# Official Journal C 284/20 N

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 284 |
| | |
| English edition | Information and Notices | Volume 4720 November 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 284

English edition

Information and Notices

Volume 4720 November 2004

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 284/1 | Judgment of the Court (Second Chamber) of 30 September 2004 in Case C-275/02 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Engin Ayaz v Land Baden-Württemberg (EEC-Turkey Association — Freedom of movement for workers — First paragraph of Article 7 of Decision No 1/80 of the Association Council — Personal scope — Concept of member of the family of a Turkish worker duly registered as belonging to the labour force of a Member State — Stepson of such a worker) | 1 |
| 2004/C 284/2 | Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-280/02 Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Article 5(1) and (2) and Annex II — Failure to identify sensitive areas — Meaning of eutrophication — Failure to implement more stringent treatment of discharges into sensitive areas) | 1 |
| 2004/C 284/3 | Judgment of the Court (Third Chamber) of 23 September 2004 in Case C-297/02: Italian Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Public storage of alcohol — Aid for olive oil production — Financial years 1997, 1998 and 1999 — Decision 2002/523/EC) | 2 |
| 2004/C 284/4 | Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-414/02: (reference for a preliminary ruling from the Verwaltungsgerichtshof): Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul v Finanzlandesdirektion für Oberösterreich (Community Customs Code — Article 202 — Accrual of the customs debt — Unlawful introduction into the Community customs territory — Meaning of debtor of such a debt — Extension to the employer of liability for the debt of an employee who has committed irregularities in the performance of customs obligations) | 2 |
| 2004/C 284/5 | Judgment of the Court (Grand Chamber) of 14 September 2004 in Case C-19/03 (reference for a preliminary ruling from the Landgericht München I): Verbraucher-Zentrale Hamburg eV v O2 (Germany) GmbH & Co. OHG (Economic and monetary policy — Regulation (EC) No 1103/97 — Introduction of the euro — Conversion of national currency units to the euro unit — Rounding of monetary amounts to be paid or accounted for after conversion — Contract concluded in the telecommunications sector — Meaning of monetary amounts to be paid or accounted for — Per-minute tariffs for telephone calls) | 3 |
| 2004/C 284/6 | Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-107/03 P: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)(b) of Regulation (EC) No 40/94 — Three-dimensional soap-bar shape — Absolute ground for refusal to register — Distinctiveness) | 3 |
| 2004/C 284/7 | Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-150/03 P: Chantal Hectors v European Parliament (Appeal — Officials — Temporary staff in the European Parliament's political groups — Recruitment — Rejection of candidature — Grounds — Requirement of a statement of specific reasons) | 4 |
| 2004/C 284/8 | Judgment of the Court (Second Chamber) of 30 September 2004 in Case C-319/03 (reference for a preliminary ruling from the Tribunal administratif de Paris): Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation nationale and Ministre de la Justice (Social policy — Equal treatment of men and women — Article 141(4) EC — Directive 76/207/EEC — Conditions of access to public-sector employment — Provisions reserving to widows who have not remarried the benefit of the exemption from the age-limit for obtaining access to that employment) | 4 |
| 2004/C 284/9 | Judgment of the Court (Sixth Chamber) of 30 September 2004 in Case C-359/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Directive 90/270/EEC — Protection of workers — Work with display screen equipment — Minimum safety and health requirements — Failure to transpose) | 5 |
| 2004/C 284/0 | Judgment of the Court (Fourth Chamber) of 30 September 2004 in Case C-417/03: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2001/18/EC — Deliberate release into the environment of genetically modified organisms — Failure to transpose within the prescribed period) | 5 |
| 2004/C 284/1 | Judgment of the Court (Sixth Chamber) of 30 September 2004 in Case C-481/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of Member State to fulfil obligations — Directives 2001/12/EC and 2001/13/EC — The Community's railways — Development — Fair, uniform and non-discriminatory access to the infrastructure — Licensing of railway undertakings — Common scheme — Failure to transpose within the period prescribed) | 6 |
| 2004/C 284/2 | Judgment of the Court (Fourth Chamber) of 30 September 2004 in Case C-496/03: Commission of the European Communities v French Republic (Failure of Member State to fulfil obligations — Directive 2001/59/EC — Failure to transpose) | 6 |
| 2004/C 284/3 | Case C-357/04 P: Appeal brought on 17 August 2004 by Antonio Adolfi against the order made on 27 May 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-379/02 between Antonio Adolfi and the Commission of the European Communities | 6 |
| 2004/C 284/4 | Case C-363/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon (STEAT) and (2) Enklidis ATE | 7 |
| 2004/C 284/5 | Case C-364/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the intervener Sindesmos Teknikon Etaireion Anoteron Taxeon (STEAT) | 7 |
| 2004/C 284/6 | Case C-365/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, Thessaliki ATE | 8 |
| 2004/C 284/7 | Case C-367/04 P: Appeal brought on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l) against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA | 8 |
| 2004/C 284/8 | Case C-388/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 24 August 2004, in the case of The Queen on the application of South Western Fish Producers' Organisation Ltd and others against Secretary of State for Environment, Food and Rural Affairs | 9 |
| 2004/C 284/9 | Case C-403/04 P: Appeal brought on 22 September 2004 by Sumitomo Metal Industries Ltd against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities | 9 |
| 2004/C 284/0 | Case C-405/04 P: Appeal brought on 22 September 2004 by Nippon Steel Corp. against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities | 10 |
| 2004/C 284/1 | Case C-406/04: Reference for a preliminary ruling by the Tribunal du travail de Bruxelles (17th Chamber), by judgment of that court of 8 September 2004 in the case of Gérald de Cuyper v Office national de l'emploi | 11 |
| 2004/C 284/2 | Case C-415/04: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that court of 24 September 2004 in the case of Staatssecretaris van Financiën against Stichting Kinderopvang Enschede | 11 |
| 2004/C 284/3 | Case C-419/04: Reference for a preliminary ruling by the Cour d'Appel de Poitiers (2ème Chambre Civile) by order of that court of 21 September 2004 in the case of Conseil Général de la Vienne against Directeur Général des Douanes et Droits Indirects | 11 |
| 2004/C 284/4 | Case C-420/04 P: Appeal brought on 29 September 2004 by Georgios Gouvras against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities | 12 |
| 2004/C 284/5 | Case C-422/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 7 July 2004 in the case ISIS Multimedia GmbH & Co. KG against the Federal Republic of Germany | 13 |
| 2004/C 284/6 | Case C-429/04: Action brought on 30 September 2004 by the Commission of the European Communities against the Kingdom of Belgium | 13 |
| 2004/C 284/7 | Removal from the register of Case C-362/03 | 13 |
| | COURT OF FIRST INSTANCE |
| 2004/C 284/8 | Judgment of the Court of First Instance of 14 September 2004 in Case T-156/94: Siderúrgica Aristrain Madrid SL v Commission of the European Communities (ECSC Treaty — Competition — Agreements and concerted practices — European producers of beams — Imputability of the unlawful conduct — Fine — Appeal — Case referred back to the Court of First Instance) | 14 |
| 2004/C 284/9 | Judgment of the Court of First Instance of 16 September 2004 in Case T-274/01: Valmont Nederland BV v Commission of the European Communities (State aid — Concept — Benefit — Land sale price — Financing for a car park) | 14 |
| 2004/C 284/0 | Judgment of the Court of First Instance of 21 September 2004 in Case T-104/02: Société française de transports Gondrand Frères SA v Commission of the European Communities (Remission of import duties — Article 1(3) of Regulation (EC) No 3319/94 — Meaning of special situation under Article 905 of Regulation (EEC) No 2454/93 — Anti-dumping duty on imports of urea ammonium nitrate solution originating in Poland — Direct invoicing of the importer) | 15 |
| 2004/C 284/1 | Judgment of the Court of First Instance of 14 September 2004 in Case T-290/02: Associazione Consorzi Tessili (Ascontex) v Commission of the European Communities (European Regional Development Fund — Community initiative for small and medium-sized enterprises — Organisation of IBEX reverse exhibitions — Cancellation and demand for repayment of financial assistance — Regulation (EEC) No 4253/88 — Article 24 — Action for annulment) | 15 |
| 2004/C 284/2 | Judgment of the Court of First Instance of 21 September 2004 in Case T-325/02: Michel Soubies v Commission of the European Communities (Officials — Re-assignment of an official in Grade A 3 as adviser ad personam — Restructuring of the Secretariat-General — Correspondence between grade and post) | 16 |
| 2004/C 284/3 | Judgment of the Court of First Instance of 16 September 2004 in Case T-342/02: Metro-Goldwyn-Mayer Lion Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Extent of the obligation of examination — Conversion into a national trade-mark application — Article 58 of Regulation (EC) No 40/94) | 16 |
| 2004/C 284/4 | Judgment of the Court of First Instance of 14 September 2004 in Case T-183/03: Applied Molecular Evolution Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark APPLIED MOLECULAR EVOLUTION — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94 — Descriptive sign) | 16 |
| 2004/C 284/5 | Judgment of the Court of First Instance of 14 September 2004 in Case T-254/03: José Manuel Lòpez Cejudo v Commission of the European Communities (Officials — Allowance for living conditions — Accommodation — Articles 5 and 10 of Annex X to the Staff Regulations) | 17 |
| 2004/C 284/6 | Order of the Court of First Instance of 10 May 2004 in Case T-391/02, Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, Josef Kloh v European Parliament and Council of the European Union (Application for annulment — Regulation (EC) No 1774/2002 — Health rules concerning animal by-products not intended for human consumption — Manifest inadmissibility) | 17 |
| 2004/C 284/7 | Case T-287/04: Action brought on 13 July 2004 by Lorte, Sociedad Limitada, Oleo Unión, Federación Empresarial de Organizaciones de Productores de Aceite de Oliva, and Unaproliva, Unión de organizaciones de productores de Aceite de Oliva against Council of the European Union | 17 |
| 2004/C 284/8 | Case T-299/04: Action brought on 7 July 2004 by Abdelghani Selmani against the Council of the European Union and the Commission of the European Communities | 18 |
| 2004/C 284/9 | Case T-330/04: Action brought on 9 August 2004 by Jörg-Michael Fetzer against the European Parliament | 19 |
| 2004/C 284/0 | Case T-331/04: Action brought on 11 August 2004 by Stephen Stork against the Commission of the European Communities | 20 |
| 2004/C 284/1 | Case T-332/04: Action brought on 6 August 2004 by SEBIRAN, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 20 |
| 2004/C 284/2 | Case T-341/04: Action brought on 13 August 2004 by DATAC AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 21 |
| 2004/C 284/3 | Case T-357/04: Action brought on 31 August 2004 by Marguerite Chetcuti against Commission of the European Communities | 21 |
| 2004/C 284/4 | Case T-358/04: Action brought on 30 August 2004 by Georg Neumann GmbH, Berlin against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 22 |
| 2004/C 284/5 | Case T-359/04: Action brought on 30 August 2004 by The British Aggregates Association Limited, Healy Bros. Limited and DK Trotter & Sons Limited against the Commission of the European Communities | 22 |
| 2004/C 284/6 | Case T-363/04: Action brought on 31 August 2004 by Koipe Corporación S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 23 |
| 2004/C 284/7 | Case T-365/04: Action brought on 10 September 2004 by Dominique Cantoni against Council of the European Union and Commission of the European Communities | 24 |
| 2004/C 284/8 | Case T-367/04: Action brought on 15 September 2004 by Gibtelecom Limited against the Commission of the European Communities | 24 |
| 2004/C 284/9 | Case T-373/04: Action brought on 12 September 2004 by Eric Mathias Fries Guggenheim against European Centre for the Development of Vocational Training (CEDEFOP) | 25 |
| 2004/C 284/0 | Case T-374/04: Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities | 25 |
| 2004/C 284/1 | Case T-376/04: Action brought on 17 September 2004 by Polyelectrolyte Producers Group against the Council of the European Union and the Commission of the European Communities | 26 |
| 2004/C 284/2 | Case T-377/04: Action brought on 16 September 2004 by Bart Nijs against the Court of Auditors of the European Communities | 26 |
| 2004/C 284/3 | Case T-379/04: Action brought on 17 September 2004 by J against the Commission of the European Communities | 27 |
| 2004/C 284/4 | Case T-385/04: Action brought on 20 September 2004 by Gregorio Valero Jordana against Commission of the European Communities | 27 |
| 2004/C 284/5 | Case T-386/04: Action brought on 27 September 2004 by Eridania Sadam S.p.A. and Others against the Commission of the European Communities | 28 |
| 2004/C 284/6 | Case T-388/04: Action brought on 28 September 2004 by Habib Kachakil Amar against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 29 |
| 2004/C 284/7 | Case T-392/04: Action brought on 24 September 2004 by Salvatore Gagliardi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.) | 29 |
| 2004/C 284/8 | Removal from the Register of Case T-224/02 | 30 |
| 2004/C 284/9 | Removal from the Register of Case T-306/02 | 30 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 284/1

Judgment of the Court (Second Chamber) of 30 September 2004 in Case C-275/02 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Engin Ayaz v Land Baden-Württemberg (EEC-Turkey Association — Freedom of movement for workers — First paragraph of Article 7 of Decision No 1/80 of the Association Council — Personal scope — Concept of member of the family of a Turkish worker duly registered as belonging to the labour force of a Member State — Stepson of such a worker)

1

2004/C 284/2

Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-280/02 Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Article 5(1) and (2) and Annex II — Failure to identify sensitive areas — Meaning of eutrophication — Failure to implement more stringent treatment of discharges into sensitive areas)

1

2004/C 284/3

Judgment of the Court (Third Chamber) of 23 September 2004 in Case C-297/02: Italian Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Public storage of alcohol — Aid for olive oil production — Financial years 1997, 1998 and 1999 — Decision 2002/523/EC)

2

2004/C 284/4

Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-414/02: (reference for a preliminary ruling from the Verwaltungsgerichtshof): Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul v Finanzlandesdirektion für Oberösterreich (Community Customs Code — Article 202 — Accrual of the customs debt — Unlawful introduction into the Community customs territory — Meaning of debtor of such a debt — Extension to the employer of liability for the debt of an employee who has committed irregularities in the performance of customs obligations)

2

2004/C 284/5

Judgment of the Court (Grand Chamber) of 14 September 2004 in Case C-19/03 (reference for a preliminary ruling from the Landgericht München I): Verbraucher-Zentrale Hamburg eV v O2 (Germany) GmbH & Co. OHG (Economic and monetary policy — Regulation (EC) No 1103/97 — Introduction of the euro — Conversion of national currency units to the euro unit — Rounding of monetary amounts to be paid or accounted for after conversion — Contract concluded in the telecommunications sector — Meaning of monetary amounts to be paid or accounted for — Per-minute tariffs for telephone calls)

