# Official Journal C 190/24 J

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 190 |
| | |
| English edition | Information and Notices | Volume 4724 July 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 190

English edition

Information and Notices

Volume 4724 July 2004

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 190/1 | Judgment of the Court (Second Chamber) of 10 June 2004 in Case C-454/01: Commission of the European Communities v Federal Republic of Germany (Directive 96/59/EC — Waste management — Disposal of polychlorinated biphenyls and polychlorinated terphenyls) | 1 |
| 2004/C 190/2 | Judgment of the Court (First Chamber) of 10 June 2004 in Case C-87/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil obligations — Environment — Directive 85/337/EEC — Assessment of the effects of certain public and private projects — Project Lotto zero) | 1 |
| 2004/C 190/3 | Judgment of the Court (Second Chamber) of 10 June 2004 in Case C-168/02 (reference for a preliminary ruling from the Oberster Gerichtshof, (Austria)): Rudolf Kronhofer v Marianne Maier, Christian Möller, Wirich Hofius, Zeki Karan (Brussels Convention — Article 5(3) — Jurisdiction in matters relating to tort, delict or quasi-delict — Place where the harmful event occurred — Financial loss arising from capital investments in another Contracting State) | 2 |
| 2004/C 190/4 | Judgment of the Court (Grand Chamber) of 8 June 2004 in Case C-220/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich (Principle of equal pay for men and women — Concept of pay — Taking into account, for calculation of termination payments, of periods of military service — Possibility of comparing workers performing military service with women workers who, after their maternity leave, take parental leave the duration of which is not taken into account for calculating a termination payment) | 2 |
| 2004/C 190/5 | Judgment of the Court (Third Chamber) of 10 June 2004 in Case C-333/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Failure to transpose Directive 98/50/EC — Transfer of undertakings — Safeguarding of employees' rights) | 3 |
| 2004/C 190/6 | Case C-150/04: Action brought on 23 March 2004 by the Commission of the European Communities against the Kingdom of Denmark | 3 |
| 2004/C 190/7 | Case C-200/04: Reference for a preliminary ruling by the Bundesfinanzhof (Germany) by order of that court of 18 March 2004 in the case of Finanzamt Heidelberg (Heidelberg Tax Office) against iSt Internationale Sprach- und Studententreisen GmbH. | 5 |
| 2004/C 190/8 | Case C-203/04: Reference for a preliminary ruling by the Landgericht Frankfurt am Main by order of that court of 28 April 2004 in the case Gebrüder Stolle GmbH & Co. KG against Heidegold Geflügelspezialitäten GmbH | 5 |
| 2004/C 190/9 | Case C-210/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Quinta Civile (Supreme Court of Cassation, Fifth Civil Chamber) by order of that court of 18 February 2004 in the case of Ministero dell'Economia e delle Finanze (Ministry of Economic Affairs and Finance) and Agenzia delle Entrate (Revenue Agency) against FCE Bank plc | 6 |
| 2004/C 190/0 | Case C-213/04: Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that court of 29 April 2004 in the case of Ewald Burtscher against Josef Stauderer | 6 |
| 2004/C 190/1 | Case C-214/04: Action brought on 19 May 2004 by the Commission of the European Communities against the Italian Republic | 6 |
| 2004/C 190/2 | Case C– 215/04: Reference for a preliminary ruling by the Østre Landsret by order of 14 May 2004 in the case of Marius Pedersen A/S v Miljøstyrelsen | 7 |
| 2004/C 190/3 | Case C-216/04: Reference for a preliminary ruling by the Consiglio di Stato in sede guirisdizionale, Sezione Quinta, by order of that court of 27 January 2004 in the case of SABA Italia SpA against the Comune di Bolzano and SEAB SpA | 8 |
| 2004/C 190/4 | Case C-222/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione – Sezione Quinta Civile – by order of that court of 23 March 2004 in the case of Ministero dell'Economia e delle Finanze against Cassa di Risparmio di Firenze S.p.A., Fondazione Cassa di Risparmio di San Miniato e Cassa di Risparmio di San Miniato S.p.A. | 8 |
| 2004/C 190/5 | Case C-225/04: Action brought on 1 June 2004 by the Commission of the European Communities against the Republic of Finland | 9 |
| 2004/C 190/6 | Case C-226/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of La Cascina s.c.r.l. and Zilch s.r.l. v Ministry of Defence, Ministry of Economy and Finance, and Pedus Service P. Dussmann s.r.l. and Others | 9 |
| 2004/C 190/7 | Case C-227/04 P: Appeal brought on 2 June 2004 by Marie-Luise Lindorfer against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union | 10 |
| 2004/C 190/8 | Case C-228/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of Consorzio G.f.M. v Ministry of Defence and La Cascina s.c.r.l. and Zilch s.r.l | 11 |
| 2004/C 190/9 | Case C-236/04: Action brought on 7 June 2004 against the Grand Duchy of Luxembourg by the Commission of the European Communities | 11 |
| 2004/C 190/0 | Case C-238/04: Action brought on 7 June 2004 by the Commission of the European Communities against the French Republic | 12 |
| 2004/C 190/1 | Case C-240/04: Action brought on 8 June 2004 against the Kingdom of Belgium by the Commission of the European Communities | 13 |
| 2004/C 190/2 | Case C-243/04 P: Appeal brought on 9 June 2004 by M against the judgment given on 21 April 2004 by the Court of First Instance of the European Communities (First Chamber) in Case T-172/01 between M and Court of Justice of the European Communities | 13 |
| 2004/C 190/3 | Case C-249/04: Reference for a preliminary ruling by a judgment of the Cour du travail de Liège, section de Neufchâteau, of 9 June 2004 in the case of José Allard against the Institut national d'assurances sociales pour travailleurs indépendants (INASTI) | 14 |
| | COURT OF FIRST INSTANCE |
| 2004/C 190/4 | Judgment of the Court of First Instance of 25 May 2004 in Case T-154/01: Distilleria F. Palma SpA v Commission of the European Communities (Regulation (EEC) No 822/87 — Common organisation of the market in wine — Regulation (EEC) No 1780/89 — Regulation (EEC) No 2710/93 — Regulation (EC) No 416/96 — Disposal of alcohol obtained by distillation — Regulation (EEC) No 3390/90 — Sale by tender for use as motor fuel — Refusal by the Commission to amend a number of conditions for the tender — Force majeure — Non-contractual liability of the Community — Admissibility) | 15 |
| 2004/C 190/5 | Judgment of the Court of First Instance of 12 May 2004 in Case T-191/01 André Hecq v Commission of the European Communities (Officials — Social security — Article 72(1) of the Staff Regulations — Reimbursement of medical expenses — Serious illness — Refusal to reimburse certain medical services at 100 %) | 15 |
| 2004/C 190/6 | Case T-31/04: Action brought on 28 January 2004 by Eurodrive Services and Distribution N.V. against the Office for Harmonisation in the Internal Market (OHIM) | 16 |
| 2004/C 190/7 | Case T-135/04: Action brought on 8 April 2004 by GfK Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 16 |
| 2004/C 190/8 | Case T-136/04: Action brought on 8 April 2004 by Domäne Vorderriss, Rasso Freiherr von Cramer-Klett and Rechtlerverband Pfronten against the Commission of the European Communities | 17 |
| 2004/C 190/9 | Case T-143/04: Action brought on 13 April 2004 by Antonietta Camurato Carfagno against the Commission of the European Communities | 18 |
| 2004/C 190/0 | Case T-164/04: Action brought on 10 May 2004 by Patricia Wauthier and Viviane Deveen against Commission of the European Communities | 18 |
| 2004/C 190/1 | Case T-171/04: Action brought on 17 May 2004 by Daniel Surget against the Council of the European Union and the Commission of the European Communities | 19 |
| 2004/C 190/2 | Case T-181/04: Action brought on 17 May 2004 by Nathalie Heinen against Commission of the European Communities | 19 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 190/1

Judgment of the Court (Second Chamber) of 10 June 2004 in Case C-454/01: Commission of the European Communities v Federal Republic of Germany (Directive 96/59/EC — Waste management — Disposal of polychlorinated biphenyls and polychlorinated terphenyls)

1

2004/C 190/2

Judgment of the Court (First Chamber) of 10 June 2004 in Case C-87/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil obligations — Environment — Directive 85/337/EEC — Assessment of the effects of certain public and private projects — Project Lotto zero)

1

2004/C 190/3

Judgment of the Court (Second Chamber) of 10 June 2004 in Case C-168/02 (reference for a preliminary ruling from the Oberster Gerichtshof, (Austria)): Rudolf Kronhofer v Marianne Maier, Christian Möller, Wirich Hofius, Zeki Karan (Brussels Convention — Article 5(3) — Jurisdiction in matters relating to tort, delict or quasi-delict — Place where the harmful event occurred — Financial loss arising from capital investments in another Contracting State)

2

2004/C 190/4

Judgment of the Court (Grand Chamber) of 8 June 2004 in Case C-220/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich (Principle of equal pay for men and women — Concept of pay — Taking into account, for calculation of termination payments, of periods of military service — Possibility of comparing workers performing military service with women workers who, after their maternity leave, take parental leave the duration of which is not taken into account for calculating a termination payment)

2

2004/C 190/5

Judgment of the Court (Third Chamber) of 10 June 2004 in Case C-333/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Failure to transpose Directive 98/50/EC — Transfer of undertakings — Safeguarding of employees' rights)

3

2004/C 190/6

Case C-150/04: Action brought on 23 March 2004 by the Commission of the European Communities against the Kingdom of Denmark

3

2004/C 190/7

Case C-200/04: Reference for a preliminary ruling by the Bundesfinanzhof (Germany) by order of that court of 18 March 2004 in the case of Finanzamt Heidelberg (Heidelberg Tax Office) against iSt Internationale Sprach- und Studententreisen GmbH.

