisation are of no benefit or only of marginal benefit to those products;

| — | it is for the national courts to assess the evidence presented on this point. |
| --- | --- |

—

it is for the national courts to assess the evidence presented on this point.

---

(1)  OJ C 305 of 7.12.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/15 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/15

---

ORDER OF THE COURT

(Fifth Chamber)

of 3 March 2004

in Case C-395/02 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen): Transport Service NV v Belgische Staat and Bea Cars BVBA (1)

(Article 104(3) of the Rules of Procedure - First and Sixth VAT Directives - Principle of fiscal neutrality - Application of VAT to each production and distribution transaction - Recovery)

(2004/C 94/30)

Language of the case: Dutch

In Case C-395/02; reference to the Court under Article 234 EC from the Rechtbank van eerste aanleg te Antwerpen (Belgium) for a preliminary ruling in the proceedings pending before that court between Transport Service NV and Belgische Staat, Bea Cars BVBA, third party — on the interpretation of the principle of the neutrality of the common system of value added tax — the Court (Fifth Chamber), composed of C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has made an order on 3 March 2004, the operative part of which is as follows:

The principle of the neutrality of the common system of value added tax does not preclude a Member State from recovering value added tax, after the event, from a taxable person which has wrongly invoiced a supply of goods as being exempt from that tax. It is irrelevant, in that regard, whether the value added tax on the later sale of the goods concerned to the end user has been paid to the public purse or not.

---

(1)  OJ C 7 of 11.1.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/15 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/15

---

ORDER OF THE COURT

(Third Chamber)

of 11 December 2003

in Case C-408/02 (reference for a preliminary ruling from the Cour de Cassation): Criminal proceedings against José Antonio da Silva Carvalho (1)

(Article 104(3) of the Rules of Procedure - Directive 91/439/EEC - Mutual recognition of driving licences - Residence condition - Obtaining of a driving licence in a Member State other than the one in which the holder of that licence resides)

(2004/C 94/31)

Language of the case: French

In Case C-408/02: reference to the Court under Article 234 EC by the Cour de Cassation (Luxembourg) for a preliminary ruling in the criminal proceedings pending before that court against José Antonio da Silva Carvalho on the interpretation of Article 1(2) and (3) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges; P. Léger, Advocate-General; R. Grass, Registrar, gave an order on 11 December 2003, the operative part of which is as follows:

The combined provisions of Articles 1(2), 7(1)(b) and 9 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, must be interpreted as precluding a Member State from refusing recognition to a driving licence issued by another Member State on the ground that, according to the information available to the first Member State, the holder of the licence in question had, at the date of its issue, established his normal residence in the territory of that Member State and not in the territory of the issuing Member State.

---

(1)  OJ C 7, 11.1.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/16 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/16

---

ORDER OF THE COURT

(First Chamber)

of 24 July 2003

in Case C-44/03 (reference for a preliminary ruling from the Bezirksgericht Dornbirn): Helmut Horn v Karl Schelling (1)

(Principles of Community law - Political sanctions imposed on a Member State)

(2004/C 94/32)

Language of the case: German

In Case C-44/03: reference to the Court under Article 234 EC from the Bezirksgericht Dornbirn (Austria) for a preliminary ruling in the proceedings pending before that court between Helmut Horn and Karl Schelling — on the interpretation of Article 7 EU, and Articles 12 EC, 49 EC to 55 EC and 87 EC — the Court (First Chamber), composed of: M. Wathelet (Rapporteur), President of the Chamber, P. Jann and A. Rosas, Judges; J. Mischo, Advocate General; R. Grass, Registrar, has made an order on 24 July 2003, the operative part of which is as follows:

The questions referred for a preliminary ruling by the Bezirksgericht Dornbirn by order of 16 December 2002 are manifestly inadmissible.

---

(1)  OJ C 47 of 21.2.2004.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/16 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/16

---

ORDER OF THE COURT

(Second Chamber)

8 January 2004

in Case C-69/03 (Reference for a preliminary ruling from the Corte d'Appello di Venezia): Caseificio Cooperativo di Cornedo Soc. coop. arl v Ministero delle Finanze, (1)

(Article 104(3) of the Rules of Procedure - Regulations (EEC) Nos 1079/77 and 1822/77 - Co-responsibility levy on cows' milk - Concept of ‘delivery to a purchaser’)

(2004/C 94/33)

Language of the case: Italian

In Case C-69/03: Reference to the Court under Article 234 EC by the Corte d'Appello di Venezia (Italy) for a preliminary ruling in the proceedings pending before that court between Caseificio Cooperativo di Cornedo Soc. coop. arl and Ministero delle Finanze, on the interpretation of Council Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in milk and milk products (OJ 1977 L 131, p. 6) and Commission Regulation (EEC) No 1822/77 of 5 August 1977 laying down detailed rules for the collection of the co-responsibility levy introduced in respect of milk and milk products (OJ 1977 L 203, p. 1), the Court (Second Chamber), composed of: V. Skouris, acting for the President of the Second Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has made an order on 8 January 2004, the operative part of which is as follows:

Council Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in milk and milk products and Commission Regulation (EEC) No 1822/77 of 5 August 1977 laying down detailed rules for the collection of the co-responsibility levy introduced in respect of milk and milk products apply to all deliveries of cows' milk made by a producer to another person, regardless of the legal nature of the relationship on the basis of which the deliveries are made.

---

(1)  OJ C 83 of 5.4.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/17 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/17

---

ORDER OF THE COURT

(First Chamber)

of 10 February 2004

in Case C-85/03 (reference for a preliminary ruling from the Polymeles Protodikeio Athinon): Mavrona & Sia OE v Delta Etaireia Symmetochon AE (1)

(Article 104(3) of the Rules of Procedure - Directive 86/653/EEC - Coordination of the laws of the Member States relating to self-employed commercial agents - Applicability to commercial agents)

(2004/C 94/34)

Language of the case: Greek

In Case C-85/03: reference to the Court under Article 234 EC from the Polymeles Protodikeio Athinon (Greece) for a preliminary ruling in the proceedings pending before that court between Mavrona & Sia OE and Delta Etaireia Symmetochon AE — on the interpretation of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ L 382, p. 17) Ä the Court (First Chamber), composed of: P. Jann, President of the Chamber (Rapporteur), A. La Pergola, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has made an order on 10 February 2004, in which it has ruled:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that persons who act on behalf of a principal, but in their own name, do not come within the scope of that directive.

---

(1)  OJ No C 112,10.5.2003

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/17 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/17

---

ORDER OF THE COURT

(Fifth Chamber)

of 11 February 2004

in Case C-180/03 P: Benito Latino v Commission of the European Communities (1)

(Appeal - Officials - Occupational disease - Recognition of the occupational origin of arthrosis-related damage - Validity of the opinion of the Medical Committee - Exhaustion of the latter's competence and requirement that it act impartially - Article 119 of the Rules of Procedure)

(2004/C 94/35)

Language of the case: French

In Case C-180/03 P; Benito Latino, a former official of the Commission of the European Communities, residing at Sérignac-Peboudou (France) (lawyers: J.R. Iturriagagoitia Bassas and K. Delvolvé) — appeal against the judgment of the Court of First Instance of the European Communities (First Chamber) of 26 February 2003 in Case T-145/01 Latino v Commission (not yet published in the ECR), seeking to have that judgment set aside, the other party to the proceedings being: Commission of the European Communities (Agent: J. Currall, assisted by J.-F. Fagnart) — the Court (Fifth Chamber), composed of C. Gulmann, President of the Chamber, S. von Bahr and R. Silva de Lapuerta (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has made an order on 11 February 2004, the operative part of which is as follows:

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

1.

The appeal is dismissed.

| 2. | Mr Latino is ordered to pay the costs. |
| --- | --- |

2.

Mr Latino is ordered to pay the costs.

---

(1)  OJ C 158 of 5.7.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/17 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/17

---

ORDER OF THE COURT OF JUSTICE

(Fourth Chamber)

of 9 December 2003

in Case C-224/03: Italian Republic v Commission of the European Communities (1)

(Transition from ECSC regime to EC regime - Application for a declaratory finding - Lack of jurisdiction of the Court)

(2004/C 94/36)

Language of the case: Italian

In Case C-224/03: Italian Republic (Agent: I.M. Braguglia, assisted by M. Fiorilli), with an address for service in Luxembourg, against Commission of the European Communities (Agents: L. Pignataro and A. Whelan) — application for a declaration that, under Article 97 CS, with effect from 24 July 2002 the powers and competence of the Commission of the European Communities in the sectors assigned under the ECSC Treaty to the High Authority have lapsed, with the result that any measure adopted or to be adopted by it in those sectors which have not formed the subject-matter of a new agreement by the signatory states is to be deemed null and void and of no effect — the Court of Justice (Fourth Chamber), composed of J.N. Cunha Rodrigues, President of the Chamber, F. Macken and K. Lenaerts (Rapporteur), Judges; Advocate General: D. Ruiz-Jarabo Colomer; R. Grass, Registrar, made an order on 9 December 2003, the operative part of which is as follows:

| 1) | The application is dismissed. |
| --- | --- |

1)

The application is dismissed.

| 2) | The Italian Republic is ordered to pay the costs. |
| --- | --- |

2)

The Italian Republic is ordered to pay the costs.

---

(1)  OJ 2003 C 184

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/18 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/18

---

Appeal brought on 16 January 2004 by Mr G. Krikorian, Mrs S. Krikorian (née Tatoyan) and the Euro-Armenia Association against the order made on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in Case T-346/03 G. Krikorian and Others v Parliament, Council and Commission and against the order made on 17 December 2003 by the President of the Court of First Instance in Case T-346/03 R G. Krikorian and Others v Parliament, Council and Commission between G. Krikorian and Others and the Parliament, the Council and the Commission of the European Communities

(Case C-18/04 P)

(2004/C 94/37)

An appeal against the order made on 17 December 2003 by the First Chamber of the Court of First Instance in Case T-346/03 (G. Krikorian and Others v Parliament, Council and Commission) and against the order made on 17 December 2003 by the President of the Court of First Instance in case T-346/03 R (G. Krikorian and Others v Parliament, Council and Commission) between G. Krikorian and Others and the Parliament, the Council and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 16 January 2004 by Mr G. Krikorian, Mrs S. Krikorian (née Tatoyan) and the Euro-Armenia Association.

The appellants claim that the Court should:

| 1. | set aside in its entirety the order made on 17 December 2003 and notified by registered letter received on 6 January 2004, by which the Court of First Instance of the European Communities (First Chamber), in Case T-346/03 G. Krikorian and Others v Parliament, Council and Commission, dismissed, pursuant to Article 111 of its Rules of Procedure, the appellants' action for damages on the ground that it was manifestly lacking any foundation in law; |
| --- | --- |

1.

set aside in its entirety the order made on 17 December 2003 and notified by registered letter received on 6 January 2004, by which the Court of First Instance of the European Communities (First Chamber), in Case T-346/03 G. Krikorian and Others v Parliament, Council and Commission, dismissed, pursuant to Article 111 of its Rules of Procedure, the appellants' action for damages on the ground that it was manifestly lacking any foundation in law;

| 2. | set aside in its entirety the order made on 17 December 2003 and notified by registered letter received on 6 January 2004, by which the President of the Court of First Instance, in Case T-346/03 G. Krikorian and Others v Parliament, Council and Commission, held that as a consequence there was no longer any need to adjudicate on the application for interim measures; |
| --- | --- |

2.

set aside in its entirety the order made on 17 December 2003 and notified by registered letter received on 6 January 2004, by which the President of the Court of First Instance, in Case T-346/03 G. Krikorian and Others v Parliament, Council and Commission, held that as a consequence there was no longer any need to adjudicate on the application for interim measures;

| 3. | allow all the forms of order claimed at first instance and, as a consequence:






  (a) | declare that the Resolution of 18 June 1987 by which the European Parliament acknowledged the historic reality of the Armenian genocide – perpetrated by the ‘Young Turk’ Government in 1915 against 1 500 000 innocent Armenian victims – and considered modern Turkey's failure to acknowledge it an insurmountable obstacle to consideration of Turkey's accession to the European Union, an act giving rise to legitimate expectations on the part of European citizens of Armenian origin and thus on the part of the appellants, has binding legal force with regard to the European Community; |
| --- | --- | --- |

3.

allow all the forms of order claimed at first instance and, as a consequence:

(a)

declare that the Resolution of 18 June 1987 by which the European Parliament acknowledged the historic reality of the Armenian genocide – perpetrated by the ‘Young Turk’ Government in 1915 against 1 500 000 innocent Armenian victims – and considered modern Turkey's failure to acknowledge it an insurmountable obstacle to consideration of Turkey's accession to the European Union, an act giving rise to legitimate expectations on the part of European citizens of Armenian origin and thus on the part of the appellants, has binding legal force with regard to the European Community;

| (b) | hold that by their complete failure to draw political and legal consequences from the abovementioned resolution, the European Parliament, the Council of the European Union and the Commission of the European Communities have committed a sufficiently serious infringement of Community law, which is to the detriment of the appellants; |
| --- | --- |

(b)

hold that by their complete failure to draw political and legal consequences from the abovementioned resolution, the European Parliament, the Council of the European Union and the Commission of the European Communities have committed a sufficiently serious infringement of Community law, which is to the detriment of the appellants;

| (c) | order the three abovementioned Community institutions jointly and severally liable to pay each of the appellants the sum of EUR 1 (one euro) by way of damages in respect of the non-pecuniary damage caused to them by that infringement of Community law, attributable to the Community institutions; |
| --- | --- |

(c)

order the three abovementioned Community institutions jointly and severally liable to pay each of the appellants the sum of EUR 1 (one euro) by way of damages in respect of the non-pecuniary damage caused to them by that infringement of Community law, attributable to the Community institutions;

In the alternative,

Having set aside the two contested orders in their entirety:

| 4. | refer the case back to the Court of First Instance for adjudication; |
| --- | --- |

4.

refer the case back to the Court of First Instance for adjudication;

| 5. | hold that the Court of First Instance will be bound as regards any points of law decided by the Court of Justice and, in particular, as regards the binding legal force, for the defendant institutions, of the European Parliament's resolution of 18 June 1987, which gave rise to a legitimate expectation on the part of the appellants that the Community institutions would adhere to the terms of that resolution; |
| --- | --- |

5.

hold that the Court of First Instance will be bound as regards any points of law decided by the Court of Justice and, in particular, as regards the binding legal force, for the defendant institutions, of the European Parliament's resolution of 18 June 1987, which gave rise to a legitimate expectation on the part of the appellants that the Community institutions would adhere to the terms of that resolution;

In any event,

| 6. | order the Community institutions jointly and severally to pay the costs. |
| --- | --- |

6.

order the Community institutions jointly and severally to pay the costs.

Pleas in law and main arguments

| — | Procedural irregularities which have prejudiced the appellants' interests:






  1. | in dismissing the appellants' action for damages, the Court of First Instance infringed Article 111 of its Rules of Procedure; |
| --- | --- | --- |

—

Procedural irregularities which have prejudiced the appellants' interests:

1.

in dismissing the appellants' action for damages, the Court of First Instance infringed Article 111 of its Rules of Procedure;

| 2. | in ordering the appellants to pay the costs, the Court of First Instance infringed Article 87(3) of its Rules of Procedure, and its order is also vitiated by inadequate reasoning; |
| --- | --- |

2.

in ordering the appellants to pay the costs, the Court of First Instance infringed Article 87(3) of its Rules of Procedure, and its order is also vitiated by inadequate reasoning;

| 3. | consideration of the contested order further shows an infringement of Articles 6(1) and 13 of the European Convention on Human Rights and Article 1 of the First Protocol thereto, as well as a breach of the principle of effective judicial protection; |
| --- | --- |

3.

consideration of the contested order further shows an infringement of Articles 6(1) and 13 of the European Convention on Human Rights and Article 1 of the First Protocol thereto, as well as a breach of the principle of effective judicial protection;

| — | Infringement of Community law: in making the contested order, the Court of First Instance infringed the principles of the protection of legitimate expectations, of legal certainty and of acquired rights. |
| --- | --- |

—

Infringement of Community law: in making the contested order, the Court of First Instance infringed the principles of the protection of legitimate expectations, of legal certainty and of acquired rights.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/19 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/19

---

Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that Court of 30 January 2004 in the case of Levob Verzekeringen B.V., OB Bank N.V., c.s, against Staatssecretaris van Fiananciën

(Case C-41/04)

(2004/C 94/38)

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad der Nederlanden of 30 January 2004, received at the Court Registry on 2 February 2004, for a preliminary ruling in the case of Levob Verzekeringen B.V., OB Bank N.V., c.s, against Staatssecretaris van Fiananciën on the following questions:

| 1 | (a) | Are Article 2(1) and Article 5(1) of the Sixth Directive, in conjunction with Article 6(1) thereof, to be interpreted as meaning that the acquisition of software, such as that in the present case and on terms such as those at issue in this dispute – whereby separate payment is stipulated in respect of the standard software, recorded on a carrier, developed and put on the market by the supplier, on the one hand, and the subsequent customisation thereof to the meet the purchaser's requirements, on the other – must be regarded as a single supply? |
| --- | --- | --- |

1

(a)

Are Article 2(1) and Article 5(1) of the Sixth Directive, in conjunction with Article 6(1) thereof, to be interpreted as meaning that the acquisition of software, such as that in the present case and on terms such as those at issue in this dispute – whereby separate payment is stipulated in respect of the standard software, recorded on a carrier, developed and put on the market by the supplier, on the one hand, and the subsequent customisation thereof to the meet the purchaser's requirements, on the other – must be regarded as a single supply?

| (b) | If the answer to the above question is in the affirmative, are these provisions to be interpreted as meaning that this supply must be regarded as a service (of which the supply of the goods, namely the carriers, forms part)? |
| --- | --- |

(b)

If the answer to the above question is in the affirmative, are these provisions to be interpreted as meaning that this supply must be regarded as a service (of which the supply of the goods, namely the carriers, forms part)?

| (c) | If the answer to that question is in the affirmative, is Article 9 of the Sixth Directive (in the version in force until 6 May 2002) to be interpreted as meaning that this service is supplied at the place referred to in Article 9(1)? |
| --- | --- |

(c)

If the answer to that question is in the affirmative, is Article 9 of the Sixth Directive (in the version in force until 6 May 2002) to be interpreted as meaning that this service is supplied at the place referred to in Article 9(1)?

| (d) | If the answer to the previous question is in the negative, which part of Article 9(2) of the Sixth Directive is applicable? |
| --- | --- |

(d)

If the answer to the previous question is in the negative, which part of Article 9(2) of the Sixth Directive is applicable?

| 2 | (a) | If the answer to Question 1a is in the negative, are the provisions referred to therein to be interpreted as meaning that the provision of non-customised software on the carriers must be regarded as a supply of tangible property for which the agreed separate price constitutes the consideration for the purposes of Article 11A(1)(a) of the Sixth Directive? |
| --- | --- | --- |

2

(a)

If the answer to Question 1a is in the negative, are the provisions referred to therein to be interpreted as meaning that the provision of non-customised software on the carriers must be regarded as a supply of tangible property for which the agreed separate price constitutes the consideration for the purposes of Article 11A(1)(a) of the Sixth Directive?

| (b) | If the answer to this question is in the negative, is Article 9 of the Sixth Directive to be interpreted as meaning that the service is supplied at the place referred to in Article 9(1) or at one of the places referred to in Article 9(2)? |
| --- | --- |

(b)

If the answer to this question is in the negative, is Article 9 of the Sixth Directive to be interpreted as meaning that the service is supplied at the place referred to in Article 9(1) or at one of the places referred to in Article 9(2)?

| (c) | Does the same apply to the service consisting of the customisation of software as applies to the provision of the standard software? |
| --- | --- |

(c)

Does the same apply to the service consisting of the customisation of software as applies to the provision of the standard software?

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/19 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/19

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Reference for a preliminary ruling by the Corte Suprema di Cassazione by order of that court of 6 November 2003 in the case of Aro Tubi Trafilerie S.p.A. against Ministero dell'Economia e delle Finanze

(Case C-46/04)

(2004/C 94/39)

Reference has been made to the Court of Justice of the European Communities by order of the Corte Suprema di Cassazione (Supreme Court of Cassation) of 6 November 2003, received at the Court Registry on 6 February 2004, for a preliminary ruling in the case of Aro Tubi Trafilerie S.p.A. against Ministero dell'Economia e delle Finanze on the following question:

Must Directive 69/335/EEC (1) concerning indirect taxes on the raising of capital, as amended by Directives 73/80/EEC (2) and 85/303/EEC (3), be interpreted as meaning that it precludes the levying of proportional registration duty on a merger through acquisition where all the share capital is owned not by the acquiring company but by the company acquired, in particular with regard to the possible existence of a restriction on the free movement of capital in this special case?

---

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

(2)  OJ L 103 of 18.4.1973, p. 15

(3)  OJ L 156 of 15.6.1985, p. 23

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/19 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/19

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Action brought on 9 February 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-49/04)

(2004/C 94/40)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 9 February 2004 by the Commission of the European Communities, represented by Karen Banks and Wouter Wils, acting as Agents.

The applicant claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, or, in any event, by failing to forward those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, or, in any event, by failing to forward those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

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

2.

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

The period within which the directive had to be transposed expired on 22 December 2002.

---

(1)  OJ 2001 L 167 of 22.6.2001, p. 10.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/20 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/20

---

Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that Court of 17 December 2003 in the case of Aro Tubi Trafilerie S.p.A. against Ministero dell'Economia e delle Finanze

(Case C-52/04)

(2004/C 94/41)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesverwaltungsgericht (Federal Administrative Court) of 17 December 2003, received at the Court Registry on 10 February 2004, for a preliminary ruling in the case of Aro Tubi Trafilerie S.p.A. against Ministero dell'Economia e delle Finanze on the following question:

Is Article 1(3) of Council Directive 93/104/EC (1) of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), when read in the light of Article 2(2) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1), to be interpreted as meaning that the firstmentioned provision does not apply to the working time of the personnel of a public fire service who carry out operational duties?

---

(1)  OJ L 307, p. 18.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/20 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/20

---

Action brought on 13 February 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

(Case C-64/04)

(2004/C 94/42)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 13 February 2004 by the Commission of the European Communities, represented by T. van Rijn and B. Doherty, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should:

| — | declare that the United Kingdom, by having failed to withdraw the fishing licences of the fishing vessels known as CLEOPATRA and OCEAN QUEST after their permanent transfer to Argentina, has breached Article 5 of Regulation (EC) 3690/93 (1) of 20 December 1993 establishing a Community system laying down rules for the minimum information to be contained in fishing licences; |
| --- | --- |

—

declare that the United Kingdom, by having failed to withdraw the fishing licences of the fishing vessels known as CLEOPATRA and OCEAN QUEST after their permanent transfer to Argentina, has breached Article 5 of Regulation (EC) 3690/93 (1) of 20 December 1993 establishing a Community system laying down rules for the minimum information to be contained in fishing licences;

| — | order the United Kingdom to pay the costs. |
| --- | --- |

—

order the United Kingdom to pay the costs.

Pleas in law and main arguments:

Following the transfer of two fishing vessels to Argentina the United Kingdom failed to withdraw the fishing licences for those vessels. The aforementioned licences have been re-used for other vessels.