3

2004/C 284/6

Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-107/03 P: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)(b) of Regulation (EC) No 40/94 — Three-dimensional soap-bar shape — Absolute ground for refusal to register — Distinctiveness)

3

2004/C 284/7

Judgment of the Court (Second Chamber) of 23 September 2004 in Case C-150/03 P: Chantal Hectors v European Parliament (Appeal — Officials — Temporary staff in the European Parliament's political groups — Recruitment — Rejection of candidature — Grounds — Requirement of a statement of specific reasons)

4

2004/C 284/8

Judgment of the Court (Second Chamber) of 30 September 2004 in Case C-319/03 (reference for a preliminary ruling from the Tribunal administratif de Paris): Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation nationale and Ministre de la Justice (Social policy — Equal treatment of men and women — Article 141(4) EC — Directive 76/207/EEC — Conditions of access to public-sector employment — Provisions reserving to widows who have not remarried the benefit of the exemption from the age-limit for obtaining access to that employment)

4

2004/C 284/9

Judgment of the Court (Sixth Chamber) of 30 September 2004 in Case C-359/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Directive 90/270/EEC — Protection of workers — Work with display screen equipment — Minimum safety and health requirements — Failure to transpose)

5

2004/C 284/0

Judgment of the Court (Fourth Chamber) of 30 September 2004 in Case C-417/03: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2001/18/EC — Deliberate release into the environment of genetically modified organisms — Failure to transpose within the prescribed period)

5

2004/C 284/1

Judgment of the Court (Sixth Chamber) of 30 September 2004 in Case C-481/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of Member State to fulfil obligations — Directives 2001/12/EC and 2001/13/EC — The Community's railways — Development — Fair, uniform and non-discriminatory access to the infrastructure — Licensing of railway undertakings — Common scheme — Failure to transpose within the period prescribed)

6

2004/C 284/2

Judgment of the Court (Fourth Chamber) of 30 September 2004 in Case C-496/03: Commission of the European Communities v French Republic (Failure of Member State to fulfil obligations — Directive 2001/59/EC — Failure to transpose)

6

2004/C 284/3

Case C-357/04 P: Appeal brought on 17 August 2004 by Antonio Adolfi against the order made on 27 May 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-379/02 between Antonio Adolfi and the Commission of the European Communities

6

2004/C 284/4

Case C-363/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon (STEAT) and (2) Enklidis ATE

7

2004/C 284/5

Case C-364/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the intervener Sindesmos Teknikon Etaireion Anoteron Taxeon (STEAT)

7

2004/C 284/6

Case C-365/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, Thessaliki ATE

8

2004/C 284/7

Case C-367/04 P: Appeal brought on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l) against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA

8

2004/C 284/8

Case C-388/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 24 August 2004, in the case of The Queen on the application of South Western Fish Producers' Organisation Ltd and others against Secretary of State for Environment, Food and Rural Affairs

9

2004/C 284/9

Case C-403/04 P: Appeal brought on 22 September 2004 by Sumitomo Metal Industries Ltd against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities

9

2004/C 284/0

Case C-405/04 P: Appeal brought on 22 September 2004 by Nippon Steel Corp. against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities

10

2004/C 284/1

Case C-406/04: Reference for a preliminary ruling by the Tribunal du travail de Bruxelles (17th Chamber), by judgment of that court of 8 September 2004 in the case of Gérald de Cuyper v Office national de l'emploi

11

2004/C 284/2

Case C-415/04: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that court of 24 September 2004 in the case of Staatssecretaris van Financiën against Stichting Kinderopvang Enschede

11

2004/C 284/3

Case C-419/04: Reference for a preliminary ruling by the Cour d'Appel de Poitiers (2ème Chambre Civile) by order of that court of 21 September 2004 in the case of Conseil Général de la Vienne against Directeur Général des Douanes et Droits Indirects

11

2004/C 284/4

Case C-420/04 P: Appeal brought on 29 September 2004 by Georgios Gouvras against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities

12

2004/C 284/5

Case C-422/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 7 July 2004 in the case ISIS Multimedia GmbH & Co. KG against the Federal Republic of Germany

13

2004/C 284/6

Case C-429/04: Action brought on 30 September 2004 by the Commission of the European Communities against the Kingdom of Belgium

13

2004/C 284/7

Removal from the register of Case C-362/03

13

COURT OF FIRST INSTANCE

2004/C 284/8

Judgment of the Court of First Instance of 14 September 2004 in Case T-156/94: Siderúrgica Aristrain Madrid SL v Commission of the European Communities (ECSC Treaty — Competition — Agreements and concerted practices — European producers of beams — Imputability of the unlawful conduct — Fine — Appeal — Case referred back to the Court of First Instance)

14

2004/C 284/9

Judgment of the Court of First Instance of 16 September 2004 in Case T-274/01: Valmont Nederland BV v Commission of the European Communities (State aid — Concept — Benefit — Land sale price — Financing for a car park)

14

2004/C 284/0

Judgment of the Court of First Instance of 21 September 2004 in Case T-104/02: Société française de transports Gondrand Frères SA v Commission of the European Communities (Remission of import duties — Article 1(3) of Regulation (EC) No 3319/94 — Meaning of special situation under Article 905 of Regulation (EEC) No 2454/93 — Anti-dumping duty on imports of urea ammonium nitrate solution originating in Poland — Direct invoicing of the importer)

15

2004/C 284/1

Judgment of the Court of First Instance of 14 September 2004 in Case T-290/02: Associazione Consorzi Tessili (Ascontex) v Commission of the European Communities (European Regional Development Fund — Community initiative for small and medium-sized enterprises — Organisation of IBEX reverse exhibitions — Cancellation and demand for repayment of financial assistance — Regulation (EEC) No 4253/88 — Article 24 — Action for annulment)

15

2004/C 284/2

Judgment of the Court of First Instance of 21 September 2004 in Case T-325/02: Michel Soubies v Commission of the European Communities (Officials — Re-assignment of an official in Grade A 3 as adviser ad personam — Restructuring of the Secretariat-General — Correspondence between grade and post)

16

2004/C 284/3

Judgment of the Court of First Instance of 16 September 2004 in Case T-342/02: Metro-Goldwyn-Mayer Lion Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Extent of the obligation of examination — Conversion into a national trade-mark application — Article 58 of Regulation (EC) No 40/94)

16

2004/C 284/4

Judgment of the Court of First Instance of 14 September 2004 in Case T-183/03: Applied Molecular Evolution Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark APPLIED MOLECULAR EVOLUTION — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94 — Descriptive sign)

16

2004/C 284/5

Judgment of the Court of First Instance of 14 September 2004 in Case T-254/03: José Manuel Lòpez Cejudo v Commission of the European Communities (Officials — Allowance for living conditions — Accommodation — Articles 5 and 10 of Annex X to the Staff Regulations)

17

2004/C 284/6

Order of the Court of First Instance of 10 May 2004 in Case T-391/02, Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, Josef Kloh v European Parliament and Council of the European Union (Application for annulment — Regulation (EC) No 1774/2002 — Health rules concerning animal by-products not intended for human consumption — Manifest inadmissibility)

17

2004/C 284/7

Case T-287/04: Action brought on 13 July 2004 by Lorte, Sociedad Limitada, Oleo Unión, Federación Empresarial de Organizaciones de Productores de Aceite de Oliva, and Unaproliva, Unión de organizaciones de productores de Aceite de Oliva against Council of the European Union

17

2004/C 284/8

Case T-299/04: Action brought on 7 July 2004 by Abdelghani Selmani against the Council of the European Union and the Commission of the European Communities

18

2004/C 284/9

Case T-330/04: Action brought on 9 August 2004 by Jörg-Michael Fetzer against the European Parliament

19

2004/C 284/0

Case T-331/04: Action brought on 11 August 2004 by Stephen Stork against the Commission of the European Communities

20

2004/C 284/1

Case T-332/04: Action brought on 6 August 2004 by SEBIRAN, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

20

2004/C 284/2

Case T-341/04: Action brought on 13 August 2004 by DATAC AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

21

2004/C 284/3

Case T-357/04: Action brought on 31 August 2004 by Marguerite Chetcuti against Commission of the European Communities

21

2004/C 284/4

Case T-358/04: Action brought on 30 August 2004 by Georg Neumann GmbH, Berlin against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

22

2004/C 284/5

Case T-359/04: Action brought on 30 August 2004 by The British Aggregates Association Limited, Healy Bros. Limited and DK Trotter & Sons Limited against the Commission of the European Communities

22

2004/C 284/6

Case T-363/04: Action brought on 31 August 2004 by Koipe Corporación S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

23

2004/C 284/7

Case T-365/04: Action brought on 10 September 2004 by Dominique Cantoni against Council of the European Union and Commission of the European Communities

24

2004/C 284/8

Case T-367/04: Action brought on 15 September 2004 by Gibtelecom Limited against the Commission of the European Communities

24

2004/C 284/9

Case T-373/04: Action brought on 12 September 2004 by Eric Mathias Fries Guggenheim against European Centre for the Development of Vocational Training (CEDEFOP)

25

2004/C 284/0

Case T-374/04: Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities

25

2004/C 284/1

Case T-376/04: Action brought on 17 September 2004 by Polyelectrolyte Producers Group against the Council of the European Union and the Commission of the European Communities

26

2004/C 284/2

Case T-377/04: Action brought on 16 September 2004 by Bart Nijs against the Court of Auditors of the European Communities

26

2004/C 284/3

Case T-379/04: Action brought on 17 September 2004 by J against the Commission of the European Communities

27

2004/C 284/4

Case T-385/04: Action brought on 20 September 2004 by Gregorio Valero Jordana against Commission of the European Communities

27

2004/C 284/5

Case T-386/04: Action brought on 27 September 2004 by Eridania Sadam S.p.A. and Others against the Commission of the European Communities

28

2004/C 284/6

Case T-388/04: Action brought on 28 September 2004 by Habib Kachakil Amar against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

29

2004/C 284/7

Case T-392/04: Action brought on 24 September 2004 by Salvatore Gagliardi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.)

29

2004/C 284/8

Removal from the Register of Case T-224/02

30

2004/C 284/9

Removal from the Register of Case T-306/02

30

| | III   Notices |
| --- | --- |
| 2004/C 284/0 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 273, 6.11.2004 | 31 |

III   Notices

2004/C 284/0

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 273, 6.11.2004

Official Journal of the European Union

31

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 20.11.2004 | EN | Official Journal of the European Union | C 284/1 |
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20.11.2004

EN

Official Journal of the European Union

C 284/1

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JUDGMENT OF THE COURT

(Second Chamber)

of 30 September 2004

in Case C-275/02 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Engin Ayaz v Land Baden-Württemberg (1)

(EEC-Turkey Association - Freedom of movement for workers - First paragraph of Article 7 of Decision No 1/80 of the Association Council - Personal scope - Concept of ‘member of the family’ of a Turkish worker duly registered as belonging to the labour force of a Member State - Stepson of such a worker)

(2004/C 284/01)

Language of the case: German

In Case C-275/02: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Stuttgart (Germany), made by decision of 11 July 2002, received at the Court on 26 July 2002, in the proceedings between Engin Ayaz and Land Baden-Württemberg — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues and R. Schintgen (Rapporteur), and F. Macken, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 30 September 2004, in which it has ruled:

The first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, is to be interpreted as meaning that a stepson who is under the age of 21 years or is a dependant of a Turkish worker duly registered as belonging to the labour force of a Member State is a member of the family of that worker, for the purposes of that provision, and enjoys the rights conferred on him by that decision, provided that he has been duly authorised to join that worker in the host Member State.

---

(1)  OJ C 261, 26.10.2002.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/1 |
| --- | --- | --- | --- |

20.11.2004

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Official Journal of the European Union

C 284/1

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JUDGMENT OF THE COURT

(Second Chamber)

of 23 September 2004

in Case C-280/02 Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil obligations - Directive 91/271/EEC - Urban waste water treatment - Article 5(1) and (2) and Annex II - Failure to identify sensitive areas - Meaning of ‘eutrophication’ - Failure to implement more stringent treatment of discharges into sensitive areas)

(2004/C 284/02)

Language of the case: French

In Case C-280/02: Commission of the European Communities (Agents: M. Nolin and subsequently G. Valero Jordana and F. Simonetti) against French Republic (Agents: G. de Bergues, D. Petrausch and E. Puisais) — action under Article 226 EC for failure to fulfil obligations, brought on 30 July 2002, the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, R. Schintgen, F. Macken (Rapporteur) and N. Colneric, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 23 September 2004, in which it:

| 1. | Declares that, by having failed:






  — | to identify the Seine bay, the Seine downstream of its confluence with the Andelle, the coastal waters of the Artois-Picardy basin, Vilaine bay, the Lorient roadstead, Elorn estuary, Douarnenez bay, Concarneau bay, the Gulf of Morbihan, the Vistre downstream from Nîmes and Thau lagoon as sensitive areas with respect to eutrophication, and |
| --- | --- | --- |

1.

Declares that, by having failed:

—

to identify the Seine bay, the Seine downstream of its confluence with the Andelle, the coastal waters of the Artois-Picardy basin, Vilaine bay, the Lorient roadstead, Elorn estuary, Douarnenez bay, Concarneau bay, the Gulf of Morbihan, the Vistre downstream from Nîmes and Thau lagoon as sensitive areas with respect to eutrophication, and

| — | to subject to more stringent treatment discharges of urban waste water from the agglomerations — except for Vichy, Aix-en-Provence, Mâcon, Créhange, Saint-Avold, Bailleul, Aurillac, Montauban, Châtillon-sur-Seine and Gray — referred to in the French authorities' letter of 12 December 2000 and from the Montpellier agglomeration, and to subject to more stringent treatment discharges of urban waste water from agglomerations with a population equivalent (p.e.) of more than 10 000 into the Seine bay, the Seine downstream of its confluence with the Andelle, the coastal waters of the Artois-Picardy basin, Vilaine bay, the Lorient roadstead, Elorn estuary, Douarnenez bay, Concarneau bay, the Gulf of Morbihan, the Vistre downstream from Nîmes and Thau lagoon, |
| --- | --- |

—

to subject to more stringent treatment discharges of urban waste water from the agglomerations — except for Vichy, Aix-en-Provence, Mâcon, Créhange, Saint-Avold, Bailleul, Aurillac, Montauban, Châtillon-sur-Seine and Gray — referred to in the French authorities' letter of 12 December 2000 and from the Montpellier agglomeration, and to subject to more stringent treatment discharges of urban waste water from agglomerations with a population equivalent (p.e.) of more than 10 000 into the Seine bay, the Seine downstream of its confluence with the Andelle, the coastal waters of the Artois-Picardy basin, Vilaine bay, the Lorient roadstead, Elorn estuary, Douarnenez bay, Concarneau bay, the Gulf of Morbihan, the Vistre downstream from Nîmes and Thau lagoon,

the French Republic has failed to fulfil its obligations pursuant to Article 5(1) and (2) of, and Annex II to, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the French Republic to pay the costs. |
| --- | --- |

3.