5

2004/C 190/8

Case C-203/04: Reference for a preliminary ruling by the Landgericht Frankfurt am Main by order of that court of 28 April 2004 in the case Gebrüder Stolle GmbH & Co. KG against Heidegold Geflügelspezialitäten GmbH

5

2004/C 190/9

Case C-210/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Quinta Civile (Supreme Court of Cassation, Fifth Civil Chamber) by order of that court of 18 February 2004 in the case of Ministero dell'Economia e delle Finanze (Ministry of Economic Affairs and Finance) and Agenzia delle Entrate (Revenue Agency) against FCE Bank plc

6

2004/C 190/0

Case C-213/04: Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that court of 29 April 2004 in the case of Ewald Burtscher against Josef Stauderer

6

2004/C 190/1

Case C-214/04: Action brought on 19 May 2004 by the Commission of the European Communities against the Italian Republic

6

2004/C 190/2

Case C– 215/04: Reference for a preliminary ruling by the Østre Landsret by order of 14 May 2004 in the case of Marius Pedersen A/S v Miljøstyrelsen

7

2004/C 190/3

Case C-216/04: Reference for a preliminary ruling by the Consiglio di Stato in sede guirisdizionale, Sezione Quinta, by order of that court of 27 January 2004 in the case of SABA Italia SpA against the Comune di Bolzano and SEAB SpA

8

2004/C 190/4

Case C-222/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione – Sezione Quinta Civile – by order of that court of 23 March 2004 in the case of Ministero dell'Economia e delle Finanze against Cassa di Risparmio di Firenze S.p.A., Fondazione Cassa di Risparmio di San Miniato e Cassa di Risparmio di San Miniato S.p.A.

8

2004/C 190/5

Case C-225/04: Action brought on 1 June 2004 by the Commission of the European Communities against the Republic of Finland

9

2004/C 190/6

Case C-226/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of La Cascina s.c.r.l. and Zilch s.r.l. v Ministry of Defence, Ministry of Economy and Finance, and Pedus Service P. Dussmann s.r.l. and Others

9

2004/C 190/7

Case C-227/04 P: Appeal brought on 2 June 2004 by Marie-Luise Lindorfer against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union

10

2004/C 190/8

Case C-228/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of Consorzio G.f.M. v Ministry of Defence and La Cascina s.c.r.l. and Zilch s.r.l

11

2004/C 190/9

Case C-236/04: Action brought on 7 June 2004 against the Grand Duchy of Luxembourg by the Commission of the European Communities

11

2004/C 190/0

Case C-238/04: Action brought on 7 June 2004 by the Commission of the European Communities against the French Republic

12

2004/C 190/1

Case C-240/04: Action brought on 8 June 2004 against the Kingdom of Belgium by the Commission of the European Communities

13

2004/C 190/2

Case C-243/04 P: Appeal brought on 9 June 2004 by M against the judgment given on 21 April 2004 by the Court of First Instance of the European Communities (First Chamber) in Case T-172/01 between M and Court of Justice of the European Communities

13

2004/C 190/3

Case C-249/04: Reference for a preliminary ruling by a judgment of the Cour du travail de Liège, section de Neufchâteau, of 9 June 2004 in the case of José Allard against the Institut national d'assurances sociales pour travailleurs indépendants (INASTI)

14

COURT OF FIRST INSTANCE

2004/C 190/4

Judgment of the Court of First Instance of 25 May 2004 in Case T-154/01: Distilleria F. Palma SpA v Commission of the European Communities (Regulation (EEC) No 822/87 — Common organisation of the market in wine — Regulation (EEC) No 1780/89 — Regulation (EEC) No 2710/93 — Regulation (EC) No 416/96 — Disposal of alcohol obtained by distillation — Regulation (EEC) No 3390/90 — Sale by tender for use as motor fuel — Refusal by the Commission to amend a number of conditions for the tender — Force majeure — Non-contractual liability of the Community — Admissibility)

15

2004/C 190/5

Judgment of the Court of First Instance of 12 May 2004 in Case T-191/01 André Hecq v Commission of the European Communities (Officials — Social security — Article 72(1) of the Staff Regulations — Reimbursement of medical expenses — Serious illness — Refusal to reimburse certain medical services at 100 %)

15

2004/C 190/6

Case T-31/04: Action brought on 28 January 2004 by Eurodrive Services and Distribution N.V. against the Office for Harmonisation in the Internal Market (OHIM)

16

2004/C 190/7

Case T-135/04: Action brought on 8 April 2004 by GfK Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

16

2004/C 190/8

Case T-136/04: Action brought on 8 April 2004 by Domäne Vorderriss, Rasso Freiherr von Cramer-Klett and Rechtlerverband Pfronten against the Commission of the European Communities

17

2004/C 190/9

Case T-143/04: Action brought on 13 April 2004 by Antonietta Camurato Carfagno against the Commission of the European Communities

18

2004/C 190/0

Case T-164/04: Action brought on 10 May 2004 by Patricia Wauthier and Viviane Deveen against Commission of the European Communities

18

2004/C 190/1

Case T-171/04: Action brought on 17 May 2004 by Daniel Surget against the Council of the European Union and the Commission of the European Communities

19

2004/C 190/2

Case T-181/04: Action brought on 17 May 2004 by Nathalie Heinen against Commission of the European Communities

19

| | III   Notices |
| --- | --- |
| 2004/C 190/3 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 179, 10.7.2004 | 20 |

III   Notices

2004/C 190/3

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 179, 10.7.2004

Official Journal of the European Union

20

| EN | |
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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 24.7.2004 | EN | Official Journal of the European Union | C 190/1 |
| --- | --- | --- | --- |

24.7.2004

EN

Official Journal of the European Union

C 190/1

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COURT OF JUSTICE

JUDGMENT OF THE COURT

(Second Chamber)

of 10 June 2004

in Case C-454/01: Commission of the European Communities v Federal Republic of Germany (1)

(Directive 96/59/EC - Waste management - Disposal of polychlorinated biphenyls and polychlorinated terphenyls)

(2004/C 190/01)

Language of the case: German

In Case C-454/01: Commission of the European Communities (Agents: G. zur Hausen ) v Federal Republic of Germany (Agents: W.-D. Plessing and R. Stüwe ) - application for a declaration that, by failing to draw up or to communicate to the Commission, within the prescribed period, the plan provided for in the first indent of Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (OJ 1996 L 243, p. 31), the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty - the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, F. Macken and N. Colneric, Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 10 June 2004, in which it:

| 1. | Declares that, by failing to draw up, within the prescribed period, the plan provided for in the first indent of Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to draw up, within the prescribed period, the plan provided for in the first indent of Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Federal Republic of Germany has failed to fulfil its obligations under that directive;

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

2.

Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 17 of 19.1.2002.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/1 |
| --- | --- | --- | --- |

24.7.2004

EN

Official Journal of the European Union

C 190/1

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JUDGMENT OF THE COURT

(First Chamber)

of 10 June 2004

in Case C-87/02: Commission of the European Communities v Italian Republic (1)

(Failure by a Member State to fulfil obligations - Environment - Directive 85/337/EEC - Assessment of the effects of certain public and private projects - Project ‘Lotto zero’)

(2004/C 190/02)

Language of the case: Italian

In Case C-87/02: Commission of the European Communities (Agents: M. van Beek and R. Amorosi) v Italian Republic (Agents: M. Massella Ducci Teri ) - application for a declaration that, since the Abruzzo Region failed to ascertain whether the project to construct an outer ring road at Teramo (a project known as ‘Lotto zero-Variante, tra Teramo (Italy) e Giulianova, alla strada statale SS 80’), of a type listed in Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), required an environmental impact assessment in accordance with Articles 5 to 10 of the Directive, the Italian Republic has failed to fulfil its obligations under Article 4(2) of that directive - the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas (Rapporteur), A. La Pergola, R. Silva de Lapuerta and K. Lenaerts, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has given a judgment on 10 June 2004, in which it:

| 1. | Declares that, since the Abruzzo Region failed to ascertain whether the project to construct an outer ring road at Teramo (a project known as ‘Lotto zero-Variante, tra Teramo e Giulianova, alla strada statale SS 80’), of a type listed in Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, required an environmental impact assessment in accordance with Articles 5 to 10 of that directive, the Italian Republic has failed to fulfil its obligations under Article 4(2) of that directive. |
| --- | --- |

1.

Declares that, since the Abruzzo Region failed to ascertain whether the project to construct an outer ring road at Teramo (a project known as ‘Lotto zero-Variante, tra Teramo e Giulianova, alla strada statale SS 80’), of a type listed in Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, required an environmental impact assessment in accordance with Articles 5 to 10 of that directive, the Italian Republic has failed to fulfil its obligations under Article 4(2) of that directive.

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

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 109 of 4.5.2002.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/2 |
| --- | --- | --- | --- |

24.7.2004

EN

Official Journal of the European Union

C 190/2

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JUDGMENT OF THE COURT

(Second Chamber)

of 10 June 2004

in Case C-168/02 (reference for a preliminary ruling from the Oberster Gerichtshof, (Austria)): Rudolf Kronhofer v Marianne Maier, Christian Möller, Wirich Hofius, Zeki Karan (1)

(Brussels Convention - Article 5(3) - Jurisdiction in matters relating to tort, delict or quasi-delict - Place where the harmful event occurred - Financial loss arising from capital investments in another Contracting State)

(2004/C 190/03)

Language of the case: German

In Case C-168/02: REFERENCE to the Court under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters from the Oberster Gerichtshof (Austrian Supreme Court) for a preliminary ruling in the proceedings pending before that court between Rudolf Kronhofer and Marianne Maier, Christian Möller, Wirich Hofius, Zeki Karan - on the interpretation of Article 5(3) of the abovementioned Convention of 27 September 1968 (OJ 1978 L 304, p. 36), as amended by the Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and amended text p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Republic of Portugal (OJ 1989 L 285, p. 1), and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1) - the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; P. Léger, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 10 June 2004, in which it has ruled:

Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the accession of the Hellenic Republic, by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Republic of Portugal, and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, must be interpreted as meaning that the expression ‘place where the harmful event occurred’ does not refer to the place where the claimant is domiciled or where ‘his assets are concentrated’ by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Contracting State.