The Commission takes the view that the permanent transfer of a vessel to Argentina can be equated with permanent withdrawal, as referred to in article 5 of Regulation 3690/93. It therefore submits that the United Kingdom has contravened the obligation incumbent upon it, laid down in the aforementioned article, to withdraw the fishing licences of vessels which are subject to definitive withdrawal from fishing activities.

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(1)  OJ 1993 L 341, p. 93

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/20 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/20

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Action brought on 13 February 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

(Case C-65/04)

(2004/C 94/43)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 13 February 2004 by the Commission of the European Communities, represented by L. Ström van Lier, acting as agent, with an address for service in Luxembourg.

The Applicant claims that the Court should:

| — | declare that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 5(3) of Council Directive 89/618/Euratom (1) of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency because of the lack of prior information of the population likely to be affected in the event of a radiological emergency, in connection with the local emergency plan existing in Gibraltar; and |
| --- | --- |

—

declare that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 5(3) of Council Directive 89/618/Euratom (1) of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency because of the lack of prior information of the population likely to be affected in the event of a radiological emergency, in connection with the local emergency plan existing in Gibraltar; and

| — | to order the United Kingdom of Great Britain and Northern Ireland to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments:

Article 5(3) of the Directive, concerning the prior information of the population likely to be affected in the event of a radiological emergency, requires that the relevant information be communicated to this population without any request being made.

The circumstances that gave rise to the Commission's inquires (repair operations of the nuclear submarine ‘Tireless’) highlighted that no prior information had been communicated in the past to the Gibraltar population likely to be affected in the event of a radiological emergency. The mere public availability of the Gibraltar Public Safety Scheme (GIBPUBSAFE) in the public library cannot be considered to meet the requirements of Article 5(3) of the Directive, which requires active communication of such information.

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(1)  OJ 1989 L 357, p. 31

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/21 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/21

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Action brought on 16 February 2004 by the United Kingdom against the European Parliament and the Council of the European Union

(Case C-66/04)

(2004/C 94/44)

An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 16 February 2004 by the United Kingdom, represented by Rosemary Caudwell, acting as agent; Lord Goldsmith QC, Her Majesty's Attorney-General; Nicholas Paines QC; and Tim Ward, with an address for service in Luxembourg.

The Applicant claims that the Court should:

| 1) | declare that Regulation (EC) No. 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods (1) is invalid; |
| --- | --- |

1)

declare that Regulation (EC) No. 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods (1) is invalid;

| 2) | order the European Parliament and the Council of the European Union to pay the United Kingdom's costs. |
| --- | --- |

2)

order the European Parliament and the Council of the European Union to pay the United Kingdom's costs.

Pleas in law and main arguments:

The contested Regulation was adopted on the basis of Article 95 EC, which empowers the Parliament and the Council to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

The United Kingdom does not object to the substantive content of the Regulation, but submits that Article 95 EC does not provide a proper legal basis for its adoption. The Regulation does not harmonise national law, but instead sets up a procedure at Community level for the authorisation of smoke flavourings in foods; it requires that such smoke flavourings may only be placed on the market if authorised by further Regulations to be adopted by the Commission on the basis of an opinion of the European Food Safety Authority (‘the Authority’) as to their safety.

Those provisions are at the heart of the Regulation; it does not establish any harmonised standards in national law at all, but purports to entrust the task of establishing a list of authorised smoke flavourings entirely to the Commission and the Authority.

The United Kingdom submits that the legislative power conferred by Article 95 EC is a power to harmonise national laws; it is not a power to set up Community bodies or to confer tasks upon such bodies, nor to set up procedures under which lists of approved products are drawn up by the Commission on the basis of an evaluation by a Community agency. Conferring tasks upon Community bodies or upon the Commission is a matter outside the scope of national law, and doing so cannot be described as harmonising national law within the meaning of Article 95.

The provisions of the Regulation therefore fall outside the power of harmonisation conferred on the Parliament and Council by Article 95 and the only appropriate legal basis for such a measure could be Article 308 EC.

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(1)  OJ L 309, 26.11.2003, p. 1 - 8

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/21 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/21

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Action brought on 13 February 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-67/04)

(2004/C 94/45)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 13 February 2004 by the Commission of the European Communities, represented by Gregorio Valerio Jordana and Minas Konstantinidis, of its Legal Service.

The Commission claims that the Court should:

| — | declare that, by failing to adopt, or in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt, or in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and arguments

The period for transposition of the directive into national law expired on 27 November 2002.

---

(1)  OJ No L 309, 27.11.2001, p. 1.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/22 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/22

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Action brought on 13 February 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-68/04)

(2004/C 94/46)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 13 February 2004 by the Commission of the European Communities, represented by Gregorio Valerio Jordana and Minas Konstantinidis, of its Legal Service.

The Commission claims that the Court should:

| — | declare that, by failing to adopt, or in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2001/81/EC (1)of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt, or in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2001/81/EC (1)of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and arguments

The period for transposition of the directive into national law expired on 27 November 2002.

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(1)  OJ No L 309, 27.11.2001, p. 22.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/22 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/22

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Reference for a preliminary ruling by the Tribunale di Civitavecchia by order of that Court of 12 January 2004 in the case of Fallimento LIGABUE Gate Gourmet Roma s.p.a. against LSG Sky Chefs s.p.a.

(Case C-69/04)

(2004/C 94/47)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Civitavecchia (District Court, Civitavecchia) of 12 January 2004, received at the Court Registry on 16 February 2004, for a preliminary ruling in the case of Fallimento LIGABUE Gate Gourmet Roma s.p.a. against LSG Sky Chefs s.p.a. on the following questions:

Does Article 18 of Council Directive 96/97/EC (1) of 15 October 1996, considered in conjunction with the principles of Community law, and in particular those of Article 49 (previously 59) of the Treaty, constitute an obstacle to the application of Article 14 of Legislative Decree No 18 of 13 January 1999, in so far as it imposes on providers of airport services the obligation to take on staff, thereby restricting their power of decision regarding entrepreneurial strategies concerning the choice, number and remuneration of employees?

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(1)  OJ L 272 of 25.10.1996, p. 36.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/22 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/22

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Action brought on 16 February 2004 by the Swiss Confederation against the Commission of the European Communities

(Case C-70/04)

(2004/C 94/48)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 16 February 2004 by the Swiss Confederation, represented by Simon Hirsbrunner and Ulrich Soltész, Rechtsanwälte, Brussels (Belgium).

The applicant claims that the Court should:

| 1. | annul, in accordance with Article 231(1) EC, the Decision of the Commission of 5 December 2003 (Case TREN/AMA/11/03 – German measures relating to the approaches to Zurich Airport); (1) |
| --- | --- |

1.

annul, in accordance with Article 231(1) EC, the Decision of the Commission of 5 December 2003 (Case TREN/AMA/11/03 – German measures relating to the approaches to Zurich Airport); (1)

| 2. | order the Commission to pay the applicant's costs in accordance with Article 69(2) of the Rules of Procedure of the Court of Justice. |
| --- | --- |

2.

order the Commission to pay the applicant's costs in accordance with Article 69(2) of the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

The contested decision of the European Commission should be annulled on the following grounds:

The Commission errs by proceeding from the assumption in its decision of 5 December 2003 that the Agreement on air transport which was signed by the European Community and the Swiss Confederation on 21 June 1999 simply provides for an exchange of traffic rights. The Agreement in fact extends the internal air traffic market to the Swiss Confederation with the result that the airlines of the Swiss Confederation and the European Union have equal rights of access to the market. That also means in particular that the Swiss Confederation and Swiss companies falling within the scope of the Agreement can rely on the freedom to provide services in the air traffic sector.

The Commission was wrong to deny infringement of the freedom to provide services. Contrary to the Commission's decision, the 213th Regulation for the implementation of the Air Traffic Regulations of the Federal Republic of Germany affects the freedom of Swiss International Air Lines (hereinafter also ‘SWISS’) to provide services, because it hinders the operation of flights to and from Zurich.

The Commission was wrong to deny that there was discrimination against Swiss companies was caused by the 213th Regulation. The Swiss airline SWISS is disadvantaged in competition because it is subject to stricter limitations on the use of its hub at Zurich than its direct competitor Lufthansa suffers in using its own hubs at Frankfurt-am-Main and Munich. SWISS is also affected more severely than the other airlines flying to Zurich, since it is the ‘home carrier’ and the operator of the Zurich air traffic hub and as such is particularly vulnerable to limitations on the operation of Zurich airport. In addition, the German measures treat the Zurich international airport operated by UNIQUE Flughafen Zürich AG less favourably than similar airports in Germany, to which no even roughly similarly drastic flight limitations apply or may be applied.

Contrary to the Commission's opinion, those limitations must be measured against the principle of proportionality. That principle is applicable in connection with the Air Transport Agreement. It is infringed by the German 213th Regulation. That regulation is not based on any compelling ground of general interest and the limitations it contains are neither necessary nor appropriate. The Federal Republic has at its disposal, contrary to the Commission's view, alternative means by which to achieve its aims.

The Commission was wrong to deny infringement of the duty of honest cooperation.

Furthermore, in the proceedings the Commission has breached the right to a fair hearing. The Commission began with preconceived opinions and did not examine the arguments of the Swiss Confederation in an unprejudiced manner or clarify the facts of the matter. As a result the requirement for fairness was breached. The reasons given for the decision do not satisfy the requirements laid down in the case-law.

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(1)  OJ 2004 L 4, p. 13.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/23 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/23

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Reference for a preliminary ruling by the Tribunal Supremo, Contentious-Administrative Chamber, Third Division, by order of that Court of 22 December 2003, rectified by order of 22 January 2004, in the case of Administración del Estado against Junta de Galicia

(Case C-71/04)

(2004/C 94/49)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo (Supreme Court), Contentious-Administrative Chamber, Third Division, of 22 December 2003, rectified by order of 22 January 2004, received at the Court Registry on 16 February 2004, for a preliminary ruling in the case of Administración del Estado against Junta de Galicia on the following question:

Do Article 87(1) and (3)(c) and (d) (previously Article 92(1) and (3)(c) and (d)) and Article 88(3) (previously Article 93(3)) of the EC Treaty, in conjunction with Council Directive 90/684/EEC of 21 December 1990 (1) on aid to shipbuilding, permit the adoption, without prior notification to the Commission of the European Communities, of national rules – of the kind contained in Decree 217/1994 of 23 June 1994 of the Xunta de Galicia – which establish a ‘new system of aid’ for a specific shipbuilding and ship conversion sector, being precisely that sector which, by virtue of the gross tonnage, power and other characteristics of the vessels concerned, does not fall within the scope of the said Directive 90/684?

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(1)  OJ L 380 of 31.12.1990, p. 27.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/23 |
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17.4.2004

EN

Official Journal of the European Union

C 94/23

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Action brought on 17 February 2004 by the Commission of the European Communities against the Republic of Finland

(Case C-72/04)

(2004/C 94/50)

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 17 February 2004 by the Commission of the European Communities, represented by G. Zavvos and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | Declare that the Republic of Finland has failed to fulfil its obligations under Directive 2000/64/EC of the European Parliament and of the Council of 7 November 2000 amending Council Directives 85/611/EEC, 92/49/EEC, 92/96/EEC and 93/22/EEC as regards exchange of information with third countries (1), since it has not brought into force the laws, regulations and administrative provisions necessary to comply with the directive, or at least has not informed the Commission of them; |
| --- | --- |

1.

Declare that the Republic of Finland has failed to fulfil its obligations under Directive 2000/64/EC of the European Parliament and of the Council of 7 November 2000 amending Council Directives 85/611/EEC, 92/49/EEC, 92/96/EEC and 93/22/EEC as regards exchange of information with third countries (1), since it has not brought into force the laws, regulations and administrative provisions necessary to comply with the directive, or at least has not informed the Commission of them;

| 2. | Order Finland to pay the costs. |
| --- | --- |

2.

Order Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired on 17 November 2002.

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(1)  OJ 2000 L 290, p. 27.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/24 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/24

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Appeal brought on 16 February 2004 by the Commission of the European Communities against the judgment delivered on 3 December 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-208/01 between Volkswagen AG and Commission of the European Communities

(Case C-74/04 P)

(2004/C 94/51)

An appeal against the judgment delivered on 3 December 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-208/01 between Volkswagen AG and Commission of the European Communities was brought before the Court of Justice of the European Communities on 16 February 2004 by the Commission of the European Communities, represented by Walter Mölls, acting as Agent, assisted by Dr Heinz-Joachim Freund, Rechtsanwalt, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | set aside the judgment of the Court of First Instance of 3 December 2003 in Case T-208/01; (1) |
| --- | --- |

1.

set aside the judgment of the Court of First Instance of 3 December 2003 in Case T-208/01; (1)

| 2. | refer the case back to the Court of First Instance; |
| --- | --- |

2.

refer the case back to the Court of First Instance;

| 3. | order the respondent to pay the costs. |
| --- | --- |

3.

order the respondent to pay the costs.

Pleas in law and main arguments

By the abovementioned judgment, the Court of First Instance annulled Commission Decision 2001/711/EC of 29 June 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F-2/36.693 — Volkswagen) (2). In that decision, the Commission had found that between June 1996 and September 1999 Volkswagen had agreed a fixed resale price with its German dealers, contrary to Article 81 EC. The decision imposed upon Volkswagen a fine of EUR 30.96 million.

The Court found that the demands made by Volkswagen AG to its German dealers did not become part of the dealership agreements since they were unlawful. They were unilateral measures not covered by Article 81 EC.

In so reasoning the Court has misapplied the concept of agreement as set out in Article 81(1) EC and so breached that provision.

In the Commission's view the Court is requiring too high a level of knowledge from the parties to a selective distribution agreement of its application and development in practice. At the same time it is confusing those demands with the requirements for the agreement to be lawful.

In this connection, the Court is overlooking in particular the peculiarities of selective distribution systems, which are based upon a framework agreement which requires to be completed and put into more concrete terms. The fact that such an agreement is not itself unlawful at a certain time does not preclude its becoming so at a later date. As regards the dealers in particular, their general interest is in retaining their position as members of the distribution system. It cannot be assumed that they systematically — to a certain degree preventatively — upon the conclusion of the contract reject all later requirements which may prove to be unlawful. That applies particularly when, depending on the circumstances, the dividing line between lawful and unlawful measures can be difficult to determine.

The Commission's line of argument is confirmed by the established case-law of the Court of Justice, which the Court of First Instance has misinterpreted. In the present case, in addition, it can clearly be seen from the actions of the parties (manufacturer and dealers) that they regarded the requirements as part of the dealership contract. Those facts also prove that the reasoning of the Court of First Instance is incorrect. In so far as the Court regarded them as irrelevant (in the case of the manufacturer) or entirely ignored them (in the case of the dealer), that is due to the abovementioned error regarding the concept of agreement.

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(1)  Not yet published in the European Court Reports.

(2)  OJ 2001 L 262, p. 14.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/24 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/24

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Reference for a preliminary ruling by the Hof van Beroep te Antwerpen by order of that Court of 11 February 2004 in the case of Ministerie van Financiën against 1...., 2. Hendrick Hanssens, 3. Rudi Verhoeven, 4. World Wide Shipping and Forwarding N.V.

(Case C-75/04)

(2004/C 94/52)

Reference has been made to the Court of Justice of the European Communities by order of the Hof van Beroep te Antwerpen (Court of Appeal) of 11 February 2004, received at the Court Registry on 17 February 2004, for a preliminary ruling in the case of Ministerie van Financiën against 1...., 2. Hendrick Hanssens, 3. Rudi Verhoeven, 4. World Wide Shipping and Forwarding N.V. on the following questions:

| 1. | For the purpose of determining the customs debt in accordance with Article 201 et seq. of the Community Customs Code (Council Regulation (EEC) No 2913/92 of 12 October 1992 (1)), in the event of non-discharge of T1 documents issued for purposes of exportation to various countries of a consignment of non-Community goods (in casu, textile goods/T-shirts) in transit, where the non-discharge is the result of prior removal from customs supervision, must the first infringement, that is to say, the removal from transit, be taken into account, or must, rather, account be taken of what is chronologically the subsequent infringement, consisting in the non-discharge of the relevant T1 documents? In other words, does the customs debt arise as against a declarant acting in good faith in respect of non-discharge of T1 documents resulting from prior removal from transit – in which the declarant was in no way involved – on the basis of Articles 203(1) and 215(1) of the Community Customs Code or on the basis of Articles 204(1) and 215(3) of the Community Customs Code? |
| --- | --- |

1.

For the purpose of determining the customs debt in accordance with Article 201 et seq. of the Community Customs Code (Council Regulation (EEC) No 2913/92 of 12 October 1992 (1)), in the event of non-discharge of T1 documents issued for purposes of exportation to various countries of a consignment of non-Community goods (in casu, textile goods/T-shirts) in transit, where the non-discharge is the result of prior removal from customs supervision, must the first infringement, that is to say, the removal from transit, be taken into account, or must, rather, account be taken of what is chronologically the subsequent infringement, consisting in the non-discharge of the relevant T1 documents? In other words, does the customs debt arise as against a declarant acting in good faith in respect of non-discharge of T1 documents resulting from prior removal from transit – in which the declarant was in no way involved – on the basis of Articles 203(1) and 215(1) of the Community Customs Code or on the basis of Articles 204(1) and 215(3) of the Community Customs Code?

| 2. | Can the declarant still invoke the guarantees contained in Article 222 of the Community Customs Code if Articles 204(1) and 215(3) thereof are applicable in the case where the declarant is faced with non-discharge of the T1 documents issued by him as a result of prior fraudulent withdrawal from transit of non-Community goods (in casu, textile goods), in which the declarant was uninvolved, or, in other words, is Article 222 of the Community Customs Code, which, inter alia, refers to the general rule of Article 203 of that Code – for the application of which Article 204 of that Code is a more specific provision – linked for purposes of application with Articles 204(1) and 215(3) of the Community Customs Code? |
| --- | --- |

2.

Can the declarant still invoke the guarantees contained in Article 222 of the Community Customs Code if Articles 204(1) and 215(3) thereof are applicable in the case where the declarant is faced with non-discharge of the T1 documents issued by him as a result of prior fraudulent withdrawal from transit of non-Community goods (in casu, textile goods), in which the declarant was uninvolved, or, in other words, is Article 222 of the Community Customs Code, which, inter alia, refers to the general rule of Article 203 of that Code – for the application of which Article 204 of that Code is a more specific provision – linked for purposes of application with Articles 204(1) and 215(3) of the Community Customs Code?

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(1)  OJ L 302 of 19.10.1992, p. 1

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/25 |
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Official Journal of the European Union

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Action brought on 17 February 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

Case C-76/04

(2004/C 94/53)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 17 February 2004 by the Commission of the European Communities, represented by E. Traversa and W. Wils, acting as Agent.

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/17/EC (1) of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings or, in any event, by failing to notify the Commission of those provisions, the Kingdom of the Netherlands 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 2001/17/EC (1) of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings or, in any event, by failing to notify the Commission of those provisions, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

The period prescribed for implementation of the Directive expired on 20 April 2003.

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(1)  OJ 2001 L 110, p. 28.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/25 |
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17.4.2004

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Official Journal of the European Union

C 94/25

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Action brought on 18 February 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-78/04)

(2004/C 94/54)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 18 February 2004 by the Commission of the European Communities, represented by Prof. Dr. U. Wölker and M. Konstantinidis, with an address for service in Luxembourg.

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

| 1. | declare that the Republic of Austria has failed to fulfil its obligations under Article 2(4) of Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, (1) under Article 9(3) to (5) thereof, under Annex IV, and under Article 1 in conjunction with Sections 1.1 and 6.6 of Annex I, in that:






  (a) | the definition of ‘existing installation’ under Article 2(4) has not been fully transposed into federal law (Gewerbeordnung 1994 (Industrial Code 1994), |
| --- | --- | --- |

1.

declare that the Republic of Austria has failed to fulfil its obligations under Article 2(4) of Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, (1) under Article 9(3) to (5) thereof, under Annex IV, and under Article 1 in conjunction with Sections 1.1 and 6.6 of Annex I, in that:

(a)

the definition of ‘existing installation’ under Article 2(4) has not been fully transposed into federal law (Gewerbeordnung 1994 (Industrial Code 1994),

| (b) | the requirements relating to permit conditions laid down in Article 9(4) have not been fully implemented in federal legislation (Gewerbeordnung 1994) and those laid down in Article 9(3) to (5) have not been fully implemented in the legislation of the Land Niederösterreich (NÖ Elektrizitätswesengesetz 2001 (Lower Austria Electricity Act 2001), |
| --- | --- |

(b)

the requirements relating to permit conditions laid down in Article 9(4) have not been fully implemented in federal legislation (Gewerbeordnung 1994) and those laid down in Article 9(3) to (5) have not been fully implemented in the legislation of the Land Niederösterreich (NÖ Elektrizitätswesengesetz 2001 (Lower Austria Electricity Act 2001),

| (c) | Annex IV has not been fully implemented in federal legislation (Gewerbeordnung 1994) and in the legislation of the Land Niederösterreich (NÖ Elektrizitätswesengesetz 2001), |
| --- | --- |

(c)

Annex IV has not been fully implemented in federal legislation (Gewerbeordnung 1994) and in the legislation of the Land Niederösterreich (NÖ Elektrizitätswesengesetz 2001),

| (d) | the Directive has not been implemented in federal legislation and the legislation of the Land Salzburg, nor fully implemented in the legislation of the Land Burgenland (Burgenländisches Elektrizitätswesengesetz 1999), as regards the combustion installations referred to in Section 1.1 of Annex I, |
| --- | --- |

(d)

the Directive has not been implemented in federal legislation and the legislation of the Land Salzburg, nor fully implemented in the legislation of the Land Burgenland (Burgenländisches Elektrizitätswesengesetz 1999), as regards the combustion installations referred to in Section 1.1 of Annex I,

| (e) | the Directive has not been implemented, as regards the installations for intensive rearing referred to in Section 6.6 of Annex I, in the legislation of the Länder of Burgenland, Salzburg and Tirol; |
| --- | --- |

(e)

the Directive has not been implemented, as regards the installations for intensive rearing referred to in Section 6.6 of Annex I, in the legislation of the Länder of Burgenland, Salzburg and Tirol;

| 2. | order the Republic of Austria to pay the costs. |
| --- | --- |

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

Although the time-limit for implementation of the Directive expired on 30 October 1999, the Republic of Austria has still not implemented at all, or has implemented only inadequately, certain of its provisions (Art 2(4), Article 9(3) to (5), Annex IV and Article 1 in conjunction with Sections 1.1 and 6.6 of Annex I).

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(1)  OJ 1996 L 257, p. 26.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/25 |
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C 94/25

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Appeal brought on 18 February 2004 by DLD Trading Company against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in Case T-146/01 between DLD Trading Company and the Council of the European Union, supported by the Republic of Austria, the Commission of the European Communities and the Republic of Finland

(Case C-80/04 P)

(2004/C 94/55)

An appeal against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in Case T-146/01 between DLD Trading Company and the Council of the European Union, supported by the Republic of Austria, the Commission of the European Communities and the Republic of Finland, was brought before the Court of Justice of the European Communities on 18 February 2004 by DLD Trading Company, represented by Dr J. Hintermayr, Dr F. Haunschmidt, Dr G. Minichmayr, Dr P. Burgstaller and G.J. Tusek, Marienstr. 4, A-4020 Linz.