Orders the French Republic to pay the costs.

---

(1)  OJ C 219 of 14.9.2002.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/2 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/2

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JUDGMENT OF THE COURT

(Third Chamber)

of 23 September 2004

in Case C-297/02: Italian Republic v Commission of the European Communities (1)

(EAGGF - Clearance of accounts - Public storage of alcohol - Aid for olive oil production - Financial years 1997, 1998 and 1999 - Decision 2002/523/EC)

(2004/C 284/03)

Language of the case: Italian

In Case C-297/02: application for annulment under Article 230 EC, brought on 21 August 2002, in the proceedings between Italian Republic (Agent: I.M. Braguglia, assisted by M. Fiorilli) and Commission of the Euorpean Communities (Agent: A. Aresu) — the Court (Third Chamber), composed of: A Rosas, acting as President of the Third Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 23 September 2004, in which it has ruled:

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

1.

The action is dismissed;

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

2.

The Italian Republic is ordered to bear the costs.

---

(1)  OJ C 247, 12.10.2002.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/2 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/2

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JUDGMENT OF THE COURT

(Second Chamber)

of 23 September 2004

in Case C-414/02: (reference for a preliminary ruling from the Verwaltungsgerichtshof): Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul v Finanzlandesdirektion für Oberösterreich (1)

(Community Customs Code - Article 202 - Accrual of the customs debt - Unlawful introduction into the Community customs territory - Meaning of ‘debtor’ of such a debt - Extension to the employer of liability for the debt of an employee who has committed irregularities in the performance of customs obligations)

(2004/C 284/04)

Language of the case: German

In Case C-414/02: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof (Austria), made by decision of 6 November 2002, received at the Court on 19 November 2002, in the proceedings between Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul and Finanzlandesdirektion für Oberösterreich — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), R. Schintgen and F. Macken, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 23 September 2004, in which it has ruled:

Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code is to be interpreted as meaning that it does not preclude national legislation such as Paragraph 79(2) of the Zollrechts-Durchführungsgesetz (Act to implement customs law) which, in the event of unlawful introduction into the customs territory of the Community of goods subject to import duties, makes the employer co-debtor of the customs debt of the employee who introduced those goods in the conduct of the employer's affairs, so long as such legislation requires that the employer took part in the introduction of the goods and knew or ought reasonably to have known that such introduction was unlawful.

---

(1)  OJ C 19, 25.1.2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/3 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/3

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 14 September 2004

in Case C-19/03 (reference for a preliminary ruling from the Landgericht München I): Verbraucher-Zentrale Hamburg eV v O2 (Germany) GmbH & Co. OHG (1)

(Economic and monetary policy - Regulation (EC) No 1103/97 - Introduction of the euro - Conversion of national currency units to the euro unit - Rounding of monetary amounts to be paid or accounted for after conversion - Contract concluded in the telecommunications sector - Meaning of ‘monetary amounts to be paid or accounted for’ - Per-minute tariffs for telephone calls)

(2004/C 284/05)

Language of the case: German

In Case C-19/03: reference to the Court under Article 234 EC from the Landgericht München I (Germany), by decision of 17 December 2002, registered at the Court on 20 January 2003, for a preliminary ruling in the proceedings: Verbraucher-Zentrale Hamburg eV and O2 (Germany) GmbH & Co. OHG — the Court, (Grand Chamber) composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, C. Gulmann, J.-P. Puissochet (Rapporteur) and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges; M. Poiares Maduro, Advocate General; M. Múgica Arzarmendi, Principal Administrator for the Registrar, has given a judgment on 14 September 2004, in which it has ruled:

| 1. | A tariff, such as the per-minute price at issue in the main proceedings, does not constitute a monetary amount to be paid or accounted for within the meaning of the first sentence of Article 5 of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro and thus is not to be rounded in every case to the nearest cent. The fact that the tariff relates to a particular multiple of the unit on the basis of which the final amount of the invoice is calculated or that for the consumer the tariff represents the decisive factor as regards the price of the goods or services does not affect that finding. |
| --- | --- |

1.

A tariff, such as the per-minute price at issue in the main proceedings, does not constitute a monetary amount to be paid or accounted for within the meaning of the first sentence of Article 5 of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro and thus is not to be rounded in every case to the nearest cent. The fact that the tariff relates to a particular multiple of the unit on the basis of which the final amount of the invoice is calculated or that for the consumer the tariff represents the decisive factor as regards the price of the goods or services does not affect that finding.

| 2. | Regulation No 1103/97 must be interpreted as not precluding the rounding to the nearest cent of amounts other than those which are to be paid or accounted for, provided that that rounding practice is consistent with the principle of continuity of contracts safeguarded by Article 3 of the regulation and with the objective pursued by the regulation that the transition to the euro should be neutral; in other words, provided that the rounding practice does not affect contractual obligations entered into by economic agents, including consumers, and that it does not have a real impact on the price actually to be paid. |
| --- | --- |

2.

Regulation No 1103/97 must be interpreted as not precluding the rounding to the nearest cent of amounts other than those which are to be paid or accounted for, provided that that rounding practice is consistent with the principle of continuity of contracts safeguarded by Article 3 of the regulation and with the objective pursued by the regulation that the transition to the euro should be neutral; in other words, provided that the rounding practice does not affect contractual obligations entered into by economic agents, including consumers, and that it does not have a real impact on the price actually to be paid.

---

(1)   OJ C 70 of 22.3.2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/3 |
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20.11.2004

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Official Journal of the European Union

C 284/3

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JUDGMENT OF THE COURT

(Second Chamber)

of 23 September 2004

in Case C-107/03 P: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Appeal - Community trade mark - Article 7(1)(b) of Regulation (EC) No 40/94 - Three-dimensional soap-bar shape - Absolute ground for refusal to register - Distinctiveness)

(2004/C 284/06)

Language of the case: French

In Case C-107/03 P: appeal brought on 27 February 2003 under Article 56 of the Statute of the Court of Justice by Procter & Gamble Company, established in Cincinnati (United States), (lawyer: T. van Innis) the other party to the proceedings being the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto and I. de Medrano Caballero) — the Court (Second Chamber), composed of: C.W.A. Timmermanns, President of the Chamber, C. Gulmann, J.-P. Puissochet, J.N. Cunha Rodrigues and F. Macken (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 23 September 2004, in which it:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders Procter & Gamble Company to pay the costs. |
| --- | --- |

2.

Orders Procter & Gamble Company to pay the costs.

---

(1)  OJ C 146 of 21 June 2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/4 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/4

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JUDGMENT OF THE COURT

(Second Chamber)

of 23 September 2004

in Case C-150/03 P: Chantal Hectors v European Parliament (1)

(Appeal - Officials - Temporary staff in the European Parliament's political groups - Recruitment - Rejection of candidature - Grounds - Requirement of a statement of specific reasons)

(2004/C 284/07)

Language of the case: French

In Case C-150/03 P: appeal under Article 56 of the Statute of the Court of Justice, lodged at the Court on 31 March 2003, by Chantal Hectors, residing at Mont-sur-Rolle (Switzerland), (represented by G. Vandersanden and L. Levis, avocats), the other party to the proceedings being: European Parliament (Agents: H. von Hertzen and J.F. de Wachter) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), J.N. Cunha Rodrigues and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 23 September 2004, in which it:

| 1. | Sets aside the judgment of 23 January 2003 of the Court of First Instance of the European Communities in Case T-181/01 Hectors v Parliament; |
| --- | --- |

1.

Sets aside the judgment of 23 January 2003 of the Court of First Instance of the European Communities in Case T-181/01 Hectors v Parliament;

| 2. | Annuls the decisions of the authority competent to conclude contracts of employment appointing Mr B to the post of Dutch-language administrator in the European People's Party (Christian-Democrats) and European Democrats Group of the European Parliament and rejecting Ms Hectors' candidature for that post, as well as the decision rejecting her complaint; |
| --- | --- |

2.

Annuls the decisions of the authority competent to conclude contracts of employment appointing Mr B to the post of Dutch-language administrator in the European People's Party (Christian-Democrats) and European Democrats Group of the European Parliament and rejecting Ms Hectors' candidature for that post, as well as the decision rejecting her complaint;

| 3. | Dismisses the remainder of the appeal; |
| --- | --- |

3.

Dismisses the remainder of the appeal;

| 4. | Orders the European Parliament to pay the costs of the appeal and, in addition to its own costs, half of Ms Hectors' costs before the Court of First Instance of the European Communities. |
| --- | --- |

4.

Orders the European Parliament to pay the costs of the appeal and, in addition to its own costs, half of Ms Hectors' costs before the Court of First Instance of the European Communities.

---

(1)  OJ C 112 of 10 May 2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/4 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/4

---

JUDGMENT OF THE COURT

(Second Chamber)

of 30 September 2004

in Case C-319/03 (reference for a preliminary ruling from the Tribunal administratif de Paris): Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation nationale and Ministre de la Justice (1)

(Social policy - Equal treatment of men and women - Article 141(4) EC - Directive 76/207/EEC - Conditions of access to public-sector employment - Provisions reserving to widows who have not remarried the benefit of the exemption from the age-limit for obtaining access to that employment)

(2004/C 284/08)

Language of the case: French

In Case C-319/03: reference for a preliminary ruling under Article 234 EC from the Tribunal administratif de Paris (France), made by decision of 3 July 2003, received at the Court on 24 July 2003, in the proceedings between Serge Briheche and Ministre de l'Intérieur, Ministre de l'Éducation nationale and Ministre de la Justice — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen, F. Macken (Rapporteur) and N. Colneric, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 30 September 2004, in which it has ruled:

Article 3(1) and Article 2(4) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as meaning that they preclude a national provision, such as that in question in the main proceedings, which reserves the exemption from the age-limit for obtaining access to public-sector employment to widows who have not remarried who are obliged to work, excluding widowers who have not remarried who are in the same situation.

---

(1)  OJ C 226, 20.9.2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/5 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/5

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 30 September 2004

in Case C-359/03: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil its obligations - Directive 90/270/EEC - Protection of workers - Work with display screen equipment - Minimum safety and health requirements - Failure to transpose)

(2004/C 284/09)

Language of the case: German

In Case C-359/03: Commission of the European Communities (Agents: D. Martin and H. Kreppel) v Republic of Austria (Agent: E. Riedl) — action brought on 19 August 2003 under Article 226 EC for failure to fulfil obligations — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of the Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 30 September 2004, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual Directive within the meaning of Article 16(1) of Directive 87/391/EEC), the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual Directive within the meaning of Article 16(1) of Directive 87/391/EEC), the Republic of Austria has failed to fulfil its obligations under that directive;

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

2.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 264 of 1 November 2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/5 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/5

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 30 September 2004

in Case C-417/03: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/18/EC - Deliberate release into the environment of genetically modified organisms - Failure to transpose within the prescribed period)

(2004/C 284/10)

Language of the case: French

In Case C-417/03: Commission of the European Communities (Agent: B. Stromsky) v Kingdom of Belgium (Agent: E. Dominkovits) — action brought on 3 October 2003 under Article 226 EC for failure to fulfil obligations — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, K. Schiemann (Rapporteur) and M. Ilešič, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 30 September 2004, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, the Kingdom of Belgium 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 Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 275 of 15.11.2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/6 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/6

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 30 September 2004

in Case C-481/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of Member State to fulfil obligations - Directives 2001/12/EC and 2001/13/EC - The Community's railways - Development - Fair, uniform and non-discriminatory access to the infrastructure - Licensing of railway undertakings - Common scheme - Failure to transpose within the period prescribed)

(2004/C 284/11)

Language of the case: French

In Case C-481/03: Commission of the European Communities (Agent: W. Wils) v Grand Duchy of Luxembourg (Agents: S. Schreiner and M. Thill) — action under Article 226 EC for failure to fulfil obligations, brought on 19 November 2003 — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of the Chamber, A. La Pergola and U. Lõhmus (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 30 September 2004, the operative part of which is as follows:

| 1. | By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways and with Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings, the Grand Duchy of Luxembourg has failed to fulfil its obligations under those directives; |
| --- | --- |

1.

By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways and with Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings, the Grand Duchy of Luxembourg has failed to fulfil its obligations under those directives;

| 2. | The Grand Duchy of Luxembourg is ordered to pay the costs. |
| --- | --- |

2.

The Grand Duchy of Luxembourg is ordered to pay the costs.

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(1)  OJ C 7, 10.1.2004.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/6 |
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20.11.2004

EN

Official Journal of the European Union

C 284/6

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 30 September 2004

in Case C-496/03: Commission of the European Communities v French Republic (1)

(Failure of Member State to fulfil obligations - Directive 2001/59/EC - Failure to transpose)

(2004/C 284/12)

Language of the case: French

In Case C-496/03: Commission of the European Communities (Agents: C.-F. Durand and F. Simonetti) v French Republic (Agents: G. de Bergues and C. Mercier) — action under Article 226 EC for failure to fulfil obligations, brought on 24 November 2003 — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, N. Colneric and E. Juhász (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 30 September 2004, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2001/59/EC of 6 August 2001 adapting to technical progress for the 28th time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, the French Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2001/59/EC of 6 August 2001 adapting to technical progress for the 28th time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, the French Republic has failed to fulfil its obligations under that directive.

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

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 21, 24.1.2004.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/6 |
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20.11.2004

EN

Official Journal of the European Union

C 284/6

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Appeal brought on 17 August 2004 by Antonio Adolfi against the order made on 27 May 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-379/02 between Antonio Adolfi and the Commission of the European Communities

(Case C-357/04 P)

(2004/C 284/13)

An appeal against the order made on 27 May 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-379/02 between Antonio Adolfi and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 17 August 2004 by Antonio Adolfi, represented by Salvatore Amato.

The appellant claims that the Court should:

uphold the appeal and annul the order of the Court of First Instance.

Pleas in law and main arguments:

The applicant submits that, contrary to the decision of the Court of First Instance, his action brought on 18 December 2002 was not out of time.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/7 |
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20.11.2004

EN

Official Journal of the European Union

C 284/7

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Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT) and (2) ‘Enklidis ATE’

(Case C-363/04)

(2004/C 284/14)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, 4th Section, Greece) of 30 July 2004, received at the Court Registry on 20 August 2004, for a preliminary ruling in the case of Mikaniki AE against the Ministry of Culture and against the Ministry of the Environment, Planning and Public Works and against the interveners (1) ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT) and (2) ‘Enklidis ATE’ on the following questions:

| (1) | Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order? |
| --- | --- |

(1)

Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order?

| (2) | If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works? |
| --- | --- |

(2)

If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works?