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(1)  OJ C 169 of 13.7.2002.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/2 |
| --- | --- | --- | --- |

24.7.2004

EN

Official Journal of the European Union

C 190/2

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JUDGMENT OF THE COURT

(Grand Chamber)

of 8 June 2004

in Case C-220/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich (1)

(Principle of equal pay for men and women - Concept of pay - Taking into account, for calculation of termination payments, of periods of military service - Possibility of comparing workers performing military service with women workers who, after their maternity leave, take parental leave the duration of which is not taken into account for calculating a termination payment)

(2004/C 190/04)

Language of the case: German

In Case C-220/02: REFERENCE to the Court under Article 234 EC from the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten and Wirtschaftskammer Österreich - on the interpretation of Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) - the Court, composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, J.-P. Puissochet (Rapporteur) and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr and R. Silva de Lapuerta, Judges; J. Kokott, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 8 June 2004, in which it has ruled:

| 1. | The benefit, for persons performing military service or, as an alternative, compulsory civilian service which may be extended voluntarily, consisting in the taking into account, for calculation of a termination payment they might subsequently be entitled to claim, of the duration of that service is to be regarded as part of their pay within the meaning of Article 141 EC. |
| --- | --- |

1.

The benefit, for persons performing military service or, as an alternative, compulsory civilian service which may be extended voluntarily, consisting in the taking into account, for calculation of a termination payment they might subsequently be entitled to claim, of the duration of that service is to be regarded as part of their pay within the meaning of Article 141 EC.

| 2. | Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women do not preclude the calculation of a termination payment from taking into account, as length of service, the duration of periods of military service or the civilian equivalent performed mainly by men but not of parental leave taken most often by women. |
| --- | --- |

2.

Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women do not preclude the calculation of a termination payment from taking into account, as length of service, the duration of periods of military service or the civilian equivalent performed mainly by men but not of parental leave taken most often by women.

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(1)  OJ C 202 of 24.8.2002.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/3 |
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24.7.2004

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Official Journal of the European Union

C 190/3

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JUDGMENT OF THE COURT

(Third Chamber)

of 10 June 2004

in Case C-333/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Failure to transpose Directive 98/50/EC - Transfer of undertakings - Safeguarding of employees' rights)

(2004/C 190/05)

Language of the case: French

In Case C-333/03: Commission of the European Communities (Agent: M.-J. Jonczy ) v Grand Duchy of Luxembourg (Agent: S. Schreiner) - application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1998 L 201, p. 88) or, in any event, by failing to inform the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive - the Court (Third Chamber), composed of: A. Rosas, acting for the President of the Third Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 10 June 2004, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

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(1)  OJ C 213 of 6.9.2003.

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Action brought on 23 March 2004 by the Commission of the European Communities against the Kingdom of Denmark

(Case C-150/04)

(2004/C 190/06)

An action against the Kingdom of Denmark was brought before the Court of Justice of the European Communities on 23 March 2004 by the Commission of the European Communities, represented by R. Lyal and S. Tams, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1) | Declare that, by introducing and maintaining a system for life insurance and pensions under which tax deductions and tax exemptions for payments (sections 18 and 19 of the law on pension tax) are granted only for payments under contracts entered into with pension institutions established in Denmark, whereas no such tax relief is granted for payments pursuant to contracts entered into with pension institutions established in other Member States (sections 53A and 53B), the Kingdom of Denmark has failed to fulfil its obligations under Articles 39, 43, 49 and 56 EC. |
| --- | --- |

1)

Declare that, by introducing and maintaining a system for life insurance and pensions under which tax deductions and tax exemptions for payments (sections 18 and 19 of the law on pension tax) are granted only for payments under contracts entered into with pension institutions established in Denmark, whereas no such tax relief is granted for payments pursuant to contracts entered into with pension institutions established in other Member States (sections 53A and 53B), the Kingdom of Denmark has failed to fulfil its obligations under Articles 39, 43, 49 and 56 EC.

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

2)

Order the Kingdom of Denmark to pay the costs.

Facts and pleas in law:

The Danish legislation concerning inter alia deductions for payments into life insurance and pension insurance schemes is contrary to the provisions of the EC Treaty governing the freedom to provide services, the free movement of workers, freedom of establishment and the free movement of capital and cannot be justified on ground of overriding public interest, as established in the Court's case-law.

Freedom to provide services (Article 49 EC)

The failure to allow deductions and exemptions for payments to foreign pension insurance schemes leads to a situation where policy-holders residing in Denmark are precluded from setting up pension insurance schemes with pension institutions established in Member States other than Denmark. Foreign pension institutions are de facto precluded from offering their services on the Danish market. The requirement of being established in Denmark therefore constitutes a restriction on the freedom to provide services from Member States other than Denmark.

Free movement of workers and freedom of establishment (Articles 39 and 43 EC)

The Danish rules which do not allow deductions for payments into foreign pension insurance schemes affect principally migrant workers and self-employed persons from other Member States. Workers and self-employed persons who move to Denmark and who have already set up pension insurance schemes in other Member States have to join new pension insurance schemes with pension institutions established in Denmark in order to obtain the same tax advantages as workers who have set up pension insurance schemes in Denmark.

Free movement of capital (Article 56 EC)

The requirement that the pension institution must be established in Denmark in order for the insured to obtain the tax relief precludes policy-holders from setting up pension insurance schemes with pension institutions established in other Member States. The Danish provisions thus lead to a situation where restrictions are placed on the free movement of capital in the form of payments into and out of pension insurance schemes.

Overriding public-interest grounds

| — | Effective fiscal supervision |
| --- | --- |

—

Effective fiscal supervision

The need to ensure effective fiscal supervision, as relied on by the Danish Government, cannot justify the Danish deduction provisions, which place a restriction on the abovementioned freedoms. The provisions are contrary to the principle of proportionality, since effective fiscal supervision and prevention of tax evasion can be ensured through measures which are less restrictive than the Danish rules, such as a requirement that taxpayers provide the necessary information as a precondition for obtaining the tax deduction or a requirement of cooperation with the tax authorities in other Member States in accordance with Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation. (1)

| — | Coherence of the tax system |
| --- | --- |

—

Coherence of the tax system

The Court's case-law recognises that coherence of the tax system requires that the Member State, in so far as it allows for deductions for payments into pension insurance schemes made in another Member State, must be able to tax the amounts paid out from the pension insurance schemes.

There is to be coherence, however, in relation to the individual taxpayer and a close connection between deductions for payments into the scheme and the taxation of payments out of the scheme.

In the Commission's view, the symmetry in the tax treatment of payments in and payments out for domestic and foreign schemes is insufficient where in domestic schemes payments in give rise to a tax deduction or exemption and payments out are taxed, whereas for foreign schemes payments in do not give rise to a deduction but neither are payments out taxed.

The tax advantage granted for pension insurance schemes set up with domestic pension institutions consists primarily of a deferment of the tax owing on an amount equal to the payments made into the scheme. The tax deferment makes domestic pension insurance schemes particularly attractive, even though the payments out are taxed at a later time. The presence of taxation ‘symmetry’ for foreign pension insurance schemes does not compensate for that lost tax advantage.

Denmark must recognise that pension insurance schemes set up in pension institutions established in other Member States must be covered by the same tax advantages as domestic pension insurance schemes. It is only in cases where Denmark is not entitled to tax payments out from the pension insurance scheme that it can be relevant to consider the aspect of coherence of the tax system. Denmark can tax all payments out from schemes to policy-holders residing in Denmark, regardless of whether the scheme has been set up in Denmark or elsewhere. Denmark only loses that right if the policy-holder moves his or her place of residence to another country.

The Commission also finds that the necessary coherence of the Danish tax system has not been established, in that Denmark has entered into double-taxation conventions with a number of countries, which means that the coherence of the tax system is not attained for individual taxpayers in terms of a close connection between deductions for payments in and taxation of payments out of the scheme.

Double-taxation conventions which follow the OECD model ensure that payments out of pension insurance schemes are not taxed either in the country where the insured resides or in the country where the pension institution is established. It follows from those conventions that payments out of pension insurance schemes can be taxed only in the country where the pension beneficiary resides. Those agreements imply that Denmark has waived the right to tax payments from pension institutions established in Denmark. This is true regardless of whether or not the payments into the pension insurance scheme have given rise to tax deductions in Denmark. On the other hand, Denmark may tax all pension payments to policy-holders resident in Denmark, even though the payments into the scheme were made in one of the countries which is party to the convention.

Other double-taxation conventions contain provisions which allow policy-holders to deduct payments into foreign pension insurance schemes. People who move to Denmark from one of those countries can thus maintain their pension insurance schemes in their home country and deduct the payments into the schemes from their taxable income in Denmark. The deduction provisions in those conventions show that the Danish rules not allowing for tax deductions for payments into foreign pension schemes are not consistent.

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(1)  OJ 1977 L 336, p. 15.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/5 |
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Reference for a preliminary ruling by the Bundesfinanzhof (Germany) by order of that court of 18 March 2004 in the case of Finanzamt Heidelberg (Heidelberg Tax Office) against iSt Internationale Sprach- und Studententreisen GmbH.

(Case C-200/04)

(2004/C 190/07)

Reference has been made to the Court of Justice of the European Communities by order of the (Bundesfinanzhof (Federal Finance Court) of 18 March 2004, received at the Court Registry on 5 May 2004, for a preliminary ruling in the case of Finanzamt Heidelberg (Heidelberg Tax Office) against iSt Internationale Sprach- und Studententreisen GmbH, on the following question:

Does the special scheme for travel agents set out in Article 26 of Directive 77/388/EEC (1) also apply to transactions entered into by an undertaking which organises ‘High School Programmes’ and ‘College Programmes’ involving periods of three to ten months spent in a foreign country, which are offered to participants by the undertaking in its own name and which are provided using services performed by other taxable persons?

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(1)  OJ L 145, p. 1.