The appellant claims that the Court should:

| 1. | allow the appeal and






  — | vary the judgment of the Court of First Instance of 17 December 2003 in Case T-146/01 (1) so as to order the Council of the European Union to pay compensation of EUR 726 728,34; or |
| --- | --- | --- |

1.

allow the appeal and

—

vary the judgment of the Court of First Instance of 17 December 2003 in Case T-146/01 (1) so as to order the Council of the European Union to pay compensation of EUR 726 728,34; or

| — | vary the judgment of the Court of First Instance of 17 December 2003 so as to hold that the claim for compensation is well founded and refer the case back to the Court of First Instance so that it may determine the amount of compensation to be paid; or |
| --- | --- |

—

vary the judgment of the Court of First Instance of 17 December 2003 so as to hold that the claim for compensation is well founded and refer the case back to the Court of First Instance so that it may determine the amount of compensation to be paid; or

| — | annul the judgment of the Court of First Instance of 17 December 2003 and refer the case back to the Court of First Instance; |
| --- | --- |

—

annul the judgment of the Court of First Instance of 17 December 2003 and refer the case back to the Court of First Instance;

| 2. | order the defendant to pay the costs of the appeal. |
| --- | --- |

2.

order the defendant to pay the costs of the appeal.

Pleas in law and main arguments:

In support of its appeal, the appellant alleges infringement of Community law by the Court of First Instance as regards the following points:

| — | Erroneous assessment of the causal link between the retroactivity of Regulation No 2744/98 and the damage suffered by the appellant. The damage alleged in the present proceedings was not suffered from 1 January 1998 but, rather, arose from the entry into force of Regulation No 2744/98 on 14 December 1998 with effect from 1 January 1998. The damage was caused not by the allowance fixed by the Republic of Austria at ECU 75 but by the conduct of the Council of the EU. The event giving rise to the damage was the entry into force of Regulation No 2744/98 on 14 December 1998. There is therefore a direct causal link between the adoption of Regulation No 2744/98 by the Council of the EU on 14 December 1998 and the loss of the appellant's claim for an allowance against the Republic of Austria. |
| --- | --- |

—

Erroneous assessment of the causal link between the retroactivity of Regulation No 2744/98 and the damage suffered by the appellant. The damage alleged in the present proceedings was not suffered from 1 January 1998 but, rather, arose from the entry into force of Regulation No 2744/98 on 14 December 1998 with effect from 1 January 1998. The damage was caused not by the allowance fixed by the Republic of Austria at ECU 75 but by the conduct of the Council of the EU. The event giving rise to the damage was the entry into force of Regulation No 2744/98 on 14 December 1998. There is therefore a direct causal link between the adoption of Regulation No 2744/98 by the Council of the EU on 14 December 1998 and the loss of the appellant's claim for an allowance against the Republic of Austria.

| — | Failure to take account of the fact that the limitations placed on the Community system of reliefs from customs duties (Regulation No 918/83, as amended) by Regulations No 3316/94 and No 2744/98 are intended to protect the economy in regions bordering on Austria (‘border undertakings’). However, despite that intended purpose, the geographical scope of the reduction in the customs allowance introduced by the abovementioned regulations is unlimited. The limitations on the customs allowance under Regulations No 3316/94 and 2744/98 are therefore unnecessary, excessive and disproportionate and thus unlawful. |
| --- | --- |

—

Failure to take account of the fact that the limitations placed on the Community system of reliefs from customs duties (Regulation No 918/83, as amended) by Regulations No 3316/94 and No 2744/98 are intended to protect the economy in regions bordering on Austria (‘border undertakings’). However, despite that intended purpose, the geographical scope of the reduction in the customs allowance introduced by the abovementioned regulations is unlimited. The limitations on the customs allowance under Regulations No 3316/94 and 2744/98 are therefore unnecessary, excessive and disproportionate and thus unlawful.

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(1)  Not yet published in the European Court Reports.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/26 |
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Action brought on 20 February 2004 by the Commission of the European Communities against the Portuguese Republic

(Case C-84/04)

(2004/C 94/56)

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 20 February 2004 by the Commission of the European Communities, represented by A.M. Alves Vieira, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare that, by permitting IFADAP to introduce, and by allowing to remain in force, a procedure for granting financial assistance from Community Structural Funds, which includes substantive requirements involving the payment of levies which are neither voluntary nor optional and which do not constitute remuneration for services rendered but rather serve to finance missions for which the Portuguese State is, of necessity, responsible by virtue of, inter alia, Community law, the Portuguese Government has failed to fulfil its obligations under Regulation (EEC) No 4253/88 (1) and Article 10 EC; |
| --- | --- |

—

declare that, by permitting IFADAP to introduce, and by allowing to remain in force, a procedure for granting financial assistance from Community Structural Funds, which includes substantive requirements involving the payment of levies which are neither voluntary nor optional and which do not constitute remuneration for services rendered but rather serve to finance missions for which the Portuguese State is, of necessity, responsible by virtue of, inter alia, Community law, the Portuguese Government has failed to fulfil its obligations under Regulation (EEC) No 4253/88 (1) and Article 10 EC;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Portuguese authorities impose an obligation on persons benefiting from the European Agricultural Guidance and Guarantee Fund (EAGGF), Guidance Section, to pay the expenses relating to public-service duties for which the Member States are responsible in the case of ‘indirect’ management of financial instruments, namely management which entails the Member State concerned selecting projects, paying eligible expenditure and declaring it to the Commission.

However, Article 21(5) of Regulation (EEC) No 4253/88, as amended, clearly imposes on the Member State concerned an obligation to ensure that the beneficiaries receive the advances and payments and to refrain from making any deduction or retention from payment made to beneficiaries. The terms ‘retention’ and ‘deduction’ must be interpreted broadly in the light of their effect, which is the decisive factor.

The links and the relationship of subordinacy between the draft private-law contract for a supply of services signed by the beneficiaries and IFADAP (Instituto do Financiamento e Apoio ao Desenvolvimento da Agricultura e Pescas) and the form annexed to the ‘contract for the grant of aid’, pursuant to which the beneficiary authorises sums to be debited from its account and paid to IFADAP in respect of the service provided by the latter in the context of the aid contract, leave little room for doubt that the beneficiary has no freedom of choice, particularly if account is taken of the fact that the beneficiary knows that IFADAP is the body which oversees the investment project and is responsible for checking that it is properly implemented.

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(1)  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 (OJ 1988 L 374, p.1).

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/26 |
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Official Journal of the European Union

C 94/26

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Reference for a preliminary ruling by the Raad van State by order of that Court of 18 February 2004 in the case of Mediakabel B.V. against Commissariaat voor de Media

(Case C-89/04)

(2004/C 94/57)

Reference has been made to the Court of Justice of the European Communities by order of the Raad van State (Council of State) of 18 February 2004, received at the Court Registry on 20 February 2004, for a preliminary ruling in the case of Mediakabel B.V. against Commissariaat voor de Media on the following questions:

| 1 a. | Is the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC (1) to be interpreted as not covering an ‘information society service’ within the meaning of Article 1(2) of Directive 98/34/EC (2), as amended by Directive 98/48/EC (3), but as covering services such as those set out in the indicative list of services not covered by Article 1(2) of Directive 98/34/EC, including ‘near-video on-demand services’, contained in Annex V to Directive 98/34/EC, in particular subparagraph (3), which therefore do not constitute ‘information society services’? |
| --- | --- |

1 a.

Is the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC (1) to be interpreted as not covering an ‘information society service’ within the meaning of Article 1(2) of Directive 98/34/EC (2), as amended by Directive 98/48/EC (3), but as covering services such as those set out in the indicative list of services not covered by Article 1(2) of Directive 98/34/EC, including ‘near-video on-demand services’, contained in Annex V to Directive 98/34/EC, in particular subparagraph (3), which therefore do not constitute ‘information society services’?

| 1 b. | If the answer to question 1a is in the negative, how should a distinction be drawn between the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC and the term ‘communication services providing items of information or other messages on individual demand’ also set out therein? |
| --- | --- |

1 b.

If the answer to question 1a is in the negative, how should a distinction be drawn between the term ‘television broadcasting’ within the meaning of Article 1(a) of Directive 89/552/EEC and the term ‘communication services providing items of information or other messages on individual demand’ also set out therein?

| 2 a. | On the basis of which criteria must it be determined whether a service such as that at issue, which involves encoded signals, transmitted over a network, of a range of films selected by the provider, which subscribers can, in return for a separate payment per film and using a key sent by the provider on individual demand, decode and view at various times determined by the provider, and which contains elements of an (individual) information society service and also elements of a television broadcasting service, constitutes a television broadcasting service or an information society service? |
| --- | --- |

2 a.

On the basis of which criteria must it be determined whether a service such as that at issue, which involves encoded signals, transmitted over a network, of a range of films selected by the provider, which subscribers can, in return for a separate payment per film and using a key sent by the provider on individual demand, decode and view at various times determined by the provider, and which contains elements of an (individual) information society service and also elements of a television broadcasting service, constitutes a television broadcasting service or an information society service?

| 2 b. | In this regard is particular significance to be attributed to the standpoint of the subscriber or rather to that of the service provider? Is the kind of services with which the service concerned is in competition relevant in this regard? |
| --- | --- |

2 b.

In this regard is particular significance to be attributed to the standpoint of the subscriber or rather to that of the service provider? Is the kind of services with which the service concerned is in competition relevant in this regard?

| 3. | In that connection is it relevant that,






  — | on the one hand, classification of a service such as that at issue as an ‘information society service’ to which Directive 89/552/EEC does not apply, might undermine the effectiveness of that directive, in particular as regards the objectives underlying the requirement thereunder to reserve a specific percentage of transmission time for European works, and, |
| --- | --- | --- |

3.

In that connection is it relevant that,

—

on the one hand, classification of a service such as that at issue as an ‘information society service’ to which Directive 89/552/EEC does not apply, might undermine the effectiveness of that directive, in particular as regards the objectives underlying the requirement thereunder to reserve a specific percentage of transmission time for European works, and,

| — | on the other, if Directive 89/552/EEC does apply, the requirement thereunder to reserve a specific percentage of transmission time for European works is not entirely apposite because the subscribers pay per film and can only view the film which has been paid for? |
| --- | --- |

—

on the other, if Directive 89/552/EEC does apply, the requirement thereunder to reserve a specific percentage of transmission time for European works is not entirely apposite because the subscribers pay per film and can only view the film which has been paid for?

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(1)  OJ L 298 of 17.10.1989, p. 23.

(2)  OJ L 204 of 21.07.1998, p. 37.

(3)  OJ L 217 of 5.08.1998, p. 18.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/27 |
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C 94/27

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Action brought on 23 February 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-90/04)

(2004/C 94/58)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 23 February 2004 by the Commission of the European Communities, represented by Josef Christian Schieferer and Gregorio Valero Jordana, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing hitherto to supply to the Commission the report required by 30 June 2002 under Article 7(1) of Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC (1), the Republic of Austria has failed to fulfil its obligations under Article 7(1) of that Directive. |
| --- | --- |

1.

declare that, by failing hitherto to supply to the Commission the report required by 30 June 2002 under Article 7(1) of Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC (1), the Republic of Austria has failed to fulfil its obligations under Article 7(1) of that Directive.

| 2. | order the Republic of Austria to bear the costs of the action. |
| --- | --- |

2.

order the Republic of Austria to bear the costs of the action.

Pleas in law and main arguments

Under Article 7(1) of Directive 1999/32/EC the Member States are to supply to the Commission by 30 June of each year, on the basis of the results of the sampling and analysis carried out in accordance with Article 6, a short report on the sulphur content of the liquid fuels falling within the scope of the Directive and used within their territory during the preceding calendar year.

The Republic of Austria was accordingly to have supplied the first report for 2001 by 30 June 2002. The Republic of Austria had not complied with this requirement by the time the present action was brought and so has failed to fulfil its obligations under Article 7(1) of Directive 1999/32/EC.

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(1)  OJ 1999 L 121, p. 13.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/27 |
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Action brought on 25 February 2004 by the Commission of the European Communities against the Kingdom of Sweden

(Case C-91/04)

(2004/C 94/59)

An action against the Kingdom of Sweden was brought before the Court of Justice of the European Communities on 25 February 2004 by the Commission of the European Communities, represented by K. Banks and K. Simonsson, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt, or to communicate to the Commission, the laws, regulations and administrative provisions necessary to implement Directive 2001/29/EC (1) of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Sweden has failed to fulfil its obligations under that directive; and |
| --- | --- |

1.

declare that, by failing to adopt, or to communicate to the Commission, the laws, regulations and administrative provisions necessary to implement Directive 2001/29/EC (1) of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Sweden has failed to fulfil its obligations under that directive; and

| 2. | order Sweden to pay the costs of the case. |
| --- | --- |

2.

order Sweden to pay the costs of the case.

Pleas in law and main arguments

The period within which the directive was to be implemented expired on 22 December 2002.

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(1)  OJ 2001 L 167, p. 10.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/28 |
| --- | --- | --- | --- |

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Official Journal of the European Union

C 94/28

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Action brought on 24 February 2004 by the Commission of the European Communities against the Italian Republic

(Case C-92/04)

(2004/C 94/60)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 24 February 2004 by the Commission of the European Communities, represented by C. Cattabriga, acting as Agent.

The applicant claims that the Court should:

| — | Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/102/EC (1) of 27 November 2001 amending Directive 1999/29/EC (2) on the undesirable substances and products in animal nutrition, or by not communicating those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 2(1) of that directive; |
| --- | --- |

—

Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/102/EC (1) of 27 November 2001 amending Directive 1999/29/EC (2) on the undesirable substances and products in animal nutrition, or by not communicating those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 2(1) of that directive;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The time-limit for the transposition of the directive expired on 1 July 2002.

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(1)  OJ 2002 L 6 of 10.01.2002, p. 45.

(2)  OJ 1999 L 115 of 4.5.1999, p. 32.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/28 |
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17.4.2004

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Official Journal of the European Union

C 94/28

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Action brought on 24 February 2004 by the Commission of the European Communities against the Italian Republic

(Case C-93/04)

(2004/C 94/61)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 24 February 2004 by the Commission of the European Communities, represented by C. Cattabriga, acting as Agent.

The applicant claims that the Court should:

| — | declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/89/EC (1) of 23 October 2001 on Community measures for the control of classical swine fever, or, in any event, by failing to communicate those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 30 of that directive; |
| --- | --- |

—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/89/EC (1) of 23 October 2001 on Community measures for the control of classical swine fever, or, in any event, by failing to communicate those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 30 of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 31 October 2002.

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(1)  OJ L 316, 1.12.2001, p. 5.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/28 |
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Official Journal of the European Union

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Reference for a preliminary ruling by the Corte d'Appello by order of that Court of 4 February 2004 in the case of Federico Cipolla against Rosaria Fazari (neé Portolese)

(Case C-94/04)

(2004/C 94/62)

Reference has been made to the Court of Justice of the European Communities by order of the Corte d'Appello (Italy) of 4 February 2004, received at the Court Registry on 25 February 2004, for a preliminary ruling in the case of Federico Cipolla against Rosaria Fazari (neé Portolese) on the following questions:

| — | Does the principle of competition under Community law, as set out in Articles 10, 81 and 82 EC, also apply to the provision of legal services? |
| --- | --- |

—

Does the principle of competition under Community law, as set out in Articles 10, 81 and 82 EC, also apply to the provision of legal services?

| — | Does that principle permit a lawyer's remuneration to be agreed between the parties, with binding effect? |
| --- | --- |

—

Does that principle permit a lawyer's remuneration to be agreed between the parties, with binding effect?

| — | Does that principle preclude an absolute prohibition of derogation from lawyers' fees? |
| --- | --- |

—

Does that principle preclude an absolute prohibition of derogation from lawyers' fees?

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/28 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/28

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Action brought on 26 February 2004 by the Commission of the European Communities against the Italian Republic

(Case C-97/04)

(2004/C 94/63)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 26 February 2004 by the Commission of the European Communities, represented by M. Konstantinidis and R. Amorosi, acting as Agents.

The applicant claims that the Court should:

| — | declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2000/76/EC (1) of the European Parliament and of the Council of 4 December 2000 on the incineration of waste, or, in any event, by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 21 of that directive; |
| --- | --- |

—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2000/76/EC (1) of the European Parliament and of the Council of 4 December 2000 on the incineration of waste, or, in any event, by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 21 of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 28 December 2002.

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(1)  OJ L 332, 28.12.2000, p. 91.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/29 |
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17.4.2004

EN

Official Journal of the European Union

C 94/29

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Action brought on 26 February 2004 by the Commission of the European Communities against the Italian Republic

(Case C-99/04)

(2004/C 94/64)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 26 February 2004 by the Commission of the European Communities, represented by G. Valero Jordana and R. Amorosi, acting as Agents.

The applicant claims that the Court should:

| — | declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, or, in any event, by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 18(1) of that directive; |
| --- | --- |

—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, or, in any event, by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 18(1) of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 27 November 2002.

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(1)  OJ L 309, 27.11.2001, p. 1.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/29 |
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17.4.2004

EN

Official Journal of the European Union

C 94/29

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Action brought on 26 February 2004 by the Commission of the European Communities against the Italian Republic

(Case C-100/04)

(2004/C 94/65)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 26 February 2004 by the Commission of the European Communities, represented by G. Valero Jordana and R. Amorosi, acting as Agents.

The applicant claims that the Court should:

| — | Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2001/81/EC (1) of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, or by not communicating those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 15 of that directive; |
| --- | --- |

—

Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2001/81/EC (1) of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, or by not communicating those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 15 of that directive;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The time-limit for the transposition of the directive expired on 27 November 2002.

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(1)  OJ 2001 L 316 of 1.12.2001, p. 5.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/29 |
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17.4.2004

EN

Official Journal of the European Union

C 94/29

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Reference for a preliminary ruling by the Arbeidsrechtbank Gent by order of that Court of 17 February 2004 in the case of Roger Noteboom against Rijksdienst voor Pensionen

(Case C-101/04)

(2004/C 94/66)

Reference has been made to the Court of Justice of the European Communities by order of the Arbeidsrechtbank Gent (Ghent Labour Court) of 17 February 2004, received at the Court Registry on 26 February 2004, for a preliminary ruling in the case of Roger Noteboom against Rijksdienst voor Pensionen on the following questions:

| 1. | Does holiday pay within the meaning of Article 22 of Royal Decree No 50 of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967 fall within the scope ratione materiae of Regulation No 1408/71 (1) and more specifically does it constitute an ‘old-age benefit’ within the meaning of Article 4(1)(c) thereof? |
| --- | --- |

1.

Does holiday pay within the meaning of Article 22 of Royal Decree No 50 of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967 fall within the scope ratione materiae of Regulation No 1408/71 (1) and more specifically does it constitute an ‘old-age benefit’ within the meaning of Article 4(1)(c) thereof?

| 2. | Are Articles 45(1) and (6) of Regulation No 1408/71 to be interpreted as meaning that the RVP must, as the competent institution, take account of insurance periods completed in another Member State in determining entitlement to holiday pay? |
| --- | --- |

2.

Are Articles 45(1) and (6) of Regulation No 1408/71 to be interpreted as meaning that the RVP must, as the competent institution, take account of insurance periods completed in another Member State in determining entitlement to holiday pay?

| 3. | If the second question is answered in the negative, does the requirement in Article 71(1)(a)(ii) of Regulation No 1408/71 that the benefit is to be determined in accordance with the provisions of the legislation of the Member State in whose territory the frontier worker resides ‘as though he had been subject to that legislation while last employed’ apply only to unemployment benefit or also to other benefits such as, in particular, holiday pay as referred to in Article 22 of Royal Decree No 50 of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967? |
| --- | --- |

3.

If the second question is answered in the negative, does the requirement in Article 71(1)(a)(ii) of Regulation No 1408/71 that the benefit is to be determined in accordance with the provisions of the legislation of the Member State in whose territory the frontier worker resides ‘as though he had been subject to that legislation while last employed’ apply only to unemployment benefit or also to other benefits such as, in particular, holiday pay as referred to in Article 22 of Royal Decree No 50 of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967?

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(1)  English special edition: Series I Chapter 1971(II) P. 0416

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/30 |
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17.4.2004

EN

Official Journal of the European Union

C 94/30

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Action brought on 1 March 2004 by the Kingdom of the Netherlands against the Commission of the European Communities

(Case C-103/04)

(2004/C 94/67)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 1 March 2004 by the Kingdom of the Netherlands, represented by H.G. Sevenster and J.G.M. van Bakel, acting as Agents.

The applicant claims that the Court should:

| 1. | annul Decision 2004/1/EC (1) insofar as, in that decision, the Commission takes the view that its approval under Article 95(6) EC is required for the maintenance of Dutch rules on uses of short-chain chlorinated paraffins for which no provision is made in Directive 2002/45/EC; (2) |
| --- | --- |

1.

annul Decision 2004/1/EC (1) insofar as, in that decision, the Commission takes the view that its approval under Article 95(6) EC is required for the maintenance of Dutch rules on uses of short-chain chlorinated paraffins for which no provision is made in Directive 2002/45/EC; (2)

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments:

The Netherlands Government takes the view that the Commission acted in breach of Article 95(4) and (6) EC, in conjunction with Directive 2002/45/EC, by approving the maintenance of the national measures laid down in the Chlorinated Paraffins Decision WMS only to the extent that those measures have been notified to it in accordance with Article 95(4) EC and approved by it in accordance with Article 95(6) EC.

As is apparent from the wording of Article 95(4) EC, the maintenance of national measures is subject to approval by the Commission only where a Member State deems it necessary to maintain national provisions. Such approval is not required, however, for the maintenance of national measures that relate to an area (or, as in the present case, uses) for which no provision is made in the relevant Community rules or that pursue a different objective.

The Netherlands Government takes the view that, insofar as they relate to uses other than those provided for in Directive 2002/45/EC, the measures for implementing the PARCOM Decision 95/1, laid down in the Chlorinated Paraffins Decision WMS, do not fall within the scope of that directive so that their maintenance is not subject to approval by the Commission under Article 95(6) EC.

Directive 2002/45/EC concerns exclusively restrictions on the marketing of SCCPs for use, in concentrations higher than 1 %, as substances or as constituents of other substances or preparations in metalworking or for fat liquoring of leather.

Directive 2002/45/EC expressly does not deal with other uses. Measures relating to softening agents and flame retardants are therefore not covered by the provisions of the Directive. With respect to those uses, the Member States are free to adopt independent measures, which do not require to be notified to the Commission under Article 95(4) EC. The marketing of SCCPs as a substance or constituent for uses other than those referred to in Directive 2000/45/EC therefore does not fall within the scope of that directive.

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(1)  OJ 2004 L 1, p. 20.