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/7 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/7

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Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the intervener ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT)

(Case C-364/04)

(2004/C 284/15)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, 4th Section, Greece) of 30 July 2004, received at the Court Registry on 20 August 2004, for a preliminary ruling in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works and against the intervener ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT) on the following questions:

| (1) | Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order? |
| --- | --- |

(1)

Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order?

| (2) | If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works? |
| --- | --- |

(2)

If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works?

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/8 |
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20.11.2004

EN

Official Journal of the European Union

C 284/8

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Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works supported by the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, ‘Thessaliki ATE’

(Case C-365/04)

(2004/C 284/16)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, 4th Section, Greece) of 30 July 2004, received at the Court Registry on 20 August 2004, for a preliminary ruling in the case of Tholos Anonimi Tekniki Touristiki Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the Ministry of the Environment, Planning and Public Works and against the interveners (1) Sindesmos Teknikon Etaireion Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia, ‘Thessaliki ATE’, on the following questions:

| (1) | Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order? |
| --- | --- |

(1)

Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order?

| (2) | If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works? |
| --- | --- |

(2)

If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works?

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/8 |
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20.11.2004

EN

Official Journal of the European Union

C 284/8

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Appeal brought on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l) against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA

(Case C-367/04 P)

(2004/C 284/17)

An appeal against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA, was brought before the Court of Justice of the European Communities on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l.), represented by Jochim Sedemund and Thomas Lübbig, lawyers at Freshfields Bruckhaus Deringer, Potsdamer Platz 1, D-10785 Berlin.

The appellants claim that the Court should:

| 1. | set aside the order of the Court of First Instance of 27 May 2004 in Case T-358/02 (1), and declare the action brought by Deutsche Post AG and DHL Express (Italy) on 3 December 2002 admissible. |
| --- | --- |

1.

set aside the order of the Court of First Instance of 27 May 2004 in Case T-358/02 (1), and declare the action brought by Deutsche Post AG and DHL Express (Italy) on 3 December 2002 admissible.

| 2. | order the respondent and the interveners to pay the costs. |
| --- | --- |

2.

order the respondent and the interveners to pay the costs.

Pleas and main arguments:

The appeal concerns the order of the Court of First Instance of 27 May 2004 in Case T-358/02 (DPAG and Others v Commission). By this order, the Court of First Instance dismissed the action brought on 3 December 2002 by Deutsche Post AG and DHL Express (Italy) S.r.l. as inadmissible. In the Court's view the applicants were unable to show that the conditions for locus standi were fulfilled. Conversely, the applicants assert on appeal that the Commission's decision is of direct and individual concern to them and that they therefore have standing for the purposes of the fourth paragraph of Article 230 EC. Since the applicants also possess the necessary legal interest, the above mentioned order of the Court of First Instance of 27 May 2004 should, in the applicants' submission, be set aside and the action brought by Deutsche Post AG and DHL Express (Italy) on 3 December 2002 be declared admissible.

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(1)  OJ C 228 of 11.9.2004.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/9 |
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20.11.2004

EN

Official Journal of the European Union

C 284/9

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Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 24 August 2004, in the case of The Queen on the application of South Western Fish Producers' Organisation Ltd and others against Secretary of State for Environment, Food and Rural Affairs

(Case C-388/04)

(2004/C 284/18)

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), dated 24 August 2004, which was received at the Court Registry on 10 September 2004 for a preliminary ruling in the case of The Queen on the application of South Western Fish Producers' Organisation Ltd and others and Secretary of State for Environment, Food and Rural Affairs on the following questions:

Are Article 12 and paragraph 6 of Annex V of Council Regulation (EC) 2287/2003 (1), insofar as they apply to vessels carrying gear in the class referred to in paragraph 4(b) of that Annex, unlawful in their application to ‘chain mat’ beam trawlers operating in the Eastern Channel because they are:

| (a) | contrary to Articles 33 and 34 EC; |
| --- | --- |

(a)

contrary to Articles 33 and 34 EC;

| (b) | disproportionate; |
| --- | --- |

(b)

disproportionate;

| (c) | contrary to the principle of equal treatment; and/or |
| --- | --- |

(c)

contrary to the principle of equal treatment; and/or

| (d) | contrary to the Claimant's right to earn a living free from unnecessary constraint? |
| --- | --- |

(d)

contrary to the Claimant's right to earn a living free from unnecessary constraint?

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(1)  Regulation of 19 December 2003 fixing for 2004 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ L 344, 31.12.2003, p. 1).

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/9 |
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20.11.2004

EN

Official Journal of the European Union

C 284/9

---

Appeal brought on 22 September 2004 by Sumitomo Metal Industries Ltd against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities

(Case C-403/04 P)

(2004/C 284/19)

An appeal against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 22 September 2004 by Sumitomo Metal Industries Ltd, established in Osaka, Japan, represented by C. Vajda QC and G. Sproul, Solicitor.

The Appellant claims that the Court should:

| (i) | allow the Appeal, in whole or in part, against the judgment in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 and set aside, in whole or in part, the said judgment; |
| --- | --- |

(i)

allow the Appeal, in whole or in part, against the judgment in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 and set aside, in whole or in part, the said judgment;

| (ii) | annul, in whole or in part, Articles 1 and 3 to 6 of the Decision in so far as they are addressed to SMI; |
| --- | --- |

(ii)

annul, in whole or in part, Articles 1 and 3 to 6 of the Decision in so far as they are addressed to SMI;

| (iii) | order, if appropriate, the Commission to pay compensation to SMI for the breach of Article 6(1) of the ECHR a sum of not less than EUR 1,012,332, being the aggregate of EUR 217,183 (the extra cost of the bank guarante), EUR 620,249 (the extra cost of the default interest), and EUR 175,000; and |
| --- | --- |

(iii)

order, if appropriate, the Commission to pay compensation to SMI for the breach of Article 6(1) of the ECHR a sum of not less than EUR 1,012,332, being the aggregate of EUR 217,183 (the extra cost of the bank guarante), EUR 620,249 (the extra cost of the default interest), and EUR 175,000; and

| (iv) | order the Commission to pay SMI's costs, both before the Court and the Court of First Instance. |
| --- | --- |

(iv)

order the Commission to pay SMI's costs, both before the Court and the Court of First Instance.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:

| (a) | the Court of First Instance erred in law by applying the wrong standard of proof in a case where the Appellant has demonstrated that the Commission's allegation is incompatible with the Appellant's commercial interest and therefore irrational; |
| --- | --- |

(a)

the Court of First Instance erred in law by applying the wrong standard of proof in a case where the Appellant has demonstrated that the Commission's allegation is incompatible with the Appellant's commercial interest and therefore irrational;

| (b) | the Court of First Instance erred in law by applying the wrong standard of proof in a case where the documentary evidence is ambiguous and the Appellant has offered a plausible alternative explanation of the conduct at issue; |
| --- | --- |

(b)

the Court of First Instance erred in law by applying the wrong standard of proof in a case where the documentary evidence is ambiguous and the Appellant has offered a plausible alternative explanation of the conduct at issue;

| (c) | the Court of First Instance erred in law by applying the wrong legal standard of proof as to the level of corroboration required in support of contested statements which the Commission uses as principal evidence but which are implausible, highly ambiguous and contradicted by other evidence; |
| --- | --- |

(c)

the Court of First Instance erred in law by applying the wrong legal standard of proof as to the level of corroboration required in support of contested statements which the Commission uses as principal evidence but which are implausible, highly ambiguous and contradicted by other evidence;

| (d) | the Court of First Instance erred in law by giving contradictory and inadequate reasons in concluding that the statement of Mr Becher (an employee of Mannesmann) of 21 April 1997 could corroborate the statements of Mr Verluca, Head of Vallourec Oil & Gas, regarding the alleged infringement in respect of project line pipe. |
| --- | --- |

(d)

the Court of First Instance erred in law by giving contradictory and inadequate reasons in concluding that the statement of Mr Becher (an employee of Mannesmann) of 21 April 1997 could corroborate the statements of Mr Verluca, Head of Vallourec Oil & Gas, regarding the alleged infringement in respect of project line pipe.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/10 |
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20.11.2004

EN

Official Journal of the European Union

C 284/10

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Appeal brought on 22 September 2004 by Nippon Steel Corp. against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities

(Case C-405/04 P)

(2004/C 284/20)

An appeal against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 22 September 2004 by Nippon Steel Corp., established in Tokyo, Japan, represented by J.-F. Bellis and K. Van Hove, lawyers, with an address for service in Luxembourg.

The Appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities of 8 July 2004 in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd v Commission in so far as it concerns Nippon Steel Corporation; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities of 8 July 2004 in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd v Commission in so far as it concerns Nippon Steel Corporation;

| — | annul the decision of the European Commission of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B Seamless steel tubes) in so far as it concerns Nippon Steel Corporation; or |
| --- | --- |

—

annul the decision of the European Commission of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B Seamless steel tubes) in so far as it concerns Nippon Steel Corporation; or

| — | in the alternative, if the Appellant is successful in its appeal only in so far as it concerns project line pipe, reduce the fine imposed on Nippon Steel Corporation by two-thirds; and |
| --- | --- |

—

in the alternative, if the Appellant is successful in its appeal only in so far as it concerns project line pipe, reduce the fine imposed on Nippon Steel Corporation by two-thirds; and

| — | order the Commission to bear all the costs before the Court of First Instance and the Court of Justice. |
| --- | --- |

—

order the Commission to bear all the costs before the Court of First Instance and the Court of Justice.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:

| (a) | the Court of First Instance erred in law by applying the wrong standard of proof in a case where the Appellant has demonstrated that the Commission's allegation is incompatible with the Appellant's commercial interest and therefore irrational; |
| --- | --- |

(a)

the Court of First Instance erred in law by applying the wrong standard of proof in a case where the Appellant has demonstrated that the Commission's allegation is incompatible with the Appellant's commercial interest and therefore irrational;

| (b) | the Court of First Instance erred in law by applying the wrong standard of proof in a case where the documentary evidence is ambiguous and the Appellant has offered a plausible alternative explanation of the conduct at issue; |
| --- | --- |

(b)

the Court of First Instance erred in law by applying the wrong standard of proof in a case where the documentary evidence is ambiguous and the Appellant has offered a plausible alternative explanation of the conduct at issue;

| (c) | the Court of First Instance erred in law by applying the wrong legal standard of proof as to the level of corroboration required in support of contested statements which the Commission uses as principal evidence but which are implausible, highly ambiguous and contradicted by other evidence; |
| --- | --- |

(c)

the Court of First Instance erred in law by applying the wrong legal standard of proof as to the level of corroboration required in support of contested statements which the Commission uses as principal evidence but which are implausible, highly ambiguous and contradicted by other evidence;

| (d) | the Court of First Instance erred in law by giving contradictory and inadequate reasons in concluding that the statement of Mr Becher (an employee of Mannesmann) of 21 April 1997 could corroborate the statements of Mr Verluca, Head of Vallourec Oil & Gas, regarding the alleged infringement in respect of project line pipe. |
| --- | --- |

(d)

the Court of First Instance erred in law by giving contradictory and inadequate reasons in concluding that the statement of Mr Becher (an employee of Mannesmann) of 21 April 1997 could corroborate the statements of Mr Verluca, Head of Vallourec Oil & Gas, regarding the alleged infringement in respect of project line pipe.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/11 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/11

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Reference for a preliminary ruling by the Tribunal du travail de Bruxelles (17th Chamber), by judgment of that court of 8 September 2004 in the case of Gérald de Cuyper v Office national de l'emploi

(Case C-406/04)

(2004/C 284/21)

Reference has been made to the Court of Justice of the European Communities by the Tribunal du travail de Bruxelles (Labour Court, Brussels) (17th Chamber) by judgment of that court of 8 September 2004, in the case of Gérald de Cuyper v Office national de l'emploi, received at the Court Registry on 23 September 2004.

The Tribunal de travail de Bruxelles (17th Chamber) has asked the Court to give a preliminary ruling on the following questions:

‘Does the obligation actually to reside in Belgium, which under Article 66 of the Royal Decree of 25 November 1991 regulating unemployment is a condition for the award of benefits, applied to an unemployed person aged over 50 who enjoys an exemption under Article 89 of that Royal Decree from the requirement to sign on which entails dispensation from the requirement to be available for work, amount to a fetter on the freedom of movement and residence of all European citizens under Articles 17 and 18 of the Treaty establishing the European Community?

Does the obligation of residence in the State competent to award unemployment benefits, justified in domestic law by the needs of monitoring compliance with the statutory requirements for the payment of benefits to unemployed persons, satisfy the requirement of proportionality which must be observed in the pursuit of that objective of general interest in that it constitutes a limitation on the freedom of movement and residence of all European citizens under Articles 17 and 18 of the Treaty establishing the European Community?

Does that residence requirement not have the effect of discriminating between European citizens who are nationals of a Member State competent to award unemployment benefits by affording that entitlement to those who do not exercise the right to freedom of movement and residence of all European citizens under Articles 17 and 18 of the Treaty, whilst denying it to those who do seek to exercise that right, by the deterrent effect which that restriction entails?’

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/11 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/11

---

Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that court of 24 September 2004 in the case of Staatssecretaris van Financiën against Stichting Kinderopvang Enschede

(Case C-415/04)

(2004/C 284/22)

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) of 24 September 2004, received at the Court Registry on 29 September 2004, for a preliminary ruling in the case of Staatssecretaris van Financiën against Stichting Kinderopvang Enschede on the following question:

Must Article 13.A(1)(g), (h) and (i) of the Sixth Directive (1) be construed as meaning that the service provided as described above, consisting in intermediary activities in connection with the care of children under school age and of schoolchildren outside of school hours in the homes of host parents, falls to be regarded as a service covered by one or more of those provisions?

---

(1)  OJ L 145 of 13.6.1977, p. 1.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/11 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/11

---

Reference for a preliminary ruling by the Cour d'Appel de Poitiers (2ème Chambre Civile) by order of that court of 21 September 2004 in the case of Conseil Général de la Vienne against Directeur Général des Douanes et Droits Indirects

(Case C-419/04)

(2004/C 284/23)

Reference has been made to the Court of Justice of the European Communities by order of the Cour d'Appel de Poitiers (2ème Chambre Civile) (Court of Appeal, Poitiers, France – 2nd Civil Chamber) of 21 September 2004 received at the Court Registry on 30 September 2004, for a preliminary ruling in the case of Conseil Général de la Vienne against Directeur Général des Douanes et Droits Indirects on the following question:

‘Is Article 871 of the Community Customs Code relating to the recovery of the amount of the customs debt to be interpreted as establishing an essential and obligatory procedure, non-compliance with which will result in nullity, if the national customs authorities have expressed doubts, at any time during the recovery procedure concerning a person liable for payment acting in good faith, as regards the precise scope of the criteria relating to the recovery or the remission of duties resulting from a customs debt which has been eluded because it was not entered in the accounts on the date when that debt should have given rise to recovery (debt relating to the possible incorporation into the purchase price of audiovisual equipment supplied by a Canadian supplier of a flat-rate charge compulsorily included in the entry price to the amusement park in which the equipment is operated, whether or not the visitor who paid the charge made use of the equipment)?’

