# Official Journal C 22/28 J

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 22 |
| | |
| English edition | Information and Notices | Volume 4928 January 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 22

English edition

Information and Notices

Volume 4928 January 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 022/1 | Judgment of the Court (Third Chamber) of 17 November 2005 in Case C-90/03: Kingdom of Spain v Council of the European Union (Fisheries — Council Regulation (EC) No 2792/1999 — Community structural assistance in the fisheries sector — Detailed rules and arrangements — Substantial procedural defect — Infringement of Article 254 EC) | 1 |
| 2006/C 022/2 | Judgment of the Court (First Chamber) of 27 October 2005 in Case C-41/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden Levob Verzekeringen BV, OV Bank NV v Staatssecretaris van Financiën (Sixth VAT Directive — Articles 2, 5, 6 and 9 — Transfer of software recorded on a carrier — Subsequent customisation of the software to the purchaser's specific requirements — Single taxable supply — Supply of services — Place of supply) | 1 |
| 2006/C 022/3 | Judgment of the Court (Sixth Chamber) of 17 November 2005 in Case C-476/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive No 2001/55/EC — Mass influx of displaced persons — Temporary protection — Minimum standards) | 2 |
| 2006/C 022/4 | Judgment of the Court (Sixth Chamber) of 17 November 2005 in Case C-73/05: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2000/34/EC — Organisation of working time) | 2 |
| 2006/C 022/5 | Order of the Court (Third Chamber) of 13 October 2005 in Case C-1/05 SA: Intek Co. v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities) | 3 |
| 2006/C 022/6 | Case C-379/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by order of that court of 21 September 2005 in Amurta S.G.P.S. v Inspecteur van de Belastingdienst/Amsterdam | 3 |
| 2006/C 022/7 | Case C-382/05: Action brought on 20 October 2005 by the Commission of the European Communities against the Italian Republic | 4 |
| 2006/C 022/8 | Case C-387/05: Action brought on 24 October 2005 by the Commission of the European Communities against the Italian Republic | 4 |
| 2006/C 022/9 | Case C-388/05: Action brought on 24 October 2005 by the Commission of the European Communities against the Italian Republic | 5 |
| 2006/C 022/0 | Case C-394/05: Action brought on 9 November 2005 by the Commission of the European Communities against the Italian Republic | 5 |
| 2006/C 022/1 | Case C-396/05 and C-419/05: Reference for a preliminary ruling from the Sozialgericht Berlin by judgments of that court of 27 September 2005 in Doris Habelt (C-396/05) and Martha Möser (C-419/05) v Deutsche Rentenversicherung Bund | 6 |
| 2006/C 022/2 | Case C-398/05: Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 2 November 2005 in AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen | 7 |
| 2006/C 022/3 | Case C-399/05: Action brought on 15 November 2005 by the Commission of the European Communities against the Hellenic Republic | 7 |
| 2006/C 022/4 | Case C-406/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 18 November 2005 in Staatssecretaris van Financiën v P. Jurriëns Beheer BV | 8 |
| 2006/C 022/5 | Case C-407/05: Reference for a preliminary ruling from the Hof van Cassatie van België by judgment of that court of 8 November 2005 in Reyniers & Sogama bvba v (1) Belgisch Interventie- en Restitutiebureau (2) Belgian State | 8 |
| 2006/C 022/6 | Case C-413/05: Action brought on 22 November 2005 by the Commission of the European Communities against the Italian Republic | 9 |
| 2006/C 022/7 | Case C-426/05: Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 22 November 2005 in Tele2 UTA Telecommunication GmbH v Telekom-Control-Kommission | 9 |
| 2006/C 022/8 | Case C-440/05: Action brought on 8 December 2005 by the Commission of the European Communities against the Council of the European Union | 10 |
| 2006/C 022/9 | Removal from the register of Case C-109/05 | 10 |
| 2006/C 022/0 | Removal from the register of Case C-158/05 | 10 |
| | COURT OF FIRST INSTANCE |
| 2006/C 022/1 | Case T-236/02: Judgment of the Court of First Instance of 24 November 2005 — Marcuccio v Commission (Officials — Reassignment in the interests of the service — Action for annulment — Statement of reasons — Duty to have due regard for the welfare of officials Rights of the defence — Misuse of powers — Articles 25 and 26 of the Staff Regulations — Manifest error of assessment — Action for damages) | 11 |
| 2006/C 022/2 | Case T-396/03: Judgment of the Court of First Instance of 22 November 2005 — Vanhellemont v Commission (Officials — Staff committee — Elections for the Brussels local staff committee — Counting of votes cast — Action for annulment — Action for damages) | 11 |
| 2006/C 022/3 | Case T-3/04: Judgment of the Court of First Instance of 24 November 2005 — Simonds Farsons Cisk v OHIM (Community trade mark — Opposition procedure — Application for registration of a Community figurative mark containing the verbal element KINJI by SPA — Earlier Community word mark KINNIE — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 73 of Regulation No 40/94) | 12 |
| 2006/C 022/4 | Case T-135/04: Judgment of the Court of First Instance of 24 November 2005 — GfK AG v OHIM (Community trade mark — Application for the Community word mark Online Bus — Earlier figurative trade mark composed of the word BUS and a figure made up of three interlaced triangles — Genuine use of the earlier mark — Article 15(2)(a) and Article 43(2) and (3) of Regulation (EC) No 40/94 — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94) | 12 |
| 2006/C 022/5 | Case T-346/04: Judgment of the Court of First Instance of 24 November 2005 — Sadas v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark ARTHUR ET FELICIE — Earlier figurative mark including the word element Arthur — Relative ground of refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 13 |
| 2006/C 022/6 | Case T-396/04: Judgment of the Court of First Instance of 23 November 2005 — Soffass v OHIM (Community trade mark — Opposition proceedings — Application for Community figurative mark containing the verbal element NICKY — Earlier national figurative marks containing the verbal element NOKY — Rejection of opposition for absence of likelihood of confusion — Annulled by the Board of Appeal — Remittal to the Opposition Division to examine whether the goods are similar and the proof of use — Article 8(1)(b) of Regulation (EC) No 40/94) | 13 |
| 2006/C 022/7 | Case T-178/05: Judgment of the Court of First Instance of 23 November 2005 — United Kingdom v Commission (Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Proposed amendment to national allocation plan — Refusal by the Commission — Action for annulment) | 14 |
| 2006/C 022/8 | Case T-392/05: Action brought on 27 October 2005 — Mecklenburg-Strelitzer Montage- und Tiefbau v Commission | 14 |
| 2006/C 022/9 | Case T-400/05: Action brought on 2 November 2005 — T v Commission | 15 |
| 2006/C 022/0 | Case T-401/05: Action brought on 2 November 2005 — Toth v Commission | 15 |
| 2006/C 022/1 | Case T-402/05: Action brought on 3 November 2005 — Italian Republic v Commission | 16 |
| 2006/C 022/2 | Case T-404/05: Action brought on 9 November 2005 — Hellenic Republic v Commission of the European Communities | 17 |
| 2006/C 022/3 | Case T-405/05: Action brought on 14 November 2005 — Manpower Personalservice v OHIM | 17 |
| 2006/C 022/4 | Case T-407/05: Action brought on 16 November 2005 — Evian v OHIM | 18 |
| 2006/C 022/5 | Case T-408/05: Action brought on 16 October 2005 — Luigi Marcuccio v Commission | 18 |
| 2006/C 022/6 | Case T-409/05: Action brought on 8 November 2005 — A.S.TER v Commission | 19 |
| 2006/C 022/7 | Case T-415/05: Action brought on 25 November 2005 — Hellenic Republic v Commission of the European Communities | 19 |
| 2006/C 022/8 | Case T-417/05: Action brought on 29 November 2005 — ENDESA v Commission | 20 |
| 2006/C 022/9 | Case T-418/05: Action brought on 9 November 2005 — Investire Partecipazioni v Commission | 21 |
| 2006/C 022/0 | Case T-422/05: Action brought on 21 November 2005 — Combescot v Commission | 22 |
| 2006/C 022/1 | Case T-424/05: Action brought on 16 November 2005 — Italian Republic v Commission | 23 |
| 2006/C 022/2 | Case T-427/05: Action brought on 29 November 2005 — Vienne and Others v Parliament | 24 |
| 2006/C 022/3 | Case T-87/01: Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission | 24 |
| 2006/C 022/4 | Case T -211/01: Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission | 24 |
| 2006/C 022/5 | Case T -242/01: Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission | 25 |
| 2006/C 022/6 | Case T -397/03: Order of the Court of First Instance of 18 November 2005 — Fédération de l'hospitalisation privée v Commission | 25 |
| 2006/C 022/7 | Case T-104/04: Order of the Court of First Instance of 22 November 2005 — Degussa Initiators v Commission | 25 |
| 2006/C 022/8 | Case T -179/04: Order of the Court of First Instance of 22 November 2005 — Siegfried Krahl v Commission | 25 |
| 2006/C 022/9 | Case T -421/04: Order of the Court of First Instance of 10 November 2005 — Carreira v European Agency for Safety and Health at Work | 25 |
| 2006/C 022/0 | Case T-480/04: Order of the Court of First Instance of 10 November 2005 — Muller Touw and A&C Braid and Rope v Council | 26 |
| 2006/C 022/1 | Case T-77/05: Order of the Court of First Instance of 25 November 2005 — Balduini v Commission | 26 |
| 2006/C 022/2 | Joined Cases T-130/05, T-160/05 and T-183/05: Order of the Court of First Instance of 16 November 2005 — Albert-Bousquet and Others v Commission | 26 |
| 2006/C 022/3 | Case T-257/05: Order of the Court of First Instance of 7 October 2005 — Deutsche Telekom v OHIM | 26 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 022/1

Judgment of the Court (Third Chamber) of 17 November 2005 in Case C-90/03: Kingdom of Spain v Council of the European Union (Fisheries — Council Regulation (EC) No 2792/1999 — Community structural assistance in the fisheries sector — Detailed rules and arrangements — Substantial procedural defect — Infringement of Article 254 EC)

1

2006/C 022/2

Judgment of the Court (First Chamber) of 27 October 2005 in Case C-41/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden Levob Verzekeringen BV, OV Bank NV v Staatssecretaris van Financiën (Sixth VAT Directive — Articles 2, 5, 6 and 9 — Transfer of software recorded on a carrier — Subsequent customisation of the software to the purchaser's specific requirements — Single taxable supply — Supply of services — Place of supply)

1

2006/C 022/3

Judgment of the Court (Sixth Chamber) of 17 November 2005 in Case C-476/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive No 2001/55/EC — Mass influx of displaced persons — Temporary protection — Minimum standards)

2

2006/C 022/4

Judgment of the Court (Sixth Chamber) of 17 November 2005 in Case C-73/05: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2000/34/EC — Organisation of working time)

2

2006/C 022/5

Order of the Court (Third Chamber) of 13 October 2005 in Case C-1/05 SA: Intek Co. v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities)

3

2006/C 022/6

Case C-379/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by order of that court of 21 September 2005 in Amurta S.G.P.S. v Inspecteur van de Belastingdienst/Amsterdam

3

2006/C 022/7

Case C-382/05: Action brought on 20 October 2005 by the Commission of the European Communities against the Italian Republic

4

2006/C 022/8

Case C-387/05: Action brought on 24 October 2005 by the Commission of the European Communities against the Italian Republic

4

2006/C 022/9

Case C-388/05: Action brought on 24 October 2005 by the Commission of the European Communities against the Italian Republic

5

2006/C 022/0

Case C-394/05: Action brought on 9 November 2005 by the Commission of the European Communities against the Italian Republic

5

2006/C 022/1

Case C-396/05 and C-419/05: Reference for a preliminary ruling from the Sozialgericht Berlin by judgments of that court of 27 September 2005 in Doris Habelt (C-396/05) and Martha Möser (C-419/05) v Deutsche Rentenversicherung Bund

6

2006/C 022/2

Case C-398/05: Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 2 November 2005 in AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen

7

2006/C 022/3

Case C-399/05: Action brought on 15 November 2005 by the Commission of the European Communities against the Hellenic Republic

7

2006/C 022/4

Case C-406/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 18 November 2005 in Staatssecretaris van Financiën v P. Jurriëns Beheer BV

8

2006/C 022/5

Case C-407/05: Reference for a preliminary ruling from the Hof van Cassatie van België by judgment of that court of 8 November 2005 in Reyniers & Sogama bvba v (1) Belgisch Interventie- en Restitutiebureau (2) Belgian State