(2)  OJ 2002 L 177, p. 21.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/30 |
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17.4.2004

EN

Official Journal of the European Union

C 94/30

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Action brought on 1 March 2004 by the Commission of the European Communities against the French Republic

(Case C-104/04)

(2004/C 94/68)

An action against the French Republic was brought before the Court of Justice of the European Communities on 1 March 2004 by the Commission of the European Communities, represented by J.-F. Pasquier and M. Shotter, 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 failing to bring into force the laws, regulations and administrative provisions necessary to comply with Article 3(2) and Article 8(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 in conjunction with the Annex thereto (1), the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Article 3(2) and Article 8(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 in conjunction with the Annex thereto (1), the French Republic has failed to fulfil its obligations under that directive;

| 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 amendments made to the French Code des postes et télécommunications (Post and Telecommunications Code) do not put an end to the ground for complaint relating to the inconsistency of the obligatory contribution to research and development with the requirements of the directive. The Code requires the operators concerned to contribute to telecommunications research and development in the European Community in the sum of a minimum annual amount equal to 5 % of their investment. However that obligation is not included in the exhaustive list of the conditions which may be attached to licences and does not fall within any of the categories of conditions set out in the Annex to the directive.

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(1)  Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ L 117 of 7.5.1997, p. 15).

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/31 |
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17.4.2004

EN

Official Journal of the European Union

C 94/31

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Action brought on 1 March 2004 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-106/04)

(2004/C 94/69)

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 1 March 2004 by the Commission of the European Communities, represented by G. Valero Jordana and B. Stromsky, 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 failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (1) or, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium, as far the Flemish Region is concerned, has failed to fulfil its obligations under Article 18 of that directive. |
| --- | --- |

1.

declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (1) or, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium, as far the Flemish Region is concerned, has failed to fulfil its obligations under Article 18 of that directive.

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

2.

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of that directive expired on 27 November 2002.

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(1)  OJ L 309 of 27.11.2001, p. 1.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/31 |
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17.4.2004

EN

Official Journal of the European Union

C 94/31

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Reference for a preliminary ruling by the Tribunal Supremo Chamber For Administrative Proceedings Fourth Section by order of that Court of 1 December 2003 in the proceedings brought by Comité Andaluz de Agricultura Ecológica against Administración del Estado, supported by Comité Aragonés de Agricultura Ecológica

(Case C-107/04)

(2004/C 94/70)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo Chamber For Administrative Proceedings Fourth Section (Spain) of 1 December 2003, received at the Court Registry on 1 March 2004, for a preliminary ruling in the proceedings brought by Comité Andaluz de Agricultura Ecológica against Administración del Estado, supported by Comité Aragonés de Agricultura Ecológica on the following questions:

| 1. | Does Council Regulation (EEC) No 2092/1991 of 24 June 1991 (1), supplemented by Council Regulation (EC) No 1804/1999 of 19 July 1999 (2), on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs regard, in all Member States, the terms ‘Biológico’ (biological) and ‘Ecológico’ (ecological) and their derivatives ‘Bio’ and ‘Eco’ as indications which suggest to the purchaser that the product or its ingredients have been obtained in accordance with the rules on organic production? |
| --- | --- |

1.

Does Council Regulation (EEC) No 2092/1991 of 24 June 1991 (1), supplemented by Council Regulation (EC) No 1804/1999 of 19 July 1999 (2), on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs regard, in all Member States, the terms ‘Biológico’ (biological) and ‘Ecológico’ (ecological) and their derivatives ‘Bio’ and ‘Eco’ as indications which suggest to the purchaser that the product or its ingredients have been obtained in accordance with the rules on organic production?

| 2. | Does Council Regulation (EEC) No 2092/1991 of 24 June 1991, supplemented by Council Regulation (EC) No 1804/1999 of 19 July 1999, on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs necessarily reserve, in all Member States, the terms ‘Biológico’ (biological) and ‘Ecológico’ (ecological) and their derivatives ‘Bio’ and ‘Eco’ for products which have been obtained in accordance with the rules laid down in respect of organic production in that regulation? |
| --- | --- |

2.

Does Council Regulation (EEC) No 2092/1991 of 24 June 1991, supplemented by Council Regulation (EC) No 1804/1999 of 19 July 1999, on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs necessarily reserve, in all Member States, the terms ‘Biológico’ (biological) and ‘Ecológico’ (ecological) and their derivatives ‘Bio’ and ‘Eco’ for products which have been obtained in accordance with the rules laid down in respect of organic production in that regulation?

| 3. | Does Article 2 of Council Regulation (EEC) No 2092/1991 of 24 June 1991, supplemented by Council Regulation (EC) No 1804/1999 of 19 July 1999, on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs reserve, in Spanish, only the term ‘Ecológico’ and its derivative ‘Eco’ for products which have been obtained in accordance with the rules laid down in respect of organic production in the regulation, so that it may not be contrary to European law to use the term ‘Biológico’ and its derivative ‘Bio’ in Spain for on-organic products, if, through use, that term and its derivative have become a generic term and derivative, because in Spain they do not designate foodstuffs with particular characteristics connected with organic production methods? |
| --- | --- |

3.

Does Article 2 of Council Regulation (EEC) No 2092/1991 of 24 June 1991, supplemented by Council Regulation (EC) No 1804/1999 of 19 July 1999, on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs reserve, in Spanish, only the term ‘Ecológico’ and its derivative ‘Eco’ for products which have been obtained in accordance with the rules laid down in respect of organic production in the regulation, so that it may not be contrary to European law to use the term ‘Biológico’ and its derivative ‘Bio’ in Spain for on-organic products, if, through use, that term and its derivative have become a generic term and derivative, because in Spain they do not designate foodstuffs with particular characteristics connected with organic production methods?

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(1)  OJ L 198 of 22.07.1991, p. 1.

(2)  OL L 222 of 24.08.1999, p. 1.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/31 |
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17.4.2004

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Official Journal of the European Union

C 94/31

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Reference for a preliminary ruling by the Sala de lo Social del Tribunal Superior de Justicia de Galicia by order of that Court of 19 January 2004 in the case of Divina Cortiñas Yáñez against Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social

(Case C-108/04)

(2004/C 94/71)

Reference has been made to the Court of Justice of the European Communities by order of the Sala de lo Social del Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Social Division) of 19 January 2004, received at the Court Registry on 1 March 2004, for a preliminary ruling in the case of Divina Cortiñas Yáñez against Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social on the following questions:

| 1. | Is it contrary to the provisions of Directive 79/7/EEC (1) of 19 December 1978, and in particular Article 4 thereof, for a provision of national law to require in order to join a special social security scheme for agricultural workers, in addition to fulfilling the general conditions, that where the worker is married the income derived from the activities covered by that scheme should be that couple's main source of income, in that it is the most substantial? |
| --- | --- |

1.

Is it contrary to the provisions of Directive 79/7/EEC (1) of 19 December 1978, and in particular Article 4 thereof, for a provision of national law to require in order to join a special social security scheme for agricultural workers, in addition to fulfilling the general conditions, that where the worker is married the income derived from the activities covered by that scheme should be that couple's main source of income, in that it is the most substantial?

| 2. | Is it contrary to the provisions of Directive 79/7/EEC of 19 December of 1978, and in particular Article 4 thereof, for a provision of national law to require that for the spouse of an agricultural worker to join another social security scheme the worker must prove that the income derived from the activity covered by the Agricultural Workers' Special Social Security Scheme is greater than that of his or her spouse, so that, if it is not so proven, there is a presumption that that income is less? |
| --- | --- |

2.

Is it contrary to the provisions of Directive 79/7/EEC of 19 December of 1978, and in particular Article 4 thereof, for a provision of national law to require that for the spouse of an agricultural worker to join another social security scheme the worker must prove that the income derived from the activity covered by the Agricultural Workers' Special Social Security Scheme is greater than that of his or her spouse, so that, if it is not so proven, there is a presumption that that income is less?

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(1)  OJ L 6 of 10.01.1979, p. 24.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/32 |
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17.4.2004

EN

Official Journal of the European Union

C 94/32

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Action brought on 4 March 2004 by the Commission of the European Communities against the Republic of Finland

(Case C-115/04)

(2004/C 94/72)

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 4 March 2004 by the Commission of the European Communities, represented by E. Traversa and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | Declare that the Republic of Finland has failed to fulfil its obligations under Directive 2001/17/EC (1) of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, 1 since it has not brought into force the laws, regulations and administrative provisions necessary to comply with the directive, or at least has not informed the Commission of them; |
| --- | --- |

1.

Declare that the Republic of Finland has failed to fulfil its obligations under Directive 2001/17/EC (1) of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, 1 since it has not brought into force the laws, regulations and administrative provisions necessary to comply with the directive, or at least has not informed the Commission of them;

| 2. | Order Finland to pay the costs. |
| --- | --- |

2.

Order Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired on 20 April 2003.

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(1)  OJ L 110 of 20.4.2001, p. 28.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/32 |
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17.4.2004

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Official Journal of the European Union

C 94/32

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Action brought on 5 March 2004 by the Commission of the European Communities against the European Parliament and the Council of the European Union

Case C-122/04

(2004/C 94/73)

An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 5 March 2004 by the Commission of the European Communities, represented by C.-F. Durand and M. van Beek, acting as Agents, with an address for service in Luxembourg.

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

| — | annul Article 17(2) of Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus) (1), in so far as it makes the adoption of implementing measures for the Forest Focus programme subject to the regulatory procedure laid down in Article 5 of Council Decision 1999/468/EC of 28 June 1999 (2); |
| --- | --- |

—

annul Article 17(2) of Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus) (1), in so far as it makes the adoption of implementing measures for the Forest Focus programme subject to the regulatory procedure laid down in Article 5 of Council Decision 1999/468/EC of 28 June 1999 (2);

| — | maintain the effects of the above regulation until its amendment, which should be carried out as soon as possible after the judgment of the Court; |
| --- | --- |

—

maintain the effects of the above regulation until its amendment, which should be carried out as soon as possible after the judgment of the Court;

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

—

order the defendants to pay the costs.

Pleas in law and main arguments

The contested provision is in contravention of Article 2 of Council Decision 1999/468/EC, the second comitology decision, which sets out the criteria governing the choice of one or other type of committee (management, regulatory or advisory), with a view to achieving greater consistency and predictability. The criteria laid down by that provision have not been observed in this case. Unless it can be shown that the implementing measures envisaged are not management measures for a programme, only the management procedure or, if appropriate, the advisory procedure are generally applicable for the implementation of Community programmes.

In this case, the implementing measures to be taken pursuant to the Forest Focus regulation are management measures for an action programme with only limited budgetary implications. On that ground, the Community legislature's choice was confined to either a management committee or an advisory committee, to the exclusion of a regulatory committee. The contested provision makes the adoption of implementing measures for the Forest Focus programme subject to the regulatory procedure. Where the legislature derogates from the typology prescribed by Article 2 of the second comitology decision, it must include in the act a statement of reasons which, first, is accurate and consistent with the facts of the case and, second, adequately explains the particular reasons why it is appropriate to depart from the fixed criteria. The European Parliament and the Council have not fulfilled their obligations to identify the specific features of the present case and to explain the particular reasons justifying the need to use the regulatory procedure.

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(1)  OJ L 324, p.1.

(2)  OJ L 184, p. 23, decision laying down the procedures for the exercise of implementing powers conferred on the Commission.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/33

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Action brought on 17 March 2004 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-143/04)

(2004/C 94/74)

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 17 March 2004 by the Commission of the European Communities, represented by K. Banks, acting as Agent, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) or, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under Article 13 of that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) or, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under Article 13 of that directive;

| 2. | order the Kingdom of Belgium to pay the costs of the proceedings. |
| --- | --- |

2.

order the Kingdom of Belgium to pay the costs of the proceedings.

Pleas in law and main arguments:

The period prescribed for transposition of that directive expired on 22 December 2002.

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(1)  JO L 167, du 22 juin 2001, p. 10

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
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17.4.2004

EN

Official Journal of the European Union

C 94/33

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Removal from the register of Case C-225/01 (1)

(2004/C 94/75)

By order of 26 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-225/01 (Reference for a preliminary ruling by the Tribunale civile di Genova): Off-Road Action sas Model Toys di Luca Luperini v Prefetto di Genova.

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(1)  OJ C 227 of 11.08.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
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17.4.2004

EN

Official Journal of the European Union

C 94/33

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Removal from the register of Case C-246/01 (1)

(2004/C 94/76)

By order of 20 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-246/01: Commission of the European Communities v Kingdom of the Netherlands.

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(1)  OJ C 245 of 1.09.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
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17.4.2004

EN

Official Journal of the European Union

C 94/33

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Removal from the register of Case C-298/01 (1)

(2004/C 94/77)

By order of 11 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-298/01: Commission of the European Communities v Federal Republic of Germany.

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(1)  OJ C 289 of 13.10.2001.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/33

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Removal from the register of Case C-373/01 (1)

(2004/C 94/78)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-373/01: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 331 of 24.11.2001.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/33

---

Removal from the register of Case C-374/01 (1)

(2004/C 94/79)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-374/01: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 317 of 10.11.2001.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/33 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/33

---

Removal from the register of Case C-459/01 (1)

(2004/C 94/80)

By order of 27 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-459/01: Commission of the European Communities v Ireland.

---

(1)  OJ C 84 of 6.4.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-52/02 (1)

(2004/C 94/81)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-52/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 97 of 20.04.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-54/02 (1)

(2004/C 94/82)

By order of 10 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-54/02: Italian Republic v Commission of the European Communities.

---

(1)  OJ C 97 of 20.04.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-169/02 (1)

(2004/C 94/83)

By order of 6 November 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-169/02 (Reference for a preliminary ruling by the Østre Landsret): Dansk Postordreforening v Skattenministeriet.

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(1)  JO C 156 du 29.6.2002

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-199/02 (1)

(2004/C 94/84)

By order of 18 February 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-199/02: European Parliament v Chubb Insurance Company of Europe SA and Others.

---

(1)  OJ C 233 of 28.09.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-210/02 (1)

(2004/C 94/85)

By order of 28 November 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-210/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 180 of 27.07.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-261/02 (1)

(2004/C 94/86)

By order of 18 February 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-261/02: Commission of the European Communities v French Republic.

---

(1)  OJ C 202 of 24.08.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-305/02 (1)

(2004/C 94/87)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-305/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 247 of 12.10.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/34 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/34

---

Removal from the register of Case C-310/02 (1)

(2004/C 94/88)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-310/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 247 of 12.10.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-316/02 P (1)

(2004/C 94/89)

By order of 16 February 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-316/02 P: Hijos de Andrés Molina SA (HAMSA) v Commission of the European Communities and Kingdom of Spain.

---

(1)  OJ C 274 of 9.11.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-359/02 (1)

(2004/C 94/90)

By order of 26 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-359/02 (Reference for a preliminary ruling by the Tribunale di Modena, Italy, Ufficio del Guidice per le indagini preliminari): Christian Lanzotti.

---

(1)  OJ C 359 of 7.12.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-374/02 (1)

(2004/C 94/91)

By order of 19 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-374/02: Commission of the European v Italian Republic.

---

(1)  OJ C 44 of 22.02.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-390/02 (1)

(2004/C 94/92)

By order of 18 November 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-390/02: Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 323 of 21.12.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-405/02 (1)

(2004/C 94/93)

By order of 13 February 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-405/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

---

(1)  OJ C 323 of 21.12.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-430/02 (1)

(2004/C 94/94)

By order of 23 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-430/02: Commission of the European Communities v Italian Republic.

---

(1)  OJ C 19 of 25.01.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-432/02 (1)

(2004/C 94/95)

By order of 29 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-432/02 (Reference for a preliminary ruling by the Ufficio del Guidice di Pace de Lendinara): Lucio Trombin v Insight World Education System Ltd.

---

(1)  OJ C 19 of 25.01.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/35 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/35

---

Removal from the register of Case C-436/02 (1)

(2004/C 94/96)

By order of 22 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-436/02: Commission of the European Communities v Ireland.

---

(1)  OJ C 19 of 25.01.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-14/03 (1)

(2004/C 94/97)

By order of 5 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-14/03: Commission of the European Communities v Republic of Austria.

---

(1)  OJ C 44 of 22.02.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-43/03 (1)

(2004/C 94/98)

By order of 6 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-43/03: Commission of the European Communities v Italian Republic.

---

(1)  OJ C 70 of 22.03.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-93/03 (1)

(2004/C 94/99)

By order of 4 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-93/03: Commission of the European Communities v Portuguese Republic.

---

(1)  OJ C 44 of 22.02.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-120/03 (1)

(2004/C 94/100)

By order of 14 November 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-120/03: Commission of the European Communities v Kingdom of Spain.

---

(1)  OJ C 112 of 10.05.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-130/03 (1)

(2004/C 94/101)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-130/03: Commission of the European Communities v Italian Republic.

---

(1)  OJ C 146 of 21.06.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-137/03 (1)

(2004/C 94/102)

By order of 19 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-137/03: Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 112 of 10.05.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-167/03 (1)

(2004/C 94/103)

By order of 19 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-167/03: Commission of the European Communities v Hellenic Republic.

---

(1)  OJ C 158 of 5.07.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-241/03 (1)

(2004/C 94/104)

By order of 12 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-241/03: Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 171 of 19.07.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/36 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/36

---

Removal from the register of Case C-271/03 (1)

(2004/C 94/105)

By order of 4 February 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-271/03: Ireland v Commission of the European.

---

(1)  OJ C 200 of 23.08.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/37 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/37

---

Removal from the register of Case C-273/03 (1)

(2004/C 94/106)

By order of 17 February 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-273/03: Commission of the European Communities v Grand Duchy of Luxembourg.

---

(1)  OJ C 184 of 2.08.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/37 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/37

---

Removal from the register of Case C-303/03 (1)

(2004/C 94/107)

By order of 6 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-303/03: Commission of the European Communities v Italian Republic.

---

(1)  OJ C 213 of 6.9.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/37 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/37

---

Removal from the register of Case C-309/03 (1)

(2004/C 94/108)

By order of 11 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-309/03 (Reference for a preliminary ruling by the Juzgado de lo Social N. 33): Ana Isabel López Gil v Instituto Nacional de Empleo (Inem).

---

(1)  OJ C 226 of 20.09.2003.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/37 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/37

---

Removal from the register of Case C-413/03 (1)

(2004/C 94/109)

By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-413/03: Commission of the European Communities v Ireland.

---

(1)  OJ C 275 of 15.11.2003.

---

COURT OF FIRST INSTANCE

| 17.4.2004 | EN | Official Journal of the European Union | C 94/38 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/38

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

10 February 2004

in Joined Cases T-64/01 and T-65/01: Afrikanische Frucht-Compagnie GmbH and Internationale Fruchtimport Gesellschaft Weichert & Co. v Council of the European Union and Commission of the European Communities (1)

(Common organisation of the markets - Bananas - Imports from ACP States and third countries - Reference quantity - Regulations (EC) Nos 1924/95 and 2362/98 - Action for compensation)

(2004/C 94/110)

Language of the case: German

In Joined Cases T-64/01 and T-65/01, Afrikanische Frucht-Compagnie GmbH, established in Hamburg (Germany), and Internationale Fruchtimport Gesellschaft Weichert & Co., established in Hamburg, represented by G. Schohe, lawyer, with an address for service in Luxembourg, against Council of the European Union, (Agents: S. Marquardt and J.-P. Hix), and Commission of the European Communities (Agents: G. Braun and M. Niejahr), with an address for service in Luxembourg: Application for compensation for the loss allegedly suffered by the applicants in the determination of their reference quantities for 1999, the Court of First Instance (Fifth Chamber), composed of R. García Valdecasas, President, P. Lindh and J.D. Cooke, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 10 February 2004, in which it:

| 1. | Dismisses the applications; |
| --- | --- |

1.

Dismisses the applications;

| 2. | Orders the applicants to bear their own costs and to pay those incurred by the Council and the Commission. |
| --- | --- |

2.

Orders the applicants to bear their own costs and to pay those incurred by the Council and the Commission.

---

(1)  OJ C 173 of 16.06.2001.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/38 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/38

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

28 January 2004

in Joined Cases T-142/01 and T-283/01: Organización de Productores de Túnidos Congelados (OPTUC) v Commission of the European Communities (1)

(Fisheries - Common organisation of the markets - Compensation for producers of tuna intended for the processing industry - Allocation between producers' organisations - Change of membership by producers - Effect on the allocation of the allowance - Legal basis - Principle of protection of legitimate expectations)

(2004/C 94/111)

Language of the case: Spanish

In Joined Cases T-142/01 and T-283/01, Organización de Productores de Túnidos Congelados (OPTUC), established in Bermeo (Spain), represented, in Case T-142/01, by J. R. García-Gallardo Gil Fournier and M. Moya Díaz, lawyers, and, in Case T 283/01, by J. R. García Gallardo Gil-Fournier and J. Guillem Carrau, lawyers, against Commission of the European Communities, (Agents: S. Pardo Quintillán and, in Case T-142/01, also by L. Visaggio), with an address for service in Luxembourg, supported by Organización de Productores Asociados de Grandes Atuneros Congeladores (Opagac), established in Madrid (Spain), represented by J. Casas Robla and V. Arrastia de Sierra, lawyers: Applications for the annulment of Commission Regulation (EC) No 584/2001 of 26 March 2001 amending Regulations (EC) No 1103/2000 and (EC) No 1926/2000 providing for the granting of compensation to producer organisations in respect of tuna delivered to the processing industry from 1 July to 30 September 1999 and from 1 October to 31 December 1999 (OJ 2001 L 86, p. 4), and for the annulment of Article 2(2) of and the annex to each of Commission Regulations (EC) No 585/2001 of 26 March 2001, No 808/2001 of 26 April 2001, No 1163/2001 of 14 June 2001 and No 1670/2001 of 20 August 2001, providing for compensation to producer organisations for tuna delivered to the processing industry between 1 January and 31 March 2000, 1 April and 30 June 2000, 1 July and 30 September 2000 and 1 October and 31 December 2000 (OJ 2000 L 86, p. 8; OJ 2000 L 118, p. 12; OJ 2000 L 159, p. 10 and OJ 2000 L 224, p. 4 respectively), the Court of First Instance (Fourth Chamber), composed of V. Tiili, President, P. Mengozzi and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 28 January 2004, in which it:

| 1. | Dismisses the applications; |
| --- | --- |

1.

Dismisses the applications;

| 2. | Orders the applicant to pay the costs incurred by the defendant; |
| --- | --- |

2.

Orders the applicant to pay the costs incurred by the defendant;

| 3. | Orders the intervener to bear its own costs. |
| --- | --- |

3.

Orders the intervener to bear its own costs.

---

(1)  OJ C 245 of 1.09.2001 and OJ C 44 of 16.02.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/39 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/39

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

28 January 2004

in Joined Cases T-146/02 to T-153/02: Deutsche SiSi-Werke GmbH & Co. Betriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Three-dimensional mark - Form of drinks packaging - Stand-up pouch - Absolute grounds for refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Need to preserve a sign's availability)

(2004/C 94/112)

Language of the case: German

In Joined Cases T-146/02 to T-153/02, Deutsche SiSi-Werke GmbH & Co. Betriebs KG, established in Eppelheim (Germany), represented by A. Franke, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs), (Agent: G. Schneider): Actions brought against the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 February 2002 (Cases R 719/1999 2 to R 724/1999 2, R 747/1999 2 and R 748/1999 2) concerning the registration of three-dimensional trade marks (stand-up pouches), the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 28 January 2004, in which it:

| 1. | Dismisses the actions; |
| --- | --- |

1.