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/12 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/12

---

Appeal brought on 29 September 2004 by Georgios Gouvras against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities

(Case C-420/04 P)

(2004/C 284/24)

An appeal against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 29 September 2004 by Georgios Gouvras, represented by A. Coolen, J.-N. Louis, E. Marchal and S. Orlandi.

The appellant claims that the Court should:

| — | order the annulment of the judgment of the Court of First Instance of 15 July 2004 in Joined Cases T-180/02 and T-113/03 (Georgios Gouvras v Commission of the European Communities) in so far as it rejects the claims for annulment in Case T-180/02 and those against the Commission's Decision of 30 April 2002 to restrict to 35 % the part of his remuneration transferable to Luxembourg during the period of his secondment; |
| --- | --- |

—

order the annulment of the judgment of the Court of First Instance of 15 July 2004 in Joined Cases T-180/02 and T-113/03 (Georgios Gouvras v Commission of the European Communities) in so far as it rejects the claims for annulment in Case T-180/02 and those against the Commission's Decision of 30 April 2002 to restrict to 35 % the part of his remuneration transferable to Luxembourg during the period of his secondment;

| — | give directions granting the applicant leave to amend his pleas in law and forms of order sought; |
| --- | --- |

—

give directions granting the applicant leave to amend his pleas in law and forms of order sought;

| — | alternatively, annul the Commission's decision of 14 June 2001 in its entirety and the Commission's decision of 30 April 2002 in so far as it restricts to 35 % of his remuneration the part transferable to Luxembourg, the place of his usual posting; |
| --- | --- |

—

alternatively, annul the Commission's decision of 14 June 2001 in its entirety and the Commission's decision of 30 April 2002 in so far as it restricts to 35 % of his remuneration the part transferable to Luxembourg, the place of his usual posting;

| — | order the defendant to pay the costs of both cases. |
| --- | --- |

—

order the defendant to pay the costs of both cases.

Pleas in law and main arguments:

The Court of First Instance made an error of law in finding that the Commission had provided the applicant with the information necessary to enable him to maintain his interests before agreeing to be seconded in the interest of the service. In fact, it did not inform him of the decision to fix his place of posting in Athens or of the financial consequences thereof such as the withdrawal of his right to the expatriation allowance and of his right to the payment of the costs of annual travel as well as the application to his remuneration of the correction coefficient for Greece.

Also, the Court of First Instance made an error of law in finding that the conditions laid down by Article 85 of the Staff Regulations were satisfied in this case. In fact, the recovery of sums paid but not due under Article 85 of the Staff Regulations presupposes a payment irregularity of which the recipient was aware or whose erroneous nature is so obvious that he could not fail to be aware of it. In the absence of express provisions in the Staff Regulations governing the fixing of the place of posting, it could not be a matter, in this case, of an irregularity, and, in any event, in the light of the Commission's own uncertainties regarding the applicant's entitlements, he cannot be presumed to have been aware of it.

Finally, the Court of First Instance made an error of law in finding that, notwithstanding the exceptional situation of the applicant whose place of posting was changed more than 9 months after his secondment, the Commission could lawfully reject his claim made in accordance with Article 38(d) of the Staff Regulations, for the transfer, in the conditions provided for by Article 17 of Annex VII to the Staff Regulations, of the sums indispensable to cover the expenses which he had to meet in Luxembourg, the place of his usual posting.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/13 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/13

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Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 7 July 2004 in the case ISIS Multimedia GmbH & Co. KG against the Federal Republic of Germany

(Case C-422/04)

(2004/C 284/25)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesverwaltungsgericht of 7 July 2004, which was received at the Court Registry on 4 October 2004, for a preliminary ruling in the case of ISIS Multimedia GmbH & Co. KG against the Federal Republic of Germany on the following questions:

| 1. | Is Article 11(1) of Directive 97/13/EC (1) of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (the licensing directive) to be interpreted as precluding the imposition of a licence fee calculated to anticipate the amount of a national regulatory authority's general administrative costs over a period of 30 years, to be charged in advance?
  If the answer to Question 1 is in the affirmative: |
| --- | --- |

1.

Is Article 11(1) of Directive 97/13/EC (1) of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (the licensing directive) to be interpreted as precluding the imposition of a licence fee calculated to anticipate the amount of a national regulatory authority's general administrative costs over a period of 30 years, to be charged in advance?

If the answer to Question 1 is in the affirmative:

| 2. | Are Article 10 EC and Article 11 of the licensing directive to be interpreted as meaning that a fee assessment that determines fees within the meaning of Question 1 and which has not been contested although such a possibility is afforded under national law must be set aside where that is permissible under national law but not mandatory? |
| --- | --- |

2.

Are Article 10 EC and Article 11 of the licensing directive to be interpreted as meaning that a fee assessment that determines fees within the meaning of Question 1 and which has not been contested although such a possibility is afforded under national law must be set aside where that is permissible under national law but not mandatory?

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(1)  OJ L 117, p. 15.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/13 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/13

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Action brought on 30 September 2004 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-429/04)

(2004/C 284/26)

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 30 September 2004 by the Commission of the European Communities, represented by Knut Simonsson and Wouter Wils.

The applicant claims that the Court should:

| 1. | Declare that, by not adopting the legislative and administrative measures necessary in order to implement Directive 2001/96/EC (1) of the European Parliament and the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers, or at any rate by not informing the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declare that, by not adopting the legislative and administrative measures necessary in order to implement Directive 2001/96/EC (1) of the European Parliament and the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers, or at any rate by not informing the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

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

2.

Order the Kingdom of Belgium to pay the costs.

Pleas and main arguments

The period allowed for transposition of Directive 2001/96/EC expired on 5 August 2003.

---

(1)  OJ 2001 L 13, p. 9.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/13 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/13

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Removal from the register of Case C-362/03 (1)

(2004/C 284/27)

By order of 22 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-362/03: Commission of the European Communities v Republic of Austria.

---

(1)  OJ C 264 of 1.11.2003.

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COURT OF FIRST INSTANCE

| 20.11.2004 | EN | Official Journal of the European Union | C 284/14 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/14

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 September 2004

in Case T-156/94: Siderúrgica Aristrain Madrid SL v Commission of the European Communities (1)

(ECSC Treaty - Competition - Agreements and concerted practices - European producers of beams - Imputability of the unlawful conduct - Fine - Appeal - Case referred back to the Court of First Instance)

(2004/C 284/28)

Language of the case: Spanish

In Case T-156/94: Siderúrgica Aristrain Madrid SL, established in Madrid (Spain), represented by A. Creus Carreras and N. Lacalle Mangas, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: J. Currall and W. Wils, assisted by J. Rivas Andrés and J.J. Gutiérrez Gisbert, lawyers, with an address for service in Luxembourg) — application for annulment of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 146, p. 1) — the Court of First Instance (Second Chamber, Extended Composition), composed of J. Pirrung, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges; B. Pastor, Deputy Registrar, gave a judgment on 14 September 2004, the operative part of which is as follows:

| 1. | The amount of the fine imposed on the applicant by Article 4 of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams is fixed at EUR 2 540 000; |
| --- | --- |

1.

The amount of the fine imposed on the applicant by Article 4 of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams is fixed at EUR 2 540 000;

| 2. | The applicant is ordered to pay 35 % of the costs incurred by it and by the defendant in connection with the proceedings before the Court of First Instance, including the interlocutory proceedings, and also with the proceedings on appeal before the Court of Justice. The defendant is ordered to pay 65 % of the costs incurred by it and by the applicant in connection with the same proceedings. |
| --- | --- |

2.

The applicant is ordered to pay 35 % of the costs incurred by it and by the defendant in connection with the proceedings before the Court of First Instance, including the interlocutory proceedings, and also with the proceedings on appeal before the Court of Justice. The defendant is ordered to pay 65 % of the costs incurred by it and by the applicant in connection with the same proceedings.

---

(1)  OJ C 146 of 28.5.2004.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/14 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/14

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 16 September 2004

in Case T-274/01: Valmont Nederland BV v Commission of the European Communities (1)

(State aid - Concept - Benefit - Land sale price - Financing for a car park)

(2004/C 284/29)

Language of the case: Dutch

In Case T-274/01: Valmont Nederland BV, established in Maarheeze (Netherlands), represented by A. Van Landuyt, A. Prompers and G. Van de Wal, lawyers, against Commission of the European Communities (Agents: initially by G. Rozet and H. Speyart, and subsequently by G. Rozet and H. Van Vliet, with an address for service in Luxembourg) — application for the annulment of Commission Decision 2002/142/EC on the State aid implemented by the Netherlands in favour of Valmont Nederland BV (OJ 2002 L 48, p. 20), — the Court of First Instance (Fourth Chamber, Extended Composition), composed of H. Legal, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it:

| 1. | Annuls Commission Decision 2002/142/EC of 18 July 2001 on the State aid implemented by the Netherlands in favour of Valmont Nederland BV; |
| --- | --- |

1.

Annuls Commission Decision 2002/142/EC of 18 July 2001 on the State aid implemented by the Netherlands in favour of Valmont Nederland BV;

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 3 of 5.1.2002.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/15 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/15

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 21 September 2004

in Case T-104/02: Société française de transports Gondrand Frères SA v Commission of the European Communities (1)

(Remission of import duties - Article 1(3) of Regulation (EC) No 3319/94 - Meaning of ‘special situation’ under Article 905 of Regulation (EEC) No 2454/93 - Anti-dumping duty on imports of urea ammonium nitrate solution originating in Poland - Direct invoicing of the importer)

(2004/C 284/30)

Language of the case: French

In Case T-104/02: Société française de transports Gondrand Frères SA, established in Paris (France), represented by M. Famchon, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: C. Durand, B. Stromsky and X. Lewis, with an address for service in Luxembourg) — application for annulment of Commission decision C(2002) 24 final, of 14 January 2002, finding there to be no grounds for remission of import duties in a particular case — the Court of First Instance (Fifth Chamber, Extended Composition), composed of P. Lindh, President, R. García-Valdecasas, J.D. Cooke, P. Mengozzi and M.E. Martins Ribeiro, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 21 September 2004, in which it:

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

1.

Dismisses the application;

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

2.

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

---

(1)  OJ C 156 of 29.6.2002.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/15 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/15

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 September 2004

in Case T-290/02: Associazione Consorzi Tessili (Ascontex) v Commission of the European Communities (1)

(European Regional Development Fund - Community initiative for small and medium-sized enterprises - Organisation of ‘IBEX’ reverse exhibitions - Cancellation and demand for repayment of financial assistance - Regulation (EEC) No 4253/88 - Article 24 - Action for annulment)

(2004/C 284/31)

Language of the case: French

In Case T-290/02: Associazione Consorzi Tessili (Ascontex), represented by P. Mbaya Kapita and L. Denis, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents C. Giolito and L. Flynn, with an address for service in Luxembourg) — application for annulment of Commission Decision C(2002) 1702 of 12 July 2002 cancelling FEDER subsidy No 97.05.10.001 granted to the applicant by Decision SG(98)D/2251 of 18 March 1998 and ordering repayment of the sum advanced by the Commission in the context of a project relating to the organisation of an international exhibition in the textile and clothing sector on Capri (Euresprit project) — the Court (Second Chamber), composed of: J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 14 September 2004, in which it:

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

1.

Dismisses the application;

| 2. | Orders the applicant to bear its own costs and to pay those incurred by the Commission. |
| --- | --- |

2.

Orders the applicant to bear its own costs and to pay those incurred by the Commission.

---

(1)  OJ C 289 of 23.11.2002.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/16 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/16

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 21 September 2004

in Case T-325/02: Michel Soubies v Commission of the European Communities (1)

(Officials - Re-assignment of an official in Grade A 3 as adviser ad personam - Restructuring of the Secretariat-General - Correspondence between grade and post)

(2004/C 284/32)

Language of the case: French

In case T-352/02: Michel Soubies, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall, assisted by D. Waelbroeck, lawyer, with an address for service in Luxembourg) — application for annulment of the Commission's Decision of 26 November 2001 re-assigning the applicant to the ‘Institutional matters’ unit of the ‘Forward Studies’ Directorate of the Secretariat–General as adviser ad personam in Grade A 3 — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J. D. Cooke, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 21 September 2004, in which it:

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

1.

Dismisses the action;

| 2. | Orders both parties to bear their own costs. |
| --- | --- |

2.

Orders both parties to bear their own costs.

---

(1)  OJ C 19 of 25.1.2003.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/16 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/16

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 16 September 2004

in Case T-342/02: Metro-Goldwyn-Mayer Lion Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

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

(2004/C 284/33)

Language of the case: English

In Case T-342/02: Metro-Goldwyn-Mayer Lion Corp., established in Santa Monica, California (United States), represented by F. de Visscher, E. Cornu, E. De Gryse and D. Moreau, lawyers against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: S. Laitinen and D. Botis), the other party to the proceedings before the Board of Appeal of OHIM being Moser Grupo Media SL, established in Santa Eulalia del Rio (Spain) — action brought against the decision of the Third Board of Appeal of OHIM of 5 September 2002 (Case R 437/2001-3) declaring inadmissible the appeal brought against the decision of the Opposition Division relating to opposition proceedings between Moser Grupo Media SL and Metro-Goldwyn-Mayer Lion Corp., — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 19 of 25.1.2003.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/16 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/16

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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 September 2004

in Case T-183/03: Applied Molecular Evolution Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark APPLIED MOLECULAR EVOLUTION - Absolute grounds for refusal - Article 7(1)(c) of Regulation (EC) No 40/94 - Descriptive sign)

(2004/C 284/34)

Language of the case: English

In Case T-183/03: Applied Molecular Evolution Inc., established in San Diego, California (United States), represented by A. Deutsch, laywer, and by M. Weber-Quitzau, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: H. Nokkanen and A. Folliard-Monguiral) — action brought against the decision of the Second Board of Appeal of OHIM of 13 March 2003 (Case R 108/2002-2) upholding the refusal to register APPLIED MOLECULAR EVOLUTION as a word mark — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N. J. Forwood, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 14 September 2004, in which it:

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

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 184 of 2.8.2003.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/17 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/17

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 14 September 2004

in Case T-254/03: José Manuel Lòpez Cejudo v Commission of the European Communities (1)

(Officials - Allowance for living conditions - Accommodation - Articles 5 and 10 of Annex X to the Staff Regulations)

(2004/C 284/35)

Language of the case: French

In Case T-254/03: José Manuel López Cejudo, an official of the Commission of the European Communities, resident in Brasilia (Brasil), represented by G. Vandersanden and L. Levi, lawyers, against the Commission of the European Communities (Agents: J. Currall and H. Tserepa-Lacombe, with an address for service in Luxembourg) — application for annulment of the Appointing Authority's decision of 12 June 2002 concerning the provision of the applicant with accommodation and of the decision of the Appointing Authority contained in the applicant's salary statement for July 2002 concerning the allowance for living conditions, together with a claim for default interest and a claim for compensation in respect of non-pecuniary damage — the Court of First Instance (single Judge: A.W.H. Meij); I. Natsinas, Administrator, for the Registrar, has given a judgment on 14 September 2004, in which it:

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

1.