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Reference for a preliminary ruling by the Landgericht Frankfurt am Main by order of that court of 28 April 2004 in the case Gebrüder Stolle GmbH & Co. KG against Heidegold Geflügelspezialitäten GmbH

(Case C-203/04)

(2004/C 190/08)

Reference has been made to the Court of Justice of the European Communities by order of the Landgericht Frankfurt am Main (Frankfurt am Main Regional Court, Germany), of 28 April 2004, which was received at the Court Registry on 7 May 2004, for a preliminary ruling in the case of Gebrüder Stolle GmbH & Co. KG against Heidegold Geflügelspezialitäten GmbH.

The Landgericht Frankfurt am Main asks the Court of Justice to give a preliminary ruling on the following question:

Is Article 10(1) of Regulation (EEC) No 1538/91 of 5 June 1991 (marketing standards for poultry) (1) to be interpreted as meaning that on labelling within the meaning of Article 1(3)(a) of Directive 79/112/EEC the legend ‘reared under controlled conditions’ indicates a type of farming within the meaning of Article 10(1) of Regulation (EEC) No 1538/91?

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(1)  OJ L 143, 7.6.1991, p. 11.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/6 |
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Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Quinta Civile (Supreme Court of Cassation, Fifth Civil Chamber) by order of that court of 18 February 2004 in the case of Ministero dell'Economia e delle Finanze (Ministry of Economic Affairs and Finance) and Agenzia delle Entrate (Revenue Agency) against FCE Bank plc

(Case C-210/04)

(2004/C 190/09)

Reference has been made to the Court of Justice of the European Communities by order of 18 February 2004 of the Corte Suprema di Cassazione, Sezione Quinta Civile, which was received at the Court Registry on 12 May 2004, for a preliminary ruling in the case of Ministero dell'Economia e delle Finanze and Agenzia delle Entrate against FCE Bank plc on the following questions:

| 1. | Must Articles 2(1) and 9(1) of the Sixth Directive be interpreted as meaning that the branch of a company established in another State (belonging to the European Union or otherwise), which has the characteristics of a production unit, may be regarded as an independent person and thus that a legal relationship between the entities can be said to exist with consequent liability for VAT in relation to supplies of services effected by the parent company? Can the ‘arm's length’ standard laid down in Article 7(2) and (3) of the OECD model convention on double taxation and the Convention of 21 October 1988 between Italy and the United Kingdom of Great Britain and Northern Ireland be used to define that relationship? Can a legal relationship be said to exist where there is a cost-sharing agreement concerning the supply of services to the subordinate entity? If so, what conditions must be satisfied for such relationship to be considered to exist? Must the notion of legal relationship be dealt with under national law or Community law? |
| --- | --- |

1.

Must Articles 2(1) and 9(1) of the Sixth Directive be interpreted as meaning that the branch of a company established in another State (belonging to the European Union or otherwise), which has the characteristics of a production unit, may be regarded as an independent person and thus that a legal relationship between the entities can be said to exist with consequent liability for VAT in relation to supplies of services effected by the parent company? Can the ‘arm's length’ standard laid down in Article 7(2) and (3) of the OECD model convention on double taxation and the Convention of 21 October 1988 between Italy and the United Kingdom of Great Britain and Northern Ireland be used to define that relationship? Can a legal relationship be said to exist where there is a cost-sharing agreement concerning the supply of services to the subordinate entity? If so, what conditions must be satisfied for such relationship to be considered to exist? Must the notion of legal relationship be dealt with under national law or Community law?

| 2. | Can the passing on of the costs of such services to the branch concerned be regarded as consideration for the services supplied for the purposes of Article 2 of the Sixth Directive, regardless of the proportion of the costs passed on and the resulting profit to the company, and if so to what extent? |
| --- | --- |

2.

Can the passing on of the costs of such services to the branch concerned be regarded as consideration for the services supplied for the purposes of Article 2 of the Sixth Directive, regardless of the proportion of the costs passed on and the resulting profit to the company, and if so to what extent?

| 3. | If the supply of services between the parent company and the branch are regarded in principle as being exempt from VAT because the recipient is not independent and consequently a legal relationship between the two entities cannot be said to exist, is a national administrative practice which considers that the supply is taxable in such a case contrary to the right of establishment laid down in Article 43 of the EC Treaty where the parent company is established in another Member State of the European Union? |
| --- | --- |

3.

If the supply of services between the parent company and the branch are regarded in principle as being exempt from VAT because the recipient is not independent and consequently a legal relationship between the two entities cannot be said to exist, is a national administrative practice which considers that the supply is taxable in such a case contrary to the right of establishment laid down in Article 43 of the EC Treaty where the parent company is established in another Member State of the European Union?

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Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that court of 29 April 2004 in the case of Ewald Burtscher against Josef Stauderer

(Case C-213/04)

(2004/C 190/10)

Reference has been made to the Court of Justice of the European Communities by order of the Oberster Gerichtshof (Supreme Court), Austria, of 29 April 2004 received at the Court Registry on 19 May 2004, for a preliminary ruling in the case of Ewald Burtscher against Josef Stauderer on the following question:

Should Article 56 EC be interpreted as precluding national legislation (Vorarlberger Grundverkehrsgesetz (Vorarlberg Land Transfer Law)) by which, in the case of a land purchase transaction that does not require the authorisation of the land transfer authority, failure by the acquirer to declare by the due date that the land is built on, that the acquisition is not for holiday purposes, and that he is, or should be treated as, an Austrian national, results in the retrospective invalidity of the transaction?

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Action brought on 19 May 2004 by the Commission of the European Communities against the Italian Republic

(Case C-214/04)

(2004/C 190/11)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 19 May 2004 by the Commission of the European Communities, represented by Ulrich Wölker and Antonio Aresu, acting as Agents.

The applicant claims that the Court should:

| — | declare that, by retaining up to the present rules which permit the use of hydrochlorofluorocarbons in fire protection installations beyond the limits and outside the conditions laid down in Article 5(3) of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, the Italian Republic has failed to fulfil its obligations under that provision; |
| --- | --- |

—

declare that, by retaining up to the present rules which permit the use of hydrochlorofluorocarbons in fire protection installations beyond the limits and outside the conditions laid down in Article 5(3) of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, the Italian Republic has failed to fulfil its obligations under that provision;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The Commission claims that the derogations referred to in the Decree of 3 October 2001 of the Ministry of the Environment and Protection of the Territory apply to various cases which are not covered by the derogation laid down in Regulation No 2037/2000 and that therefore the field of application of those derogations is considerably wider than is permitted under the regulation itself. In so far as the Italian provisions authorise the use of hydrochlorofluorocarbons (HCFCs) in fire protection installations in cases not permitted under Regulation 2037/2000, those provisions are inconsistent with Community law.

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(1)  OJ L 244 of 29.9.2000, p. 1

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/7 |
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Reference for a preliminary ruling by the Østre Landsret by order of 14 May 2004 in the case of Marius Pedersen A/S v Miljøstyrelsen

(Case C– 215/04)

(2004/C 190/12)

Reference has been made to the Court of Justice of the European Communities by order of 14 May 2004 of the Østre Landsret (Eastern Regional Court), which was received at the Court Registry on 21 May 2004, for a preliminary ruling in the case of Marius Pedersen A/S v Miljøstyrelsen on the following questions:

| 1. | Must the expression ‘where this is not possible’ in Article 2(g)(ii) of Regulation No 259/93 (1) be understood as meaning that an approved collection undertaking cannot automatically be the notifier of exports of waste for recycling?
  If the answer is in the affirmative: which criteria determine whether an approved collection undertaking can be the notifier of exports of waste for recycling?
  May the criterion be that the waste producer is unknown or that there are so many waste producers, the individual contribution of each of which is so modest that it would be unreasonable for each individually to be required to notify the exportation of the waste? |
| --- | --- |

1.

Must the expression ‘where this is not possible’ in Article 2(g)(ii) of Regulation No 259/93 (1) be understood as meaning that an approved collection undertaking cannot automatically be the notifier of exports of waste for recycling?

If the answer is in the affirmative: which criteria determine whether an approved collection undertaking can be the notifier of exports of waste for recycling?

May the criterion be that the waste producer is unknown or that there are so many waste producers, the individual contribution of each of which is so modest that it would be unreasonable for each individually to be required to notify the exportation of the waste?

| 2. | Does Article 7(2) of Regulation No 259/93, in conjunction with Article 7(4)(a), first and second indents in particular, provide a possibility for the competent authorities of the country of dispatch to raise an objection against a specific request for authorisation to export waste for the purpose of recycling if there is no information from the notifier that the recipient plant's treatment of the waste in question will, from the environmental point of view, be of the same standard as is required under national rules in the country of dispatch? |
| --- | --- |

2.

Does Article 7(2) of Regulation No 259/93, in conjunction with Article 7(4)(a), first and second indents in particular, provide a possibility for the competent authorities of the country of dispatch to raise an objection against a specific request for authorisation to export waste for the purpose of recycling if there is no information from the notifier that the recipient plant's treatment of the waste in question will, from the environmental point of view, be of the same standard as is required under national rules in the country of dispatch?

| 3. | Must the first indent of Article 6(5) of Regulation No 259/93 be construed as meaning that the requirement as to information on the composition of the waste may be regarded as being satisfied if the notifier indicates that the waste in question is of only one specific kind, for example, ‘electronic scrap’? |
| --- | --- |

3.

Must the first indent of Article 6(5) of Regulation No 259/93 be construed as meaning that the requirement as to information on the composition of the waste may be regarded as being satisfied if the notifier indicates that the waste in question is of only one specific kind, for example, ‘electronic scrap’?

| 4. | Must Article 7(1) and (2) of Regulation No 259/93 be construed as meaning that the period in Article 7(2) begins to run when the competent authority of destination has sent the acknowledgement, irrespective of the fact that the competent authority of dispatch does not consider that it has received all of the information set out in Article 6(5)?
  If the answer is in the negative: what information must a notification contain before the 30-day period indicated in Article 7(2) can begin to run?
  Does the fact of having exceeded the 30-day period for reply have the effect in law that the authority cannot raise further objections or request further information? |
| --- | --- |

4.

Must Article 7(1) and (2) of Regulation No 259/93 be construed as meaning that the period in Article 7(2) begins to run when the competent authority of destination has sent the acknowledgement, irrespective of the fact that the competent authority of dispatch does not consider that it has received all of the information set out in Article 6(5)?