8

2006/C 022/6

Case C-413/05: Action brought on 22 November 2005 by the Commission of the European Communities against the Italian Republic

9

2006/C 022/7

Case C-426/05: Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 22 November 2005 in Tele2 UTA Telecommunication GmbH v Telekom-Control-Kommission

9

2006/C 022/8

Case C-440/05: Action brought on 8 December 2005 by the Commission of the European Communities against the Council of the European Union

10

2006/C 022/9

Removal from the register of Case C-109/05

10

2006/C 022/0

Removal from the register of Case C-158/05

10

COURT OF FIRST INSTANCE

2006/C 022/1

Case T-236/02: Judgment of the Court of First Instance of 24 November 2005 — Marcuccio v Commission (Officials — Reassignment in the interests of the service — Action for annulment — Statement of reasons — Duty to have due regard for the welfare of officials Rights of the defence — Misuse of powers — Articles 25 and 26 of the Staff Regulations — Manifest error of assessment — Action for damages)

11

2006/C 022/2

Case T-396/03: Judgment of the Court of First Instance of 22 November 2005 — Vanhellemont v Commission (Officials — Staff committee — Elections for the Brussels local staff committee — Counting of votes cast — Action for annulment — Action for damages)

11

2006/C 022/3

Case T-3/04: Judgment of the Court of First Instance of 24 November 2005 — Simonds Farsons Cisk v OHIM (Community trade mark — Opposition procedure — Application for registration of a Community figurative mark containing the verbal element KINJI by SPA — Earlier Community word mark KINNIE — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 73 of Regulation No 40/94)

12

2006/C 022/4

Case T-135/04: Judgment of the Court of First Instance of 24 November 2005 — GfK AG v OHIM (Community trade mark — Application for the Community word mark Online Bus — Earlier figurative trade mark composed of the word BUS and a figure made up of three interlaced triangles — Genuine use of the earlier mark — Article 15(2)(a) and Article 43(2) and (3) of Regulation (EC) No 40/94 — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94)

12

2006/C 022/5

Case T-346/04: Judgment of the Court of First Instance of 24 November 2005 — Sadas v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark ARTHUR ET FELICIE — Earlier figurative mark including the word element Arthur — Relative ground of refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

13

2006/C 022/6

Case T-396/04: Judgment of the Court of First Instance of 23 November 2005 — Soffass v OHIM (Community trade mark — Opposition proceedings — Application for Community figurative mark containing the verbal element NICKY — Earlier national figurative marks containing the verbal element NOKY — Rejection of opposition for absence of likelihood of confusion — Annulled by the Board of Appeal — Remittal to the Opposition Division to examine whether the goods are similar and the proof of use — Article 8(1)(b) of Regulation (EC) No 40/94)

13

2006/C 022/7

Case T-178/05: Judgment of the Court of First Instance of 23 November 2005 — United Kingdom v Commission (Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Proposed amendment to national allocation plan — Refusal by the Commission — Action for annulment)

14

2006/C 022/8

Case T-392/05: Action brought on 27 October 2005 — Mecklenburg-Strelitzer Montage- und Tiefbau v Commission

14

2006/C 022/9

Case T-400/05: Action brought on 2 November 2005 — T v Commission

15

2006/C 022/0

Case T-401/05: Action brought on 2 November 2005 — Toth v Commission

15

2006/C 022/1

Case T-402/05: Action brought on 3 November 2005 — Italian Republic v Commission

16

2006/C 022/2

Case T-404/05: Action brought on 9 November 2005 — Hellenic Republic v Commission of the European Communities

17

2006/C 022/3

Case T-405/05: Action brought on 14 November 2005 — Manpower Personalservice v OHIM

17

2006/C 022/4

Case T-407/05: Action brought on 16 November 2005 — Evian v OHIM

18

2006/C 022/5

Case T-408/05: Action brought on 16 October 2005 — Luigi Marcuccio v Commission

18

2006/C 022/6

Case T-409/05: Action brought on 8 November 2005 — A.S.TER v Commission

19

2006/C 022/7

Case T-415/05: Action brought on 25 November 2005 — Hellenic Republic v Commission of the European Communities

19

2006/C 022/8

Case T-417/05: Action brought on 29 November 2005 — ENDESA v Commission

20

2006/C 022/9

Case T-418/05: Action brought on 9 November 2005 — Investire Partecipazioni v Commission

21

2006/C 022/0

Case T-422/05: Action brought on 21 November 2005 — Combescot v Commission

22

2006/C 022/1

Case T-424/05: Action brought on 16 November 2005 — Italian Republic v Commission

23

2006/C 022/2

Case T-427/05: Action brought on 29 November 2005 — Vienne and Others v Parliament

24

2006/C 022/3

Case T-87/01: Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission

24

2006/C 022/4

Case T -211/01: Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission

24

2006/C 022/5

Case T -242/01: Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission

25

2006/C 022/6

Case T -397/03: Order of the Court of First Instance of 18 November 2005 — Fédération de l'hospitalisation privée v Commission

25

2006/C 022/7

Case T-104/04: Order of the Court of First Instance of 22 November 2005 — Degussa Initiators v Commission

25

2006/C 022/8

Case T -179/04: Order of the Court of First Instance of 22 November 2005 — Siegfried Krahl v Commission

25

2006/C 022/9

Case T -421/04: Order of the Court of First Instance of 10 November 2005 — Carreira v European Agency for Safety and Health at Work

25

2006/C 022/0

Case T-480/04: Order of the Court of First Instance of 10 November 2005 — Muller Touw and A&C Braid and Rope v Council

26

2006/C 022/1

Case T-77/05: Order of the Court of First Instance of 25 November 2005 — Balduini v Commission

26

2006/C 022/2

Joined Cases T-130/05, T-160/05 and T-183/05: Order of the Court of First Instance of 16 November 2005 — Albert-Bousquet and Others v Commission

26

2006/C 022/3

Case T-257/05: Order of the Court of First Instance of 7 October 2005 — Deutsche Telekom v OHIM

26

| | III   Notices |
| --- | --- |
| 2006/C 022/4 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 10, 14.1.2006 | 27 |

III   Notices

2006/C 022/4

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 10, 14.1.2006

Official Journal of the European Union

27

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 28.1.2006 | EN | Official Journal of the European Union | C 22/1 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/1

---

JUDGMENT OF THE COURT

(Third Chamber)

of 17 November 2005

in Case C-90/03: Kingdom of Spain v Council of the European Union (1)

(Fisheries - Council Regulation (EC) No 2792/1999 - Community structural assistance in the fisheries sector - Detailed rules and arrangements - Substantial procedural defect - Infringement of Article 254 EC)

(2006/C 22/01)

Language of the case: Spanish

In Case C-90/03 Kingdom of Spain (Agent: N. Díaz Abad), supported by Hellenic Republic (Agents: V. Kontolaimos and G. Kanellopoulos) and French Republic (Agents: G. de Bergues and A. Colomb) v Council of the European Union (Agents: J. Monteiro and F. Florindo Gijón), supported by Commission of the European Communities (Agents: T. van Rijn and S. Pardo Quintillán) — action for annulment under Article 230 EC, brought on 28 February 2003 — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr (Rapporteur), A. Borg Barthet and U. Lõhmus, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the Kingdom of Spain to pay the costs;

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

3.

Orders the French Republic, the Hellenic Republic and the Commission of the European Communities to bear their own costs.

---

(1)  OJ C 135 of 7.6.2003.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/1 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/1

---

JUDGMENT OF THE COURT

(First Chamber)

of 27 October 2005

in Case C-41/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden Levob Verzekeringen BV, OV Bank NV v Staatssecretaris van Financiën (1)

(Sixth VAT Directive - Articles 2, 5, 6 and 9 - Transfer of software recorded on a carrier - Subsequent customisation of the software to the purchaser's specific requirements - Single taxable supply - Supply of services - Place of supply)

(2006/C 22/02)

Language of the case: Dutch

In Case C-41/04: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 30 January 2004, received at the Court on 2 February 2004, in the proceedings between Levob Verzekeringen BV, OV Bank NV and Staatssecretaris van Financiën — the Court: (First Chamber) composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, J.N. Cunha Rodrigues and E. Levits, Judges; J. Kokott, Advocate General, K. Sztranc, Administrator, for the Registrar, gave a judgment on 27 October 2005, the operative part of which is as follows:

| 1. | Article 2(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that where two or more elements or acts supplied by a taxable person to a customer, being a typical consumer, are so closely linked that they form objectively, from an economic point of view, a whole transaction, which it would be artificial to split, all those elements or acts constitute a single supply for purposes of the application of VAT; |
| --- | --- |

1.

Article 2(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that where two or more elements or acts supplied by a taxable person to a customer, being a typical consumer, are so closely linked that they form objectively, from an economic point of view, a whole transaction, which it would be artificial to split, all those elements or acts constitute a single supply for purposes of the application of VAT;

| 2. | This is true of a transaction by which a taxable person supplies to a consumer standard software previously developed, put on the market and recorded on a carrier and subsequently customises that software to that purchaser's specific requirements, even where separate prices are paid; |
| --- | --- |

2.

This is true of a transaction by which a taxable person supplies to a consumer standard software previously developed, put on the market and recorded on a carrier and subsequently customises that software to that purchaser's specific requirements, even where separate prices are paid;

| 3. | Article 6(1) of Sixth Directive 77/388 must be interpreted as meaning that a single supply such as that referred to in paragraph 2 of this operative part is to be classified as a 'supply of services' where it is apparent that the customisation in question is neither minor nor ancillary but, on the contrary, predominates; such is the case in particular where in the light of factors such as its extent, cost or duration the customisation is of decisive importance in enabling the purchaser to use the customised software; |
| --- | --- |

3.

Article 6(1) of Sixth Directive 77/388 must be interpreted as meaning that a single supply such as that referred to in paragraph 2 of this operative part is to be classified as a 'supply of services' where it is apparent that the customisation in question is neither minor nor ancillary but, on the contrary, predominates; such is the case in particular where in the light of factors such as its extent, cost or duration the customisation is of decisive importance in enabling the purchaser to use the customised software;

| 4. | Article 9(2)(e), third indent, of Sixth Directive 77/388 must be interpreted as meaning that it applies to a single supply of services such as that referred to in paragraph 3 of this operative part performed for a taxable person established in the Community but not in the same country as the supplier. |
| --- | --- |

4.

Article 9(2)(e), third indent, of Sixth Directive 77/388 must be interpreted as meaning that it applies to a single supply of services such as that referred to in paragraph 3 of this operative part performed for a taxable person established in the Community but not in the same country as the supplier.

---

(1)  OJ C 94, 17.4.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/2 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/2

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 November 2005

in Case C-476/04: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive No 2001/55/EC - Mass influx of displaced persons - Temporary protection - Minimum standards)

(2006/C 22/03)

Language of the case: Greek

In Case C-476/04 Commission of the European Communities (Agents: M. Kontoy and C. O'Reilly) v Hellenic Republic (Agent: N. Dafniou) — action under Article 226 EC for failure to fulfil obligations, brought on 12 November 2004 — the Court (Sixth Chamber), composed of A. Borg Barthet (Rapporteur), acting as President of the Sixth Chamber, U. Lõhmus and A. Ó Caoimh, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 6 of 8.1.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/2 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/2

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 November 2005

in Case C-73/05: Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2000/34/EC - Organisation of working time)

(2006/C 22/04)

Language of the case: French

In Case C-73/05 Commission of the European Communities (Agent: N. Yerrell) v French Republic (Agents: G. de Bergues and O. Christmann) — action under Article 226 EC for failure to fulfil obligations, brought on 15 February 2005 — the Court (Sixth Chamber), composed of A. Borg Barthet (Rapporteur), acting as President of the Sixth Chamber, U. Lõhmus and A. Ó Caoimh, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, in which it:

| 1. | Declares that, by failing to adopt all the laws, regulations and administrative measures necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt all the laws, regulations and administrative measures necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive, the French Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 82 of 2.4.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/3 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/3

---

ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-1/05 SA: Intek Co. v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 22/05)

Language of the case: French

In Case C-1/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 28 January 2005, Intek Co., established in Ashgabat (Turkmenistan) (avocat: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

| 1. | There is no need to adjudicate. |
| --- | --- |

1.