Dismisses the application;

| 2. | Orders each of the parties to bear its own costs. |
| --- | --- |

2.

Orders each of the parties to bear its own costs.

---

(1)  OJ C 213 of 6.9.2003.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/17 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/17

---

ORDER OF THE COURT OF FIRST INSTANCE

of 10 May 2004 (1)

in Case T-391/02, Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, Josef Kloh v European Parliament and Council of the European Union

(Application for annulment - Regulation (EC) No 1774/2002 - Health rules concerning animal by-products not intended for human consumption - Manifest inadmissibility)

(2004/C 284/36)

Language of the case: German

In Case T-391/02, Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, established in Bochum (Germany), Josef Kloh, resident in Eichenried (Germany), represented by R. Steiling and S. Wienhues, lawyers, against European Parliament (Agents: H. Duintjer Tebbens and U. Rösslein, with an address for service in Luxembourg) and Council of the European Union (Agents: J.-P. Hix and F. Ruggeri Laderchi), supported by the Commission of the European Communities (Agent: G. Braun, with an address for service in Luxembourg) — application for partial annulment of Regulation (EC) No 1774/2002 of the European Parliament and the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1) — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, W. H. Meij and N. J. Forwood, Judges; H. Jung, Registrar, has given a judgment on 10 May 2004, in which it ordered:

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

1.

The application is dismissed as manifestly inadmissible.

| 2. | There is no need to adjudicate on the applications to intervene of the Landwirtschaftskammer Vorarlberg and Messrs Wohlgenannt and Taferner. |
| --- | --- |

2.

There is no need to adjudicate on the applications to intervene of the Landwirtschaftskammer Vorarlberg and Messrs Wohlgenannt and Taferner.

| 3. | The applicants shall bear their own costs and those of the European Parliament and the Council. |
| --- | --- |

3.

The applicants shall bear their own costs and those of the European Parliament and the Council.

| 4. | The Commission shall bear its own costs. |
| --- | --- |

4.

The Commission shall bear its own costs.

| 5. | The Landwirtschaftskammer Vorarlberg and Messrs Wohlgenannt and Taferner, the parties making applications to intervene, shall bear their own costs. |
| --- | --- |

5.

The Landwirtschaftskammer Vorarlberg and Messrs Wohlgenannt and Taferner, the parties making applications to intervene, shall bear their own costs.

---

(1)  OJ C 44 of 22.2.2003.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/17 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/17

---

Action brought on 13 July 2004 by Lorte, Sociedad Limitada, Oleo Unión, Federación Empresarial de Organizaciones de Productores de Aceite de Oliva, and Unaproliva, Unión de organizaciones de productores de Aceite de Oliva against Council of the European Union

(Case T-287/04)

(2004/C 284/37)

Language of the case: Spanish

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 13 July 2004 by Lorte, Sociedad Limitada, having its registered office in Estepa, Oleo Unión, Federación Empresarial de Organizaciones de Productores de Aceite de Oliva, having its registered office in Sevilla and Unaproliva, Unión de organizaciones de productores de Aceite de Oliva, having its registered office in Jaén (all in Spain), represented by Rafael Illescas Ortiz, of the Madrid Bar.

The applicants claim that the Court should:

| — | annul Council Regulations (EC) Nos 864/2004 and 865/2004 of 29 April 2004; in particular, as regards Regulation No 864/2004, the Court should annul the following provisions:






  i. | Article 1(7) in so far as it adds a new subparagraph in Article 37(1) of Regulation (EC) No 1782/2003 of 29 September 2003; |
| --- | --- | --- |

—

annul Council Regulations (EC) Nos 864/2004 and 865/2004 of 29 April 2004; in particular, as regards Regulation No 864/2004, the Court should annul the following provisions:

i.

Article 1(7) in so far as it adds a new subparagraph in Article 37(1) of Regulation (EC) No 1782/2003 of 29 September 2003;

| ii. | Article 1(11) in so far as it adds a new subparagraph to paragraph 2 of Article 44 of Regulation (EC) No 1782/2003 of 29 September 2003 (OJ 2003 L 270); |
| --- | --- |

ii.

Article 1(11) in so far as it adds a new subparagraph to paragraph 2 of Article 44 of Regulation (EC) No 1782/2003 of 29 September 2003 (OJ 2003 L 270);

| iii. | Article 1(20) insofar as, when inserting a new Chapter 10b – ‘Aid for olive groves’– into Regulation (EC) No 1782/2003 of 29 September 2003 (OJ 2003 L 270) it adds a new Article 110h and, in particular, Article 1(20)(b) of the abovementioned Article 110h; |
| --- | --- |

iii.

Article 1(20) insofar as, when inserting a new Chapter 10b – ‘Aid for olive groves’– into Regulation (EC) No 1782/2003 of 29 September 2003 (OJ 2003 L 270) it adds a new Article 110h and, in particular, Article 1(20)(b) of the abovementioned Article 110h;

| iv. | the annex, insofar as it amends Annex VI to Regulation (EC) No 1782/2003 of 29 September 2003 (OJ 2003 L 270) adding four new rows and, in particular, the second such new row concerning olive oil insofar as it refers to Article 5 of Regulation 136/66/CEE – Aid for olive oil production – which provides for a national guaranteed amount (NGA) for Spain of 760 027 tons; |
| --- | --- |

iv.

the annex, insofar as it amends Annex VI to Regulation (EC) No 1782/2003 of 29 September 2003 (OJ 2003 L 270) adding four new rows and, in particular, the second such new row concerning olive oil insofar as it refers to Article 5 of Regulation 136/66/CEE – Aid for olive oil production – which provides for a national guaranteed amount (NGA) for Spain of 760 027 tons;

| — | as regards Regulation 865/2004 the Court should annul the following provision:






  — | Article 22 insofar as it repeals Article 5(1) of Regulation (EEC) No 1638/98 so far as concerns, exclusively, the second and third subparagraphs thereof and only to the extent that they amount to fundamental criteria for fixing the aid for income of oil producers under the new scheme based on Regulation (EC) No 1782/2003. |
| --- | --- | --- |

—

as regards Regulation 865/2004 the Court should annul the following provision:

—

Article 22 insofar as it repeals Article 5(1) of Regulation (EEC) No 1638/98 so far as concerns, exclusively, the second and third subparagraphs thereof and only to the extent that they amount to fundamental criteria for fixing the aid for income of oil producers under the new scheme based on Regulation (EC) No 1782/2003.

Pleas in law and main arguments:

The applicants claim that the contested regulations entail the introduction into the common agricultural policy of a new aid scheme for olive oil and table olive producers as well as a new common organisation of the markets in such products, derogating from, inter alia, the long-established Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats. Unlike the longstanding mechanism for aid for production, the new system established by the contested regulations removes direct aid to producers and introduces a system of single payments, which means, for the olive oil sector, from 2006, a move from a policy of supporting prices and production to a new policy of support for the income of olive producers.

The applicants take the view that the abovementioned reform is not based on proper information and sectorial analysis, as indicated by the maintenance of the 760 027 tons of olive oil as, previously, a national guaranteed amount (NGA) and now, under the new aid scheme, as a basic reference for the quantification of the new aid which replaces the aid to production which has been repealed.

In support of their claims, the applicants allege:

| — | breach of the principle of legal expectations. The applicants state, first, that the affected producers were particularly disappointed in the expectations created by the common organisation of the market which has now been reformed inasmuch as those affected are oil producers which, in view of the circumstances in the sector, made decisions regarding investment decisions in respect of very long-term income forecasts and, furthermore, that the reference marketing years for the new aid (from 1999/2000 to 2002/2003) happen to be periods in which oil producers who planted a crop in 1998 do not have a significant harvest. |
| --- | --- |

—

breach of the principle of legal expectations. The applicants state, first, that the affected producers were particularly disappointed in the expectations created by the common organisation of the market which has now been reformed inasmuch as those affected are oil producers which, in view of the circumstances in the sector, made decisions regarding investment decisions in respect of very long-term income forecasts and, furthermore, that the reference marketing years for the new aid (from 1999/2000 to 2002/2003) happen to be periods in which oil producers who planted a crop in 1998 do not have a significant harvest.

| — | misuse of powers. Reliance is placed, in particular, in that regard, on the existence of an undertaking obtained by the Commission and the Council in 1998, and again in 2001, concerning the obtention by them of reliable information on the olive oil sector as a condition prior to its reform, as well as the essential need to take into account developments in production and the future of olive-growing in Spain and Portugal. None the less, according to the applicants, reliable information regarding oil production in Spain could already have been provided by the Commission itself to the International Oil Council, so that neither the Commission nor the Council could have been unaware of it. |
| --- | --- |

—

misuse of powers. Reliance is placed, in particular, in that regard, on the existence of an undertaking obtained by the Commission and the Council in 1998, and again in 2001, concerning the obtention by them of reliable information on the olive oil sector as a condition prior to its reform, as well as the essential need to take into account developments in production and the future of olive-growing in Spain and Portugal. None the less, according to the applicants, reliable information regarding oil production in Spain could already have been provided by the Commission itself to the International Oil Council, so that neither the Commission nor the Council could have been unaware of it.

| — | failure to observe the obligation to provide reasons, enshrined in Article 253 of the EC Treaty. |
| --- | --- |

—

failure to observe the obligation to provide reasons, enshrined in Article 253 of the EC Treaty.

| — | breach of the principle of non-discrimination of Community producers, as laid down in the first paragraph of Article 12 of the EC Treaty. |
| --- | --- |

—

breach of the principle of non-discrimination of Community producers, as laid down in the first paragraph of Article 12 of the EC Treaty.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/18 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/18

---

Action brought on 7 July 2004 by Abdelghani Selmani against the Council of the European Union and the Commission of the European Communities

(Case T-299/04)

(2004/C 284/38)

Language of the case: English

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 July 2004 by Abdelghani Selmani, Dublin, Ireland, represented by Mr C. Ó Briain Solicitor.

The applicant claims that the Court should:

| — | Annul Article 2 of Council Regulation (EC) No 2580/2001 (1) as well as Article 1 of Council Decision 2004/306/EC (2) insofar as they apply, or purport to apply, to the applicant; |
| --- | --- |

—

Annul Article 2 of Council Regulation (EC) No 2580/2001 (1) as well as Article 1 of Council Decision 2004/306/EC (2) insofar as they apply, or purport to apply, to the applicant;

| — | Annul all Council decisions made on foot of Regulation 2580/2001 having like effect to Decision 2004/306 insofar as they apply, or purport to apply, to the applicant; |
| --- | --- |

—

Annul all Council decisions made on foot of Regulation 2580/2001 having like effect to Decision 2004/306 insofar as they apply, or purport to apply, to the applicant;

| — | If necessary, annul Article 2 of 2001/931/CFSP (3), Article 1 of Council Common Position 2004/500/CFSP (4) as well as all Council Common Positions adopted on the foot of Common Position 2001/931, in all cases insofar as they apply, or purport to apply, to the applicant; |
| --- | --- |

—

If necessary, annul Article 2 of 2001/931/CFSP (3), Article 1 of Council Common Position 2004/500/CFSP (4) as well as all Council Common Positions adopted on the foot of Common Position 2001/931, in all cases insofar as they apply, or purport to apply, to the applicant;

| — | In the alternative, declare that the above measures are void, insofar as they apply, or purport to apply, to the applicant; |
| --- | --- |

—

In the alternative, declare that the above measures are void, insofar as they apply, or purport to apply, to the applicant;

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

—

Order the Council to pay the costs.

Pleas in law and main arguments:

Council Common Position 2001/931/CSFP was adopted with the stated purpose of implementing Resolution 1373 (2001) of the Security Council of the United Nations, calling on all signatory states to prevent the financing of terrorist acts by, inter alia, freezing the funds and resources of all persons who may be involved in such acts. Regulation 2580/2001 was adopted in order to implement this common position. Article 2 makes provision for the freezing of assets belonging to persons involved in terrorist activity, to be established by the Council in accordance with paragraph 3 of Article 2. Council Decision 2004/306 provides such a list and includes the name of the applicant, an Algerian national. As a result, the applicant's assets in Ireland, where he resides having been granted refugee status, were frozen.

In support of his application to annul the contested measures the applicant submits that the Council was not competent, under Articles 60, 301 and 308 of the EC Treaty, to adopt Article 2 of Regulation 2580/2001 and Article 1 of Decision 2004/306 and that both the Council and the Commission misused their powers under those articles. The applicant further contends that the list of names appearing in Decision 2004/306 was not established in accordance with the provisions laid down in Article 1 paragraph 4 of Common Position 2001/931. The applicant also claims that the Council had no power under Articles 15 and 34 EU to adopt Common Positions 2001/931 and 2004/500 which, according to the applicant, violate these articles and the EC Treaty in general.

The applicant also submits that the contested measures violate fundamental principles of Community law, in particular subsidiarity, proportionality and respect for fundamental human rights. He further submits that the Council and the Commission have failed to state adequate reasons as to why the measures considered necessary could not be determined by each individual Member State.

---

(1)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism O J L 344, 28.12.2001, p. 70.

(2)  Council Decision of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/EC, OJ L 99, 3.4.2004, p. 28.

(3)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism, OJ L 344, 28.12.2001, p. 93.

(4)  Council Common Position 2004/500/CFSP of 17 May 2004 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2004/309/CFSP.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/19 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/19

---

Action brought on 9 August 2004 by Jörg-Michael Fetzer against the European Parliament

(Case T-330/04)

(2004/C 284/39)

Language of the case: German

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 9 August 2004 by Jörg-Michael Fetzer of Tübingen (Germany), represented by Matthias Bauer, lawyer.