If the answer is in the negative: what information must a notification contain before the 30-day period indicated in Article 7(2) can begin to run?

Does the fact of having exceeded the 30-day period for reply have the effect in law that the authority cannot raise further objections or request further information?

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(1)  Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1).

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Reference for a preliminary ruling by the Consiglio di Stato in sede guirisdizionale, Sezione Quinta, by order of that court of 27 January 2004 in the case of SABA Italia SpA against the Comune di Bolzano and SEAB SpA

(Case C-216/04)

(2004/C 190/13)

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato in sede guirisdizionale (Council of State sitting as a court) of 27 January 2004, received at the Court Registry on 24 May 2004, for a preliminary ruling in the case of SABA Italia SpA against the Comune di Bolzano and SEAB SpA on the following question:

‘Is the direct award, that is to say, in derogation from the procedures for the selection of contractors laid down in Directive 92/50/EEC (1), of the management of public pay car parks to a public limited company the entire capital of which is publicly owned within the meaning of paragraph 6(b) of Article 44 of Law No 1 of the Region of Trentino-Alto Adige of 4 January 1993, as amended by Article 10 of Regional Law No 10 of 23 January 1998, compatible with Community law, in particular with the freedom to provide services, the prohibition of discrimination and the obligation to guarantee equal treatment, transparency and free competition referred to in Articles 12, 45, 46, 49 and 86 of the EC Treaty?’

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(1)  OJ L 209 of 24.07.1992, p. 1.

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Reference for a preliminary ruling by the Corte Suprema di Cassazione – Sezione Quinta Civile – by order of that court of 23 March 2004 in the case of Ministero dell'Economia e delle Finanze against Cassa di Risparmio di Firenze S.p.A., Fondazione Cassa di Risparmio di San Miniato e Cassa di Risparmio di San Miniato S.p.A.

(Case C-222/04)

(2004/C 190/14)

Reference has been made to the Court of Justice of the European Communities by order of the Corte Suprema di Cassazione – Sezione Quinta Civile – (Supreme Court of Cassation – Fifth Civil Chamber), Italy, of 23 March 2004, received at the Court Registry on 28 May 2004.

For a preliminary ruling in the case of Ministero dell'Economia e delle Finanze against Cassa di Risparmio di Firenze S.p.A., Fondazione Cassa di Risparmio di San Miniato e Cassa di Risparmio di San Miniato S.p.A. on the following questions:

| (a) | Must a group of bodies (namely banking foundations), created on the basis of Law No 218/90 and Legislative Decree No 356/90, as subsequently amended, be considered to be subject to the Community rules on competition – even where they are assigned objects of social benefit – as a result of owning controlling holdings in companies engaged in banking activity and as a result of administering those holdings, in relation to a very large number of bodies operating on the market, with the proceeds of the controlled undertakings devolving to the latter? With regard to the rules introduced by Legislative Decree No 153/99, does the possibility afforded those entities of using the proceeds of the disposal of such holdings to acquire and manage substantial shareholdings in other undertakings – including banking undertakings – for different purposes, including the economic development of the system, similarly constitute a commercial activity for the purposes of the application of Community law on competition? |
| --- | --- |

(a)

Must a group of bodies (namely banking foundations), created on the basis of Law No 218/90 and Legislative Decree No 356/90, as subsequently amended, be considered to be subject to the Community rules on competition – even where they are assigned objects of social benefit – as a result of owning controlling holdings in companies engaged in banking activity and as a result of administering those holdings, in relation to a very large number of bodies operating on the market, with the proceeds of the controlled undertakings devolving to the latter? With regard to the rules introduced by Legislative Decree No 153/99, does the possibility afforded those entities of using the proceeds of the disposal of such holdings to acquire and manage substantial shareholdings in other undertakings – including banking undertakings – for different purposes, including the economic development of the system, similarly constitute a commercial activity for the purposes of the application of Community law on competition?

| (b) | Consequently, are those entities, under the rules contained in Law No 218/90 and Legislative Decree No 356/90, as subsequently amended, as well as the reform contained in Law No 461/98 and Legislative Decree No 153/99, subject to the Community rules on State aid (Articles 87 to 88 of the EC Treaty), in relation to a preferential tax regime which applies to them? |
| --- | --- |

(b)

Consequently, are those entities, under the rules contained in Law No 218/90 and Legislative Decree No 356/90, as subsequently amended, as well as the reform contained in Law No 461/98 and Legislative Decree No 153/99, subject to the Community rules on State aid (Articles 87 to 88 of the EC Treaty), in relation to a preferential tax regime which applies to them?

| (c) | If question (b) above is answered in the affirmative, does or does not the system of direct tax relief on dividends received, which is at issue in this case, constitute State aid, within the meaning of Article 87 of the EC Treaty? |
| --- | --- |

(c)

If question (b) above is answered in the affirmative, does or does not the system of direct tax relief on dividends received, which is at issue in this case, constitute State aid, within the meaning of Article 87 of the EC Treaty?

| (d) | Again, if question (b) above is answered in the affirmative, is the Decision of the European Commission of 22 August 2002 (1), in which the rules on State aid were held to be inapplicable to the foundations of banking origin, valid, having regard to the issues of lawfulness and the lack and/or inadequacy of reasoning set out in this order for reference? |
| --- | --- |

(d)

Again, if question (b) above is answered in the affirmative, is the Decision of the European Commission of 22 August 2002 (1), in which the rules on State aid were held to be inapplicable to the foundations of banking origin, valid, having regard to the issues of lawfulness and the lack and/or inadequacy of reasoning set out in this order for reference?

| (e) | Leaving out of consideration the question whether the rules on State aids are applicable, does according more favourable tax treatment to the distribution of the profits of the – exclusively national – conferred banking undertakings, controlled by the foundations, and received by the latter, or of those undertakings in which holdings were acquired using the proceeds from the disposal of holdings in conferred banking companies, constitute discrimination against the undertakings invested in as compared with the other undertakings operating on the market and, at the same time, infringe the principles of freedom of establishment and the free movement of capital, in relation to Articles 12, 43 et seq and Article 56 et seq of the EC Treaty? |
| --- | --- |

(e)

Leaving out of consideration the question whether the rules on State aids are applicable, does according more favourable tax treatment to the distribution of the profits of the – exclusively national – conferred banking undertakings, controlled by the foundations, and received by the latter, or of those undertakings in which holdings were acquired using the proceeds from the disposal of holdings in conferred banking companies, constitute discrimination against the undertakings invested in as compared with the other undertakings operating on the market and, at the same time, infringe the principles of freedom of establishment and the free movement of capital, in relation to Articles 12, 43 et seq and Article 56 et seq of the EC Treaty?

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(1)  OJ L 55, 1.3.2003, p. 56.

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C 190/9

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Action brought on 1 June 2004 by the Commission of the European Communities against the Republic of Finland

(Case C-225/04)

(2004/C 190/15)

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 1 June 2004 by the Commission of the European Communities, represented by M. Huttunen and K. Simonsson, acting as Agents, with an address for service in Luxemburg.

The Commission claims that the Court should:

| 1. | Declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2001/106/EC of the European Parliament and of the Council (1) of 19 December 2001 amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control), or at least by failing to inform the Commission thereof, the Republic of Finland has failed to fulfil its obligations under Article 2 of that directive; |
| --- | --- |

1.

Declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2001/106/EC of the European Parliament and of the Council (1) of 19 December 2001 amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control), or at least by failing to inform the Commission thereof, the Republic of Finland has failed to fulfil its obligations under Article 2 of that directive;

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

2.

Order Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for implementing the directive expired on 22 July 2003.

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(1)  OJ L 19 of 22.1.2002, p. 17.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/9 |
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24.7.2004

EN

Official Journal of the European Union

C 190/9

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of ‘La Cascina’ s.c.r.l. and Zilch s.r.l. v Ministry of Defence, Ministry of Economy and Finance, and Pedus Service P. Dussmann s.r.l. and Others

(Case C-226/04)

(2004/C 190/16)

Reference has been made to the Court of Justice of the European Communities by order of Division Ia of the Tribunale Amministrativo Regionale del Lazio (Regional Administrative Court, Lazio) of 22 April 2004, received at the Court Registry on 2 June 2004, for a preliminary ruling in the case of ‘La Cascina’ s.c.r.l. and Zilch s.r.l. v Ministry of Defence, Ministry of Economy and Finance and Pedus Service P. Dussmann s.r.l. and Others, on the following questions:

| 1) | Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer – solely and exclusively – to a situation in which the person concerned has – when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) – fulfilled those obligations by paying in full and in time? |
| --- | --- |

1)

Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer – solely and exclusively – to a situation in which the person concerned has – when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) – fulfilled those obligations by paying in full and in time?

| 2) | Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure – verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) – to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position? |
| --- | --- |

2)

Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure – verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) – to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position?

| 3) | Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract? |
| --- | --- |

3)

Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract?

| 4) | And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures? |
| --- | --- |

4)

And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures?

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(1)  OJ L 209 of 24.7.1992, p. 1.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/10 |
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24.7.2004

EN

Official Journal of the European Union

C 190/10

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Appeal brought on 2 June 2004 by Marie-Luise Lindorfer against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union

(Case C-227/04 P)

(2004/C 190/17)

An appeal against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union was brought before the Court of Justice of the European Communities on 2 June 2004 by Marie-Luise Lindorfer, represented by G. Vandersanden and L. Levi.