Dismisses the actions;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 180 of 27.07.2002.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/39 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/39

---

JUDGMENT OF THE COURT OF FIRST INSTANCE (SECOND CHAMBER)

of 28 January 2004

in Case T-180/01: Euragri Srl v Commission of the European Communities (1)

(EAGGF - Withdrawal of financial assistance - Articles 24 and 25 of Regulation (EEC) No 4253/88)

(2004/C 94/113)

Language of the case: Italian

In Case T-180/01: Euragri Srl, established at Monte Vidon Combatte (Italy), represented by W. Massucci, lawyer, against Commission of the European Communities (Agents: initially L. Visaggio and M. Moretto and subsequently C. Cattabriga and M. Moretto) — application for annulment of Commission Decision C (2001) 1274 of 6 June 2001 withdrawing the assistance granted to Euragri Srl by Commission Decision C (92) 3214 of 3 December 1992 concerning grant of a contribution from the EAGGF, Guidance Section, pursuant to Council Regulation (EEC) No 4256/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the EAGGF Guidance Section (OJ 1988 L 374, p.25), in connection with Project No 92.IT.06.069 entitled ‘Pilot demonstration project for the use of new “Endovena” (intravenous) technology on fruit trees’ – the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W. Meij, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 28 January 2004, in which it:

| 1. | Dismissed the application. |
| --- | --- |

1.

Dismissed the application.

| 2. | Ordered the applicant to pay the costs, including those incurred in connection with the application for interim measures. |
| --- | --- |

2.

Ordered the applicant to pay the costs, including those incurred in connection with the application for interim measures.

---

(1)  OJ No C 275 of 29.9.01

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/39 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/39

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 10 February 2004

in Joined Cases T-215/01, T-220/01 and T-221/01: Calberson GE v Commission of the European Communities (1)

(Regulation (EC) No 111/1999 - Food aid to Russia - Regulation (EC) No 1799/1999 - Supply of beef - Regulation (EC) No 1815/1999 - Supply of skimmed-milk powder - Award of contract for the provision of transport - Contractual relationship - Arbitration clause - Contractual liability - Non-contractual liability - Admissibility)

(2004/C 94/114)

Language of the case: French

In Joined Cases T-215/01, T-220/01 and T-221/01: Calberson GE, established in Paris (France), represented by T. Gallois, lawyer, against the Commission of the European Communities (Agent: G. Berscheid) – applications:

| — | in Case T-215/01, for an order requiring the Commission to pay to the applicant the sums of EUR 14 290,61 and USD 57 859,56, together with interest at the legal rate, in compensation for the loss allegedly suffered, |
| --- | --- |

—

in Case T-215/01, for an order requiring the Commission to pay to the applicant the sums of EUR 14 290,61 and USD 57 859,56, together with interest at the legal rate, in compensation for the loss allegedly suffered,

| — | in Case T-220/01, for an order requiring the Commission to pay to the applicant the sum of DEM 106 901,96, together with interest at the legal rate, in compensation for the loss allegedly suffered, |
| --- | --- |

—

in Case T-220/01, for an order requiring the Commission to pay to the applicant the sum of DEM 106 901,96, together with interest at the legal rate, in compensation for the loss allegedly suffered,

| — | in Case T-221/01, for an order requiring the Commission to pay to the applicant the sums of EUR 23 115,49 and USD 25 761,11, together with interest at the legal rate, in compensation for the loss allegedly suffered, |
| --- | --- |

—

in Case T-221/01, for an order requiring the Commission to pay to the applicant the sums of EUR 23 115,49 and USD 25 761,11, together with interest at the legal rate, in compensation for the loss allegedly suffered,

all three brought on the basis of Article 238 EC and Article 16 of Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation and, in the alternative, on the basis of Article 235 EC and the second paragraph of Article 288 EC — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 10 February 2004 in which it:

| 1. | In Case T-215/01, orders the Commission to pay to the applicant the sum of EUR 7 194,24 and the sum of USD 23 072,89, both together with default interest from 16 May 2001 until full payment. The rate of interest to be applied shall be calculated on the basis of the rate set by the European Central Bank for its main refinancing operations that is applicable during the period in question, increased by two percentage points; |
| --- | --- |

1.

In Case T-215/01, orders the Commission to pay to the applicant the sum of EUR 7 194,24 and the sum of USD 23 072,89, both together with default interest from 16 May 2001 until full payment. The rate of interest to be applied shall be calculated on the basis of the rate set by the European Central Bank for its main refinancing operations that is applicable during the period in question, increased by two percentage points;

| 2. | Dismisses the application in Case T-215/01 as to the remainder; |
| --- | --- |

2.

Dismisses the application in Case T-215/01 as to the remainder;

| 3. | Orders the applicant to bear in Case T-215/01 a third of its own costs and a third of the costs incurred by the Commission, and the latter to bear two-thirds of its own costs and two-thirds of the costs incurred by the applicant; |
| --- | --- |

3.

Orders the applicant to bear in Case T-215/01 a third of its own costs and a third of the costs incurred by the Commission, and the latter to bear two-thirds of its own costs and two-thirds of the costs incurred by the applicant;

| 4. | Dismisses the application in Case T-220/01; |
| --- | --- |

4.

Dismisses the application in Case T-220/01;

| 5. | Orders the applicant to pay all the costs in Case T-220/01; |
| --- | --- |

5.

Orders the applicant to pay all the costs in Case T-220/01;

| 6. | In Case T-221/01, orders the Commission to pay to the applicant the sum of USD 25 761,11, together with default interest from 3 August 2001 until full payment. The rate of interest to be applied shall be calculated on the basis of the rate set by the European Central Bank for its main refinancing operations that is applicable during the period in question, increased by two percentage points; |
| --- | --- |

6.

In Case T-221/01, orders the Commission to pay to the applicant the sum of USD 25 761,11, together with default interest from 3 August 2001 until full payment. The rate of interest to be applied shall be calculated on the basis of the rate set by the European Central Bank for its main refinancing operations that is applicable during the period in question, increased by two percentage points;

| 7. | Orders the applicant to bear in Case T-221/01 a quarter of its own costs and a quarter of the costs incurred by the Commission, and the latter to bear three-quarters of its own costs and three-quarters of the costs incurred by the applicant. |
| --- | --- |

7.

Orders the applicant to bear in Case T-221/01 a quarter of its own costs and a quarter of the costs incurred by the Commission, and the latter to bear three-quarters of its own costs and three-quarters of the costs incurred by the applicant.

---

(1)  OJ No C 317, 10.11.2001.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

11 February 2004

in Case T-259/01: Nutrinveste — Comércio Internacional, SA, v Commission of the European Communities (1)

(Regulation (EEC) No 2200/87 - Food aid - Transfer of the burden of risk - Deduction from payments)

(2004/C 94/115)

Language of the case: Portuguese

In Case T-259/01, Nutrinveste - Comércio Internacional, SA, established in Algés (Portugal), represented by A. Vasconcelos, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: G. Berscheid and A. Alves Vieira), with an address for service in Luxembourg: Application for an order for payment by the Commission of the sum of EUR 61 226 in respect of a supply of food aid, the Court of First Instance (Fourth Chamber), composed of V. Tiili, President, P. Mengozzi and M. Vilaras, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 11 February 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 17 of 19.01.2002.

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JUDGMENT OF THE COURT OF FIRST INSTANCE

12 February 2004

in Case T-282/01: Aslantrans AG v Commission of the European Communities (1)

(Customs duties - Repayment of import duties - Shipment of cigarettes stolen during transport - Notion of special situation within the meaning of Article 905 of Regulation (EEC) No 2454/93 - Compliance with the time-limit)

(2004/C 94/116)

Language of the case: German

In Case T-282/01, Aslantrans AG, established in Rickenbach bei Wil (Switzerland), represented by J. Weigell, avocat, v Commission of the European Communities (Agents: initially by R. Tricot and S. Fries, and subsequently by X. Lewis and S. Fries): Application for annulment of Commission Decision REM 19/00 of 18 July 2001 refusing to grant an application by the Federal Republic of Germany for repayment of import duties in favour of the applicant, the Court of First Instance (Fifth Chamber), composed of: P. Lindh, President, and R. García-Valdecasas and J.D. Cooke, Judges I. Natsinas, Administrator, for the Registrar, has given a judgment on 12 February 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | Orders the applicant to bear its own costs and to pay those incurred by the Commission. |
| --- | --- |

2.

Orders the applicant to bear its own costs and to pay those incurred by the Commission.

---

(1)  OJ C 44 of 16.02.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/41 |
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ORDER OF THE COURT OF FIRST INSTANCE

of 6 January 2004

in Case T-113/02 Gustaaf van Dyck v Commission of the European Communities (1)

(Staff case - Action for annulment - Act adversely affecting the applicant - Inadmissibility)

(2004/C 94/117)

Language of the case: Dutch

In Case T-113/02: Gustaaf van Dyck, an official of the Commission of the European Communities, residing in Wuustwezel (Belgium), represented by S. Corbanie, lawyer, and by A.E. Bywater, Solicitor, against Commission of the European Communities (Agents: F. Clotuche-Duvieusart and H.M.H. Speyart), application for annulment of the Commission's decision of 10 January 2002 rejecting the complaint of 14 August 2001, of the Commission's decision of 5 July 2001 rejecting the informal appeal of 1 July 2001 and of the Commission's alleged decision of unknown date revising the applicant's staff report, the Court of First Instance (Fourth Chamber), composed of H. Legal, President, and V. Tiili and M. Vilaras, Judges; H. Jung, Registrar, made an order on 16 January 2004, the operative part of which is as follows:

| 1. | The application is rejected as inadmissible; |
| --- | --- |

1.

The application is rejected as inadmissible;

| 2. | The parties shall bear their own costs. |
| --- | --- |

2.

The parties shall bear their own costs.

---

(1)  OJ 2002 C 131, 1.6.02

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ORDER OF THE COURT OF FIRST INSTANCE

of 14 January 2004

in Case T-202/02 Makedoniko Metro and Michaniki AE against the Commission of the European Communities (1)

(Public works contracts - Failure to initiate the Treaty infringement procedure - Article 3 of Directive 89/665/EEC - Action for damages - Inadmissible)

(2004/C 94/118)

Language of the case: Greek

In Case T-202/02: Makedoniko Metro, established in Thessaloniki (Greece), and Michaniki AE, established in Marousi, Attica (Greece), represented by C. Gkonis, lawyer, with an address for service in Luxembourg, against the Commission of the European Communities (Agent: M. Konstantinidis) — application for compensation for the harm allegedly suffered by the applicants consequent upon the decision of the Commission to take no further action on their complaint No 97/4188/P lodged on 23 January 1997 concerning the award by the Greek State of a public works contract relating to studies for, and the construction, self-financing and operation of, the Thessaloniki Metro — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M.Vilaras, Judges; H. Jung, Registrar, made an order on 14 January 2004, the operative part of which is as follows:

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

1.

The action is dismissed as inadmissible.

| 2. | The applicants shall pay the costs. |
| --- | --- |

2.

The applicants shall pay the costs.

---

(1)  OJ No C 274, 9.11.2002.

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ORDER OF THE COURT OF FIRST INSTANCE

of 26 January 2004

in Case T-386/02 Lamprecht A.G. against Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) (1)

(Not necessary to give judgment)

(2004/C 94/119)

Language of the case: Spanish

In Case T-386/02: Lamprecht A.G., established in Zurich (Switzerland), represented by E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers, against the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) (Agents: S. Laitinen and J. García Murillo), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (trade marks and designs) being Clickview Ltd (formerly J. Tricot & Sons Ltd), established in London — action for annulment brought by the proprietor of the national word mark ‘EMOSWISS’ in respect of goods in Classes 10, 24 and 25 against Decision R 275/2001-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (trade marks and designs) of 12 July 2002 dismissing the appeal brought against the decision of the Opposition Division which rejected the opposition of the applicant to registration of the Community word mark ‘EMOS’ for certain goods in Class 25 — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; H. Jung, Registrar, made an order on 26 January 2004, the operative part of which is as follows:

| 1. | It is no longer necessary to give judgment. |
| --- | --- |

1.

It is no longer necessary to give judgment.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ No C 55, 8.3.2003.

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 21 January 2004

in Case T-217/03 R Fédération nationale de la coopération bétail et viande (FNCBV) v Commission of the European Communities

(Interim proceedings - Competition - Payment of a fine - Bank guarantee - Prima facie case - Urgency - Balance of interests - Partial and conditional suspension)

(2004/C 94/120)

Language of the case: French

In Case T-217/03 R: Fédération nationale de la coopération bétail et viande (FNCBV), established in Paris (France), represented by R. Collin and M. Ponsard, lawyers, with an address for service in Luxembourg, supported by the French Republic (agents: G. de Bergues and F. Million), against Commission of the European Communities (agents: P. Oliver and O. Beynet) — application for dispensation from the obligation to provide a bank guarantee in order to avoid enforcement of the fine of EUR 480 000 imposed by Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 — French beef) (OJ 2003 L 209, p. 12) — the President of the Court of First Instance, made an order on 21 January 2004, the operative part of which is as follows:

| 1) | For a period of two months from the date of notification of this order, the obligation on the applicant to provide a bank guarantee for the Commission in order to avoid immediate recovery of the fine imposed on it by Article 3 of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 — French beef) is suspended, provided that, within a period of four weeks from the same date, the applicant pays to the Commission the sum of EUR 140 000 and provides a bank guarantee of EUR 60 000 or, alternatively, provides a bank guarantee of EUR 200 000; |
| --- | --- |

1)

For a period of two months from the date of notification of this order, the obligation on the applicant to provide a bank guarantee for the Commission in order to avoid immediate recovery of the fine imposed on it by Article 3 of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 — French beef) is suspended, provided that, within a period of four weeks from the same date, the applicant pays to the Commission the sum of EUR 140 000 and provides a bank guarantee of EUR 60 000 or, alternatively, provides a bank guarantee of EUR 200 000;

| 2) | The costs are reserved. |
| --- | --- |

2)

The costs are reserved.

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 21 January 2004

in Case T-245/03 R Fédération nationale des syndicats d'exploitants agricoles (FNSEA) and Others v Commission of the European Communities

(Interim proceedings - Competition - Payment of a fine - Bank guarantee - Prima facie case - Urgency - Balance of interests - Partial and conditional suspension)

(2004/C 94/121)

Language of the case: French

In Case T-245/03 R: Fédération nationale des syndicats d'exploitants agricoles (FNSEA), established in Paris (France), Fédération nationale bovine (FNB), established in Paris, Fédération nationale des producteurs du lait (FNPL), established in Paris, and Jeunes agriculteurs (JA), established in Paris, represented by B. Néouze and V. Ledoux, lawyers, with an address for service in Luxembourg, supported by the French Republic (agents: G. de Bergues and F. Million), against Commission of the European Communities (agents: P. Oliver and A. Bouquet) — application for dispensation, in whole or in part, from the obligation to provide a bank guarantee in order to avoid enforcement of the fines imposed by Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 -- French beef) (OJ 2003 L 209, p. 12) — the President of the Court of First Instance, made an order on 21 January 2004, the operative part of which is as follows:

| 1) | The obligation on the Fédération nationale des syndicats d'exploitants agricoles to provide the Commission with a bank guarantee in order to avoid immediate enforcement of the fines imposed on it by Article 3 of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 —French beef) is suspended on the following conditions:






  a) | within a period of three weeks from notification of this order, the Fédération nationale des syndicats d'exploitants agricoles shall pay the Commission the sum of EUR 1,5 million and provide a bank guarantee of EUR 1,7 million or, alternatively, the Fédération nationale des syndicats d'exploitants agricoles shall provide a bank guarantee of EUR 3,2 million; |
| --- | --- | --- |

1)

The obligation on the Fédération nationale des syndicats d'exploitants agricoles to provide the Commission with a bank guarantee in order to avoid immediate enforcement of the fines imposed on it by Article 3 of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 —French beef) is suspended on the following conditions:

a)

within a period of three weeks from notification of this order, the Fédération nationale des syndicats d'exploitants agricoles shall pay the Commission the sum of EUR 1,5 million and provide a bank guarantee of EUR 1,7 million or, alternatively, the Fédération nationale des syndicats d'exploitants agricoles shall provide a bank guarantee of EUR 3,2 million;

| b) | within a period of five months from notification of this order the Fédération nationale des syndicats d'exploitants agricoles shall pay the Commission the balance of the fine still due, together with interest, or provide a bank guarantee of that amount. |
| --- | --- |

b)

within a period of five months from notification of this order the Fédération nationale des syndicats d'exploitants agricoles shall pay the Commission the balance of the fine still due, together with interest, or provide a bank guarantee of that amount.

| 2) | The obligation on the Fédération nationale bovine to provide the Commission with a bank guarantee in order to avoid immediate enforcement of the fines imposed on it by Article 3 of Decision 2003/600 is suspended on the following conditions:






  a) | within a period of three weeks from notification of this order, the Fédération nationale bovine shall pay the Commission the sum of EUR 200 000 and provide a bank guarantee of EUR 670 000 or, alternatively, the Fédération nationale bovine shall provide a bank guarantee of EUR 870 000; |
| --- | --- | --- |

2)

The obligation on the Fédération nationale bovine to provide the Commission with a bank guarantee in order to avoid immediate enforcement of the fines imposed on it by Article 3 of Decision 2003/600 is suspended on the following conditions:

a)

within a period of three weeks from notification of this order, the Fédération nationale bovine shall pay the Commission the sum of EUR 200 000 and provide a bank guarantee of EUR 670 000 or, alternatively, the Fédération nationale bovine shall provide a bank guarantee of EUR 870 000;

| b) | within a period of five months from notification of this order, the Fédération nationale bovine shall pay the Commission the balance of the fine still due, together with interest, or provide a bank guarantee of that amount. |
| --- | --- |

b)

within a period of five months from notification of this order, the Fédération nationale bovine shall pay the Commission the balance of the fine still due, together with interest, or provide a bank guarantee of that amount.

| 3) | The obligation on the Jeunes agriculteurs to provide the Commission with a bank guarantee in order to avoid immediate enforcement of the fines imposed on it by Article 3 of Decision 2003/600 is suspended on the following conditions:






  a) | within a period of three weeks from notification of this order, the Jeunes agriculteurs shall pay the Commission the sum of EUR 15 000 or, alternatively, provide a bank guarantee of that amount; |
| --- | --- | --- |

3)

The obligation on the Jeunes agriculteurs to provide the Commission with a bank guarantee in order to avoid immediate enforcement of the fines imposed on it by Article 3 of Decision 2003/600 is suspended on the following conditions:

a)

within a period of three weeks from notification of this order, the Jeunes agriculteurs shall pay the Commission the sum of EUR 15 000 or, alternatively, provide a bank guarantee of that amount;

| b) | within a period of five months from notification of this order, the Jeunes agriculteurs shall pay the Commission the balance of the fine still due, together with interest, or provide a bank guarantee of that amount. |
| --- | --- |

b)

within a period of five months from notification of this order, the Jeunes agriculteurs shall pay the Commission the balance of the fine still due, together with interest, or provide a bank guarantee of that amount.

| 4) | The suspension granted in paragraphs 2 and 3 of the operative part of this order shall cease to have effect if the applicants do not communicate to the Commission, within a period of six weeks from notification of this order, the annual accounts of the Fédération nationale bovine and the Jeunes agriculteurs for the 2001 and 2002 financial years, audited and certified by an audit firm of international repute; |
| --- | --- |

4)

The suspension granted in paragraphs 2 and 3 of the operative part of this order shall cease to have effect if the applicants do not communicate to the Commission, within a period of six weeks from notification of this order, the annual accounts of the Fédération nationale bovine and the Jeunes agriculteurs for the 2001 and 2002 financial years, audited and certified by an audit firm of international repute;

| 5) | Until bank guarantees covering interest are established, the applicants shall communicate to the Commission:






  a) | monthly, the main parameters relating to changes in their economic and financial situation, which the Commission shall define upon notification of this order; |
| --- | --- | --- |

5)

Until bank guarantees covering interest are established, the applicants shall communicate to the Commission:

a)

monthly, the main parameters relating to changes in their economic and financial situation, which the Commission shall define upon notification of this order;

| b) | prior to its adoption, any decision liable substantially to affect their economic situation or intended to change their legal status. |
| --- | --- |

b)

prior to its adoption, any decision liable substantially to affect their economic situation or intended to change their legal status.

| 6) | The costs are reserved. |
| --- | --- |

6)

The costs are reserved.

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 21 January 2004

in Case T-252/03 R Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the European Communities

(Interim proceedings - Competition - Payment of a fine - Bank guarantee - Admissibility - Urgency - None)

(2004/C 94/122)

Language of the case: French

In Case T-252/03 R: Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV), established in Paris (France), represented by P. Abegg, lawyer, with an address for service in Luxembourg, supported by the French Republic (agents: G. de Bergues and F. Million), against Commission of the European Communities (agents: P. Oliver and F. Lelièvre) – application for suspension of operation of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 — French beef) (OJ 2003 L 209, p. 12) inasmuch as it imposed on the applicant a fine of EUR 720 000 and required it to establish a bank guarantee as a condition of the non-enforcement of that fine — the President of the Court of First Instance, made an order on 21 January 2004, the operative part of which is as follows:

| 1) | The application for interim measures is dismissed; |
| --- | --- |

1)

The application for interim measures is dismissed;

| 2) | The costs are reserved. |
| --- | --- |

2)

The costs are reserved.

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ORDER OF THE COURT OF FIRST INSTANCE

of 10 February 2004

in Case T-394/03 R: Flavia Angeletti v Commission of the European Communities

(Procedure for interim relief - Urgency - None)

(2004/C 94/123)

Language of the case: French

In Case T-394/03 R: Flavia Angeletti, former official of the Commission of the European Communities, represented by J.R. Iturriagogoitia and K. Devolvé, lawyers, against Commission of the European Communities (Agents: J. Currall and H. Kraemer) — application for suspension of operation of the decision of the Commission of 17 October 2003, as corrected on 27 October 2003 — the President of the Court of First Instance made an order on 10 February 2004, the operative part of which is as follows:

| 1. | The application for interim relief is dismissed. |
| --- | --- |

1.

The application for interim relief is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

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Action brought on 19 March 2003 by Mast-Jägermeister AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-103/03)

(2004/C 94/124)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German)

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 19 March 2003 by Mast-Jägermeister AG, Wolfenbüttel (Germany), represented by C. Drzymalla, lawyer. Licorera Zacapaneca S.A., Zacapa, (Guatemala) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 January 2003 (Case R 407/2002-1); |
| --- | --- |

—

set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 January 2003 (Case R 407/2002-1);

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

—

order the Office to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Licorera Zacapaneca S.A. |
| --- | --- |
| Community trade mark sought: | the figurative mark ‘VENADO’ for goods in Classes 32 and 33 (inter alia, mineral and aerated waters and other non-alcoholic drinks, rum, rum liqueurs and brandy) — Application No 986976 |
| Proprietor of mark or sign cited in the opposition proceedings: | the applicant |
| Mark or sign cited in opposition: | the figurative mark in the form of a stag's head with a cross for goods in Classes 18, 25, 32 and 33 (inter alia, umbrellas, clothing, non-alcoholic beverages included in Class 32, wines and spirits) — Trade mark No 337337 |
| Decision of the Opposition Division: | rejection of the application |
| Decision of the Board of Appeal: | the opposition of the applicant for the mark was allowed and the objection of the applicant before the Court dismissed |
| Pleas in law: | infringement of Article 73 of Regulation (EC) No 40/94;
  incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94;
  incorrect appraisal of the similarity of the marks;
  failure to take into account the reputation of the objection mark. |

Applicant for Community trade mark:

Licorera Zacapaneca S.A.