The applicant claims that the Court should:

| — | declare that the defendant infringed the rights of the applicant in connection with Competition PE/96/A (Administrators); |
| --- | --- |

—

declare that the defendant infringed the rights of the applicant in connection with Competition PE/96/A (Administrators);

| — | admit the applicant to the second stage of a competition comparable with Competition PE/96/A; |
| --- | --- |

—

admit the applicant to the second stage of a competition comparable with Competition PE/96/A;

| — | in the alternative, order the defendant to pay appropriate compensation, equivalent to at least one month's net salary. |
| --- | --- |

—

in the alternative, order the defendant to pay appropriate compensation, equivalent to at least one month's net salary.

Pleas in law and main arguments:

In July 2002, the applicant applied for Competition PE/96/A of the European Parliament. He stated in the application form that he was handicapped, in that his vision is reduced to two per cent of normal. According to the applicant, he was not allowed to write the test with a computer, being told that the examination conditions made no provision for compensating handicapped participants, and he was not given the extension of time which he requested.

The applicant argues that during the examination, owing to the difficulties arising from his handicap, it was nowhere near possible for him to read through all the questions in the allotted time and select the right answers. He argues that he belonged to the 180 best candidates and would therefore have been admitted to the next stage of the competition, if he had been given the requested compensation for his incapacity. He therefore seeks a declaration that he compensation he applied for was wrongly denied to him.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/20 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/20

---

Action brought on 11 August 2004 by Stephen Stork against the Commission of the European Communities

(Case T-331/04)

(2004/C 284/40)

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 11 August 2004 by Stephen Stork, Chaumont-Gistoux (Belgium), represented by Bernd Arians, lawyer.

The applicant claims that the Court should:

| — | annul the Commission's decision of 5 May 2004 on the applicant's complaint and the Commission's decision of 10 December 2003 classing the applicant in Grade A7; |
| --- | --- |

—

annul the Commission's decision of 5 May 2004 on the applicant's complaint and the Commission's decision of 10 December 2003 classing the applicant in Grade A7;

| — | require the Commission to adopt a new decision on the applicant's grade, including a full statement of reasons; |
| --- | --- |

—

require the Commission to adopt a new decision on the applicant's grade, including a full statement of reasons;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant contests the Commission's decision to class him in Grade A7, Step 3. He alleges errors of assessment in the application of Article 31(2) of the Staff Regulations.

The applicant submits that the contested decision fails to take account of facts relating to the quality of the applicant's professional experience which are of fundamental relevance to classification and that there was a failure to recognise the relevance of those facts in recruiting the applicant to his first post and to take proper account of the defendant's recruitment needs.

Moreover, the applicant alleges a failure to exercise discretion, infringement of the principles of protection of legitimate expectations and of equal treatment, procedural errors and failure to give a proper statement of reasons.

---

| 20.11.2004 | EN | Official Journal of the European Union | C 284/20 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/20

---

Action brought on 6 August 2004 by SEBIRAN, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-332/04)

(2004/C 284/41)

Language of the case: Spanish

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 6 August 2004 by SEBIRAN, S.L., represented by José Antonio Calderón Chavero, lawyer.

The applicant claims that the Court should:

| — | Annul the decision of the OHIM Second Board of Appeal of 15 June 2004 in Case R-550/2003-2; |
| --- | --- |

—

Annul the decision of the OHIM Second Board of Appeal of 15 June 2004 in Case R-550/2003-2;

| — | Confirm decision 1472/2003 in opposition proceedings B348708 dismissing the opposition brought by the opponent in its entirety and allow the application for the contested mark for all the classes claimed; |
| --- | --- |

—

Confirm decision 1472/2003 in opposition proceedings B348708 dismissing the opposition brought by the opponent in its entirety and allow the application for the contested mark for all the classes claimed;

| — | Order OHIM and the other parties to pay the costs of these proceedings in the event of the proceedings being defended and those parties' claims being rejected. |
| --- | --- |

—

Order OHIM and the other parties to pay the costs of these proceedings in the event of the proceedings being defended and those parties' claims being rejected.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘COTO D'ARCIS’ — Application No 1 558 113 for products in Classes 32 and 33 (alcoholic and non-alcoholic drinks and preparations for making beverages) and services in Class 39 (transport; packaging and storage of goods) |
| Proprietor of mark or sign cited in the opposition proceedings: | El Coto de Rioja S.A. |
| Mark or sign cited in opposition. | Community word marks ‘COTO DE IMAZ’ (No 339 333) and ‘EL COTO’ (No 339 408) for products in Classes 29, 32 and 33, international mark No 442 377 and Spanish marks No 877 219, No 907 966, No 907 967, No 907 985, No 907 989, No 907 993, No 907 994, No 907 995, No 983 888, No 1 290 986, No 1 614 514, No 1 758 975 and No 2 172 691). |
| Decision of the Opposition Division: | Opposition dismissed. |
| Decision of the Board of Appeal: | Appeal partially upheld, the trade mark applied for being refused for products in Classes 32 and 33. |
| Pleas in law: | Infringement of Article 8(1)(b) of Regulation (EC) No 40/94. |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

Figurative mark ‘COTO D'ARCIS’ — Application No 1 558 113 for products in Classes 32 and 33 (alcoholic and non-alcoholic drinks and preparations for making beverages) and services in Class 39 (transport; packaging and storage of goods)

Proprietor of mark or sign cited in the opposition proceedings:

El Coto de Rioja S.A.

Mark or sign cited in opposition.

Community word marks ‘COTO DE IMAZ’ (No 339 333) and ‘EL COTO’ (No 339 408) for products in Classes 29, 32 and 33, international mark No 442 377 and Spanish marks No 877 219, No 907 966, No 907 967, No 907 985, No 907 989, No 907 993, No 907 994, No 907 995, No 983 888, No 1 290 986, No 1 614 514, No 1 758 975 and No 2 172 691).

Decision of the Opposition Division:

Opposition dismissed.

Decision of the Board of Appeal:

Appeal partially upheld, the trade mark applied for being refused for products in Classes 32 and 33.

Pleas in law:

Infringement of Article 8(1)(b) of Regulation (EC) No 40/94.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/21 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/21

---

Action brought on 13 August 2004 by DATAC AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-341/04)

(2004/C 284/42)

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 13 August 2004 by DATAC AG, Passau (Germany), represented by K. Zingsheim, lawyer.

DATEV eG, Nuremberg (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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 12 May 2004 in Case R 176/2002-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 12 May 2004 in Case R 176/2002-4;

| — | reject the opposition entered by DATEV eG; |
| --- | --- |

—

reject the opposition entered by DATEV eG;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant. |
| --- | --- |
| Community trade mark sought: | The word mark ‘DATAC’ for goods and services in Classes 9, 16, 23 and 42 (inter alia, computer hardware and parts and computer software, printed matter, business affairs and rental and licensing of computer hardware and software) — Application No 665 455. |
| Proprietor of mark or sign cited in the opposition proceedings: | DATEV eG. |
| Mark or sign cited in opposition: | The German and Community word marks ‘DATEV’ for goods and services in Classes 9, 16, 35, 41 and 42 (inter alia, office organisation tools, electronic data processing for others, providing of training and tuition in the field of data processing and planning, developing, establishing and maintenance of electronic data processing programmes). |
| Decision of the Opposition Division: | Rejection of the opposition. |
| Decision of the Board of Appeal: | Annulment of the decision of the Opposition Division and referral of the proceedings back to the Opposition Division. |
| Pleas in law: | — | infringement of Articles 8(1)(b) and 53(1) of Regulation (EC) No 40/94; |

Applicant for Community trade mark:

The applicant.

Community trade mark sought:

The word mark ‘DATAC’ for goods and services in Classes 9, 16, 23 and 42 (inter alia, computer hardware and parts and computer software, printed matter, business affairs and rental and licensing of computer hardware and software) — Application No 665 455.

Proprietor of mark or sign cited in the opposition proceedings:

DATEV eG.

Mark or sign cited in opposition:

The German and Community word marks ‘DATEV’ for goods and services in Classes 9, 16, 35, 41 and 42 (inter alia, office organisation tools, electronic data processing for others, providing of training and tuition in the field of data processing and planning, developing, establishing and maintenance of electronic data processing programmes).

Decision of the Opposition Division:

Rejection of the opposition.

Decision of the Board of Appeal:

Annulment of the decision of the Opposition Division and referral of the proceedings back to the Opposition Division.

Pleas in law:

—

infringement of Articles 8(1)(b) and 53(1) of Regulation (EC) No 40/94;

| — | misapplication of Article 8(5) of Regulation (EC) No 40/94; |
| --- | --- |

—

misapplication of Article 8(5) of Regulation (EC) No 40/94;

| — | no likelihood of confusion between the opposed marks. |
| --- | --- |

—

no likelihood of confusion between the opposed marks.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/21 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/21

---

Action brought on 31 August 2004 by Marguerite Chetcuti against Commission of the European Communities

(Case T-357/04)

(2004/C 284/43)

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 31 August 2004 by Marguerite Chetcuti, residing in Zejtun (Malta), represented by Marc-Albert Lucas, lawyer.

The applicant claims that the Court should:

| — | Declare unlawful point III of competition notice COM/P A/04 of 6 April 2004; |
| --- | --- |

—

Declare unlawful point III of competition notice COM/P A/04 of 6 April 2004;

| — | Annul the decision of 22 June 2004 of the competition selection board rejecting her candidature in reliance on that provision; |
| --- | --- |

—

Annul the decision of 22 June 2004 of the competition selection board rejecting her candidature in reliance on that provision;

| — | Annul the subsequent acts of the competition procedure, which are unlawful as a consequence of the unlawfulness of the competition notice and of the contested decision, in particular:






  — | the list adopted by the selection board of candidates meeting the conditions fixed by the notice of competition, |
| --- | --- | --- |

—

Annul the subsequent acts of the competition procedure, which are unlawful as a consequence of the unlawfulness of the competition notice and of the contested decision, in particular:

—

the list adopted by the selection board of candidates meeting the conditions fixed by the notice of competition,

| — | the Commission decision determining on that basis the number of posts to be filled, |
| --- | --- |

—

the Commission decision determining on that basis the number of posts to be filled,

| — | the list of suitable candidates adopted by the selection board on completion of its task, and |
| --- | --- |

—

the list of suitable candidates adopted by the selection board on completion of its task, and

| — | the appointment decisions taken by the appointing authority on that basis; |
| --- | --- |

—

the appointment decisions taken by the appointing authority on that basis;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments:

In support of the form of order sought, the applicant claims that the notice of competition infringes Articles 4, 27 and 29(1)(b) of the Staff Regulations and also the principle of equal treatment in that excludes members of the auxiliary staff from the competition. She also claims that the notice infringes Articles 27 and 29 of the Staff Regulations and is contrary to the interests of the service and the principle of equal treatment on the ground that it requires a period of service as an official, temporary servant or member of the temporary staff and thus excludes local staff, like the applicant.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/22 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/22

---

Action brought on 30 August 2004 by Georg Neumann GmbH, Berlin against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-358/04)

(2004/C 284/44)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 30 August 2004 by Georg Neumann GmbH, Berlin, Berlin (Germany), represented by R. Böhm, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 June 2004 in Case R 919/2002-2; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 June 2004 in Case R 919/2002-2;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Community trade mark applied for: | Three-dimensional trade mark in the form of a microphone head grill in respect of goods in Class 9 (Microphones) — Application No 493 643 |
| --- | --- |
| Decision contested before the Board of Appeal: | Refusal of the application by the examiner |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | — | The contested decision infringes Article 7(1) of Regulation (EC) No 40/94. |

Community trade mark applied for:

Three-dimensional trade mark in the form of a microphone head grill in respect of goods in Class 9 (Microphones) — Application No 493 643

Decision contested before the Board of Appeal:

Refusal of the application by the examiner

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

—

The contested decision infringes Article 7(1) of Regulation (EC) No 40/94.

| — | The trade mark applied for is distinctive. |
| --- | --- |

—

The trade mark applied for is distinctive.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/22 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/22

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Action brought on 30 August 2004 by The British Aggregates Association Limited, Healy Bros. Limited and DK Trotter & Sons Limited against the Commission of the European Communities

(Case T-359/04)

(2004/C 284/45)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 August 2004 by The British Aggregates Association Limited, Lanark (United Kingdom) Healy Bros. Limited, Middleton, County Cork (Ireland) and DK Trotter & Sons, Manorhamilton, County Leitrim (Ireland) represented by C. Pouncey, Solicitor and L. Van Den Hende, lawyer.

The applicant claims that the Court should:

| — | annul Commission Decision C(2004) 1614 fin of 7 May 2004‘State Aid N 2/2004 UK/ Aggregates Levy’; |
| --- | --- |

—

annul Commission Decision C(2004) 1614 fin of 7 May 2004‘State Aid N 2/2004 UK/ Aggregates Levy’;

| — | order the Commission to pay the applicant's costs in the present proceedings. |
| --- | --- |

—

order the Commission to pay the applicant's costs in the present proceedings.

Pleas in law and main arguments:

In 2002 the United Kingdom introduced the Aggregates Levy, an environmental tax on certain aggregates. By a decision of the same year the Commission concluded that the Aggregates Levy provisions did not constitute State Aid. Claiming that the competitive position of its members is affected by the Aggregates Levy, the applicant challenged that decision in the context of another case before the Court of First Instance (1).

On 5 January 2004 the United Kingdom notified the Commission of a new Aggregates Levy relief scheme for Northern Ireland. By the contested decision the Commission declared the new scheme compatible with the common market, rejecting the applicant's complaint against it without opening the formal investigation procedure.

In support of its application the applicant submits first of all that the scheme in question violates Articles 23 and 90 EC and could therefore not have been declared compatible with the common market. The applicant further claims that the Commission violated its own environmental guidelines (2), committing in this respect three manifest errors of assessment namely: Considering a 20 % proportion of the levy payable by firms eligible for the relief scheme as significant; mistakenly considering the new relief scheme had been decided when the Aggregate Levy was adopted and mistakenly finding that the levy has an appreciable positive impact in terms of environmental protection.

The applicant also submits that the Commission failed to state reasons in the contested decision, as required by Article 253 EC, violated its obligation to initiate a formal investigation procedure, and violated its procedural obligations in the preliminary investigation.

---

(1)  Case T-210/02, notified in OJ C 219, 14.9.2002, p. 23.