There is no need to adjudicate.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 82 of 2.4.2005

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/3 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/3

---

Reference for a preliminary ruling from the Gerechtshof te Amsterdam by order of that court of 21 September 2005 in Amurta S.G.P.S. v Inspecteur van de Belastingdienst/Amsterdam

(Case C-379/05)

(2006/C 22/06)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Gerechtshof te Amsterdam of 21 September 2005, received at the Court Registry on 17 October 2005, for a preliminary ruling in the proceedings between Amurta S.G.P.S. and Inspecteur van de Belastingdienst/Amsterdam on the following questions:

| 1. | Is the exemption under Article 4 of the Wet op de dividendbelasting 1965 [the 1965 Law on the Taxation of Dividends], as described in paragraphs 5.3 to 5.5 of this judgment, in conjunction with the exemption under Article 4a of that Law compatible with the provisions on the free movement of capital (Articles 56 to 58, formerly Articles 73b to 73d) of the EC Treaty, given that the exemption is applicable only to dividend payments to shareholders liable to corporation tax in the Netherlands or to foreign shareholders with a permanent establishment in the Netherlands, with the shares forming part of the assets of that permanent establishment, to whom the holding exemption under Article 13 of the Wet op de vennootschapsbelasting 1969 [the 1969 Company Taxation Law] applies? |
| --- | --- |

1.

Is the exemption under Article 4 of the Wet op de dividendbelasting 1965 [the 1965 Law on the Taxation of Dividends], as described in paragraphs 5.3 to 5.5 of this judgment, in conjunction with the exemption under Article 4a of that Law compatible with the provisions on the free movement of capital (Articles 56 to 58, formerly Articles 73b to 73d) of the EC Treaty, given that the exemption is applicable only to dividend payments to shareholders liable to corporation tax in the Netherlands or to foreign shareholders with a permanent establishment in the Netherlands, with the shares forming part of the assets of that permanent establishment, to whom the holding exemption under Article 13 of the Wet op de vennootschapsbelasting 1969 [the 1969 Company Taxation Law] applies?

| 2. | Does the answer to the question posed at 6.1 depend on whether the State of residence of a foreign shareholder/company to which the exemption under Article 4 of the Law does not apply grants that shareholder/company full credit for Netherlands dividend tax? |
| --- | --- |

2.

Does the answer to the question posed at 6.1 depend on whether the State of residence of a foreign shareholder/company to which the exemption under Article 4 of the Law does not apply grants that shareholder/company full credit for Netherlands dividend tax?

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/4 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/4

---

Action brought on 20 October 2005 by the Commission of the European Communities against the Italian Republic

(Case C-382/05)

(2006/C 22/07)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 20 October 2005 by the Commission of the European Communities, represented by A. Aresu and X. Lewis, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by reason of the fact that the Presidenza del Consiglio dei Ministri (Prime Minister's Office) — Dipartimento per la protezione civile (Department of Civil Defence) — Ufficio del Commissario delegato (Office of the Deputy Government official) responsible for waste emergency and water protection in Sicily initiated the procedure for the award of contracts for the use of residual municipal waste, remaining after separately collected waste, produced in the municipal areas of the Region of Sicily, and concluded such contracts but failed to apply the procedures laid down by Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts and, in particular, failed to publish the appropriate contract notice in the Official Journal of the European Union, the Italian Republic failed to fulfil its obligations under that directive and, in particular, under Articles 11, 15 and 17 of that directive; |
| --- | --- |

1.

declare that, by reason of the fact that the Presidenza del Consiglio dei Ministri (Prime Minister's Office) — Dipartimento per la protezione civile (Department of Civil Defence) — Ufficio del Commissario delegato (Office of the Deputy Government official) responsible for waste emergency and water protection in Sicily initiated the procedure for the award of contracts for the use of residual municipal waste, remaining after separately collected waste, produced in the municipal areas of the Region of Sicily, and concluded such contracts but failed to apply the procedures laid down by Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts and, in particular, failed to publish the appropriate contract notice in the Official Journal of the European Union, the Italian Republic failed to fulfil its obligations under that directive and, in particular, under Articles 11, 15 and 17 of that directive;

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

2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

According to the Commission, an examination of the documents relating to the award of the contracts at issue leads to the conclusion that they are to be classified as public service contracts governed by Directive 92/50/EEC.

It follows that those contracts should have been awarded in compliance with the rules on advertising and participation laid down in Titles III and IV of that directive and, in particular, following publication in the O.J.E.U of the contract notice required by Articles 15 and 17 of the directive and in accordance with the procedures set out in Article 11.

In the present case, the notice published on behalf of the Commissario delegato cannot be regarded as adequately fulfilling the advertising requirements laid down by the above-mentioned provisions. Not only does the model contract notice used for the advertisement refer to what is called the ‘prior information’ procedure and not to the award of contracts, but, more importantly, the information set out in the notice is clearly inadequate when compared with the information that must be included in accordance with the model contract notice set out in the Annexes to Directive 92/50/EEC, as most recently amended by Directive 2001/78/EC.

---

(1)  O J 1992 L 209 p. 1

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/4 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/4

---

Action brought on 24 October 2005 by the Commission of the European Communities against the Italian Republic

(Case C-387/05)

(2006/C 22/08)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 24 October 2005 by the Commission of the European Communities, represented by G. Wilms and L. Visaggio, acting as Agents.

The Commission claims that the Court should:

| — | declare that, by unilaterally exempting from import customs duties material which may be used for both civilian and military purposes and by refusing to calculate and pay the own resources which were improperly not collected as a result of that exemption and the default interest due by reason of the failure to make those own resources available to the Commission in good time, the Italian Republic has failed to fulfil its obligations under Article 26 EC, Article 20 of Regulation (EEC) No 2913/92 (1) and, consequently, the Common Customs Tariff, Articles 2, 9, 10 and 17(1) of Regulation (EEC, Euratom) No 1552/89 (2) and the corresponding provisions of Regulation (EC, Euratom) No 1150/2000; (3) |
| --- | --- |

—

declare that, by unilaterally exempting from import customs duties material which may be used for both civilian and military purposes and by refusing to calculate and pay the own resources which were improperly not collected as a result of that exemption and the default interest due by reason of the failure to make those own resources available to the Commission in good time, the Italian Republic has failed to fulfil its obligations under Article 26 EC, Article 20 of Regulation (EEC) No 2913/92 (1) and, consequently, the Common Customs Tariff, Articles 2, 9, 10 and 17(1) of Regulation (EEC, Euratom) No 1552/89 (2) and the corresponding provisions of Regulation (EC, Euratom) No 1150/2000; (3)

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

Suspension of import customs duties (or, in specific cases, zero-rating) in respect of certain weapons and military equipment was decided on within a Community context by Council Regulation (EC) No 150/2003 (4) and was to take effect from 1 January 2003.

In the view of the Commission, the unilateral exemption granted by Italy during the period preceding the application of that regulation amounted to an unlawful derogation from Article 26 EC and from Community customs legislation, resulting in an unjustifiable reduction in customs revenue, which constitutes the Community's own resources.

---

(1)  OJ 1992 L 302 of 19.10.1992, p. 1.

(2)  OJ 1989 L 155 of 07.06.1989, p. 1.

(3)  OJ 2000 L 130 of 31.05.2000, p. 1.

(4)  OJ 2003 L 25 of 30.01.2003, p. 1.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/5 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/5

---

Action brought on 24 October 2005 by the Commission of the European Communities against the Italian Republic

(Case C-388/05)

(2006/C 22/09)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 24 October 2005 by the Commission of the European Communities, represented by A. Aresu and D. Recchia, acting as Agents.

The Commission claims that the Court should:

| — | declare that:






  (a) | prior to 28 December 1998, the date for the designation of the Special Protection Area (SPA) ‘Valloni e steppe pedegarganiche’, the Italian Republic failed to meet its obligations under Article 4(4) of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds in so far as it failed to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds likely to have significant consequences, with reference to the plan designated ‘the regional agreement’ and the projects outlined therein, which were liable to have an impact on the habitats and species within IBA (Important Bird Area) No 94 (from IBA Catalogue 89) ‘Gargano Promontory’ and which have in fact brought about a deterioration of habitats and resulted in serious disturbances affecting birds within the above IBA[s]; |
| --- | --- | --- |

—

declare that:

(a)

prior to 28 December 1998, the date for the designation of the Special Protection Area (SPA) ‘Valloni e steppe pedegarganiche’, the Italian Republic failed to meet its obligations under Article 4(4) of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds in so far as it failed to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds likely to have significant consequences, with reference to the plan designated ‘the regional agreement’ and the projects outlined therein, which were liable to have an impact on the habitats and species within IBA (Important Bird Area) No 94 (from IBA Catalogue 89) ‘Gargano Promontory’ and which have in fact brought about a deterioration of habitats and resulted in serious disturbances affecting birds within the above IBA[s];

| (b) | after 28 December 1998, the date for the designation of the Special Protection Area (SPA) ‘Valloni e steppe pedegarganiche’, the Italian Republic failed to meet its obligations under Article 6(2), (3) and (4) and Article 7 of Council Directive 92/43/EEC (2) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; |
| --- | --- |

(b)

after 28 December 1998, the date for the designation of the Special Protection Area (SPA) ‘Valloni e steppe pedegarganiche’, the Italian Republic failed to meet its obligations under Article 6(2), (3) and (4) and Article 7 of Council Directive 92/43/EEC (2) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

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

—

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

Pleas in law and main arguments

By failing to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds likely to have significant consequences, with reference to the plan designated ‘the regional agreement’ and the projects outlined therein, within the area subsequently designated as the Special Protection Area (SPA) ‘Valloni e steppe pedegarganiche’, the Italian Republic has failed to meet its obligations under Article 4(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and, after 28 December 1998, under Article 6(2), (3) and (4) and Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

---

(1)  OJ 1979 L 103 of 25.04.1979, p. 1.

(2)  OJ 1992 L 206 of 22.07.1992, p. 7.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/5 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/5

---

Action brought on 9 November 2005 by the Commission of the European Communities against the Italian Republic

(Case C-394/05)

(2006/C 22/10)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 9 November 2005 by the Commission of the European Communities, represented by D. Recchia and M. Konstantinidis, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that the Italian Republic, by adopting Legislative Decree No 209 of 24 June 2003 transposing the provisions of Directive 2000/53/EC (1) into national law in a manner inconsistent with the directive itself, has failed to fulfil its obligations under Article 2(2) and (5), Article 3(5), Article 4(2)(a) in conjunction with Annex II, Article 5(1) to (4), Article 6(3)(a) and (4), Article 7(1) and (2), Article 8(3) and (4), Article 10(3) and Article 12(2) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles; |
| --- | --- |

1.

declare that the Italian Republic, by adopting Legislative Decree No 209 of 24 June 2003 transposing the provisions of Directive 2000/53/EC (1) into national law in a manner inconsistent with the directive itself, has failed to fulfil its obligations under Article 2(2) and (5), Article 3(5), Article 4(2)(a) in conjunction with Annex II, Article 5(1) to (4), Article 6(3)(a) and (4), Article 7(1) and (2), Article 8(3) and (4), Article 10(3) and Article 12(2) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles;

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

2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission of the European Communities brought an action on 7 November 2005 before the Court of Justice of the European Communities for a declaration that the Italian Republic, having failed to take all the measures necessary to:

| — | define end-of-life vehicles which are waste and their treatment, corresponding to those laid down in the directive; |
| --- | --- |

—

define end-of-life vehicles which are waste and their treatment, corresponding to those laid down in the directive;

| — | include three-wheel motor vehicles in end-of-life vehicles in the Legislative Decree transposing the directive; |
| --- | --- |

—

include three-wheel motor vehicles in end-of-life vehicles in the Legislative Decree transposing the directive;

| — | provide clearly that all dangerous materials and components as laid down in Annex II of the directive are removed from vehicles before any further treatment; |
| --- | --- |

—

provide clearly that all dangerous materials and components as laid down in Annex II of the directive are removed from vehicles before any further treatment;

| — | provide, as far as technically feasible, for the collection in suitable collection facilities of waste used parts removed when passenger cars are repaired; |
| --- | --- |

—

provide, as far as technically feasible, for the collection in suitable collection facilities of waste used parts removed when passenger cars are repaired;

| — | regarding the issue of certificates of destruction, ensure that those are issued by authorised treatment centres as provided for in Article 6 of the directive. The issue of those certificates also does not appear to be a condition for the de-registration of end-of life vehicles as required by the directive; |
| --- | --- |