Community trade mark sought:

the figurative mark ‘VENADO’ for goods in Classes 32 and 33 (inter alia, mineral and aerated waters and other non-alcoholic drinks, rum, rum liqueurs and brandy) — Application No 986976

Proprietor of mark or sign cited in the opposition proceedings:

the applicant

Mark or sign cited in opposition:

the figurative mark in the form of a stag's head with a cross for goods in Classes 18, 25, 32 and 33 (inter alia, umbrellas, clothing, non-alcoholic beverages included in Class 32, wines and spirits) — Trade mark No 337337

Decision of the Opposition Division:

rejection of the application

Decision of the Board of Appeal:

the opposition of the applicant for the mark was allowed and the objection of the applicant before the Court dismissed

Pleas in law:

infringement of Article 73 of Regulation (EC) No 40/94;

incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94;

incorrect appraisal of the similarity of the marks;

failure to take into account the reputation of the objection mark.

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Action brought on 16 December 2003 by Angelo Wille against European Parliament

(Case T-412/03)

(2004/C 94/125)

Language of the case: German

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 16 December 2003 by Angelo Wille, residing in Brussels, represented by D. Rogalla, lawyer.

The applicant claims that the Court should:

| — | annul the defendant's decisions of 24 February 2003, 28 April 2003, 20 May 2003 and 17 September 2003; |
| --- | --- |

—

annul the defendant's decisions of 24 February 2003, 28 April 2003, 20 May 2003 and 17 September 2003;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant challenges the decisions of the Parliament refusing to admit him to competition EUR/A/167/02. The refusal was based on the ground that the applicant had not completed a period of at least two years' professional experience after qualifying as a lawyer.

The applicant claims that the refusal is unlawful, as his application had complied with all time-limits and formal requirements, and as he had also met all other relevant general and particular conditions. He had completed his legal training and had the necessary professional experience. The decisions were unlawful because they were based on an erroneous interpretation by the defendant of the conditions set out in the notice. It was contrary to the wording of the notice and the prohibition on discrimination on grounds of nationality under Article 12 EC to treat university final examinations and the second state examination [Staatsexamen] as being equivalent. No higher standards should be imposed on German lawyers than on graduates from other Member States.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/44 |
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Action brought on 29 December 2003 by Ulrike Eppe against European Parliament

(Case T-439/03)

(2004/C 94/126)

Language of the case: German

An action against the European Parliament was brought against the Court of First Instance of the European Communities on 29 December 2003 by Ulrike Eppe, residing in Hanover (Germany), represented by D. Rogalla, lawyer.

The applicant claims that the Court should:

| — | annul the defendant's decisions of 24 February 2003, 28 April 2003 and 17 September 2003; |
| --- | --- |

—

annul the defendant's decisions of 24 February 2003, 28 April 2003 and 17 September 2003;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The pleas in law and arguments are similar to those raised in Case T-412/03 (Wille v Parliament, not yet published).

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/45 |
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Action brought on 21 January 2004 by Reemark Gesellschaft für Markenkooperation mbH, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-22/04)

(2004/C 94/127)

Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure language in which the case was submitted: English

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 21 January 2004 by Reemark Gesellschaft für Markenkooperation mbH, Hamburg, Germany, represented by Ms P. Koch Moreno, lawyer.

Bluenet Limited was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | declare non-conformity with section 8.1.b) of the EC Regulation 40/94 concerning the Community trade mark of the Decision of 17 November 2003 issued by the Second Appeals Chamber of the OHIM by which the appeal lodged by Bluenet Limited against Decision No 106/2002 of 25 January 2002 was upheld, with the consequent dismissal of the opposition proceeding B 279 358 brought against the community trade mark application No 1 169 085, Westlife, in classes 9, 16, 25 and 41; |
| --- | --- |

—

declare non-conformity with section 8.1.b) of the EC Regulation 40/94 concerning the Community trade mark of the Decision of 17 November 2003 issued by the Second Appeals Chamber of the OHIM by which the appeal lodged by Bluenet Limited against Decision No 106/2002 of 25 January 2002 was upheld, with the consequent dismissal of the opposition proceeding B 279 358 brought against the community trade mark application No 1 169 085, Westlife, in classes 9, 16, 25 and 41;

| — | declare the confusing nature of Community trade mark application number 1,169,085, Westlife, classes 9, 16, 25 and 41 with German trade mark No 397 43 603, West, that protects identical products and services of the same classes, 9, 16, 25 and 41; |
| --- | --- |

—

declare the confusing nature of Community trade mark application number 1,169,085, Westlife, classes 9, 16, 25 and 41 with German trade mark No 397 43 603, West, that protects identical products and services of the same classes, 9, 16, 25 and 41;

| — | instruct payment of the costs of the proceeding to the defendant party. |
| --- | --- |

—

instruct payment of the costs of the proceeding to the defendant party.

Pleas in law and main arguments:

| Applicant for the Community trade mark: | Bluenet Ltd. |
| --- | --- |
| The Community trade mark sought: | The word mark ‘Westlife’ for goods and services in classes 9, 16, 25 and 41 (Sound storage media, image storage media and data storage media; printed matter; clothing; entertainment services provided by a musical band,...) (Application No 1169085) |
| Proprietor of mark or sign cited in the | Reemark Gesellschaft für Markenkooperation mbH |
| Mark or sign cited in opposition: | The international and national word mark ‘West’ for goods and services in classes 1 to 13, 15 to 31 and 35 to 41 (apparatus for recording; printed matter; clothing; education and entertainment;...) |
| Decision of the Opposition Division: | Rejection of the application for registration of the word mark ‘Westlife’ for the contested goods and services |
| Decision of the Board of Appeal: | Annulment of the contested decision insofar as it upheld the opposition of Reemark Gesellschaft für Markenkooperation mbH |
| Pleas in law: | Violation of Article 8 (1) (b) of Council Regulation (EC) No 40/94 (1) |

Applicant for the Community trade mark:

Bluenet Ltd.

The Community trade mark sought:

The word mark ‘Westlife’ for goods and services in classes 9, 16, 25 and 41 (Sound storage media, image storage media and data storage media; printed matter; clothing; entertainment services provided by a musical band,...) (Application No 1169085)

Proprietor of mark or sign cited in the

Reemark Gesellschaft für Markenkooperation mbH

Mark or sign cited in opposition:

The international and national word mark ‘West’ for goods and services in classes 1 to 13, 15 to 31 and 35 to 41 (apparatus for recording; printed matter; clothing; education and entertainment;...)

Decision of the Opposition Division:

Rejection of the application for registration of the word mark ‘Westlife’ for the contested goods and services

Decision of the Board of Appeal:

Annulment of the contested decision insofar as it upheld the opposition of Reemark Gesellschaft für Markenkooperation mbH

Pleas in law:

Violation of Article 8 (1) (b) of Council Regulation (EC) No 40/94 (1)

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(1)   Regolamento (CE) del Consiglio 20 dicembre 1993, n. 40/94, sul marchio comunitario (GU L 11, pag. 1).

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/45 |
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Action brought on 28 January 2004 by João Andrade Sena against European Air Safety Agency

(Case T-30/04)

(2004/C 94/128)

Language of the Case: French

An action against the European Air Safety Agency was brought before the Court of First Instance of the European Communities on 28 January 2004 by João Andrade Sena, residing at Rhode St Genèse (Belgium), represented by G. Vandersanden, L. Levi and A. Finchelstein, lawyers.

The applicant claims that the Court should:

| — | Annul the European Air Safety Agency's (EASA) decisions of 11 July 2003 to appoint another person to the post of executive director and to reject the applicant's candidature for that post; |
| --- | --- |

—

Annul the European Air Safety Agency's (EASA) decisions of 11 July 2003 to appoint another person to the post of executive director and to reject the applicant's candidature for that post;

| — | Order the payment of damages as compensation for the applicant's loss in the sum of EUR 2, the amount fixed on an equitable basis; |
| --- | --- |

—

Order the payment of damages as compensation for the applicant's loss in the sum of EUR 2, the amount fixed on an equitable basis;

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

—

Order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant contests the European Air Safety Agency's (EASA) decision to reject his candidature for the post of Executive Director and to appoint another person to that post.

He points out the fact that the information which he and his lawyers have obtained following their request is fragmentary and has not allowed the applicant a clear and transparent view of the procedure followed.

In support of his claims, he asserts;

| — | Breach of the duty to state reasons and of the duty to have regard for the welfare and/or interests of officials and of the principle of sound administration; |
| --- | --- |

—

Breach of the duty to state reasons and of the duty to have regard for the welfare and/or interests of officials and of the principle of sound administration;

| — | Lack of information, from which it can be objectively and legitimately assumed that the principles of impartiality, objectivity and non-discrimination have not been observed, and breach of the procedural rules and the vacancy notice; |
| --- | --- |

—

Lack of information, from which it can be objectively and legitimately assumed that the principles of impartiality, objectivity and non-discrimination have not been observed, and breach of the procedural rules and the vacancy notice;

| — | Disregard of the interests of the service and breach of Article 12 of the Conditions of Employment of Other Servants of the European Communities, in so far as it is clear from a comparison of the merits of the person appointed, based on the brief biography transmitted by the Commission, and of those of the applicant, that the applicant's merits are manifestly superior. |
| --- | --- |

—

Disregard of the interests of the service and breach of Article 12 of the Conditions of Employment of Other Servants of the European Communities, in so far as it is clear from a comparison of the merits of the person appointed, based on the brief biography transmitted by the Commission, and of those of the applicant, that the applicant's merits are manifestly superior.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/46 |
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Action brought on 2 February 2004 by Roderich Weißenfels against European Parliament

(Case T-33/04)

(2004/C 94/129)

Language of the case: German

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 2 February 2004 by Roderich Weißenfels, residing in Bereldingen (Luxembourg), represented by H. Arend, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the defendant's decision of 26 June 2003 deducting payments made for the benefit of his son from other sources from the double child allowance payable to the applicant under Article 67(3) of the Staff Regulations, together with the defendant's decision of 10 November 2003 on the complaint in the same matter; |
| --- | --- |

—

annul the defendant's decision of 26 June 2003 deducting payments made for the benefit of his son from other sources from the double child allowance payable to the applicant under Article 67(3) of the Staff Regulations, together with the defendant's decision of 10 November 2003 on the complaint in the same matter;

| — | order the defendant to pay to the applicant all amounts improperly withheld from his remuneration together with interest at the rate prescribed by law; |
| --- | --- |

—

order the defendant to pay to the applicant all amounts improperly withheld from his remuneration together with interest at the rate prescribed by law;

| — | order the defendant to pay the costs and all the essential expenses incurred by the applicant. |
| --- | --- |

—

order the defendant to pay the costs and all the essential expenses incurred by the applicant.

Pleas in law and main arguments:

For some years, the applicant has received a double child allowance under Article 67(3) of the Staff Regulations. Since December 1998, the applicant's severely disabled son has been receiving monthly disability assistance payments from a Luxembourg fund. In 1999, the applicant notified these payments as a precaution. As a result, the amount of the payments from the fund, which regularly exceeded the double child allowance, was deducted from these family allowances, repayment was demanded of past sums paid since the award of the special assistance by the Luxembourg fund, and family allowances which would otherwise have been due thereafter were subsequently not paid.

The applicant claims that the conditions under which a deduction may be made under Article 67(2) of the Staff Regulations have not been met. According to the definition in Article 67(3), the double child allowance is to be paid in order to relieve the financial burden on an official who, because his child is severely handicapped, is involved in ‘heavy expenditure’. By contrast, the fund defines payments made by it as ‘special assistance for severely disabled persons’. They are separate payments, which are awarded to the handicapped child itself, rather than to the applicant, even though the money is paid to the child's legal representative because the person entitled to it is a minor. The payments are thus neither ‘allowances’, nor are they ‘of like nature’. Their deduction under Article 67(2) of the Staff Regulations is therefore unlawful. Furthermore, the deductions were, from the start, made contrary to the better legal view.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/46 |
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Action brought on 30 January 2004 by Athinaiki Oikogeniaki Artopoiia A.V.E.E. (S.A.) against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-35/04)

(2004/C 94/130)

Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure language in which the case was submitted: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 30 January 2004 by Athinaiki Oikogeniaki Artopoiia A.V.E.E. (S.A.), Pikermi, Attica, Greece, represented by Dr C. Chrissanthis, lawyer.

Ferrero oHG mbH was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | Annul the contested decision and / or alter it accordingly so that the intervener's opposition be dismissed and the relevant CTM No. 1 010 099 application for registration effectively be accepted, |
| --- | --- |

—

Annul the contested decision and / or alter it accordingly so that the intervener's opposition be dismissed and the relevant CTM No. 1 010 099 application for registration effectively be accepted,

| — | Reject definitely and in its entirety the opposition to registration of the mark applied in respect of all the classes where it was successful, |
| --- | --- |

—

Reject definitely and in its entirety the opposition to registration of the mark applied in respect of all the classes where it was successful,

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

—

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

Pleas in law and main arguments:

| Applicant for the Community trade mark: | The Applicant. |
| --- | --- |
| Trade mark concerned: | Figurative trade mark ‘Ferró’ - Application No 1 1 010 099 for goods and services in classes 29, 30 and 42. |
| Proprietor of the opposing trade mark or sign: | Ferrero oHG mbH. |
| Opposing trade mark or sign: | Word trade mark ‘FERRERO’ (German trade mark registration No 956 671) for goods in classes 5, 29, 30, 32 and 33. |
| Decision of the Opposition Division: | Partial upholding of the opposition for the following goods in class 30: ‘Coffee, tea, sugar, artificial coffee, flour and preparation made from cereals, bread, biscuits, pastry and confectionery, ices, syrup, yeast, baking powder, all kinds of bread preparations, honey, treacle’. |
| Decision of the Board of Appeal: | Rejection of the appeal. |
| Pleas in law: | Infringement of Article 8(1)(b) of Council Regulation 44/94. |

Applicant for the Community trade mark:

The Applicant.

Trade mark concerned:

Figurative trade mark ‘Ferró’ - Application No 1 1 010 099 for goods and services in classes 29, 30 and 42.

Proprietor of the opposing trade mark or sign:

Ferrero oHG mbH.

Opposing trade mark or sign:

Word trade mark ‘FERRERO’ (German trade mark registration No 956 671) for goods in classes 5, 29, 30, 32 and 33.

Decision of the Opposition Division:

Partial upholding of the opposition for the following goods in class 30: ‘Coffee, tea, sugar, artificial coffee, flour and preparation made from cereals, bread, biscuits, pastry and confectionery, ices, syrup, yeast, baking powder, all kinds of bread preparations, honey, treacle’.

Decision of the Board of Appeal:

Rejection of the appeal.

Pleas in law:

Infringement of Article 8(1)(b) of Council Regulation 44/94.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/47 |
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Action brought on 2 February 2004 by the Autonomous Region of the Azores against the Council of the European Union

(Case T-37/04)

(2004/C 94/131)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 2 February 2004 by the Autonomous Region of the Azores, (Portugal), represented by M. Renouf, S. Crosby and C. Bryant, Solicitors.

The applicant claims that the Court should:

| — | Annul Articles 3 and 11 and the Annex to Council Regulation 1954/2003 in so far as: a) They provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; b) They exclude from the operation of Articles 3 and 11 demersal species covered by Regulation 2347/2002. |
| --- | --- |

—

Annul Articles 3 and 11 and the Annex to Council Regulation 1954/2003 in so far as: a) They provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; b) They exclude from the operation of Articles 3 and 11 demersal species covered by Regulation 2347/2002.

| — | Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Council Regulations 685/95 and 2027/95: a) Removes the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used (Articles 3(1), 6 and Annex 1 of Regulation 685/95 and Article 2 and Annex of Regulation 2027/95) and removes the determination of same which had been effected by Regulation 2027/95; b) Removes the power to determine a maximum annual fishing effort by area in respect of demersal species covered by Regulation 2347/2002 and removes the determination of same which had been effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species (Annex III, para. 3 of Regulation 685/95); d) Is capable of taking effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of Regulation 1954/2003 has entered into force. |
| --- | --- |

—

Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Council Regulations 685/95 and 2027/95: a) Removes the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used (Articles 3(1), 6 and Annex 1 of Regulation 685/95 and Article 2 and Annex of Regulation 2027/95) and removes the determination of same which had been effected by Regulation 2027/95; b) Removes the power to determine a maximum annual fishing effort by area in respect of demersal species covered by Regulation 2347/2002 and removes the determination of same which had been effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species (Annex III, para. 3 of Regulation 685/95); d) Is capable of taking effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of Regulation 1954/2003 has entered into force.

| — | Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species. |
| --- | --- |

—

Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species.

| — | Annul Article 13(b) of Council Regulation 1954/2003 insofar as it exempts Articles 19a(3), 19b, 19c, 18d and 19e(3) of Regulation (EEC) No. 2847/93 from application in the waters under the sovereignty or jurisdiction of Portugal around the Azores. |
| --- | --- |

—

Annul Article 13(b) of Council Regulation 1954/2003 insofar as it exempts Articles 19a(3), 19b, 19c, 18d and 19e(3) of Regulation (EEC) No. 2847/93 from application in the waters under the sovereignty or jurisdiction of Portugal around the Azores.

| — | Order the Council to pay the costs incurred by the Applicant in the present proceedings. |
| --- | --- |

—

Order the Council to pay the costs incurred by the Applicant in the present proceedings.

Pleas in law and main arguments:

The Applicant claims the partial annulment of Council Regulation 1954/2003 (1) which replaces the fishing regime governing the Azorean fisheries. The applicant invokes a number of alleged procedural violations in the adoption of the regulation, which would justify its annulment as requested by the applicant. These procedural violations comprise failure to properly consult the European Parliament; failure to take into account evidence of an economic, technical, scientific and environmental nature; and failure to provide an adequate statement of reasons for the act adopted.

The Applicant further invokes a number of alleged substantive law violations by the contested regulation, namely:

| — | breach of the principle of relative stability and related provisions of the Common Fisheries Policy, in particular Article 33 EC and Regulation 2371/2002 (2) Official Journal L 358, 31/12/2002 P. 0059 - 0080 |
| --- | --- |

—

breach of the principle of relative stability and related provisions of the Common Fisheries Policy, in particular Article 33 EC and Regulation 2371/2002 (2) Official Journal L 358, 31/12/2002 P. 0059 - 0080

| — | breach of Article 299 paragraph 2 EC |
| --- | --- |

—

breach of Article 299 paragraph 2 EC

| — | breach of Articles 6 and 174 EC, and of the environmental law principles that is to say, the precautionary principle, the principle of preventive action, the principle of rectification of damage at source and the principle that the polluter should pay. |
| --- | --- |

—

breach of Articles 6 and 174 EC, and of the environmental law principles that is to say, the precautionary principle, the principle of preventive action, the principle of rectification of damage at source and the principle that the polluter should pay.

| — | breach of the fundamental objectives of the Treaty, of Article 158 EC and of the principle of proportionality |
| --- | --- |

—

breach of the fundamental objectives of the Treaty, of Article 158 EC and of the principle of proportionality

| — | breach of mandatory public international law requirements and thus of Article 300(7) EC |
| --- | --- |

—

breach of mandatory public international law requirements and thus of Article 300(7) EC

| — | breach of Regulation 1275/94 (3) Official Journal L 140, 03/06/1994 P. 0001-0002 adopted to facilitate the integration of Spain and Portugal into the general scheme of the Common Fisheries Policy. |
| --- | --- |

—

breach of Regulation 1275/94 (3) Official Journal L 140, 03/06/1994 P. 0001-0002 adopted to facilitate the integration of Spain and Portugal into the general scheme of the Common Fisheries Policy.

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(1)  Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 Official Journal L 289 , 07/11/2003 P. 0001 - 0007

(2)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy

(3)  Council Regulation (EC) No 1275/94 of 30 May 1994 on adjustments to the arrangements in the fisheries chapters of the Act of Accession of Spain and Portugal

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Action brought on 4 February 2004 by Sunplus Technology Co. Ltd., against the office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-38/04)

(2004/C 94/132)

Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure language in which the case was submitted: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 4 February 2004 by Sunplus Technology Co. Ltd., Hsin-Chu, Taiwan, represented by Dr H. Eichmann, Mr G. Barth, Dr U. Blumenröder, Ms C. Niklas-Falter, Dr M. Kinkeldey, Dr K. Brandt, Ms A. Franke, Ms U. Stephani, Dr B. Allekotte, Dr E.Pfrang, Ms K. Lochner, Ms B. Ertle, Ms Christine Neuhierl and Ms Sabine Prückner, lawyers.

Sun Microsystems, Inc., was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 642/2000-4 of 7 October 2003; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 642/2000-4 of 7 October 2003;

| — | order the costs of the proceedings to be borne by the defendant. |
| --- | --- |

—

order the costs of the proceedings to be borne by the defendant.

Pleas in law and main arguments:

| Applicant for the Community trade mark: | Sunplus Technology Co. Ltd. |
| --- | --- |
| The Community trade mark sought: | The figurative mark ‘SUNPLUS’ for certain goods in class 9 (Chips; semi-conductors; micro-processing chips; program cards;...) (trade mark application No 214346) |
| Proprietor of mark or sign cited in the opposition proceedings: | Sun Microsystems Inc. |
| Mark or sign cited in opposition: | The national verbal and figurative marks ‘SUN’ for goods in class 9 (computers; magnetic and electronic data carriers;...) |
| Decision of the Opposition Division: | Rejection of the trade mark application |
| Decision of the Board of Appeal (1): | Dismissal of the appeal brought by the applicant |
| Pleas in law: | Infringement of Article 8(1) (b) of Council Regulation (EC) No 40/94 (2) in that there is no likelihood of confusion. |

Applicant for the Community trade mark:

Sunplus Technology Co. Ltd.

The Community trade mark sought:

The figurative mark ‘SUNPLUS’ for certain goods in class 9 (Chips; semi-conductors; micro-processing chips; program cards;...) (trade mark application No 214346)

Proprietor of mark or sign cited in the opposition proceedings:

Sun Microsystems Inc.

Mark or sign cited in opposition:

The national verbal and figurative marks ‘SUN’ for goods in class 9 (computers; magnetic and electronic data carriers;...)

Decision of the Opposition Division:

Rejection of the trade mark application

Decision of the Board of Appeal (1):

Dismissal of the appeal brought by the applicant

Pleas in law:

Infringement of Article 8(1) (b) of Council Regulation (EC) No 40/94 (2) in that there is no likelihood of confusion.