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities in Case T-204/01; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities in Case T-204/01;

| — | consequently, uphold the applicant's claims at first instance and, accordingly; |
| --- | --- |

—

consequently, uphold the applicant's claims at first instance and, accordingly;

| — | annul the defendant's decision of 3 November 2000 fixing at 5 years, 5 months and 8 days the number of years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria prior to her entry into the service of the European Communities and, in so far as necessary, annul the Council decision, dated 31 May 2001, to reject the applicant's complaint of 2 February 2001; |
| --- | --- |

—

annul the defendant's decision of 3 November 2000 fixing at 5 years, 5 months and 8 days the number of years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria prior to her entry into the service of the European Communities and, in so far as necessary, annul the Council decision, dated 31 May 2001, to reject the applicant's complaint of 2 February 2001;

| — | order the defendant to fix again, on an amended legal basis devoid of all illegality, the years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria; |
| --- | --- |

—

order the defendant to fix again, on an amended legal basis devoid of all illegality, the years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria;

| — | order the defendant to pay the costs incurred at first instance and in the appeal. |
| --- | --- |

—

order the defendant to pay the costs incurred at first instance and in the appeal.

Pleas and main arguments

The Court of First Instance has infringed Article 141 EC and Article 10(4)(b) of the general implementing provisions (1) and breached the principle of non-discrimination and the duty to provide reasons.

By considering that the Council was entitled to take account, in the conversion formula, of actuarial factors related to the age and sex of the official, the Court disregarded the principle of non-discrimination, in particular in so far as it concerns equal treatment between men and women. In connection with a formula for transferring pension rights acquired in one scheme – at national level – to the Community scheme, the Court endorsed the taking into consideration of a factor which makes a distinction between workers according to their sex and treats female workers less favourably and justified use of such a formula on budgetary grounds. Furthermore, the Court disregarded its obligation to provide a statement of reasons by failing to answer the applicant's argument seeking to demonstrate that the budget would not be put out of balance by account being taken of an actuarial factor when transferring the years-served to the Communities pensions scheme.

The Court did not take a position on the validity of the existence of two possible choices, each intended to implement Article 11(2) of Annex VIII to the Staff Regulations, albeit in different ways, which took account of the date of transfer of pension rights on the one hand or of the date on which the official was established. Moreover, by focusing only on the basic salary of the official upon retirement and by failing to examine, in addition, the number of years served, the Court failed to answer the applicant's argument and failed to fulfil its obligation to provide reasons.

The Court came to erroneous conclusions in law with respect to the facts, in particular those put forward as examples by the applicant. Even supposing that fluctuations in national currencies are the result of circumstances extraneous to the Communities, that in no way exonerates them from ensuring that they observe the principle of non-discrimination, in particular in so far as concerns their staff, nor from laying down, in accordance with that principle, the rules for transferring to the Community pensions scheme the pension rights acquired in a national scheme. That means, specifically, that the Council cannot use conversion rate formulas which do not observe the principle pf non-discrimination. However, it has been proved that that is the case. Indeed, there is no difference between the amounts transferred initially from a national pension scheme, in terms of the principle of non-discrimination, irrespective of whether they come from a ‘week-currency’ country or from a ‘strong-currency’ country. First, the Court found that the manner in which such amounts were treated varied according to the status of the country concerned and that transfers from ‘week-currency’ countries were treated more favourably. Finally, the Court failed to examine, and thus to show, in what way such differentiated treatment is objectively justified. The fact that it is the result of circumstances outwith the control of the Communities does not constitute such justification since it is the Council which decided that there were to be two approaches and it is again itself which decides to whom to apply them.

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(1)  Decision of the Council of 13 July 1992

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/11 |
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24.7.2004

EN

Official Journal of the European Union

C 190/11

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l

(Case C-228/04)

(2004/C 190/18)

Reference has been made to the Court of Justice of the European Communities by order of Division Ia of the Tribunale Amministrativo Regionale del Lazio (Regional Administrative Court, Lazio) of 22 April 2004, received at the Court Registry on 2 June 2004, for a preliminary ruling in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l, on the following questions:

| 1) | Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1)of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer - solely and exclusively - to a situation in which the person concerned has - when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) - fulfilled those obligations by paying in full and in time? |
| --- | --- |

1)

Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1)of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer - solely and exclusively - to a situation in which the person concerned has - when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) - fulfilled those obligations by paying in full and in time?

| 2) | Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure - verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) - to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position? |
| --- | --- |

2)

Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure - verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) - to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position?

| 3) | Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract? |
| --- | --- |

3)

Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract?

| 4) | And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures? |
| --- | --- |

4)

And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures?

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(1)  OJ L 209 of 24.7.1992, p. 1.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/11 |
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24.7.2004

EN

Official Journal of the European Union

C 190/11

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Action brought on 7 June 2004 against the Grand Duchy of Luxembourg by the Commission of the European Communities

(Case C-236/04)

(2004/C 190/19)

An action was brought before the Court of Justice of the European Communities on 7 June 2004 by the Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg, against the Grand Duchy of Luxembourg.

The Commission claims that the Court should:

| 1. | Declare that, by not taking the legislative, regulatory and administrative measures necessary to comply with:






  — | Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘Access Directive’); (1) |
| --- | --- | --- |

1.

Declare that, by not taking the legislative, regulatory and administrative measures necessary to comply with:

—

Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘Access Directive’); (1)

| — | Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘Authorisation Directive’); (2) |
| --- | --- |

—

Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘Authorisation Directive’); (2)

| — | 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’); (3) |
| --- | --- |

—

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’); (3)

| — | Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (‘Universal Service Directive’); (4) |
| --- | --- |

—

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (‘Universal Service Directive’); (4)

or, in any event, by not communicating those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 18 of the Access Directive, Article 18 of the Authorisation Directive, Article 28 of the Framework Directive and Article 38 of the Universal Service Directive.

| 2. | Order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and principal arguments:

The time-limit given for transposition of the directives was 24 July 2003.

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(1)  OJ L 108 of 24.4.2002, p. 7.

(2)  OJ L 108 of 24.4.2002, p. 21.

(3)  OJ L 108 of 24.4.2002, p. 33.

(4)  OJ L 108 of 24.4.2002, p. 51.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/12 |
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24.7.2004

EN

Official Journal of the European Union

C 190/12

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Action brought on 7 June 2004 by the Commission of the European Communities against the French Republic

(Case C-238/04)

(2004/C 190/20)

An action against the French Republic was brought before the Court of Justice of the European Communities on 7 June 2004 by the Commission of the European Communities, represented by O. Beynet and A. Whelan, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to transpose correctly Articles 1 and 2(3) of Directive 90/388/EEC on competition in the markets for telecommunications services, (1) as amended by Directives 95/51/EC (2) and 96/19/EC, (3) the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 EC; |
| --- | --- |

1.

declare that, by failing to transpose correctly Articles 1 and 2(3) of Directive 90/388/EEC on competition in the markets for telecommunications services, (1) as amended by Directives 95/51/EC (2) and 96/19/EC, (3) the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 EC;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments:

French legal rules entail a problem of compatibility with Community law on the conditions for licensing the provision of telecommunications services by cable providers.

As regards the provision of telephony services, French legislation imposes an obligation to consult communes, or associations of communes, before the issue of a licence for the provision of a telephone service on cable networks. That obligation gives rise to a number of problems from the point of view of Article 2(3) of Directive 90/388, as amended by Directive 96/19/EC, namely lack of transparency in the consultation procedure, the disproportionate degree of discretion afforded to town councils when coming to their decisions, uncertainty as to whether the procedure is objective on account of the links between certain town councils and providers, the discriminatory aspect of a procedure which does not apply to other providers of telecommunications services and risk of discrimination as between the various cable providers.

The rules by virtue of which cable providers must systematically inform all communes in which their networks are installed impose on those providers an additional obligation in contrast to the general freedom to provide services applicable to other providers of telecommunications services. Since there are no objective factors such as to justify this differential treatment, the French rules are discriminatory in this respect and infringe the provisions of Article 1 in conjunction with Article 2(3) of Directive 90/388/EEC, as amended by Directives 95/51/EC and 96/19/EC.

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(1)  OJ L 192 of 24.7.1990, p. 10.

(2)  Commission Directive 95/51/EC of 18 October 1995 amending Directive 90/388/EEC with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services (OJ L 256 of 26.10.1995, p. 49).

(3)  Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets (OJ L 73 of 13.3.1996, p. 13).

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/13 |
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24.7.2004

EN

Official Journal of the European Union

C 190/13

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Action brought on 8 June 2004 against the Kingdom of Belgium by the Commission of the European Communities

(Case C-240/04)

(2004/C 190/21)

An action was brought before the Court of Justice of the European Communities on 8 June 2004 by the Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg, against the Kingdom of Belgium.

The Commission claims that the Court should:

| 1. | Declare that, by not taking the legislative, regulatory and administrative measures necessary to comply with:






  — | Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘Access Directive’); (1) |
| --- | --- | --- |

1.

Declare that, by not taking the legislative, regulatory and administrative measures necessary to comply with:

—

Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘Access Directive’); (1)

| — | Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘Authorisation Directive’); (2) |
| --- | --- |

—

Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘Authorisation Directive’); (2)

| — | 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’); (3) |
| --- | --- |

—

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’); (3)

| — | Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (‘Universal Service Directive’); (4) |
| --- | --- |

—

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (‘Universal Service Directive’); (4)

or, in any event, by not communicating those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under Article 18 of the Access Directive, Article 18 of the Authorisation Directive, Article 28 of the Framework Directive and Article 38 of the Universal Service Directive.

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

2.

Order the Kingdom of Belgium to pay the costs.

Pleas in law and principal arguments:

The time-limit given for transposition of the directives was 24 July 2003.

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(1)  OJ L 108 of 24.4.2002, p. 7.

(2)  OJ L 108 of 24.4.2002, p. 21.

(3)  OJ L 108 of 24.4.2002, p. 33.

(4)  OJ L 108 of 24.4.2002, p. 51.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/13 |
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24.7.2004

EN

Official Journal of the European Union

C 190/13

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Appeal brought on 9 June 2004 by M against the judgment given on 21 April 2004 by the Court of First Instance of the European Communities (First Chamber) in Case T-172/01 between M and Court of Justice of the European Communities

(Case C-243/04 P)

(2004/C 190/22)

An appeal against the judgment given on 21 April 2004 by the Court of First Instance (First Chamber) in Case T-172/01 M v Court of Justice of the European Communities was brought before the Court of Justice of the European Communities on 9 June 2004 by M, represented by H. Tagaras, avocat.