—

regarding the issue of certificates of destruction, ensure that those are issued by authorised treatment centres as provided for in Article 6 of the directive. The issue of those certificates also does not appear to be a condition for the de-registration of end-of life vehicles as required by the directive;

| — | ensure that producers meet all, or a significant part of, the costs of the implementation of the system of free delivery of end-of-life vehicles; |
| --- | --- |

—

ensure that producers meet all, or a significant part of, the costs of the implementation of the system of free delivery of end-of-life vehicles;

| — | ensure the safety of dangerous components of end-of-life vehicles before they are treated; |
| --- | --- |

—

ensure the safety of dangerous components of end-of-life vehicles before they are treated;

| — | give preference to recycling over other recovery methods of the vehicles in question; |
| --- | --- |

—

give preference to recycling over other recovery methods of the vehicles in question;

| — | preclude transposition of certain specific provisions of the directive, stated therein, through agreements within the meaning of Article 10 of the directive; |
| --- | --- |

—

preclude transposition of certain specific provisions of the directive, stated therein, through agreements within the meaning of Article 10 of the directive;

| — | implement a system of controls and assessments necessary to evaluate the attainment of the objectives stated in the directive so that those objectives have been attained before 1 January 2006; |
| --- | --- |

—

implement a system of controls and assessments necessary to evaluate the attainment of the objectives stated in the directive so that those objectives have been attained before 1 January 2006;

| — | determine that the information to be provided by the producers of vehicles and components must reflect what is required by the treatment facilities; |
| --- | --- |

—

determine that the information to be provided by the producers of vehicles and components must reflect what is required by the treatment facilities;

| — | implement the obligation to regularly monitor the results achieved and to report such results to the competent authorities and the Commission and, likewise, implement the obligation on the competent authorities to make provisions for examining the progress reached under an agreement; |
| --- | --- |

—

implement the obligation to regularly monitor the results achieved and to report such results to the competent authorities and the Commission and, likewise, implement the obligation on the competent authorities to make provisions for examining the progress reached under an agreement;

has failed to fulfil its obligations under Article 2(2) and (5), Article 3(5), Article 4(2)(a) in conjunction with Annex II, Article 5(1) to (4), Article 6(3)(a) and (4), Article 7(1) and (2), Article 8(3) and (4), Article 10(3) and Article 12(2) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles.

The Commission also requests that the Italian Republic be ordered to pay the costs of the action.

---

(1)  OJ L 269 of 21.10.2000, p. 34.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/6 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/6

---

Reference for a preliminary ruling from the Sozialgericht Berlin by judgments of that court of 27 September 2005 in Doris Habelt (C-396/05) and Martha Möser (C-419/05) v Deutsche Rentenversicherung Bund

(Case C-396/05 and C-419/05)

(2006/C 22/11)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by judgments of the Sozialgericht Berlin of 27 September 2005, received at the Court Registry on 14 and 28 November 2005, for a preliminary ruling in the proceedings between Doris Habelt (C-396/05) and Martha Möser (C-419/05) and Deutsche Rentenversicherung Bund on the following question:

Is the provision in Annex VI. D. (formerly C.) Germany No 1 to Regulation (EEC) No 1408/71 (1) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (Regulation 1408/71) compatible with higher-ranking European law, particularly the principle of freedom of movement — in this case, the principle of the exportability of benefits under Article 42 of the Treaty establishing the European Community (EC) — inasmuch as it rules out also pension benefits in respect of contribution periods completed in the territory of the former German Reich?

---

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

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/7 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/7

---

Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 2 November 2005 in AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen

(Case C-398/05)

(2006/C 22/12)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht (Finance Court) Düsseldorf of 2 November 2005, received at the Court Registry on 15 November 2005, for a preliminary ruling in the proceedings between AGST Draht- und Biegetechnik GmbH and Hauptzollamt Aachen on the following question:

Is Council Regulation (EC) No 1599/1999 (1) of 12 July 1999 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on stainless steel wires with a diameter of 1 mm or more originating in India and terminating the proceeding concerning imports of stainless steel wires with a diameter of 1 mm or more originating in the Republic of Korea invalid in so far as it provides that countervailing duty under subheading 7223 00 19 of the Combined Nomenclature is to be imposed on wire manufactured by Venus Wire Industries Ltd, Mumbai, India.

---

(1)  OJ 1999 L 189, p. 1.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/7 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/7

---

Action brought on 15 November 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-399/05)

(2006/C 22/13)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 15 November 2005 by the Commission of the European Communities, represented by M. Patakia, Commission Legal Adviser, and A.X.P. Lewis, of the Commission's Legal Service, with an address for service in Luxembourg.

The Commission claims that the Court should:

| — | declare that, because the Dimosia Epikhirisi Ilektrismou (Public Power Corporation; 'DEI') admitted to the final stage of the tender procedure which it had opened for the construction and bringing into operation of a thermal power station in Lavrio two companies which did not meet the relevant conditions in the invitation to tender and the tender documents, the Hellenic Republic has failed to fulfil its obligations under Article 4(2) of Directive 93/38/EC (1) and under the principles of transparency and of equal treatment of tenderers; |
| --- | --- |

—

declare that, because the Dimosia Epikhirisi Ilektrismou (Public Power Corporation; 'DEI') admitted to the final stage of the tender procedure which it had opened for the construction and bringing into operation of a thermal power station in Lavrio two companies which did not meet the relevant conditions in the invitation to tender and the tender documents, the Hellenic Republic has failed to fulfil its obligations under Article 4(2) of Directive 93/38/EC (1) and under the principles of transparency and of equal treatment of tenderers;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| — | The Commission received a complaint relating to the carrying out of, and in particular to the failure to observe tender conditions in, a DEI tendering procedure for the construction and bringing into operation of a thermal power station in Lavrio. |
| --- | --- |

—

The Commission received a complaint relating to the carrying out of, and in particular to the failure to observe tender conditions in, a DEI tendering procedure for the construction and bringing into operation of a thermal power station in Lavrio.

| — | In light of the Court of Justice's case-law, the Commission submits that, for reasons of equality and transparency, DEI was obliged to reject the tenders of companies which did not meet conditions that DEI itself laid down in the invitation to tender and in the specification, that is to say possession of experience in the planning and management of turn-key contracts and the offer of maintenance of the gas turbine exclusively by its manufacturer. |
| --- | --- |

—

In light of the Court of Justice's case-law, the Commission submits that, for reasons of equality and transparency, DEI was obliged to reject the tenders of companies which did not meet conditions that DEI itself laid down in the invitation to tender and in the specification, that is to say possession of experience in the planning and management of turn-key contracts and the offer of maintenance of the gas turbine exclusively by its manufacturer.

| — | The Commission considers that the content of those conditions is clear and that they should have been observed by DEI however strict they may be, so as to ensure equal treatment not only of the tenderers but also of interested parties who could have taken part in the tender procedure in question had they known that the contracting authority would adhere to conditions other than those which it itself had laid down by means of the invitation to tender. |
| --- | --- |

—

The Commission considers that the content of those conditions is clear and that they should have been observed by DEI however strict they may be, so as to ensure equal treatment not only of the tenderers but also of interested parties who could have taken part in the tender procedure in question had they known that the contracting authority would adhere to conditions other than those which it itself had laid down by means of the invitation to tender.

| — | Also, in the Commission's submission, the need for swift award of the contracts in question, which is invoked by the Greek authorities, does not justify the failure to observe during the tender procedure conditions which the contracting authority itself laid down. |
| --- | --- |

—

Also, in the Commission's submission, the need for swift award of the contracts in question, which is invoked by the Greek authorities, does not justify the failure to observe during the tender procedure conditions which the contracting authority itself laid down.

| — | The Commission considers that the Hellenic Republic has failed to fulfil its obligations under Article 4(2) of Directive 93/38/EC and under the principles of transparency and of equal treatment of tenderers. |
| --- | --- |

—

The Commission considers that the Hellenic Republic has failed to fulfil its obligations under Article 4(2) of Directive 93/38/EC and under the principles of transparency and of equal treatment of tenderers.

---

(1)  OJ No L 199, 9.8.1993, p. 84.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/8 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/8

---

Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 18 November 2005 in Staatssecretaris van Financiën v P. Jurriëns Beheer BV

(Case C-406/05)

(2006/C 22/14)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) of 18 November 2005, received at the Court Registry on 21 November 2005, for a preliminary ruling in the proceedings between Staatssecretaris van Financiën and P. Jurriëns Beheer BV on the following questions:

| 1. | As regards the management of a collective investment fund, is the application of Article 13B(d)(6) of the Sixth Directive (1) dependent merely on the nature of the service provided or is application thereof also subject to the condition that the management services are provided by the person who maintains a legal relationship with the participants in the fund concerned? |
| --- | --- |

1.

As regards the management of a collective investment fund, is the application of Article 13B(d)(6) of the Sixth Directive (1) dependent merely on the nature of the service provided or is application thereof also subject to the condition that the management services are provided by the person who maintains a legal relationship with the participants in the fund concerned?

| 2. | Can a service agreed with an organisation which, in regard to its business activities, consists of the management of a collective investment fund, be deemed to constitute management for the purposes of the exemption mentioned under Question 1 if the person performing the service does so in his capacity as a director of that organisation? |
| --- | --- |

2.

Can a service agreed with an organisation which, in regard to its business activities, consists of the management of a collective investment fund, be deemed to constitute management for the purposes of the exemption mentioned under Question 1 if the person performing the service does so in his capacity as a director of that organisation?

---

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

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/8 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/8

---

Reference for a preliminary ruling from the Hof van Cassatie van België by judgment of that court of 8 November 2005 in Reyniers & Sogama bvba v (1) Belgisch Interventie- en Restitutiebureau (2) Belgian State

(Case C-407/05)

(2006/C 22/15)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Hof van Cassatie van België (Belgian Court of Cassation) of 8 November 2005, received at the Court Registry on 21 November 2005, for a preliminary ruling in the proceedings between Reyniers & Sogama bvba and 1. Belgisch Interventie- en Restitutiebureau 2. Belgian State on the following questions:

‘Are Article 11a of Commission Regulation (EEC) No 1062/87 (1) of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, inserted by Article 1 of Commission Regulation (EEC) No 1429/90 (2) of 29 May 1990 amending that regulation, Article 34 of Council Regulation (EEC) No 2726/90 (3) of 17 September 1990 on Community transit, and Article 49 of Commission Regulation (EEC) No 1214/92 (4) of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, to be interpreted as meaning:

| — | that, despite the fact that the notification to the declarant made no mention of the three-month period within which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed can be furnished to the office of departure to the satisfaction of the competent authorities, a court is able to rule, in accordance with facts which are able to support its decision, that notification without mention of the three-month period nevertheless meets the objective sought by the legal rule; or |
| --- | --- |

—

that, despite the fact that the notification to the declarant made no mention of the three-month period within which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed can be furnished to the office of departure to the satisfaction of the competent authorities, a court is able to rule, in accordance with facts which are able to support its decision, that notification without mention of the three-month period nevertheless meets the objective sought by the legal rule; or

| — | that the notification to the declarant must compulsorily mention the three-month period within which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed can be furnished to the office of departure to the satisfaction of the competent authorities, with the result that the competent authority can commence recovery only after it has explicitly informed the declarant that it has three months within which to furnish the proof requested and in the case where that proof has not been furnished within that period?’ |
| --- | --- |

—

that the notification to the declarant must compulsorily mention the three-month period within which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed can be furnished to the office of departure to the satisfaction of the competent authorities, with the result that the competent authority can commence recovery only after it has explicitly informed the declarant that it has three months within which to furnish the proof requested and in the case where that proof has not been furnished within that period?’

---

(1)  OJ 1987 L 107, p. 1.

(2)  OJ 1990 L 137, p. 21.

(3)  OJ 1990 L 262, p. 1.

(4)  OJ 1992 L 132, p. 1.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/9 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/9

---

Action brought on 22 November 2005 by the Commission of the European Communities against the Italian Republic

(Case C-413/05)

(2006/C 22/16)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 22 November 2005 by the Commission of the European Communities, represented by K. Simonsson and C. Loggi, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that by not taking all the necessary legal and administrative measures to comply with Directive 2002/84/EC (1) of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships, or by not notifying the Commission of such measures, the Italian Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

declare that by not taking all the necessary legal and administrative measures to comply with Directive 2002/84/EC (1) of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships, or by not notifying the Commission of such measures, the Italian Republic has failed to fulfil its obligations under that directive.

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

2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for implementing the directive in national law expired on 23 November 2003.