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(1)   Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 642/2000-4 of 7 October 2003

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

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Action brought on 6 February 2004 by Emma Bonino and seven other applicants against European Parliament and Council of the European Union

(Case T-40/04)

(2004/C 94/133)

Language of the case: French

An action against the European Parliament and the Council of the European Union was brought before the Court of First Instance of the European Communities on 3 February 2004 by Emma Bonino and Others, represented by Georges Vandersanden and Laure Levi, lawyers.

The applicants claim that the Court should:

| — | Annul Regulation (EC) No 2004/2003 of European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding; |
| --- | --- |

—

Annul Regulation (EC) No 2004/2003 of European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding;

| — | Make an appropriate order as to costs. |
| --- | --- |

—

Make an appropriate order as to costs.

Pleas in law and main arguments

In these proceedings, the act whose annulment is sought is the same as in Cases T-13/04 Donde and Others v European Parliament and Council and T-17/04 National Front and Others v European Parliament and Council; the pleas and main arguments are similar to those put forward in those cases.

The applicants also claim that the contested regulation infringes the EC Treaty in that it provides that the European Parliament is to combine the powers of joint legislature and executor.

They further claim that there has been a breach of the principle of democracy, in that the applicants are in a situation such that, although sitting in the European Parliament follow free democratic elections, they are precluded from financing from the general budget of the Union because they are not recognised as a political party at European level.

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Action brought on 2 February 2004 by Orlando Perez-Diaz against the Commission of the European Communities

(Case T-41/04)

(2004/C 94/134)

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 2 February 2004 by Orlando Perez-Diaz, residing in Brussels, represented by M.-A. Lucas, lawyer.

The applicant claims that the Court should:

| — | Annul decision COM/R/A/1/1999 of the Selection Committee not to place the applicant on the reserve list for that selection, notified to him by letter of 21 January 2003 from the Head of Unit of personnel in the Commission's Directorate-General for Research, on behalf of the Chairman of the Selection Committee; |
| --- | --- |

—

Annul decision COM/R/A/1/1999 of the Selection Committee not to place the applicant on the reserve list for that selection, notified to him by letter of 21 January 2003 from the Head of Unit of personnel in the Commission's Directorate-General for Research, on behalf of the Chairman of the Selection Committee;

| — | Order the Commission to pay him damages, of an amount to be assessed by the Court, to compensate for non-material damage and damage to his career resulting from the incorrectness of the contested decision; |
| --- | --- |

—

Order the Commission to pay him damages, of an amount to be assessed by the Court, to compensate for non-material damage and damage to his career resulting from the incorrectness of the contested decision;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant in the present case is the same as in Cases T-102/01 (1) and T-156/03 (2)
  Orlando Perez-Diaz v Commission.

The pleas in law and main arguments are those invoked in Case T-156/03, cited above.

---

(1)  Judgment of the Court of First Instance of 24 September 2002 ([2002] ECR-SC I-A-165; II-871).

(2)  OJ C 171, of 19.7.03, p. 37.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/49 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/49

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Action brought on 9 February 2004 by Mohammad Reza Fardoom and Marie José Reinard against Commission of the European Communities

(Case T-43/04)

(2004/C 94/135)

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 9 February 2004 by Mohammad Reza Fardoom and Marie José Reinard, residing at Luxembourg, represented by G. Bounéou and F. Frabetti, lawyers, with an address for service in Luxembourg.

The applicants claim that the Court should:

| — | Annul the evaluation exercise 2001/2002 in relation to the applicants; |
| --- | --- |

—

Annul the evaluation exercise 2001/2002 in relation to 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;

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

—

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

Pleas in law and main arguments

The applicants, officials of the Commission, contest the evaluation exercise 2001-2002 and, alternatively, their career development reports for the period 1.7.2001-31.12.2002.

The applicants rely on infringement of Article 26 of the Staff Regulations. They assert that the creation of computer forms completed directly on screen and stored in the new computer system for personnel management is equivalent to the creation of parallel files.

Furthermore, the applicants rely upon infringement of Article 43 of the Staff Regulations. The fixing of a mean target and the procedure of communicating vessels constrains appraisers and, therefore, restrains their freedom of judgment in the appraisal of officials' services.

In support of their action, the applicants also plead:

| — | infringement of the Commission's decision relating to the General Provisions for Implementation of Article 43 of the Staff Regulations; |
| --- | --- |

—

infringement of the Commission's decision relating to the General Provisions for Implementation of Article 43 of the Staff Regulations;

| — | infringement of the Appraisal Guide and of the special guide for the staff evaluation exercise (2001-2002); |
| --- | --- |

—

infringement of the Appraisal Guide and of the special guide for the staff evaluation exercise (2001-2002);

| — | infringement of the principle of non-discrimination; |
| --- | --- |

—

infringement of the principle of non-discrimination;

| — | infringement of the principle of preventing arbitrary procedures, of the duty to state reasons, and abuse of powers; |
| --- | --- |

—

infringement of the principle of preventing arbitrary procedures, of the duty to state reasons, and abuse of powers;

| — | infringement of the principle of the protection of legitimate expectations and of the rule patere legem quam ipse fecisti (abide by your own rules); |
| --- | --- |

—

infringement of the principle of the protection of legitimate expectations and of the rule patere legem quam ipse fecisti (abide by your own rules);

| — | breach of the duty to have regard for the welfare and/ or interests of officials. |
| --- | --- |

—

breach of the duty to have regard for the welfare and/ or interests of officials.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/50 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/50

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Action brought on 3 February 2004 by Eugene Emile Marie Kimman against Commission of the European Communities

(Case T-44/04)

(2004/C 94/136)

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 3 February 2004 by Eugene Emile Marie Kimman, residing in Overijse (Belgium), represented by Nicolas Lhoëst, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision of the appointing authority dated 20 December 2002 confirming the applicant's initial classification in Grade B5; |
| --- | --- |

—

Annul the decision of the appointing authority dated 20 December 2002 confirming the applicant's initial classification in Grade B5;

| — | In so far as necessary, annul the decision of the appointing authority of 1 October 2003 rejecting the applicant's complaint; |
| --- | --- |

—

In so far as necessary, annul the decision of the appointing authority of 1 October 2003 rejecting the applicant's complaint;

| — | Order the defendant to pay all the costs of the proceedings. |
| --- | --- |

—

Order the defendant to pay all the costs of the proceedings.

Pleas in law and main arguments

The contested decision confirmed the applicant's classification in Grade B5 on the date of his recruitment and, accordingly, rejected a request for reclassification introduced by the applicant following an amendment of the rules on the criteria applicable to appointment in grade and classification in step on recruitment, adopted by the Commission following the judgment of the Court of First Instance in Case T-17/95 (1).

In support of his action, the applicant claims that the Commission should have applied its decision of 6 June 1973 for the purposes of his recruitment and not the decision of 1983, which had not yet been adopted at the time.

He also relies on failure to state reasons for the contested decision, a manifest error of assessment and alleged discrimination between the applicant, whose application for reclassification was rejected, and other officials who, with the same length of professional experience as the applicant, were able to benefit from reclassification.

---

(1)  Judgment of the Court of First Instance of the European Communities of 5 October 1995, published in OJ C 315, 25-11-95, p. 14.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/50 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/50

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Action brought on 11 February 2004 by Marie Tzirani against the Commission of the European Communities

(Case T-45/04)

(2004/C 94/137)

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 11 February 2004 by Marie Tzirani, residing in Brussels, represented by E. Boigelot, lawyer.

The applicant claims that the Court should:

| — | Annul the Commission's decision of 11 February 2003 to reject the applicant's candidature for the A2 post of Director of the ‘Staff Regulations: policy, management and advisory services’ Directorate; |
| --- | --- |

—

Annul the Commission's decision of 11 February 2003 to reject the applicant's candidature for the A2 post of Director of the ‘Staff Regulations: policy, management and advisory services’ Directorate;

| — | Order the defendant to pay the costs, pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

Order the defendant to pay the costs, pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments:

The applicant in this case challenges the Commission's refusal to accept her candidature for the A2 post of Director of the ‘Staff Regulations: policy, management and advisory services’ Directorate.

In support of her claims, she alleges:

| — | infringement of Articles 7, 14, 29(1)(a) and 45 of the Staff Regulations and of the rules for nominating officials to grades A1 and A2; |
| --- | --- |

—

infringement of Articles 7, 14, 29(1)(a) and 45 of the Staff Regulations and of the rules for nominating officials to grades A1 and A2;

| — | misuse of powers in the present case; |
| --- | --- |

—

misuse of powers in the present case;

| — | a manifest error of assessment by the Appointing Authority; |
| --- | --- |

—

a manifest error of assessment by the Appointing Authority;

| — | failure to observe the principles of legality, entitlement to reasonable career prospects and equal treatment for men and women. |
| --- | --- |

—

failure to observe the principles of legality, entitlement to reasonable career prospects and equal treatment for men and women.

The applicant emphasises in particular the appropriateness of her professional profile for the post in question, as described in the vacancy notice, in contrast to that of the person finally appointed, who can invoke only one experience of working in a cabinet.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/51 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/51

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Action brought on 11 February 2004 by Alex Milbert and seven other applicants against Commission of the European Communities

(Case T-47/04)

(2004/C 94/138)

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 11 February 2004 by Alex Milbert and seven other applicants, residing in Luxembourg and in Belgium, represented by Gilles Bounéou and Frédéric Frabetti, lawyers, with an address for service in Luxembourg.

The applicants claim that the Court should:

| — | Annul the evaluation procedure 2001 - 2002 in so far as it concerns the applicants; |
| --- | --- |

—

Annul the evaluation procedure 2001 - 2002 in so far as it concerns the applicants;

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

—

In the alternative, annul the applicants' career development report (REC/CDR) for the period 1.7.2001-31.12.2002;

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

—

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

Pleas in law and main arguments

In support of their action, the applicants plead a breach of Articles 26 and 43 of the Staff Regulations, of the General Provisions for the implementation of Article 43 of the Staff Regulations, of the Evaluation Guide and of the specific guide for the staff evaluation procedure 2001 - 2002.

The applicants also claim that there has been a breach of the principles of non-discrimination, of the prohibition of arbitrary proceedings and of the obligation to state reasons, a misuse of powers and a breach of the principle of the protection of legitimate expectations and of the rule patere legem quam ipse fecisti and also a breach of the duty to have regard for the welfare of officials.

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/51 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/51

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Action brought on 10 February 2004 by Qualcomm Wireless Business Solutions Europe B.V., against the Commission of the European Communities

(Case T-48/04)

(2004/C 94/139)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 February 2004 by Qualcomm Wireless Business Solutions Europe B.V., Waalre, The Netherlands, represented by Dr G.Berrisch, lawyer and Mr D. Hull Solicitor.

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | order the Commission to pay the costs of these proceedings. |
| --- | --- |

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments:

The applicant supplies throughout Europe a satellite-based truck fleet management system called EutelTRACS. It seeks the annulment of the Commission's decision of 30 April 2003 (1). With the contested decision, the Commission found the acquisition of joint control by DaimlerChrysler Services and Deutsche Telekom over a joint venture, Toll Collect GmbH, to be compatible with the common market and the EEA Agreement.

The applicant states that Toll Collect was formed after a consortium of DaimlerChrysler Services, Deutsche Telekom AG, and Compagnie Financière et Industrielle des Autoroutes S.A. won a contract from the German government for the establishment and operation of a system for collecting tolls from heavy goods vehicles using German motorways. The contested decision did not deal with the toll collection activities of Toll Collect, but with the question of whether the partners could offer telematics services through Toll Collect. As submitted by the applicant, the Commission established that the partners would obtain a dominant position in the market for traffic telematics for transport and logistics undertakings, but concluded that the commitments offered would be sufficient.

In support of its application, the applicant submits that when finding that the commitments would be sufficient to prevent Toll Collect's on-board-unit from becoming the dominant platform for the provision of telematics services, the Commission committed a manifest error of appraisal, wrongly established the facts, and contradicted its own competitive assessment. According to the applicant, the commitments fail to remedy the competition concerns identified by the Commission, namely that Toll Collect's on-board-unit, which allows the provision of all core telematics services, is provided free of charge and that truck operators will not pay for alternative systems if they can obtain telematics services through Toll Collect's on-board-unit. The applicant furthermore claims that the contested decision is not supported by sufficient reasoning.

---

(1)  2003/792/EC: Commission Decision of 30 April 2003 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2903 - DaimlerChrysler/Deutsche Telekom/JV) (Text with EEA relevance.) (notified under document number C(2003) 1409) (OJ L 300, p. 62)

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/52 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/52

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Action brought on 12 February 2004 by Faraj Hassan against the Council of the European Union and the Commission of the European Communities

(Case T-49/04)

(2004/C 94/140)

Language of the case: English

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 February 2004 by Faraj Hassan, London, United Kingdom, represented by Mr E.Grieves, Barrister and Mr H. Miller Solicitor.

The applicant claims that the Court should:

| — | annul Council Regulation (EC) No. 881/2002 of 27 May 2002, as amended by Commission Regulation (EC) No. 2049/2003 20 November 2003 and/or Commission Regulation (EC) No. 2049/2003 in its entirety and/or in respect of the proscription of the applicant; |
| --- | --- |

—

annul Council Regulation (EC) No. 881/2002 of 27 May 2002, as amended by Commission Regulation (EC) No. 2049/2003 20 November 2003 and/or Commission Regulation (EC) No. 2049/2003 in its entirety and/or in respect of the proscription of the applicant;

| — | alternatively, declare the aforementioned Regulations inapplicable in respect of their applications to the applicant; and |
| --- | --- |

—

alternatively, declare the aforementioned Regulations inapplicable in respect of their applications to the applicant; and

| — | Order the Council to pay the costs incurred by the applicant in the present proceedings; |
| --- | --- |

—

Order the Council to pay the costs incurred by the applicant in the present proceedings;

| — | Order the Council to pay damages |
| --- | --- |

—

Order the Council to pay damages

Pleas in law and main arguments:

Regulation 881/2002 (1)1 makes provision for the freezing of funds and economic resources of persons listed in its Annex I. Article 7 paragraph 1 of that regulation authorises the Commission to amend or supplement Annex I on the basis of determinations made by either the United Nations Security Council or the Sanctions Committee. In November 2003 the Sanctions Committee of the United Nations Security Council listed the applicant as a person to whom freezing of funds and assets should apply. By Regulation 2049/2003 (2) Official Journal L 303, 21/11/2003 P. 0020 - 0021 the Commission amended Annex I to Regulation 881/2002, adding the applicant's name to it.

The applicant contests these measures invoking breaches of his fundamental human rights. He submits that the effect of the contested measures is to annihilate his peaceful enjoyment of his property and his private and family life, contrary to Article 8 of the European Convention on Human Rights and of Article 1 of Protocol 1 to the same Convention. The applicant further submits that the defendants wholly failed to provide him, both before and after the decision was taken, with a fair hearing or effective remedy to counter any assertions of fact relied upon. According to the applicant this constitutes a violation of Articles 6 and 13 of the European Convention on Human Rights. Finally, the applicant claims that the contested measures violate the principle of proportionality.

---

(1)  Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freezing of funds and other financial resources in respect of the Taliban of Afghanistan, Official Journal L 139 , 29/05/2002 P. 0009 - 0022

(2)  Commission Regulation (EC) No 2049/2003 of 20 November 2003 amending for the 25th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/52 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/52

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Action brought on 6 February 2004 by Emmanuel Micha against the Commission of the European Communities

(Case T-50/04)

(2004/C 94/141)

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 6 February 2004 by Emmanuel Micha, resident in Roeser (Luxembourg), represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of 4 April 2003 in which the Commission draws up a definitive staff report for the applicant for the period from 1 July 1999 to 30 June 2001; |
| --- | --- |

—

annul the decision of 4 April 2003 in which the Commission draws up a definitive staff report for the applicant for the period from 1 July 1999 to 30 June 2001;

| — | order the defendant to pay the applicant the amount of EUR 1, as symbolic compensation for damage suffered as the result of the delay in drawing up his staff report and the detriment to his reasonable career prospects; |
| --- | --- |

—

order the defendant to pay the applicant the amount of EUR 1, as symbolic compensation for damage suffered as the result of the delay in drawing up his staff report and the detriment to his reasonable career prospects;

| — | 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 challenges the measure by which the Commission drew up his staff report for the period 1999-2001.

In support of his claims, he alleges:

| — | The existence of a manifest error of assessment and of inconsistency between the general and analytical assessments in that the assessor did not taken into account the reference framework specific to the applicant's grade. Specifically, the duties which he performed fall within a grade higher than his actual grade; |
| --- | --- |

—

The existence of a manifest error of assessment and of inconsistency between the general and analytical assessments in that the assessor did not taken into account the reference framework specific to the applicant's grade. Specifically, the duties which he performed fall within a grade higher than his actual grade;

| — | Infringement of the obligation to state reasons; |
| --- | --- |

—

Infringement of the obligation to state reasons;

| — | Infringement of the obligation to draw up an annual report within a reasonable period, to the detriment of the applicant's reasonable career prospects. |
| --- | --- |

—

Infringement of the obligation to draw up an annual report within a reasonable period, to the detriment of the applicant's reasonable career prospects.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/53 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/53

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Action brought on 9 February 2004 by Carlos Leite Mateus against Commission of the European Communities

(Case T-51/04)

(2004/C 94/142)

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 9 February 2004 by Carlos Leite Mateus, residing in Zaventem (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 14 March 2003 drawing up the applicant's career development report for 2001-2002; |
| --- | --- |

—

Annul the decision of 14 March 2003 drawing up the applicant's career development report for 2001-2002;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant disputes his career development report for the period from 1 July 2001 to 31 December 2002.

In support of his claims he relies on pleas of:

| — | breach of the obligation to state grounds; |
| --- | --- |

—

breach of the obligation to state grounds;

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

—

a manifest error of assessment;

| — | breach of the general provisions for implementing Article 43 of the Staff Regulations, in that, first, the decision of the appeal assessor to downgrade the assessment of the applicant's skills was erroneously based on tasks which were not his responsibility and were not required by his post, and, second, there were inconsistencies between the comments and the marks awarded. |
| --- | --- |

—

breach of the general provisions for implementing Article 43 of the Staff Regulations, in that, first, the decision of the appeal assessor to downgrade the assessment of the applicant's skills was erroneously based on tasks which were not his responsibility and were not required by his post, and, second, there were inconsistencies between the comments and the marks awarded.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/53 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/53

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Action brought on 12 February 2004 by Luis Escobar Guerrero against Commission of the European Communities

(Case T-52/04)

(2004/C 94/143)

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 12 February 2004 by Luis Escobar Guerrero, residing in Luxembourg, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicants claim that the Court should:

| — | Annul the Commission's decision to promote the applicant to Grade A5 for the promotion year 2002 in so far as the date on which it takes effect is fixed at 1 May 2003; |
| --- | --- |

—

Annul the Commission's decision to promote the applicant to Grade A5 for the promotion year 2002 in so far as the date on which it takes effect is fixed at 1 May 2003;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

Following the Commission's decision to promote him to Grade A5, the applicant withdrew his action in Case T-92/03 against the decision not to promote him during the 2002 promotion procedure. In the present case, the applicant claims that the Commission was required to promote him to Grade A5 with effect from 1 April 2002 on the same terms as the other officials promoted to that grade in the 2002 promotion procedure.

In support of his action, the applicant claims that there has been a breach of the principle of equal treatment and non-discrimination, a breach of the principle that officials should have reasonable career prospects and also failure to implement in good faith the Commission's decision to deal favourably with the complaint forming the subject-matter of Case T-92/03.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/54 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/54

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Action brought on 9 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-53/04)

(2004/C 94/144)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Class 25 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Class 25 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUDWEISER’ — Application No 24620 in respect of goods in Class 25 (clothing etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUDWEISER’ — Application No 24620 in respect of goods in Class 25 (clothing etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

(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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| 17.4.2004 | EN | Official Journal of the European Union | C 94/54 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/54

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Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-54/04)

(2004/C 94/145)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Class 16 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Class 16 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUDWEISER’ — Application No 24612 in respect of goods in Class 16 (paper etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER — BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUDWEISER’ — Application No 24612 in respect of goods in Class 16 (paper etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER — BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/55 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/55

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-55/04)

(2004/C 94/146)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Classes 29 and 30 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Classes 29 and 30 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUDWEISER’ — Application No 24638 in respect of goods in Classes 29 and 30 (fruits etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER —BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUDWEISER’ — Application No 24638 in respect of goods in Classes 29 and 30 (fruits etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER —BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/56 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/56

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-56/04)

(2004/C 94/147)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Class 21 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Class 21 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUDWEISER’ — Application No 24661 in respect of goods in Class 21 (household utensils etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUDWEISER’ — Application No 24661 in respect of goods in Class 21 (household utensils etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/56 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/56

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-57/04)

(2004/C 94/148)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Classes 16, 21, 25, 30 and 32 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Classes 16, 21, 25, 30 and 32 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘BUDWEISER’ — Application No 33183 in respect of goods in Classes 16, 21, 25, 30 and 32 |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Figurative mark ‘BUDWEISER’ — Application No 33183 in respect of goods in Classes 16, 21, 25, 30 and 32

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/57 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/57

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-58/04)

(2004/C 94/149)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Classes 9 and 14 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Classes 9 and 14 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUDWEISER’ — Application No 739177 in respect of goods in Classes 9 (scientific apparatus etc) and 14 (jewellery etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUDWEISER’ — Application No 739177 in respect of goods in Classes 9 (scientific apparatus etc) and 14 (jewellery etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/58 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/58

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-59/04)

(2004/C 94/150)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUDWEISER for Classes 35, 38, 41 and 42 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUDWEISER for Classes 35, 38, 41 and 42 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUDWEISER’ — Application No 927533 in respect of goods in Classes 35, 38, 41 and 42 |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUDWEISER’ — Application No 927533 in respect of goods in Classes 35, 38, 41 and 42

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/58 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/58

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-60/04)

(2004/C 94/151)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUD for Classes 9 and 14 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUD for Classes 9 and 14 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUD’ – Application No 739102 in respect of goods in Classes 9 and 14 |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUD’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUD’ – Application No 739102 in respect of goods in Classes 9 and 14

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUD’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/59 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/59

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-61/04)

(2004/C 94/152)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUD for Class 21 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUD for Class 21 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUD’ — Application No 24737 in respect of goods in Class 21 |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUD’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUD’ — Application No 24737 in respect of goods in Class 21

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUD’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

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

---

| 17.4.2004 | EN | Official Journal of the European Union | C 94/60 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/60

---

Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-62/04)

(2004/C 94/153)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUD for Classes 29 and 30 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUD for Classes 29 and 30 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUD’ – Application No 24679 in respect of goods in Classes 29 and 30 |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUD’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUD’ – Application No 24679 in respect of goods in Classes 29 and 30

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUD’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

(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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| 17.4.2004 | EN | Official Journal of the European Union | C 94/60 |
| --- | --- | --- | --- |

17.4.2004

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Official Journal of the European Union

C 94/60

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Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-63/04)

(2004/C 94/154)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUD for Class 25 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUD for Class 25 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUD’ — Application No 24695 in respect of goods in Class 25 (clothing etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUD’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUD’ — Application No 24695 in respect of goods in Class 25 (clothing etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUD’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

(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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| 17.4.2004 | EN | Official Journal of the European Union | C 94/61 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/61

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Action brought on 11 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-64/04)

(2004/C 94/155)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 11 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.

Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the defendant's Second Board of Appeal of 3 December 2003; |
| --- | --- |

—

annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

| — | reject the application for the registration of BUD for Class 16 filed on 1 April 1996 on behalf of Anheuser-Busch; |
| --- | --- |

—

reject the application for the registration of BUD for Class 16 filed on 1 April 1996 on behalf of Anheuser-Busch;

| — | order Anheuser-Busch to pay the costs. |
| --- | --- |

—

order Anheuser-Busch to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch, Incorporated |
| --- | --- |
| Community trade mark sought: | Word mark ‘BUD’ — Application No 24729 in respect of goods in Class 16 (paper etc) |
| Proprietor of mark or sign cited in the opposition proceedings: | Applicant |
| Mark or sign cited in opposition: | Appellations of origin ‘BUD’ |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations. |

Applicant for Community trade mark:

Anheuser-Busch, Incorporated

Community trade mark sought:

Word mark ‘BUD’ — Application No 24729 in respect of goods in Class 16 (paper etc)

Proprietor of mark or sign cited in the opposition proceedings:

Applicant

Mark or sign cited in opposition:

Appellations of origin ‘BUD’

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

---

(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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| 17.4.2004 | EN | Official Journal of the European Union | C 94/62 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/62

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Action brought on 18 February 2004 by Christos Gogos against the Commission of the European Communities

(Case T-66/04)

(2004/C 94/156)

Language of the Case: Greek

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 February 2004 by Christos Gogos, resident in Waterloo, Belgium, represented by Kharis Tagaras, lawyer.

The applicant claims that the Court should:

| — | annul the contested decisions, namely the decision to classify him in Grade A 7 following his success in internal competition COM//A/17/96 and the Commission's rejection dated 24 November 2003 of the his complaint under No R/323/03; |
| --- | --- |

—

annul the contested decisions, namely the decision to classify him in Grade A 7 following his success in internal competition COM//A/17/96 and the Commission's rejection dated 24 November 2003 of the his complaint under No R/323/03;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In 1997 the applicant, who is a Commission official, took part in an internal competition for promotion from Category B to Category A, but was unsuccessful in the oral test. In an action brought before the Court of First Instance (1)the decision rejecting him was annulled; he was invited to take part in a new written test, but failed again. He brought fresh proceedings against this second rejection (2). The parties settled these proceedings on the basis that the applicant would be invited to a fresh (third) oral test; he was successful in that test and was entered on the reserve list. The applicant submitted an application for a vacant Category A post and was selected. On 31 March 2003 he was informed that his classification upon appointment was in Grade A 7.

The applicant challenges that classification, submitting that he should have been classified in Grade A 6. He pleads first of all that, if Article 233 EC, the principles of equal treatment, equity and proper administration and the principle that officials should have reasonable career prospects are applied correctly, he has to be granted the rights, of whatever nature, which he would have had if he had been entered on the competition reserve list from the beginning, without his two prior actions. He further pleads that both the Commission decision of September 1983 on the criteria applicable to appointment in grade and classification in step, as amended in 1996 in consequence of the judgment of the Court of First Instance in Case T-17/95 (3), and the Commission's administrative guide on the same subject require his initial classification in Grade A 6.

---

(1)  Case T-95/98, OJ No C 258, 15.8.1998, p. 38.

(2)  Case T-97/01, OJ No C 186, 30.6.2001, p. 17.

(3)  Judgment of the Court of First Instance of 5 October 1995 in Alexopoulou v Commission, OJ No C 315, 25.11.1995, p. 14.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/62 |
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17.4.2004

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Official Journal of the European Union

C 94/62

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Action brought on 12 February 2004 by S.A. Spa Monopole against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-67/04)

(2004/C 94/157)

Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure language in which the case was submitted: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 12 February 2004 by S.A. Spa Monopole, Spa, Belguim), represented by Mr L. de Brouwer, Mr E. Cornu, Mr E. De Gryse and Ms D. Moreau, lawyers.

Spa-Finders Travel Arrangements Ltd., was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the Decision of the First Board of Appeal of the Office for Harmonisation of the Internal Market of 10 December 2003 |
| --- | --- |

—

annul the Decision of the First Board of Appeal of the Office for Harmonisation of the Internal Market of 10 December 2003

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

—

order the OHIM to pay the costs

Pleas in law and main arguments:

| Applicant for Community trade mark: | Spa-Finders Travel Arrangements Ltd. |
| --- | --- |
| Community trade mark sought: | Word mark ‘SPA-FINDERS’ application no. 354597 for goods and services in classes 16 (printed publications etc.) and 39 (travel agency services etc.) |
| Proprietor of mark or sign cited in the opposition proceedings: | S.A. Spa Monopole |
| Mark or sign cited in opposition: | Word trade mark ‘SPA’and ‘LES THERMES DE SPA’ for goods in Classes3, 32 and42 |
| Decision of the Opposition Division | Opposition dismissed |
| Decision of the Board of Appeal: | Appeal rejected |
| Pleas in law: | Infringement of article 8(5)15 of Regulation 40/94 (1) |

Applicant for Community trade mark:

Spa-Finders Travel Arrangements Ltd.

Community trade mark sought:

Word mark ‘SPA-FINDERS’ application no. 354597 for goods and services in classes 16 (printed publications etc.) and 39 (travel agency services etc.)

Proprietor of mark or sign cited in the opposition proceedings:

S.A. Spa Monopole

Mark or sign cited in opposition:

Word trade mark ‘SPA’and ‘LES THERMES DE SPA’ for goods in Classes3, 32 and42

Decision of the Opposition Division

Opposition dismissed

Decision of the Board of Appeal:

Appeal rejected

Pleas in law:

Infringement of article 8(5)15 of Regulation 40/94 (1)

---

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

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/63 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/63

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Action brought on 19 February 2004 by Yves Franchet and Daniel Byk against the Commission of the European Communities

(Case T-70/04)

(2004/C 94/158)

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 19 February 2004 by Yves Franchet and Daniel Byk, residing in Luxembourg, represented by Georges Vandersanden and Laure Levi, lawyers.

The applicants claim that the Court should:

| — | annul the tacit decision of the Commission of the European Communities refusing to grant the applicants' application for access to various documents in the possession of that institution and the Commission decision of 19 December 2003 rejecting the confirmatory application submitted by the applicants on 2 December 2003; |
| --- | --- |

—

annul the tacit decision of the Commission of the European Communities refusing to grant the applicants' application for access to various documents in the possession of that institution and the Commission decision of 19 December 2003 rejecting the confirmatory application submitted by the applicants on 2 December 2003;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicants object to the defendant's refusal to give them access to certain documents relating to the EUROSTAT file. In issue is, in particular, the final report of the Internal Audit Service (IAS) and the annexes to the report of the IAS of 7 July 2003.

The defendant bases its refusal on the exception laid down in the third indent of Article 4(2) of 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), namely the protection of the purpose of inspections, investigations and audits.

In support of their claims, the applicants argue:

| — | infringement of Articles 2 and 4 of the abovementioned regulation, of the fundamental right of access to documents and of the principle of proportionality; |
| --- | --- |

—

infringement of Articles 2 and 4 of the abovementioned regulation, of the fundamental right of access to documents and of the principle of proportionality;

| — | the existence of a manifest error of assessment; |
| --- | --- |

—

the existence of a manifest error of assessment;

| — | disregard of the duty to state reasons. |
| --- | --- |

—

disregard of the duty to state reasons.

They take the view that the defendant:

| — | gives a broad meaning in the contested decision to the exceptions it relies on; |
| --- | --- |

—

gives a broad meaning in the contested decision to the exceptions it relies on;

| — | has clearly wrongly assessed the elements of the case; |
| --- | --- |

—

has clearly wrongly assessed the elements of the case;

| — | has failed to evaluate the applications for access in this case in the light of the actual content of the documents in relation to the exceptions relied on, even assuming that they can be relied upon. In addition, it did not give reasons why partial communication could not have been envisaged; |
| --- | --- |

—

has failed to evaluate the applications for access in this case in the light of the actual content of the documents in relation to the exceptions relied on, even assuming that they can be relied upon. In addition, it did not give reasons why partial communication could not have been envisaged;

| — | has failed to weigh up the interests in question. |
| --- | --- |

—

has failed to weigh up the interests in question.

---

(1)  OJ L 145 of 31.5.2001, p.43

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/63 |
| --- | --- | --- | --- |

17.4.2004

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Official Journal of the European Union

C 94/63

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Action brought on 20 February 2004 by Anheuser-Busch, Incorporated against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-71/04)

(2004/C 94/159)

Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure - language in which the case was submitted: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 20 February 2004 by Anheuser-Busch, Incorporated, St. Louis, Missouri, USA, represented by Dr V.von Bomhard, Dr A. Renck and Dr A. Pohlmann, lawyers.

Budejovicky Budvar, narodni podnik was a further party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul Decision R 1000/2001-2 of 3 December 2003 of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) inasmuch as it rejected the contested mark ‘AB GENUINE BUDWEISER KING OF BEERS’ for goods in Class 32 |
| --- | --- |

—

annul Decision R 1000/2001-2 of 3 December 2003 of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) inasmuch as it rejected the contested mark ‘AB GENUINE BUDWEISER KING OF BEERS’ for goods in Class 32

| — | order the cost of proceedings to be borne by the defendant |
| --- | --- |

—

order the cost of proceedings to be borne by the defendant

Pleas in law and main arguments:

| Applicant for Community trade mark: | Anheuser-Busch Inc. |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘AB GENUINE BUDWEISER KING OF BEERS’for goods in class 32 (beer etc.) |
| Proprietor of mark or sign cited in the opposition proceedings: | Budejovicky Budvar |
| Mark or sign cited in opposition: | Word national mark ‘BUDWEISER’ |
| Decision of the Opposition Division: | Registration refused |
| Decision of the Board of Appeal: | Appeal rejected |
| Pleas in law: | Infringement of Articles 42 (2), (3) of Regulation 40/94 (1). In the context of this plea, the applicant contends that the proof of use submitted by the opponent was insufficient to sustain genuine use. Infringement of Article 8 (1) (b) of Regulation 40/94.
  In this context, the applicant submits that there is no likelihood of confusion between the marks in question. |

Applicant for Community trade mark:

Anheuser-Busch Inc.

Community trade mark sought:

Figurative mark ‘AB GENUINE BUDWEISER KING OF BEERS’for goods in class 32 (beer etc.)

Proprietor of mark or sign cited in the opposition proceedings:

Budejovicky Budvar

Mark or sign cited in opposition:

Word national mark ‘BUDWEISER’

Decision of the Opposition Division:

Registration refused

Decision of the Board of Appeal:

Appeal rejected

Pleas in law:

Infringement of Articles 42 (2), (3) of Regulation 40/94 (1). In the context of this plea, the applicant contends that the proof of use submitted by the opponent was insufficient to sustain genuine use. Infringement of Article 8 (1) (b) of Regulation 40/94.

In this context, the applicant submits that there is no likelihood of confusion between the marks in question.

---

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

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/64 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/64

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Action brought on 13 February 2004 by Sonja Hosman-Chevalier against Commission of the European Communities

(Case T-72/04)

(2004/C 94/160)

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 February 2004 by Sonja Hosman-Chevalier, residing in Brussels, represented by Ramón García-Gallardo Gil-Fournier and Ellen Wouters, lawyers.

The applicant claims that the Court should:

| — | Declare the Commission's decision void; |
| --- | --- |

—

Declare the Commission's decision void;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant disputes the decision of the Commission to refuse to pay her the expatriation allowance under Article 4 of Annex VII to the Staff Regulations on the ground that her professional activities in Brussels could not be considered to be work done for another Member State.

In support of her application, the applicant submits that the Commission has committed an error in its assessment of the facts and of her position in fact. According to the applicant, her habitual residence and the centre of her interests were in Austria.

The applicant submits further that the Commission made an error of law in taking the view that the applicant worked in the interest and service of the Verbindungstelle der Bundesländer and of the office of the Österreichischer Gewerkschaftsbund and did not carry out work for a Member State. The applicant submits that that view reveals a misunderstanding of the structure of the Austrian State.

Finally, she submits that there was a breach of the principle of equal treatment in that other officials in the same position received the expatriation allowance.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/64 |
| --- | --- | --- | --- |

17.4.2004

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Official Journal of the European Union

C 94/64

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Action brought on 18 February 2004 by Société des Produits Nestlé S.A. against the Office for Harmonisation in the Internal Market

(Case T-74/04)

(2004/C 94/161)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities by Société des Produits Nestlé S.A., having its registered office in Vevey (Switzerland), represented by Jean-Jo Evrard, lawyer.

Quick Restaurants S.A. was also party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

| — | set aside the decision of the Second Board of Appeal of the defendant of 17 December 2003; |
| --- | --- |

—

set aside the decision of the Second Board of Appeal of the defendant of 17 December 2003;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Applicant for the Community trade mark: | Société des Produits Nestlé S.A. |
| --- | --- |
| Community trade mark concerned: | Figurative trade mark ‘QUICKY’ — application No 467 746, filed for products in Classes 29 (meat etc.), 30 (coffee etc.) and 32 (mineral waters etc.) |
| Proprietor of the trade mark or sign entering opposition: | QUICK RESTAURANTS, a public limited company constituted under Belgian law |
| Trade mark or sign on the basis of which opposition was made: | National and international word and figurative trade marks ‘QUICK’ and ‘QUICKIES’ |
| Decision of the Opposition Division: | Registration refused |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law relied on: | Wrongful application of Article 8(1)(b) of Regulation (EC) No 40/94 (1). The applicant claims that the trade marks in question are not phonetically and conceptually similar. |

Applicant for the Community trade mark:

Société des Produits Nestlé S.A.

Community trade mark concerned:

Figurative trade mark ‘QUICKY’ — application No 467 746, filed for products in Classes 29 (meat etc.), 30 (coffee etc.) and 32 (mineral waters etc.)

Proprietor of the trade mark or sign entering opposition:

QUICK RESTAURANTS, a public limited company constituted under Belgian law

Trade mark or sign on the basis of which opposition was made:

National and international word and figurative trade marks ‘QUICK’ and ‘QUICKIES’

Decision of the Opposition Division:

Registration refused

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law relied on:

Wrongful application of Article 8(1)(b) of Regulation (EC) No 40/94 (1). The applicant claims that the trade marks in question are not phonetically and conceptually similar.

---

(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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| 17.4.2004 | EN | Official Journal of the European Union | C 94/65 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/65

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Action brought on 19 February 2004 by Jean-Pierre Castets against Commission of the European Communities

(Case T-80/04)

(2004/C 94/162)

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 19 February 2004 by Jean-Pierre Castets, residing in Saint Victor Des Oules (France), represented by Grégory Crétin, lawyer.

The applicants claim that the Court should:

| — | Annul the decision of 9 December 2003 whereby the appointing authority rejected complaint No R/456/03 formulated by the applicant on 29 July 2003; |
| --- | --- |

—

Annul the decision of 9 December 2003 whereby the appointing authority rejected complaint No R/456/03 formulated by the applicant on 29 July 2003;

| — | Order the Office for the administration and payment of individual entitlements of the European Commission to recalculate the number of days' annual leave not taken by the applicant on the date on which he left the service and to adjust, in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations, payment for the 31 days not taken in 2002, plus interest at the applicable rate; |
| --- | --- |

—

Order the Office for the administration and payment of individual entitlements of the European Commission to recalculate the number of days' annual leave not taken by the applicant on the date on which he left the service and to adjust, in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations, payment for the 31 days not taken in 2002, plus interest at the applicable rate;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case, who was retired and awarded an invalidity pension, disputes the number of days of leave in respect of which he received compensation when he left the service.

In support of his claims, he alleges that it follows from the applicable provisions of the Staff Regulations that:

| — | the conclusions of the Heads of Administration No 53A/70 of 9 January 1970, which limit to 12 working days the amount of annual leave that can be carried forward, even in the event of prolonged sickness, cannot be applied, since they are contrary to the applicable provisions of the statute; |
| --- | --- |

—

the conclusions of the Heads of Administration No 53A/70 of 9 January 1970, which limit to 12 working days the amount of annual leave that can be carried forward, even in the event of prolonged sickness, cannot be applied, since they are contrary to the applicable provisions of the statute;

| — | an official on sick leave cannot apply to carry forward days of annual leave, since such an act is a step of an occupational nature which an official on sick leave is not required to carry out; |
| --- | --- |

—

an official on sick leave cannot apply to carry forward days of annual leave, since such an act is a step of an occupational nature which an official on sick leave is not required to carry out;

| — | an official who has not used up his annual leave upon leaving the service is entitled, without any limit, to payment of compensation for the whole of his annual leave which could not be used up owing to the needs of the service; |
| --- | --- |

—

an official who has not used up his annual leave upon leaving the service is entitled, without any limit, to payment of compensation for the whole of his annual leave which could not be used up owing to the needs of the service;

| — | the fact of being on sick leave for a full year clearly constitutes a need of the service which justifies days of leave in excess of 12 days being carried forward. |
| --- | --- |

—

the fact of being on sick leave for a full year clearly constitutes a need of the service which justifies days of leave in excess of 12 days being carried forward.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/66 |
| --- | --- | --- | --- |

17.4.2004

EN

Official Journal of the European Union

C 94/66

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Action brought on 1 March 2004 by Åsa Sundholm against Commission of the European Communities

(Case T-86/04)

(2004/C 94/163)

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 1 March 2004 by Åsa Sundholm, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.

The applicant claims that the Court should:

| — | Annul the decision of 10 April 2003 adopting the applicant's career development report for the period from 1 July 2001 to 31 December 2002; |
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Annul the decision of 10 April 2003 adopting the applicant's career development report for the period from 1 July 2001 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 her application the applicant submits that the disputed report makes reference to her justified absences and to her state of health in breach of Article 7(2) of the general provisions for implementing Article 43 of the Staff Regulations. She also pleads that there was a manifest error of assessment in that there were allegedly inconsistencies between the comments and the marks awarded to her in that report. Finally, the applicant submits that the report does not state adequate reasons, particularly as it departs from the recommendations of the Joint Evaluation Committee and must, under Article 8(7) of the general provisions for implementing Article 43 of the Staff Regulations, give reasons for doing so.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/66 |
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17.4.2004

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Official Journal of the European Union

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Removal from the register of Case T-281/97 (1)

(2004/C 94/164)

Language of the Case: English

By order of 30 January 2004 the President of the First Chamber of the Court of First Instance of the European Communities ordered the removal from the register of Case T-281/97:Milk Products Holdings (Europe) Limited and Others v Commission of the European Communities.

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(1)  OJ C 387 of 20.12.1997.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/66 |
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Official Journal of the European Union

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Removal from the register of Case T-252/99 (1)

(2004/C 94/165)

(Language of the Case: Dutch)

By order of 22 January 2004 the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities ordered the removal from the register of Case T-252/99: Total Nederland N.V. and Fina Nederland B.V. v Commission of the European Communities.

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(1)  OJ C 20 of 22.01.2000.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/66 |
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Removal from the register of Case T-296/99 (1)

(2004/C 94/166)

(Language of the Case: Dutch)

By order of 22 January 2004 the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities ordered the removal from the register of Case T-296/99: Driessen Oosterbeek B.V. v Commission of the European Communities.

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(1)  OJ C 63 of 04.03.2000.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/66 |
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Official Journal of the European Union

C 94/66

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Removal from the register of Case T-298/99 (1)

(2004/C 94/167)

(Language of the Case: Dutch)

By order of 22 January 2004 the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities ordered the removal from the register of Case T-298/99: Firma Erkens Servicestation en Verhuurbedrijf V.O.F. v Commission of the European Communities.

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(1)  OJ C 63 of 04.03.2000.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/67 |
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17.4.2004

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Removal from the register of Case T-300/99 (1)

(2004/C 94/168)

(Language of the Case: Dutch)

By order of 22 January 2004 the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities ordered the removal from the register of Case T-300/99: Firma Reuvekamp V.O.F. v Commission of the European Communities.

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(1)  OJ C 63 of 04.03.2000.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/67 |
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17.4.2004

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Removal from the register of Case T-301/99 (1)

(2004/C 94/169)

(Language of the Case: Dutch)

By order of 22 January 2004 the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities ordered the removal from the register of Case T-301/99: Dirk Adrianus Gaikhorst v Commission of the European Communities.

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(1)  OJ C 63 of 04.03.2000.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/67 |
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Removal from the register of Case T-318/02 (1)

(2004/C 94/170)

(Language of the Case: English)

By order of 14 November 2003 the President of the Second Chamber of the Court of First Instance of the European Communities ordered the removal from the register of Case T-318/02: H.O. Sports Inc. v Office for the Harmonisation of the Internal Market (Trade Marks and Design) (OHIM).

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(1)  OJ C 7 of 11.01.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/67 |
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Removal from the register of Case T-213/03 (1)

(2004/C 94/171)

(Language of the Case: French)

By order of 20 January 2004 the President of the Fourth Chamber of the Court of First Instance of the European Communities ordered the removal from the register of Case T-213/03: Francesco Contesso v Commission of the European Communities.

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(1)  OJ C 200 of 23.08.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/67 |
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Removal from the register of Case T-270/03 (1)

(2004/C 94/172)

(Language of the Case: Italian)

By order of 9 February 2004 the President of the Third Chamber of the Court of First Instance of the European Communities ordered the removal from the register of Case T-270/03:Ghiotto srl v Commission of the European Communities.

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(1)  OJ C 239 of 04.10.2003.

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| 17.4.2004 | EN | Official Journal of the European Union | C 94/67 |
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17.4.2004

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Removal from the register of Case T-321/03 (1)

(2004/C 94/173)

(Language of the Case: French)

By order of 19 January 2004 the President of the Fourth Chamber of the Court of First Instance of the European Communities ordered the removal from the register the names of the appellants Arrivé SA, Lambey Moulin des Près SA, Prisma, Jim Peet (Agriculture), Scotts Feeds Ltd, Società Italiana Werisan SpA, Newline Farm Partnerships Ltd, Muratori Srl, Mole Valley Farmers Ltd, Dugdale Nutrition, Hibramer SA, Deshayes Guy, Favre Michel et fils SA, Talian SA, Nutec Ireland, Magic SpA, Progeo SCRL, Acorn Feed Products Ltd, Biomar Ltd, Ferrari Mangimi Srl and Piensos A-90 SA from the list of appellants in Case T-321/03: Juchem GmbH and Others v European Parliament and Council of the European Union.

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(1)  OJ C 275 of 15.11.2003.

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III Notices

| 17.4.2004 | EN | Official Journal of the European Union | C 94/68 |
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17.4.2004

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Official Journal of the European Union

C 94/68

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(2004/C 94/174)

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

OJ C 85, 3.4.2004

Past publications

OJ C 71, 20.3.2004

OJ C 59, 6.3.2004

OJ C 47, 21.2.2004

OJ C 35, 7.2.2004

OJ C 21, 24.1.2004

OJ C 7, 10.1.2004

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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