The applicant claims that the Court should:

| — | declare the present appeal admissible and well-founded; |
| --- | --- |

—

declare the present appeal admissible and well-founded;

| — | set aside the contested judgment and declare that she is entitled to a survivor's pension in accordance with Article 27 of Annex VIII to the Staff Regulations; |
| --- | --- |

—

set aside the contested judgment and declare that she is entitled to a survivor's pension in accordance with Article 27 of Annex VIII to the Staff Regulations;

| — | order the defendant to pay the costs both at first instance and on appeal. |
| --- | --- |

—

order the defendant to pay the costs both at first instance and on appeal.

Pleas in law and main arguments

The contested judgment is vitiated by a ‘reach of procedure’ and an ‘infringement of Community law’, both within the meaning of Article 58 of the Statute of the Court of Justice. The applicant also relies on the European Convention on Human Rights, in particular, on the right to a fair trial.

The plea of ‘breach of procedure’ concerns questions of evidence. It consists of two parts. The first relates to the decision of the Court of First Instance to dismiss, as out of time, two affidavits made before a notary which were produced after the close of the written procedure, but in order to reply to further documents and arguments in the rejoinder. The second is based on the fact that the Court of First Instance failed to take account of two other affidavits which were annexed to the initial claim and the originating application.

The plea alleging infringement of Community law consists of an error of law committed by the Court of First Instance in the application of Article 27 of Annex VIII of the Staff Regulations, by reason of the incorrect legal classification of the agreement made in the spring of 1999 between the applicant and her ex-husband. The appeal alleges, inter alia, that the contested judgment did not recognise that the 1999 agreement was a maintenance agreement, but arbitrarily and incorrectly characterised it as an act of ‘mere courtesy’.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/14 |
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Reference for a preliminary ruling by a judgment of the Cour du travail de Liège, section de Neufchâteau, of 9 June 2004 in the case of José Allard against the Institut national d'assurances sociales pour travailleurs indépendants (INASTI)

(Case C-249/04)

(2004/C 190/23)

Reference has been made to the Court of Justice of the European Communities by a judgment of the Cour du travail de Liège (Employment Court, Liège), section de Neufchâteau, of 9 June 2004, which was received at the Court Registry on 11 June 2004, for a preliminary ruling in the case of José Allard against the Institut national d'assurances sociales pour travailleurs indépendants (INASTI) on the following questions:

| 1. | Do Articles 13 et seq. of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (1) preclude a contribution such as the reduction contribution under Royal Decree No 289 of 31 March enacting certain temporary measures for the reduction of the income of self-employed persons with a view to reducing the public debt burden and ensuring the financial equilibrium of social security schemes for self-employed persons from being calculated in such a way as to include in income from an occupation the income which a self-employed person has obtained by carrying on an occupation in the territory of a Member State other than the State of taxation in circumstances where the self-employed person may not, as a result of paying that contribution, claim any social or other benefit at the expense of that State? |
| --- | --- |

1.

Do Articles 13 et seq. of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (1) preclude a contribution such as the reduction contribution under Royal Decree No 289 of 31 March enacting certain temporary measures for the reduction of the income of self-employed persons with a view to reducing the public debt burden and ensuring the financial equilibrium of social security schemes for self-employed persons from being calculated in such a way as to include in income from an occupation the income which a self-employed person has obtained by carrying on an occupation in the territory of a Member State other than the State of taxation in circumstances where the self-employed person may not, as a result of paying that contribution, claim any social or other benefit at the expense of that State?

| 2. | Do the Treaty of Rome of 25 March 1957 establishing the European Community, and in particular Articles 39 and 43 thereof (formerly Articles 48 and 52), preclude a contribution calculated on that basis from being imposed on self-employed persons who exercise their right to freedom of movement? |
| --- | --- |

2.

Do the Treaty of Rome of 25 March 1957 establishing the European Community, and in particular Articles 39 and 43 thereof (formerly Articles 48 and 52), preclude a contribution calculated on that basis from being imposed on self-employed persons who exercise their right to freedom of movement?

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(1)  Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, Annex 1)

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COURT OF FIRST INSTANCE

| 24.7.2004 | EN | Official Journal of the European Union | C 190/15 |
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COURT OF FIRST INSTANCE

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 25 May 2004

in Case T-154/01: Distilleria F. Palma SpA v Commission of the European Communities (1)

(Regulation (EEC) No 822/87 - Common organisation of the market in wine - Regulation (EEC) No 1780/89 - Regulation (EEC) No 2710/93 - Regulation (EC) No 416/96 - Disposal of alcohol obtained by distillation - Regulation (EEC) No 3390/90 - Sale by tender for use as motor fuel - Refusal by the Commission to amend a number of conditions for the tender - Force majeure - Non-contractual liability of the Community - Admissibility)

(2004/C 190/24)

Language of the case: Italian

In Case T-154/01: Distilleria F. Palma SpA, in liquidation, established in Naples (Italy), represented by F. Caruso, lawyer, against Commission of the European Communities (Agents: L. Visaggio and C. Cattabriga, acting as Agents, and A. Dal Ferro,) - application under Article 235 EC and the second paragraph of Article 288 EC for compensation for damage allegedly suffered as a result of the Commission's allegedly unlawful conduct arising from the letter of 11 November 1996 sent by the Commission to the Italian authorities - the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 25 May 2004 in which it:

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

1.

Dismisses the application as inadmissible;

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

2.

Orders the applicant to bear the costs.

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(1)  OJ C 259 of 15.9.2001.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/15 |
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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 12 May 2004

in Case T-191/01 André Hecq v Commission of the European Communities (1)

(Officials - Social security - Article 72(1) of the Staff Regulations - Reimbursement of medical expenses - Serious illness - Refusal to reimburse certain medical services at 100 %)

(2004/C 190/25)

Language of the case: French

In Case T-191/01 André Hecq, an official of the Commission of the European Communities, residing in Mondercange (Luxembourg), represented by C. Mourato, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall) – application for annulment of two decisions adopted by the office responsible for the settlement of claims on 13 October 2000 and 6 November 2000 respectively, refusing to reimburse at 100 % certain medical services provided for the applicant's wife – the Court of First Instance, composed of J. Azizi, President, and M. Jaeger and F. Dehousse, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 12 May 2004 the operative part of which is as follows:

| 1. | The decisions adopted by the office responsible for the settlement of claims are annulled in so far as they refuse to reimburse at 100 % certain medical services provided for the applicant's wife; |
| --- | --- |

1.

The decisions adopted by the office responsible for the settlement of claims are annulled in so far as they refuse to reimburse at 100 % certain medical services provided for the applicant's wife;

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

2.

The Commission is ordered to pay the costs.

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(1)  OJ C 317 of 10.11.2001.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/16 |
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Action brought on 28 January 2004 by Eurodrive Services and Distribution N.V. against the Office for Harmonisation in the Internal Market (OHIM)

(Case T-31/04)

(2004/C 190/26)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 28 January 2004 by Eurodrive Services and Distribution N.V., established in Amsterdam (Netherlands), represented by E. Armijo Chávarri and A. Castán Pérez-Gómez, letrados en ejercicio.

The applicant claims that the Court should:

| — | Annul the OHMI decision (First Board of Appeal) of 12 November 2003 in joined cases R 419/2001-1 and R 530/2001-1; |
| --- | --- |

—

Annul the OHMI decision (First Board of Appeal) of 12 November 2003 in joined cases R 419/2001-1 and R 530/2001-1;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments:

| Applicant for the Community trade mark: | Jesús Gómez Frías |
| --- | --- |
| Community trade mark applied for: | Figurative mark 'EUROMASTER' – Application No 728.295 for services in Classes 39 (transport and storage of vehicles and accessories therefor) and 41 (organisation of sports competitions) |
| Proprietor of the opposing trade mark or sign: | The applicant |
| Opposing trade mark or sign: | Word marks 'EUROMASTER': Spanish (Nos 1.613.599 and 1.613.600), French (No 1.624.667), Austrian (172.243), Benelux (No 495.020), Danish (No VR 08 0221991), Finnish (No 119.689), English (Nos 1.454.805 and 1.455.074), Greek (No 109.184), Irish (No B 146.109), Italian (No 608.701), Portuguese (Nos 270.847 and 270.848) and Swedish (No 245.822) for goods and services in Classes 12, 16 and 37 |
| Decision of Opposition Division: | Upheld for opposition in respect of services in Class 39 and dismissal thereof in respect of services in Class 41 |
| Decision of Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Incorrect implementation of Article 8(1)(b) of Regulation (EC) No 40/94 and infringement of Article 73 thereof |

Applicant for the Community trade mark:

Jesús Gómez Frías

Community trade mark applied for:

Figurative mark 'EUROMASTER' – Application No 728.295 for services in Classes 39 (transport and storage of vehicles and accessories therefor) and 41 (organisation of sports competitions)

Proprietor of the opposing trade mark or sign:

The applicant

Opposing trade mark or sign:

Word marks 'EUROMASTER': Spanish (Nos 1.613.599 and 1.613.600), French (No 1.624.667), Austrian (172.243), Benelux (No 495.020), Danish (No VR 08 0221991), Finnish (No 119.689), English (Nos 1.454.805 and 1.455.074), Greek (No 109.184), Irish (No B 146.109), Italian (No 608.701), Portuguese (Nos 270.847 and 270.848) and Swedish (No 245.822) for goods and services in Classes 12, 16 and 37

Decision of Opposition Division:

Upheld for opposition in respect of services in Class 39 and dismissal thereof in respect of services in Class 41

Decision of Board of Appeal:

Dismissal of the appeal

Pleas in law:

Incorrect implementation of Article 8(1)(b) of Regulation (EC) No 40/94 and infringement of Article 73 thereof

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/16 |
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Action brought on 8 April 2004 by GfK Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-135/04)

(2004/C 190/27)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure - language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 8 April 2004 by GfK Aktiengesellschaft, Nuremberg (Germany), represented by U. Brückmann and R. Lange, lawyers.