---

(1)  OJ 2002 L 324, p. 53.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/9 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/9

---

Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 22 November 2005 in Tele2 UTA Telecommunication GmbH v Telekom-Control-Kommission

(Case C-426/05)

(2006/C 22/17)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof of 22 November 2005, received at the Court Registry on 1 December 2005, for a preliminary ruling in the proceedings between Tele2 UTA Telecommunication GmbH and Telekom-Control-Kommission on the following questions:

| 1. | Are Articles 4 and 16 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) (‘Directive 2002/21/EC’) to be interpreted as meaning that the term ‘parties affected’ includes undertakings operating as competitors on the relevant market in respect of which specific obligations are not imposed, maintained or amended? |
| --- | --- |

1.

Are Articles 4 and 16 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) (‘Directive 2002/21/EC’) to be interpreted as meaning that the term ‘parties affected’ includes undertakings operating as competitors on the relevant market in respect of which specific obligations are not imposed, maintained or amended?

| 2. | In the event that the first question is answered in the affirmative, does Article 4 of Directive 2002/21/EC preclude a national provision which provides that only the undertaking in respect of which specific obligations are imposed, amended or withdrawn has the status of a party to market analysis proceedings? |
| --- | --- |

2.

In the event that the first question is answered in the affirmative, does Article 4 of Directive 2002/21/EC preclude a national provision which provides that only the undertaking in respect of which specific obligations are imposed, amended or withdrawn has the status of a party to market analysis proceedings?

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/10 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/10

---

Action brought on 8 December 2005 by the Commission of the European Communities against the Council of the European Union

(Case C-440/05)

(2006/C 22/18)

Language of the case: French

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 8 December 2005 by the Commission of the European Communities, represented by W. Bogensberger and R. Troosters, acting as Agents, with an address for service in Luxembourg.

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

| — | declare that Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (1) is unlawful; |
| --- | --- |

—

declare that Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (1) is unlawful;

| — | annul that framework decision; |
| --- | --- |

—

annul that framework decision;

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

Pleas in law and main arguments

Having regard to the Court's functional approach in Case C-176/03 Commission v Council [2005] ECR I-0000 and also to the fact that the measures provided for in Articles 1 to 10 of Framework Decision 2005/667/JHA constitute criminal law measures necessary to ensure the efficacy of the common transport policy as developed by Directive 2005/35 EC, (2) the Commission considers that the entire Framework Decision infringes Article 47 EU, on account of its indivisibility, and is therefore unlawful.

---

(1)  OJ L 255, 30.09.2005, p. 164.

(2)  Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ L 255, 30.09.2005, p. 11.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/10 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/10

---

Removal from the register of Case C-109/05 (1)

(2006/C 22/19)

Language of the case: German

By order of 11 October 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-109/05: Commission of the European Communities v Republic of Austria.

---

(1)  OJ C 132 of 28.5.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/10 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/10

---

Removal from the register of Case C-158/05 (1)

(2006/C 22/20)

Language of the case: German

By order of 7 October 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-158/05: Commission of the European Communities v Federal Republic of Germany.

---

(1)  OJ C of 11.6.2005.

---

COURT OF FIRST INSTANCE

| 28.1.2006 | EN | Official Journal of the European Union | C 22/11 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/11

---

Judgment of the Court of First Instance of 24 November 2005 — Marcuccio v Commission

(Case T-236/02) (1)

(Officials - Reassignment in the interests of the service - Action for annulment - Statement of reasons - Duty to have due regard for the welfare of officials Rights of the defence - Misuse of powers - Articles 25 and 26 of the Staff Regulations - Manifest error of assessment - Action for damages)

(2006/C 22/21)

Language of the case: Italian

Parties

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

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

Application for

Annulment of the decision of the Commission of 18 March 2002 which reassigned the applicant from the Directorate-General for Development, Commission's Delegation in Luanda (Angola), to the Directorate General for Development in Brussels, of all preliminary, connected or consecutive measures, in particular those relating to the recruitment of another official to occupy his post, of the Commission's notes of 13 and 14 November 2001 and of the opinion or opinions of the managing Committee of the external services, and a claim indemnities in connection with his duties in Angola and damages for harm suffered

Operative part of the judgment

The Court:

| 1) | Dismisses the application. |
| --- | --- |

1)

Dismisses the application.

| 2) | Orders the parties to bear their own costs, including those relating to the proceedings for interim measures before the Court of First Instance. |
| --- | --- |

2)

Orders the parties to bear their own costs, including those relating to the proceedings for interim measures before the Court of First Instance.

---

(1)  OJ C 233, 28.9.2002.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/11 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/11

---

Judgment of the Court of First Instance of 22 November 2005 — Vanhellemont v Commission

(Case T-396/03) (1)

(Officials - Staff committee - Elections for the Brussels local staff committee - Counting of votes cast - Action for annulment - Action for damages)

(2006/C 22/22)

Language of the case: French

Parties

Applicant(s): Joseph Vanhellemont (Merchtem, Belgium) (represented by: L. Vogel, lawyer)

Defendant(s): Commission of the European Communities (represented by: J. Currall and H. Kraemer, Agents)

Application for

First, annulment of the decision of the Commission of 26 August 2003 rejecting the complaint made by the applicant seeking the organisation of a recount of votes cast in the elections of December 2002 for the Brussels local staff committee of the Commission, and also, as far as necessary, the annulment of the decisions against which that complaint was directed and, second, a request for damages

Operative part of the judgment

The Court:

| 1) | Annuls the decision of the Commission not to intervene following the applicant's challenges of 23 December 2002 seeking the organisation of a further recount of the votes cast in the elections of December 2002 for the Brussels local staff committee; |
| --- | --- |

1)

Annuls the decision of the Commission not to intervene following the applicant's challenges of 23 December 2002 seeking the organisation of a further recount of the votes cast in the elections of December 2002 for the Brussels local staff committee;

| 2) | Rejects the remainder of the application; |
| --- | --- |

2)

Rejects the remainder of the application;

| 3) | Orders the Commission to pay the costs. |
| --- | --- |

3)

Orders the Commission to pay the costs.

---

(1)  OJ C 47, 21.2.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/12 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/12

---

Judgment of the Court of First Instance of 24 November 2005 — Simonds Farsons Cisk v OHIM

(Case T-3/04) (1)

(Community trade mark - Opposition procedure - Application for registration of a Community figurative mark containing the verbal element ‘KINJI by SPA’ - Earlier Community word mark KINNIE - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 73 of Regulation No 40/94)

(2006/C 22/23)

Language of the case: English

Parties

Applicant(s): Simonds Farsons Cisk plc (Mrieħel, Malta) (represented by: M. Bagnall, I. Wood, Solicitor, and R. Hacon, Barrister)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party or parties to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. de Brouwer, E. Cornu, É. De Gryse and D. Moreau, lawyers)

Application for

Action brought against the decision of the First Board of Appeal of OHIM of 4 November 2003 (Case R 996/2002-1) concerning opposition proceedings between Simonds Farsons Cisk plc and Spa Monopole, compagnie fermière de Spa SA/NV

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 59, 6.3.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/12 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/12

---

Judgment of the Court of First Instance of 24 November 2005 — GfK AG v OHIM

(Case T-135/04) (1)

(Community trade mark - Application for the Community word mark Online Bus - Earlier figurative trade mark composed of the word ‘BUS’ and a figure made up of three interlaced triangles - Genuine use of the earlier mark - Article 15(2)(a) and Article 43(2) and (3) of Regulation (EC) No 40/94 - Likelihood of confusion - Article 8(1)(b) of Regulation No 40/94)

(2006/C 22/24)

Language of the case: German

Parties

Applicant(s): GfK AG (Nuremberg, Germany) (represented by: U. Brückmann and R. Lange, lawyers)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: T. Lorenzo Eichenberg, Agent)

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: BUS — Betreuungs- und Unternehmensberatungs GmbH, (Munich, Germany)

Action

brought against the decision of the First Board of Appeal of OHIM of 4 February 2004 (Case R 327/2003-1), relating to opposition proceedings brought by the owner of a German figurative mark, composed of the word 'BUS' and a figure made up of three interlaced triangles, against the registration of the Community word mark Online Bus for services in Class 35

Operative part of the judgment

The Court:

| 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 190, 24.7.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/13 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/13

---

Judgment of the Court of First Instance of 24 November 2005 — Sadas v OHIM

(Case T-346/04) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ARTHUR ET FELICIE - Earlier figurative mark including the word element 'Arthur' - Relative ground of refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 22/25)

Language of the case: French

Parties

Applicant(s): Sadas SA (Tourcoing, France) (represented by: A. Bertrand, lawyer)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral and G. Schneider, Agents)

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: LTJ Diffusion SA (Colombes, France) (represented by: F. Fajgenbaum and S. Lederman, lawyers)

Action

brought against the decision of the First Board of Appeal of OHIM of 7 June 2004 (Case R 393/2003-1), concerning opposition proceedings between Sadas SA and LTJ Diffusion SA

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicant to pay the costs, with the exception of those incurred by the intervener; |
| --- | --- |

2.

Orders the applicant to pay the costs, with the exception of those incurred by the intervener;

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

3.

Orders the intervener to bear its own costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/13 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/13

---

Judgment of the Court of First Instance of 23 November 2005 — Soffass v OHIM

(Case T-396/04) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark containing the verbal element ‘NICKY’ - Earlier national figurative marks containing the verbal element ‘NOKY’ - Rejection of opposition for absence of likelihood of confusion - Annulled by the Board of Appeal - Remittal to the Opposition Division to examine whether the goods are similar and the proof of use - Article 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 22/26)

Language of the case: Italian

Parties

Applicant(s): Soffass (Porcari, Italy) (represented by: V. Bilardo and C. Bacchini, lawyers)

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

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Sodipan SCA (Saint-Étienne-du-Rouvray, France) (represented by: N. Boespflug, lawyer)

Application for

action brought against the decision of the First Board of Appeal of OHIM of 16 July 2004 (Case R 699/2003 1), relating to opposition proceedings between Soffass SpA and Sodipan SCA

Operative part of the judgment

The Court:

| 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 6, 8.1.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/14 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/14

---

Judgment of the Court of First Instance of 23 November 2005 — United Kingdom v Commission

(Case T-178/05) (1)

(Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Proposed amendment to national allocation plan - Refusal by the Commission - Action for annulment)

(2006/C 22/27)

Language of the case: English

Parties

Applicant(s): United Kingdom of Great Britain and Northern Ireland (represented by: initially, C. Jackson, Agent, M. Hoskins, barrister, then R. Caudwell, Agent, and M. Hoskins)

Defendant(s): Commission of the European Communities (represented by: U. Wölker and X. Lewis, Agents)

Application for

annulment of Commission Decision C(2005) 1081 final of 12 April 2005 concerning the proposed amendment to the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and of the Council

Operative part of the judgment

The Court:

| 1) | Annuls Commission Decision C(2005) 1081 final of 12 April 2005 concerning the proposed amendment to the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom of Great Britain and Northern Ireland; |
| --- | --- |

1)

Annuls Commission Decision C(2005) 1081 final of 12 April 2005 concerning the proposed amendment to the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom of Great Britain and Northern Ireland;

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

2)

Orders the Commission to pay the costs.

---

(1)  OJ C 155, 25.6.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/14 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/14

---

Action brought on 27 October 2005 — Mecklenburg-Strelitzer Montage- und Tiefbau v Commission

(Case T-392/05)

(2006/C 22/28)

Language of the case: German

Parties

Applicant: Mecklenburg-Strelitzer Montage- und Tiefbau GmbH (Neustrelitz, Germany) (represented by: M. Grehsin, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the Decision of the Commission of 5 March 2003 (document number C(2003) 519) in so far as the Land guidelines of the Land of Mecklenburg-Western Pomerania have, according to Article 1(3) of the Decision, been qualified as illegal State aid within the meaning of Article 87(1) EC as regards subprogramme C (shared offices abroad) in the territory of ‘official candidates for accession’. |
| --- | --- |

—

annul the Decision of the Commission of 5 March 2003 (document number C(2003) 519) in so far as the Land guidelines of the Land of Mecklenburg-Western Pomerania have, according to Article 1(3) of the Decision, been qualified as illegal State aid within the meaning of Article 87(1) EC as regards subprogramme C (shared offices abroad) in the territory of ‘official candidates for accession’.

Pleas in law and main arguments

In the contested Decision the Commission found that the guidelines of the Land of Mecklenburg-Western Pomerania for the granting of aid to promote the sale and export of products from Mecklenburg-Western Pomerania constitute State aid within the meaning of Article 87(1) EC, in so far as they grant assistance that does not fall within the scope of Regulation (EC) No 69/2001 (1). According to the Commission there is also State aid if provision has been made for the granting of aid in respect of export measures to countries which have the official status of candidates for accession to the European Union.

The applicant maintains that the contested Decision is unlawful as the defendant has equated an official candidate for accession with a Member State of the European Union and consequently applied the rules relating to the common market. Furthermore, in the view of the applicant, the aid scheme does not infringe Regulation (EC) No 69/2001 or Regulation (EC) No 70/2001 (2). Finally, the applicant claims that the contested Decision is unintelligible. In this connection it observes that the notification procedure should not apply to de minimis aid.

---

(1)  Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid.

(2)  Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/15 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/15

---

Action brought on 2 November 2005 — T v Commission

(Case T-400/05)

(2006/C 22/29)

Language of the case: French

Parties

Applicant: T (Brussels, Belgium) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

The applicant claim that the Court should:

| — | annul, as far as necessary, the decision of 20 July 2005 by which the Commission rejected the applicant's complaints lodged on 10 February 2005 and 21 March 2005 against the Commission's decision concerning the loss of her days of leave for 2004 and against the Commission's decision to consider the applicant's absences from 15 November 2004 to be improper; |
| --- | --- |

—

annul, as far as necessary, the decision of 20 July 2005 by which the Commission rejected the applicant's complaints lodged on 10 February 2005 and 21 March 2005 against the Commission's decision concerning the loss of her days of leave for 2004 and against the Commission's decision to consider the applicant's absences from 15 November 2004 to be improper;

| — | establish the liability of the European Community as a result of the contested decision; |
| --- | --- |

—

establish the liability of the European Community as a result of the contested decision;

| — | award the applicant damages for the harm suffered, in an amount of EUR 58 395.39; |
| --- | --- |

—

award the applicant damages for the harm suffered, in an amount of EUR 58 395.39;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant is a former Commission official, in retirement since 1 September 2005. By her action, she contests the defendant's decision to consider some of her absences in 2004 to be improper and to be set against her annual leave entitlement and her remuneration. In support of her action she alleges infringement of the duty to give reasons, infringement of the principles of equal treatment and sound administration and the duty to have regard for the interests of officials.

The applicant also alleges infringement of Article 59 of the Staff Regulations in so far as she has medical certificates for the periods of absence at issue. In addition, she alleges infringement of Article 57 of the Staff Regulations and Annex V thereto concerning annual leave, a manifest error of assessment and misuse of powers.

The applicant also claims that she should be compensated for both the pecuniary and non-pecuniary loss that she allegedly incurred as a result of the defendant's actions.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/15 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/15

---

Action brought on 2 November 2005 — Toth v Commission

(Case T-401/05)

(2006/C 22/30)

Language of the case: French

Parties

Applicant: Gergely Toth (Besozzo, Italy) (represented by: S. Rodrigues and Y. Minatchy, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

The applicant claim that the Court should:

| — | annul the Commission's decision of 20 July 2005 rejecting the applicant's complaint of 15 April 2005, taken together with the contract of employment signed by the applicant on 17 January 2005 in so far as it fixes his grade in accordance with Article 12(3) of Annex XIII to the Staff Regulations and his step pursuant to the current Article 32 of the Staff Regulations; |
| --- | --- |

—

annul the Commission's decision of 20 July 2005 rejecting the applicant's complaint of 15 April 2005, taken together with the contract of employment signed by the applicant on 17 January 2005 in so far as it fixes his grade in accordance with Article 12(3) of Annex XIII to the Staff Regulations and his step pursuant to the current Article 32 of the Staff Regulations;

| — | inform the Commission as to the effects of the annulment of the contested decision and, in particular, the reclassification of the applicant in grade A*9 with retroactive effect; |
| --- | --- |

—

inform the Commission as to the effects of the annulment of the contested decision and, in particular, the reclassification of the applicant in grade A*9 with retroactive effect;

| — | in the alternative, order the Commission to compensate the harm suffered by the applicant as a result of the fact that he was not classified in grade A*9 from 17 January 2005; |
| --- | --- |

—

in the alternative, order the Commission to compensate the harm suffered by the applicant as a result of the fact that he was not classified in grade A*9 from 17 January 2005;

| — | in any event, order the defendant to pay all the costs. |
| --- | --- |

—

in any event, order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant responded to a call for tenders issued by the Commission to recruit an administrator in career bracket A8/A5, published on 25 July 2003. Having been chosen he entered into a contract, dated 17 January 2005, as a member of temporary staff with the Commission in which his grade was fixed at A*6.

By his action, the applicant challenges his grading by submitting, primarily, that, in the present case, Article 12 of Annex XIII to the Staff Regulations is inapplicable on the ground that that disposition is applicable only to officials and not to members of temporary staff. In the alternative, he raises a plea of illegality by submitting that the application of that provision to him is contrary to the principle of equal treatment of the successful candidates in calls for tenders published before 1 May 2004 and constitutes discrimination on the ground of nationality and an infringement of the freedom of movement for workers, since nationals of the new Member States are inevitably appointed under less favourable provisions.

The applicant also alleges discrimination between staff carrying out the same duties and infringement of the principle of equivalence between the nature of duties and remuneration. In addition, he submits that Article 12 of Annex XIII to the Staff Regulations is contrary to Article 31 of the Staff Regulations and adversely affects his legitimate expectations, the principle of sound administration and the duty to have regard for the interests of officials.

The applicant also claims that he should be compensated for both the pecuniary and non-pecuniary damage that he allegedly incurred.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/16 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/16

---

Action brought on 3 November 2005 — Italian Republic v Commission

(Case T-402/05)

(2006/C 22/31)

Language of the case: Italian

Parties

Applicant(s): Italian Republic (represented by: Danilo Del Gaizo, Avvocato dello Stato)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | annul the note of 24 August 2005, No. 08799 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma POR Campania 2000-2006, No. CCI 1999 IT 16 1 PO 007); |
| --- | --- |

—

annul the note of 24 August 2005, No. 08799 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma POR Campania 2000-2006, No. CCI 1999 IT 16 1 PO 007);

| — | annul the note of 30 August 2005, No. 08978 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Lombardia 2000-2006, No. CCI 2000 IT 16 2 DO 014); |
| --- | --- |

—

annul the note of 30 August 2005, No. 08978 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Lombardia 2000-2006, No. CCI 2000 IT 16 2 DO 014);

| — | annul the note of 19 September 2005, No. 09753 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Ob.2 Lazio 2000-2006, No CCI 2000 IT 16 2 DO 009); |
| --- | --- |

—

annul the note of 19 September 2005, No. 09753 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Ob.2 Lazio 2000-2006, No CCI 2000 IT 16 2 DO 009);

| — | annul the note of 23 September 2005, No. 09985 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Toscana Ob.2, No CCI 2000 IT 16 2 PO 001); |
| --- | --- |

—

annul the note of 23 September 2005, No. 09985 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Toscana Ob.2, No CCI 2000 IT 16 2 PO 001);

| — | annul the note of 11 October 2005, No. 10654 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Piemonte, No CCI 2000 IT 16 2 DO 007); |
| --- | --- |

—

annul the note of 11 October 2005, No. 10654 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Piemonte, No CCI 2000 IT 16 2 DO 007);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are those raised in Case T-345/04 Italian Republic v Commission (1).

---

(1)  OJ C 262 of 23. 10. 2004, p. 55.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/17 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/17

---

Action brought on 9 November 2005 — Hellenic Republic v Commission of the European Communities

(Case T-404/05)

(2006/C 22/32)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: Nikolaos Korogiannakis and Nikolaos Keramidas, lawyers, assisted by Maria Tassopoulou)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2005) 3243 of 1 September 2005 on the reduction of assistance granted by the Cohesion Fund for Project No 95/09/65/040 (New Athens International Airport at Spata) on the basis of Commission Decision C(96) 1356 of 24 May 1996; |
| --- | --- |

—

annul Commission Decision C(2005) 3243 of 1 September 2005 on the reduction of assistance granted by the Cohesion Fund for Project No 95/09/65/040 (New Athens International Airport at Spata) on the basis of Commission Decision C(96) 1356 of 24 May 1996;

| — | order the Commission to refund, with interest at the statutory rate, the sum paid by the Hellenic Republic, which corresponds to the reduction in assistance; |
| --- | --- |

—

order the Commission to refund, with interest at the statutory rate, the sum paid by the Hellenic Republic, which corresponds to the reduction in assistance;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission sought the reimbursement, as wrongly paid, of the sum of EUR 12 781 410, invoking irregularities with regard to the financial assistance of the Cohesion Fund for the Project ‘New Athens International Airport at Spata’.

The Hellenic Republic seeks annulment of the decision, submitting that it was not adopted within the time-limit laid down by Article 18(3) of Regulation No 1386/2002 and Article H of Annex II to Regulation No 1164/1994.

In the alternative, the Hellenic Republic disputes the Commission's assessment that account was not taken of a sum amounting to EUR 48 000 000 in respect of air navigation equipment. It further submits that, by imposing a correction of 2 % for an alleged failure to observe adequately the prescribed publicity measures, the Commission impermissibly applied Decision 455/96 retroactively to the project which, since it preceded that decision, was not subject to it. The Hellenic Republic submits, finally, that the correction in question infringes the principle of proportionality and is unlawful and unjustified.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/17 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/17

---

Action brought on 14 November 2005 — Manpower Personalservice v OHIM

(Case T-405/05)

(2006/C 22/33)

Language in which the application was lodged: German

Parties

Applicant: Manpower Personalservice GmbH (Sankt Pölten, Austria) (represented by: B. Kuchar, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Manpower Inc. (Milwaukee, Wisconsin, United States of America)

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision of the Fourth Board of Appeal of OHIM of 22 July 2005 in Case R 499/2004-4 and declare the Community trade mark 000076059 invalid for all goods and services; |
| --- | --- |

—

annul the contested decision of the Fourth Board of Appeal of OHIM of 22 July 2005 in Case R 499/2004-4 and declare the Community trade mark 000076059 invalid for all goods and services;

| — | in the alternative, annul the contested decision of the Fourth Board of Appeal of OHIM of 22 July 2005 in Case R 499/2004-4 inasmuch as it relates to the failure to prove the acquired distinctiveness of the Community trade mark 000076059 and refer the case back to the Fourth Board of Appeal |
| --- | --- |

—

in the alternative, annul the contested decision of the Fourth Board of Appeal of OHIM of 22 July 2005 in Case R 499/2004-4 inasmuch as it relates to the failure to prove the acquired distinctiveness of the Community trade mark 000076059 and refer the case back to the Fourth Board of Appeal

| — | In any case, order OHIM and — in the event of written intervention — the proprietor of the Community trade mark to pay their own costs and the applicant's costs as regards the proceedings before OHIM and these proceedings |
| --- | --- |

—

In any case, order OHIM and — in the event of written intervention — the proprietor of the Community trade mark to pay their own costs and the applicant's costs as regards the proceedings before OHIM and these proceedings

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘MANPOWER’ for goods and services in Classes 9, 16, 35, 41 and 42 — Community trade mark No 76059

Proprietor of the Community trade mark: Manpower Inc.

Applicant for the declaration of invalidity: The applicant

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

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: Infringement of Article 7(1)(b) and Article 7(1)(c) of Council Regulation No 40/94 as the registered mark is descriptive throughout the Community and not distinctive. Moreover, the word 'MANPOWER' needs to be kept free for trade.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/18 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/18

---

Action brought on 16 November 2005 — Evian v OHIM

(Case T-407/05)

(2006/C 22/34)

Language in which the application was lodged: German

Parties

Applicant: Société Anonyme des Eaux Minérales d'Evian (Evian, France) (represented by: C. Herzt-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: A. Racke GmbH & Co. OHG (Bingen, Germany)

Form of order sought

The applicant claims that the Court should:

| — | annul decision no 2754/2001 of the Opposition Division of OHIM of 23 November 2001; |
| --- | --- |

—

annul decision no 2754/2001 of the Opposition Division of OHIM of 23 November 2001;

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 July 2005 (Case R 82/2002-4); |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 July 2005 (Case R 82/2002-4);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: A. Racke GmbH & Co. OHG

Community trade mark concerned: The figurative mark ‘REVIAN's’ in gold, black and white for goods in Class 33 (Wine and sparkling wine) — Application No 945 758

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: The national and international word and figurative marks ‘EVIAN’ for goods in Classes 32 and 33 (beer, alcoholic beverages, water, lemonades...)