BUS-Betreuungs- und Unternehmensberatungs-GmbH, Munich (Germany) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 February 2004 (Case R 327/2003-1); |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 February 2004 (Case R 327/2003-1);

| — | reject the opposition of the intervener of 6 October 2000 founded on the German word and figurative mark ‘BUS Betreuungsverbund für Unternehmer und Selbständige e.V.’ (Registration No: DE 1 127 415); |
| --- | --- |

—

reject the opposition of the intervener of 6 October 2000 founded on the German word and figurative mark ‘BUS Betreuungsverbund für Unternehmer und Selbständige e.V.’ (Registration No: DE 1 127 415);

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

—

order the Office to bear the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark sought: | The word mark ‘Online Bus’ for services in Class 35 (including drawing up statistics in the field of economics, marketing, market research and market analysis, business consultancy and organisation consultancy) |
| Proprietor of mark or sign cited in the opposition proceedings: | BUS-Betreuungs- und Unternehmensberatungs-GmbH |
| Mark or sign cited in opposition. | German figurative mark ‘BUS’ for services in Classes 35, 40, 41 and 42 (including business consultancy, in particular organisation consultancy and economic consultancy) |
| Decision of the Opposition Division: | Registration refused |
| Decision of the Board of Appeal: | Dismissal of the applicant's appeal |
| Pleas in law: | — | The intervener has failed to furnish proof of the use of the mark on which the opposition is founded, and the opposition should be rejected under the second sentence of Article 43(2) of Regulation (EC) No 40/94. |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

The word mark ‘Online Bus’ for services in Class 35 (including drawing up statistics in the field of economics, marketing, market research and market analysis, business consultancy and organisation consultancy)

Proprietor of mark or sign cited in the opposition proceedings:

BUS-Betreuungs- und Unternehmensberatungs-GmbH

Mark or sign cited in opposition.

German figurative mark ‘BUS’ for services in Classes 35, 40, 41 and 42 (including business consultancy, in particular organisation consultancy and economic consultancy)

Decision of the Opposition Division:

Registration refused

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

—

The intervener has failed to furnish proof of the use of the mark on which the opposition is founded, and the opposition should be rejected under the second sentence of Article 43(2) of Regulation (EC) No 40/94.

| — | As there is no similarity between the opposing marks, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation (EC) No 40/94. |
| --- | --- |

—

As there is no similarity between the opposing marks, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation (EC) No 40/94.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/17 |
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Action brought on 8 April 2004 by Domäne Vorderriss, Rasso Freiherr von Cramer-Klett and Rechtlerverband Pfronten against the Commission of the European Communities

(Case T-136/04)

(2004/C 190/28)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 April 2004 by Domäne Vorderriss, of Lenggries (Germany), Rasso Freiherr von Cramer-Klett, residing in Aschau i. Chiemgau (Germany), and Rechtlerverband Pfronten, of Pfronten (Germany), represented by T. Schönfeld, lawyer.

The applicants claim that the Court should:

| — | annul the Commission decision of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Alpine biogeographical region; (1) |
| --- | --- |

—

annul the Commission decision of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Alpine biogeographical region; (1)

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are the owners of tracts of forest which are managed by forestry businesses operated by the respective applicants and which now, under the contested decision, have been named as sites of Community importance (SCI) for the Alpine biogeographical region.

The applicants submit that the contested decision infringes their fundamental rights guaranteed by the general principles of the Community legal order. That infringement of fundamental rights is formally unlawful because upon adoption of the Commission Decision (and upon implementation of Directive 92/43/EEC) (2) no form of right of participation is bestowed upon the property owners concerned.

The applicants further submit that the contested decision also materially infringes the applicants' property rights because no consideration was given to the private property rights of the applicants (and the other persons affected) at the time of designation of the SCIs and there was therefore no balancing of the importance of the intended designation of SCIs against that of the applicants' private rights. Furthermore, the contested decision is contrary to the provisions of Directive 92/43/EEC itself because the question of the compensation to be paid remains entirely open and unresolved.

The applicants also submit that the contested decision is disproportionate since it is of itself not suitable to create a coherent European ecological network, and a ‘list of individual units’ for only one biogeographical region is thus incapable of achieving the directive's objective of providing protection. The contested decision is inappropriate also because the required Community-wide coordination was not achieved.

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(1)  OJ L 14, 21.1.2004, p. 21.

(2)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7).

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/18 |
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Action brought on 13 April 2004 by Antonietta Camurato Carfagno against the Commission of the European Communities

(Case T-143/04)

(2004/C 190/29)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 April 2004 by Antonietta Camurato Carfagno, resident in Braine-L'Alleud (Belgium), represented by Carlos Mourato, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Appeal Assessor of 9 April 2003 relating to the applicant's career development report (CDR) for the period from 1 July 2001 to 31 December 2002; |
| --- | --- |

—

annul the decision of the Appeal Assessor of 9 April 2003 relating to the applicant's career development report (CDR) for the period from 1 July 2001 to 31 December 2002;

| — | annul the express decision of the Appointing Authority of 11 December 2003 rejecting the applicant's complaint (R/353/03); |
| --- | --- |

—

annul the express decision of the Appointing Authority of 11 December 2003 rejecting the applicant's complaint (R/353/03);

| — | take formal note that the applicant reserves the right to advance an additional plea alleging misuse of powers on the part of the assessors and the Appointing Authority; |
| --- | --- |

—

take formal note that the applicant reserves the right to advance an additional plea alleging misuse of powers on the part of the assessors and the Appointing Authority;

| — | order the defendant to pay the costs of the proceedings and the expenses necessarily incurred for the purposes of the proceedings, and in particular the expenses of retaining an address for service, travel and subsistence expenses and the fees and expenses of lawyers. |
| --- | --- |

—

order the defendant to pay the costs of the proceedings and the expenses necessarily incurred for the purposes of the proceedings, and in particular the expenses of retaining an address for service, travel and subsistence expenses and the fees and expenses of lawyers.

Pleas in law and main arguments:

The applicant challenges her career development report (CDR) for the period from 1 July 2001 to 31 December 2002.

In support of her application, the applicant submits that the assessments set out in her CDR are manifestly flawed having regard to several acts and events which took place during and after the period of reference and to comments made by the assessor and countersigning officer which contradict the mark given and its meaning. The applicant further considers that the CDR infringes Article 43 of the Staff Regulations in that the new system of assessment can result in the under-assessment of officials, as the applicant considers has occurred in her case, particularly given the requirement that there be an average mark of 14/20.

The applicant further alleges:

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

—

a manifest error of assessment;

| — | an infringement of the principle of equal treatment; and |
| --- | --- |

—

an infringement of the principle of equal treatment; and

| — | an infringement of the obligation to state reasons. |
| --- | --- |

—

an infringement of the obligation to state reasons.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/18 |
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Action brought on 10 May 2004 by Patricia Wauthier and Viviane Deveen against Commission of the European Communities

(Case T-164/04)

(2004/C 190/30)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 May 2004 by Patricia Wauthier and Viviane Deveen, residing in Belgium, represented by G. Bounéou and F. Frabetti, lawyers, with an address for service in Luxembourg.

The applicants claim that the Court should:

| — | Annul the 2001-2002 appraisal exercise in relation to the applicants; |
| --- | --- |

—

Annul the 2001-2002 appraisal exercise in relation to the applicants;

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

—

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

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

—

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

Pleas in law and main arguments:

The pleas in law and main arguments relied upon by the applicants in this case are the same as those relied upon by the applicants in Cases T-43/04 and T-47/04.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/19 |
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Action brought on 17 May 2004 by Daniel Surget against the Council of the European Union and the Commission of the European Communities

(Case T-171/04)

(2004/C 190/31)

Language of the case: French

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 May 2004 by Daniel Surget, residing in Cherbourg (France), represented by Jean-François Péricaud, lawyer.

The applicant claims that the Court should:

| — | order the Council and the Commission jointly and severally to pay the sum of EUR 909 428, or in the alternative EUR 740 190, with interest in either case at the legal rate from the date this action was brought, by way of damages; |
| --- | --- |

—

order the Council and the Commission jointly and severally to pay the sum of EUR 909 428, or in the alternative EUR 740 190, with interest in either case at the legal rate from the date this action was brought, by way of damages;

| — | order the Council and the Commission to bear the costs jointly and severally. |
| --- | --- |

—

order the Council and the Commission to bear the costs jointly and severally.

Pleas in law and main arguments:

The pleas in law and principal arguments are the same as those relied on in Case T-440/03 Arizmendi and Others v Council and Commission (1).

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(1)  OJ C 59, 6. 3. 2004, p. 31.

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| 24.7.2004 | EN | Official Journal of the European Union | C 190/19 |
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Action brought on 17 May 2004 by Nathalie Heinen against Commission of the European Communities

(Case T-181/04)

(2004/C 190/32)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 May 2004 by Nathalie Heinen, residing in Ottignies (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the selection board in Competition COM/PB/02 not to include the applicant's name on the reserve list; |
| --- | --- |

—

annul the decision of the selection board in Competition COM/PB/02 not to include the applicant's name on the reserve list;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant, who took the tests in internal competition COM/PB/02 to move from Category C to Category B, contests the decision of the selection board not to place her on the reserve list drawn up following that competition on the basis of the marks she was awarded in the oral test which, although higher than those required in theory, were insufficient.

In support of her claims the applicant pleads breach of the notice of competition and breach of the principle of equality of treatment and non-discrimination.

In that connection the applicant explains that although the notice of competition provided that the candidates had to indicate on their application form their chosen language for the pre-selection tests and for the oral test, with the option of choosing a different language for the oral test, that decision being final, certain candidates were allowed to change language after submitting their application form, some of them on the day of the oral test itself.

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III Notices

| 24.7.2004 | EN | Official Journal of the European Union | C 190/20 |
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(2004/C 190/33)

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

OJ C 179, 10.7.2004

Past publications

OJ C 168, 26.6.2004

OJ C 156, 12.6.2004

OJ C 146, 29.5.2004

OJ C 106, 30.4.2004

OJ C 94, 17.4.2004

OJ C 85, 3.4.2004

These texts are available on:

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

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

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