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the likelihood of confusion between the marks was rejected without assessment as to the distinctive character of the mark EVIAN and as there was an error in law in appraising the similarity of the goods.

Moreover, the opposition was not unfounded as the translations required under Rule 17(2) of Commission Regulation No 2868/95 were submitted.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/18 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/18

---

Action brought on 16 October 2005 — Luigi Marcuccio v Commission

(Case T-408/05)

(2006/C 22/35)

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: Alessandro Distante, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the implied decision rejecting the request of 11 October 2004; |
| --- | --- |

—

annul the implied decision rejecting the request of 11 October 2004;

| — | annul, so far as necessary, the decision of 4 August 2005; |
| --- | --- |

—

annul, so far as necessary, the decision of 4 August 2005;

| — | order the defendant to pay the applicant the additional sum of EUR 381.04 needed to make up 100 % (one hundred per cent) reimbursement of medical expenses; |
| --- | --- |

—

order the defendant to pay the applicant the additional sum of EUR 381.04 needed to make up 100 % (one hundred per cent) reimbursement of medical expenses;

| — | order the defendant to pay the applicant default interest at the rate of 10 % (ten per cent), with annual capitalisation from 11 October 2004 until actual payment; |
| --- | --- |

—

order the defendant to pay the applicant default interest at the rate of 10 % (ten per cent), with annual capitalisation from 11 October 2004 until actual payment;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to the defendant's refusal to reimburse 100 % of the medical expenses incurred by him.

The pleas and main arguments are those relied on in Case T-18/04 Marcuccio v Commission
   (1).

In particular, the applicant alleges absolute failure to state reasons, manifest error of assessment and infringement of Article 72 of the Staff Regulations and of the duty to have regard to the welfare of officials, the duty of non-discrimination and the principle of sound administration.

---

(1)  OJ C 71 of 20.3.2004, p. 38.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/19 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/19

---

Action brought on 8 November 2005 — A.S.TER v Commission

(Case T-409/05)

(2006/C 22/36)

Language of the case: Italian

Parties

Applicant(s): Società A.S.TER S.p.A. (Genova, Italy) (represented by: Lorenzo Acquarone and Daniela Anselmi)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | annul the contested measures and, as a result, grant rights of access and therefore release a full copy of the complaint and the annexes thereto; |
| --- | --- |

—

annul the contested measures and, as a result, grant rights of access and therefore release a full copy of the complaint and the annexes thereto;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present action, a limited liability company most of whose capital is held by the Municipality of Genoa, seeks annulment of the defendant's decision rejecting access, under Article 7(e) of Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, to the complaint (and annexes thereto) sent to the Commission on 21 February 2005, which gave rise to an investigation which may lead to initiation of formal infringement proceedings against the applicant.

Access was withheld on the basis that disclosure might have had an adverse impact on the conduct of the investigation by the Commission.

In support of its claims, the applicant alleges infringement of Article 4(2) of Regulation No 1049/2001, of the principle audi alteram partem and of the principles of transparency, cooperation and participation in proceedings, and also lack of an adequate statement of reasons.

It submits in that regard that there is, despite the defendant's claim, no need to withhold distribution of documents relating to the infringement proceedings in order to avoid undermining the inquiries, but that, on the contrary, it is necessary for the purpose of such inquiries for the procedure to be conducted with the greatest transparency and cooperation, so that the Municipality of Genoa and the applicant can produce the documentation required for conduct of the investigations.

Furthermore, since the applicant is a party to administrative proceedings before the defendant, the contested decision infringes the principle audi alteram partem.

The applicant adds that objections to rights of access must be interpreted restrictively and in the light of the principle entitlement to information and the principle of proportionality.

---

(1)  OJ L 145 of 31.5.2001, p. 43.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/19 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/19

---

Action brought on 25 November 2005 — Hellenic Republic v Commission of the European Communities

(Case T-415/05)

(2006/C 22/37)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: A. Samoni and P. Milonopoulos)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2005) 2706 final of 14 September 2005 in its entirety or otherwise in part; |
| --- | --- |

—

annul Commission Decision C(2005) 2706 final of 14 September 2005 in its entirety or otherwise in part;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

When the Greek state airline Olympic Airways was privatised, the new company Olympic Airlines (‘NOA’) began operating, taking over the flying operations, while Olympic Airways — Services S.A. (‘OA’), as the old company was renamed, retained all other activities, principally ground services, maintenance and aircraft repairs. In the contested decision, the Commission held the grant to NOA and OA of State aid to be incompatible with the Treaty, by reason of:

| — | payment by NOA, for the subleasing of aircraft, of rental payments lower than those paid for head leases, causing loss to the Greek State and to OA, |
| --- | --- |

—

payment by NOA, for the subleasing of aircraft, of rental payments lower than those paid for head leases, causing loss to the Greek State and to OA,

| — | overvaluation of NOA's assets at the time when it was set up, |
| --- | --- |

—

overvaluation of NOA's assets at the time when it was set up,

| — | payment of money to OA by the Greek State, and payment by the latter, instead of OA, of certain loan instalments and rental payments on leases, |
| --- | --- |

—

payment of money to OA by the Greek State, and payment by the latter, instead of OA, of certain loan instalments and rental payments on leases,

| — | the continuous forbearance displayed by the Greek State towards OA with regard to tax debts and social security contributions. |
| --- | --- |

—

the continuous forbearance displayed by the Greek State towards OA with regard to tax debts and social security contributions.

By its action, Greece contests first of all the part of the decision that relates to the rental payments for aircraft which NOA pays. It maintains that there is no State aid and that therefore the contested decision infringes Article 87(1) EC. According to Greece, both OA and the Greek State acted as any well-advised individual would act while, in addition, the rental payments made by NOA correspond to market prices. In the same context, Greece pleads that the duty to state reasons for the contested decision has been infringed.

So far as concerns the part of the decision relating to the value of NOA's assets, Greece considers that the Commission's assessment was manifestly mistaken as regards quantification of the assets of OA that were transferred to NOA and that the Commission's conclusions in this regard suffer from a lack of reasoning. In any event, Greece considers that the Commission also failed to state reasons with regard to the part of the contested decision that relates to the conditions for rescue aid and for application of Article 87(3) not being met, and also submits that the Commission's legal assessment is mistaken on this point.

Greece observes with regard to payment by the Greek State of certain loan instalments and rental payments on leases that it made those payments because of its liability as guarantor, on the basis of guarantees which had been given before adoption of a previous relevant Commission decision and are covered by that decision. According to Greece, after payment of the sums in question, the procedure provided for by Greek law for their forced recovery from OA was followed. On the basis of those submissions, Greece pleads that the reasons stated in the contested decision are inadequate, leading, in its view, to a manifestly mistaken legal assessment.

So far as concerns the part of the decision that reaches the conclusion that NOA is OA's successor, Greece sets out a series of arguments to rebut the Commission's view and, on this basis, pleads infringement of Articles 87(1) and 88(2) EC and a failure to state reasons.

Greece further pleads infringement of the right to be heard and of the principle of good administration, since it considers that it was not given the opportunity to set out its views on the study by the independent experts whom the Commission had instructed. Finally, it pleads infringement of the principle of proportionality and a failure to state reasons, since the contested decision seeks the recovery of aid in respect of the period from 2002 to 2004 from NOA too, although it began to operate only on 11 December 2003.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/20 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/20

---

Action brought on 29 November 2005 — ENDESA v Commission

(Case T-417/05)

(2006/C 22/38)

Language of the case: Spanish

Parties

Applicant: ENDESA S. A. (represented by: M. Merola, M. Odriozola, S. Baxter and M. Muñoz de Juan, lawyers, J. Flynn, Q. C.)

Defendant: Commission of the European Communities

Applicant's claims

The applicant claims that the Court should annul the Commission Decision of 15 November 2005, Case COMP/M.3986 Gas Natural/Endesa.

Pleas in law and main arguments

The application seeks the annulment of the Commission Decision of 15 November 2005 declaring that the public bid announced on 5 September 2005 by Gas Natural SDG to acquire 100 % of the shares of Endesa S.A. does not result in a concentration with a Community dimension.

The action for annulment against the Commission raises, as a preliminary matter, the existence of several procedural defects. In that regard, the applicant states, first of all, that the contested decision should have been adopted prior to the decision on referral, provided for in Article 22 of the Regulation on concentrations, since it is clear from the wording of that provision itself that decisions relating to requests for a referral must relate to concentrations which comply with the threshold laid down by the laws of one or more countries and which lack a Community dimension.

Second, the applicant criticises the Commission for lack of transparency in the procedure and the resulting infringement of its rights of defence.

Thirdly, the applicant asserts that the Commission should have requested the suspension of the national proceedings that were taking place in parallel before the national authorities. The applicant considers that the fact that such a suspension was not requested in itself presupposes a serious procedural omission in the light of the basic principles of the system of control of concentrations.

As regards the merits, the action raises the infringement of specific articles of Regulation (EC) No 139/2004 (1) and the existence of manifest errors of assessment. Thus, on one hand the Decision infringes, in the applicant's view, the rules of jurisdiction established in the Regulation on concentrations, in trying to shift the burden of proof concerning the definition of the Community dimension onto Endesa, which is manifestly incompatible with the public policy nature of the rules which establish the exclusive competence of the Commission.

Likewise, the applicant maintains that by failing to take into consideration Endesa's consolidated accounts for the last accounting year, which were properly drawn up in accordance with Community accounting criteria (NIC/NIIF) in force at the time when the concentration took place, the Decision infringes Article 5 of the Regulation on concentrations by departing from the Commission's practice and conflicting with the principles set out in the Notice on calculation of turnover.

The applicant adds that in relation to the adjustments, which the Decision examines in the light of the Notice on calculation of turnover, a number of those adjustments comply with the strict application of the Community accounting criteria in force and they should not be confused with adjustments in accordance with Article 5 of the Regulation on concentrations. In any event, all the adjustments which are examined in the Decision should be recognised as fulfilling the objective of determining the real economic value of the undertakings which are the subject of the concentration.

Lastly, the applicant submits that the Decision, by incorrectly defining the exclusive competence of the Commission, infringes the principle of legal certainty and is contrary to the uniform application of the Regulation on concentrations.

---

(1)  OJ L 24, of 29.1.2004, p. 1.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/21 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/21

---

Action brought on 9 November 2005 — Investire Partecipazioni v Commission

(Case T-418/05)

(2006/C 22/39)

Language of the case: Italian

Parties

Applicant(s): Investire Partecipazioni S.p.A. (Italy) (represented by: Gian Michele Roberti and Alessandra Franchi)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | annul the Commission decision of 11 August 2005, file No 08405, and the supplementary decision of 23 August 2005, file No 08720; |
| --- | --- |

—

annul the Commission decision of 11 August 2005, file No 08405, and the supplementary decision of 23 August 2005, file No 08720;

| — | in the alternative, declare unlawful under Article 241 EC and inapplicable paragraph B(12) and paragraph C(2) of datasheet No 19 annexed to the Commission decision of 23 April 1997 (97/322/EC); |
| --- | --- |

—

in the alternative, declare unlawful under Article 241 EC and inapplicable paragraph B(12) and paragraph C(2) of datasheet No 19 annexed to the Commission decision of 23 April 1997 (97/322/EC);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The present application concerns assistance from a venture-capital fund for an undertaking (Sys S.p.A.) to enable the latter to make an investment in an area which is eligible under objective 2. By its application, the applicant Investire Partecipazioni S.p.A. asks the Court of First Instance to annul the Commission decision of 11 August 2005, file No 08405, concerning the Commission's final position on financial corrections for the purposes of Article 24 of Regulation (EEC) No 4253/88 (1) in relation to Measure 1.5 of the Piedmont SPD, objective 2 (1997 — 1999) — venture-capital fund for an investment in the company Sys S.p.A. — and of the supplementary decision of 23 August 2005, file No 08720. It follows from those two decisions that the ineligible Community contribution was EUR 542 277.6, corresponding to the Community participation in the venture-capital fund contribution to the undertaking Sys S.p.A.

In support of its claims, the applicant puts forward the following pleas in law:

| — | In the first place, Investire Partecipazioni S.p.A. considers that, by adopting the contested decisions, the Commission committed a manifest error of assessment in fact and in law. The Commission erroneously assessed the facts concerning the investment in the company Sys S.p.A. and proceeded to misapply the relevant legislation, in particular the provisions of datasheet number 19 concerning eligible expenditure under the Structural Funds, ‘Financial engineering: venture-capital funds’, annexed to the Commission decision of 23 April 1997, and Article 24 of Regulation No 4253/88. The applicant emphasises in that connection that the company Sys S.p.A. had in fact taken appropriate action unequivocally directed towards setting up an operational network in the objective 2 zone (2). |
| --- | --- |

—

In the first place, Investire Partecipazioni S.p.A. considers that, by adopting the contested decisions, the Commission committed a manifest error of assessment in fact and in law. The Commission erroneously assessed the facts concerning the investment in the company Sys S.p.A. and proceeded to misapply the relevant legislation, in particular the provisions of datasheet number 19 concerning eligible expenditure under the Structural Funds, ‘Financial engineering: venture-capital funds’, annexed to the Commission decision of 23 April 1997, and Article 24 of Regulation No 4253/88. The applicant emphasises in that connection that the company Sys S.p.A. had in fact taken appropriate action unequivocally directed towards setting up an operational network in the objective 2 zone (2).

| — | Second, the applicant considers that, in adopting the contested decision, the Commission infringed the principle of sound financial management laid down in Article 274 EC and in Article 24 of Regulation No 4253/88. |
| --- | --- |

—

Second, the applicant considers that, in adopting the contested decision, the Commission infringed the principle of sound financial management laid down in Article 274 EC and in Article 24 of Regulation No 4253/88.

| — | In the alternative, that is to say in the event of the interpretation of the relevant legislation made by the Commission being held to be correct, Investire Partecipazioni S.p.A. considers that the decisions with which the present proceedings are concerned in any event constitute an infringement of the general principles of legal certainty, protection of legitimate expectations and proportionality, in relation to the conduct of, and the positions taken during the management failures of the Piedmont Fund, by both the Piedmont Region and the Commission, regarding interpretation of the legislation at issue. |
| --- | --- |

—

In the alternative, that is to say in the event of the interpretation of the relevant legislation made by the Commission being held to be correct, Investire Partecipazioni S.p.A. considers that the decisions with which the present proceedings are concerned in any event constitute an infringement of the general principles of legal certainty, protection of legitimate expectations and proportionality, in relation to the conduct of, and the positions taken during the management failures of the Piedmont Fund, by both the Piedmont Region and the Commission, regarding interpretation of the legislation at issue.

---

(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 L 374 of 31.12.1988, p. 1).

(2)  Commission Decision (97/322/EC) of 23 April 1997 modifying the decisions approving the Community support frameworks, the single programming documents and the Community initiative programmes in respect of Italy (OJ L 146 of 5.6.1997, p. 11).

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/22 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/22

---

Action brought on 21 November 2005 — Combescot v Commission

(Case T-422/05)

(2006/C 22/40)

Language of the case: Italian

Parties

Applicant(s): Philippe Combescot (Lecce, Italy) (represented by: A. Maritati and V. Messa, lawyers)

Defendant(s): European Commission

Form of order sought

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

| — | annul the Commission's decision of 29 July 2004 to reassign him to Brussels headquarters, such decision being in substitution for a previous, similar decision of 13 June 2003; |
| --- | --- |

—

annul the Commission's decision of 29 July 2004 to reassign him to Brussels headquarters, such decision being in substitution for a previous, similar decision of 13 June 2003;

| — | acknowledge that the applicant has suffered non-material damage, to his health and to his image as a result of the decision, with serious repercussions on his psychological balance; |
| --- | --- |

—

acknowledge that the applicant has suffered non-material damage, to his health and to his image as a result of the decision, with serious repercussions on his psychological balance;

| — | award the applicant damages of EUR 150 000. |
| --- | --- |

—

award the applicant damages of EUR 150 000.

Pleas in law and main arguments

The action is brought against the Commission's decision of 29 July 2004 to reassign the applicant to headquarters.

In support of his claims, the applicant argues that the decision:

| — | is unlawful, unjustified and arbitrary for failing to take account of the fact that, at the time of the assignment, the medical committee had recognised that the applicant was unfit for service until 31 December 2004; |
| --- | --- |

—

is unlawful, unjustified and arbitrary for failing to take account of the fact that, at the time of the assignment, the medical committee had recognised that the applicant was unfit for service until 31 December 2004;

| — | does not allow the official to continue the therapy prescribed by his doctor; |
| --- | --- |

—

does not allow the official to continue the therapy prescribed by his doctor;

| — | cannot be justified by the interests of the service, since an official on sick leave cannot fulfill the work requirements of the service. |
| --- | --- |

—

cannot be justified by the interests of the service, since an official on sick leave cannot fulfill the work requirements of the service.

The applicant adds that the contested decision has caused him to lose the rights of an official in a non-member country, since his illness arose at a time when he was performing the functions of resident adviser in Guatemala.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/23 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/23

---

Action brought on 16 November 2005 — Italian Republic v Commission

(Case T-424/05)

(2006/C 22/41)

Language of the case: Italian

Parties

Applicant(s): Italian Republic (represented by: Paolo Gentili, Avv. dello Stato)

Defendant(s): Commission of the European Communities

Form of order sought

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

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

—

annul the contested decision;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The present action, brought by the Italian Republic, is concerned with Commission decision No C(2005) 3302 of 6 September 2005.

By that decision, the Commission declared to be incompatible with the common market the provisions of Article 12 of Decree Law No 269/2003, converted into Law No 326/2003.

It provides, essentially, that the rate of tax replacing income tax levied on the net profits of the various types of investment funds and open-ended investment companies is to be reduced from 12.5 % to 5 % where the funds or companies invest during the calendar year at least two-thirds of the value of their assets, for more than one-sixth of the fund's business days, in small or medium-sized quoted capitalisation funds. Such funds or companies are referred to as being 'specialised'.

According to the Commission, the measure is selective, favouring, first, small or medium-sized capitalisation undertakings as compared with others, channelling certain funds towards them; second, they favour the specialised funds or companies, as compared with general funds or companies, by allowing them to assign greater income to individual units, since the income is subject to a lower replacement tax. Moreover, it is a measure which has no connection with the general tax system and in fact constitutes nothing more than operational aid. Finally, there is no reason for any derogation in favour of the measure under Article 87(3)(c) EC.

According to the Italian Government, the decision is vitiated, first, from the procedural point of view, because the decision to initiate the procedure under Article 88(2) EC was adopted without a prior exchange of views between the Commission and the Italian administration, as provided for in Regulation No 659/99 concerning procedures for State aid (first plea).

Next, no adequate reasons are given concerning the basic profile put forward by the Italian Government in the course of the procedure: in the Italian legislation (which transposes the directives on regulation of financial markets), unit trusts and open-ended investment companies are classified merely as independent funds divided into units. They do not therefore constitute undertakings within the meaning of Community law. The Commission took note of that situation, but observed that 'in certain cases' such investment instruments constitute undertakings; however, the Commission did not specify in what cases and under what conditions open-ended investment companies and funds acquire that status (second plea).

The third plea alleges infringement of Article 87 EC, on the basis that open-ended investment funds and companies cannot, by virtue of their nature, ever be regarded as undertakings within the meaning of Community law, in so far as they are merely forms of collective ownership of transferable securities. However, even if they are regarded as such, the alleged aid is not selective, because any interested party (companies managing 'contractual' unit trusts or promoting open-ended investment companies) could establish specialised instruments alongside general instruments, and thus take advantage of the relief available.

The fourth plea criticises the decision for taking the view that the beneficiaries of the alleged aid are quoted small or medium-sized capitalisation companies when in fact the real beneficiaries of the relief are merely the subscribers to the funds or open-ended investment companies, which means, potentially, anybody: accordingly, the relief does not target undertakings and is not selective. The Commission has not demonstrated that direct relief for subscribers gave rise to indirect relief for the said companies.

The fifth plea again alleges infringement of Article 87 EC and an inadequate statement of reasons for the Commission's decision that the measure has an impact on intra-Community competition, despite the fact that its economic impact is minimal (according to the Commission itself, amounting in 2004 to Euro 1 100 000.00). Nor has the Commission clarified the classification as operational aid, since the replacement tax is not a management cost for intermediaries who manage collective investment instruments. It is clear from the purpose of strengthening small and medium-sized capitalisation companies that, as far as the latter are concerned, the measure is of a structural nature.

The sixth plea criticises the part of the decision that rejects recourse to a derogation under Article 87(3)(c) EC. The aim of widening the asset base of companies with limited capitalisation, which find it more difficult than widely quoted companies to gain access to the venture-capital market, is in fact an economic policy objective which displays links with the abovementioned provision allowing derogations.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/24 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/24

---

Action brought on 29 November 2005 — Vienne and Others v Parliament

(Case T-427/05)

(2006/C 22/42)

Language of the case: French

Parties

Applicants: Philippe Vienne (Bascharage, Luxembourg) and Others (represented by: G. Bounéou, F. Frabetti, lawyers)

Defendant: European Parliament

Form of order sought

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

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

—

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

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

—

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

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

—

order the defendant to pay the costs

Pleas in law and main arguments

The applicants are in a situation analogous to that of the applicants in Case T-359/05 and invoke, in support of their application, the same pleas and arguments invoked by the applicants in that case.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/24 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/24

---

Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission

(Case T-87/01) (1)

(2006/C 22/43)

Language of the case: Dutch

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

---

(1)  OJ C 186, 30.6.2001.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/24 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/24

---

Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission

(Case T -211/01) (1)

(2006/C 22/44)

Language of the case: Dutch

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

---

(1)  OJ C 317, 10.11.2001.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/25

---

Order of the Court of First Instance of 24 November 2005 — Rica Foods v Commission

(Case T -242/01) (1)

(2006/C 22/45)

Language of the case: Dutch

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

---

(1)  OJ C 3, 5.1.2002.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/25

---

Order of the Court of First Instance of 18 November 2005 — Fédération de l'hospitalisation privée v Commission

(Case T -397/03) (1)

(2006/C 22/46)

Language of the case: French

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

---

(1)  OJ C 47, 21.2.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/25

---

Order of the Court of First Instance of 22 November 2005 — Degussa Initiators v Commission

(Case T-104/04) (1)

(2006/C 22/47)

Language of the case: German

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

---

(1)  OJ C 118, 30.4.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/25

---

Order of the Court of First Instance of 22 November 2005 — Siegfried Krahl v Commission

(Case T -179/04) (1)

(2006/C 22/48)

Language of the case: French

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

---

(1)  OJ C 201, 7.8.2004.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/25 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/25

---

Order of the Court of First Instance of 10 November 2005 — Carreira v European Agency for Safety and Health at Work

(Case T -421/04) (1)

(2006/C 22/49)

Language of the case: French

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

---

(1)  OJ C 6, 8.1.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/26 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/26

---

Order of the Court of First Instance of 10 November 2005 — Muller Touw and A&C Braid and Rope v Council

(Case T-480/04) (1)

(2006/C 22/50)

Language of the case: Dutch

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

---

(1)  OJ C 57, 5.3.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/26 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/26

---

Order of the Court of First Instance of 25 November 2005 — Balduini v Commission

(Case T-77/05) (1)

(2006/C 22/51)

Language of the case: Italian

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

---

(1)  OJ C 93, 16.4.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/26 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/26

---

Order of the Court of First Instance of 16 November 2005 — Albert-Bousquet and Others v Commission

(Joined Cases T-130/05, T-160/05 and T-183/05) (1)

(2006/C 22/52)

Language of the case: French

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

---

(1)  OJ C 132, 28.5.2005.

---

| 28.1.2006 | EN | Official Journal of the European Union | C 22/26 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/26

---

Order of the Court of First Instance of 7 October 2005 — Deutsche Telekom v OHIM

(Case T-257/05) (1)

(2006/C 22/53)

Language of the case: German

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

---

(1)  OJ C 296, 26.11.2005.

---

III Notices

| 28.1.2006 | EN | Official Journal of the European Union | C 22/27 |
| --- | --- | --- | --- |

28.1.2006

EN

Official Journal of the European Union

C 22/27

---

(2006/C 22/54)

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

OJ C 10, 14.1.2006

Past publications

OJ C 330, 24.12.2005

OJ C 315, 10.12.2005

OJ C 296, 26.11.2005

OJ C 281, 12.11.2005

OJ C 271, 29.10.2005

OJ C 257, 15.10.2005

These texts are available on:

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

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

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

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

---