(2)  Community guidelines on State aid for environmental protection OJ C 37, 3.2.2001 p. 3-15.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/23 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/23

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Action brought on 31 August 2004 by Koipe Corporación S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-363/04)

(2004/C 284/46)

Language in which the application was submitted: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) was brought before the Court of First Instance of the European Communities on 31 August 2004 by Koipe Corporación S.L., established in San Sebastián (Spain), represented by Marcos Fernández de Béthencourt, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of OHIM of 11 May 2004 in Case R-1109/2000-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 11 May 2004 in Case R-1109/2000-4;

| — | declare the mark applied for to be invalid or, as the case may be, order refusal of the application for a Community trade mark, No 236.588, ‘LA ESPAÑOLA’, in respect of all the goods claimed; and |
| --- | --- |

—

declare the mark applied for to be invalid or, as the case may be, order refusal of the application for a Community trade mark, No 236.588, ‘LA ESPAÑOLA’, in respect of all the goods claimed; and

| — | order OHIM, and any person intervening whose claims are not upheld, to pay the costs. |
| --- | --- |

—

order OHIM, and any person intervening whose claims are not upheld, to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Aceites del Sur S.A. |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘LA ESPAÑOLA’ – Application No 236.588 for goods in classes 29 (edible oils and fats) and 30 (mayonnaise made with olive oil) |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant, which is the successor to KOIPE S.A., the firm which appeared before the Board of Appeal, as regards ownership of the marks on the basis of which the opposition proceedings were brought. |
| Mark or sign cited in opposition. | The Community (No 338.681), international (Nos 244.428 and 528.369) and national (Spanish registrations Nos 1.238.745, 1.698.613, 28.270 and 252.738 and United Kingdom registrations Nos 730.990 and 2.043.818 inter alia) figurative marks ‘CARBONELL’, for goods in class 29 (olive oil and pure olive oil). |
| Decision of the Opposition Division: | Opposition rejected. |
| Decision of the Board of Appeal: | Appeal dismissed. |
| Pleas in law: | Incorrect interpretation of Article 8(1)(b), (2)(c) and (5) of Regulation (EC) No 40/94. |

Applicant for Community trade mark:

Aceites del Sur S.A.

Community trade mark sought:

Figurative mark ‘LA ESPAÑOLA’ – Application No 236.588 for goods in classes 29 (edible oils and fats) and 30 (mayonnaise made with olive oil)

Proprietor of mark or sign cited in the opposition proceedings:

The applicant, which is the successor to KOIPE S.A., the firm which appeared before the Board of Appeal, as regards ownership of the marks on the basis of which the opposition proceedings were brought.

Mark or sign cited in opposition.

The Community (No 338.681), international (Nos 244.428 and 528.369) and national (Spanish registrations Nos 1.238.745, 1.698.613, 28.270 and 252.738 and United Kingdom registrations Nos 730.990 and 2.043.818 inter alia) figurative marks ‘CARBONELL’, for goods in class 29 (olive oil and pure olive oil).

Decision of the Opposition Division:

Opposition rejected.

Decision of the Board of Appeal:

Appeal dismissed.

Pleas in law:

Incorrect interpretation of Article 8(1)(b), (2)(c) and (5) of Regulation (EC) No 40/94.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/24 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/24

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Action brought on 10 September 2004 by Dominique Cantoni against Council of the European Union and Commission of the European Communities

(Case T-365/04)

(2004/C 284/47)

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 10 September 2004 by Dominique Cantoni, residing in Marseilles (France), represented by Jean-François Péricaud, lawyer.

The applicant claims that the Court should:

| — | order the Council of the European Union and the Commission of the European Communities jointly and severally to pay to Mr Cantoni, as a primary claim, the sum of EUR 916 000, and, in the alternative, the sum of EUR 862 010, together, in any event, with interest at the rate prescribed by law from the date this action for payment was brought; |
| --- | --- |

—

order the Council of the European Union and the Commission of the European Communities jointly and severally to pay to Mr Cantoni, as a primary claim, the sum of EUR 916 000, and, in the alternative, the sum of EUR 862 010, together, in any event, with interest at the rate prescribed by law from the date this action for payment was brought;

| — | order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the costs. |
| --- | --- |

—

order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the costs.

Pleas in law and main arguments:

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

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(1)  OJ C 59 of 6.3.2004, p. 31.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/24 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/24

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Action brought on 15 September 2004 by Gibtelecom Limited against the Commission of the European Communities

(Case T-367/04)

(2004/C 284/48)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 September 2004 by Gibtelecom Limited, Gibraltar, represented by M. Llamas, Barrister and B. O'Connor, Solicitor.

The applicant claims that the Court should:

| — | Annul the Commission's Decision of 5 July 2004 rejecting the complaint brought by Gibtelecom under Article 86 EC in conjunction with Article 82 EC; |
| --- | --- |

—

Annul the Commission's Decision of 5 July 2004 rejecting the complaint brought by Gibtelecom under Article 86 EC in conjunction with Article 82 EC;

| — | order the Commission to pay Gibtelecom's costs. |
| --- | --- |

—

order the Commission to pay Gibtelecom's costs.

Pleas in law and main arguments

By the contested decision the Commission rejected a complaint by the applicant filed on 31 October 1996 alleging that the Spanish telecommunications operator, Telefonica SA, had committed a series of abuses of dominant position contrary to Article 82 EC in refusing to recognise Gibraltar's International Dialling Code (‘350’) and insisting on acceptance of restrictive conditions for the exchange of automatic direct dial traffic between Spain and Gibraltar. The applicant later converted that complaint into a complaint under Article 86 EC, in conjunction with Articles 82 EC, 49 EC and 12 EC against Spain, alleging that Telefonica was acting under instructions from the Spanish Government which claims sovereignty over Gibraltar.

In support of its application, the applicant invokes a series of alleged manifest errors of assessment of the contested decision. According to the applicant, the Commission erred in considering that Telefonica is not a public undertaking or that it enjoys special rights within the meaning of Article 86 EC.

The applicant further alleges that, by her actions, Spain has infringed the numbering and access provisions of Directives 90/388 (1), 97/33 (2), 2002/21 (3) and 2002/77 (4). It also considers that infringement actions can be pursued against Spain under Article 86 EC whether or not the measures Spain took to prevent recognition, by Telefonica, of Gibraltar's International Dialling Code were of general application.

The applicant also puts forward a number of procedural and administrative grounds for annulment referring, in this context, to a violation of the applicant's legitimate expectations which allegedly arose as a result of a letter sent on 7 June 2000 by three members of the Commission to Spain and the United Kingdom, requesting the two countries, among other things, to find a solution to the numbering complaint. The applicant further submits, in the context of the same plea, that the Commission has failed to act impartially and that it has breached the principle requiring it to act within a reasonable period.

---

(1)  Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (Official Journal L 192, 24.7.1990, p. 10–16).

(2)  Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (Official Journal L 199, 26.7.1997, p. 32–52).

(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) (Official Journal L 108, 24.4.2002, p. 33–50).

(4)  Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Text with EEA relevance) (Official Journal L 249, 17.9.2002, p. 21–26).

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/25 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/25

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Action brought on 12 September 2004 by Eric Mathias Fries Guggenheim against European Centre for the Development of Vocational Training (CEDEFOP)

(Case T-373/04)

(2004/C 284/49)

Language of the case: French

An action against the European Centre for the Development of Vocational Training (CEDEFOP) was brought before the Court of First Instance of the European Communities on 12 September 2004 by Eric Mathias fries Guggenheim, residing in Thessaloniki (Greece), represented by Marc-Albert Lucas, lawyer.

The applicant claims that the Court should:

| — | declare unlawful the decision of 17 December 2003 of the Director of the Centre on the improvement of Coordination and the Efficiency in Cedefop (A4), in so far as it makes no provision for a call for candidatures for posts as ‘Head of Area’ or for a selection procedure for candidates for those posts; |
| --- | --- |

—

declare unlawful the decision of 17 December 2003 of the Director of the Centre on the improvement of Coordination and the Efficiency in Cedefop (A4), in so far as it makes no provision for a call for candidatures for posts as ‘Head of Area’ or for a selection procedure for candidates for those posts;

| — | annul the decisions of 28 January 2004 of the Director of Cedefop to appoint certain persons as ‘Head of Area’ or ‘Acting Head of Area’; |
| --- | --- |

—

annul the decisions of 28 January 2004 of the Director of Cedefop to appoint certain persons as ‘Head of Area’ or ‘Acting Head of Area’;

| — | in so far as necessary, annul the decision of 1 June of the Appeal Committee of Cedefop (A17) rejecting his administrative complaint of 6 May 2004 against the earlier contested decisions; |
| --- | --- |

—

in so far as necessary, annul the decision of 1 June of the Appeal Committee of Cedefop (A17) rejecting his administrative complaint of 6 May 2004 against the earlier contested decisions;

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

—

order Cedefop to pay the costs.

Pleas in law and main arguments

The applicant, a member of the temporary staff of Cedefop, objects to the decisions of the Director of Cedefop of 28 January 2004 appointing certain persons as ‘Head of Area’ or ‘Acting Head of Area’.

The applicant relies on a breach of Article 7(1) and (2) of the Staff Regulations and of the first paragraph of Article 10 of the Conditions of Employment of other servants of the European Communities, in that the servants of the Centre appointed as ‘Head of Area’ were assigned to new posts at a high level requiring specific qualifications without a comparative examination of their qualifications and those of the other officials or servants of the Centre.

In support of this plea, the applicant claims that a call for candidatures and the selection of candidates for certain posts may be required not only under Articles 4, 29 and 45 of the Staff Regulations, when vacant posts are to be filled by transfer, promotion or competition, but also by virtue of the interest of the service, to which all reassignment measures are subject, pursuant to Article 7 of the Staff Regulations.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/25 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/25

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Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-374/04)

(2004/C 284/50)

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 20 September 2004 by the Federal Republic of Germany, represented by Claus-Dieter Quassowski, Annette Tiemann, assisted by Dieter Sellner and Ulrich Karpenstein.

The applicant claims that the Court of First Instance should:

| — | annul Article 1 of Commission Decision K(2004)2515/2 fin. of 7 July 2004; |
| --- | --- |

—

annul Article 1 of Commission Decision K(2004)2515/2 fin. of 7 July 2004;

| — | annul Article 2 of that decision to the extent to which in paragraphs (a) to (c) thereof it directs the Federal Republic of Germany to carry out and notify certain changes in the national allocation plan; |
| --- | --- |

—

annul Article 2 of that decision to the extent to which in paragraphs (a) to (c) thereof it directs the Federal Republic of Germany to carry out and notify certain changes in the national allocation plan;

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

—

order the Commission to pay the costs.

Pleas and main arguments:

The contested decision concerns the national plan for the allocation of greenhouse gas emissions notified by Germany pursuant to Directive 2003/87/EC of the European Parliament and the Council. In that decision the Commission raises objections to the provision for subsequent corrections made in the national allocation plan for Germany in respect of allocations for greenhouse gas emission certificates (‘ex-post adjustments downwards’). In the Commission's view, the plan is on that account irreconcilable with Annex III to Directive 2003/87/EC. (1)

In substantiation of its action the applicant claims that the contested decision is in breach of Article 9(3) of Directive 2003/87 in conjunction with Annex III thereto. Annex III does not prohibit the Member States from counteracting an ‘over-allocation’ by means of ‘ex-post adjustments’. On the contrary, Directive 2003/87 requires the Member States to withdraw an allocation decision based on erroneous data.

The contested decision is also in breach of Article 176 EC since the Commission is not entitled to debar the Member States from making an additional contribution to climate protection by withdrawing allocated emission certificates where they have failed to fulfil their purpose.

Finally, the Commission overlooked the fact that new market participants cannot be placed at an ‘unjustifiable advantage’ because ex-post adjustments can be made only downwards. To that extent the contested decision is vitiated by a manifest error of assessment.

---

(1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 established a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 1996 L 275, p. 32).

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/26 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/26

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Action brought on 17 September 2004 by Polyelectrolyte Producers Group against the Council of the European Union and the Commission of the European Communities

(Case T-376/04)

(2004/C 284/51)

Language of the case: English

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 September 2004 by Polyelectrolyte Producers Group, Brussels (Belgium) represented by K. Van Maldegem and C. Mereu, lawyers.

The applicant claims that the Court should:

| — | Order the annulment of the defendant's decision to allow Norway to apply more stringent concentration limits for the chemical substance acrylamide than those applicable in the Community, embodied in Decision of the EEA Joint Committee No 59/2004 of 26 April 2004 (1) amending Annex II (Technical regulations, testing and certification) to the EEA Agreement and the annulment of the Community's position for the adoption of that decision; |
| --- | --- |

—

Order the annulment of the defendant's decision to allow Norway to apply more stringent concentration limits for the chemical substance acrylamide than those applicable in the Community, embodied in Decision of the EEA Joint Committee No 59/2004 of 26 April 2004 (1) amending Annex II (Technical regulations, testing and certification) to the EEA Agreement and the annulment of the Community's position for the adoption of that decision;

| — | Declare the illegality and the inapplicability vis-à-vis the applicant of the EEA Joint Committee joint statement concerning the EEA Agreement — Annex II, Chapter XV — regarding the review clauses in the field of dangerous substances of 26 March 1999 (2), in so far as it allows Norway to apply concentration limits for the chemical substance acrylamide that are more stringent than those that apply in the Community; |
| --- | --- |

—

Declare the illegality and the inapplicability vis-à-vis the applicant of the EEA Joint Committee joint statement concerning the EEA Agreement — Annex II, Chapter XV — regarding the review clauses in the field of dangerous substances of 26 March 1999 (2), in so far as it allows Norway to apply concentration limits for the chemical substance acrylamide that are more stringent than those that apply in the Community;

| — | Order the defendant to compensate the applicant in the provisional amount of one Euro for damages suffered as a result of the adoption of the contested acts, as well as any applicable interests, pending the exact calculation and determination of the exact amount; |
| --- | --- |

—

Order the defendant to compensate the applicant in the provisional amount of one Euro for damages suffered as a result of the adoption of the contested acts, as well as any applicable interests, pending the exact calculation and determination of the exact amount;

| — | Order defendant to pay all costs and expenses in these proceedings. |
| --- | --- |

—

Order defendant to pay all costs and expenses in these proceedings.

Pleas in law and main arguments:

In support of its application the applicant submits that, in the absence of new Community legislation there was no power under Article 102 EEA Agreement to adopt the contested measures. The applicant further considers that the contested measures restrict the free movement of goods and thus infringe Articles 1, 3 and 97 of the EEA Agreement. It also claims that they infringe Articles 30 and 31 of Directive 67/548 (3). The applicant also invokes infringements of general principles of Community law, namely the principles of legal certainty and legitimate expectations, proportionality and of non-discrimination as well as of essential procedural requirements, namely the need to consult the European Parliament and the duty to state reasons.

Regarding its action for damages the applicant submits that because of the contested measures it has suffered both material damage, due to the need to label the polyarcylamide sold in Norway with a more restrictive label and danger warnings incurring additional costs, as well as non-material damage since, in the applicant's opinion, the Norwegian measures allowed by the defendant shed a bad light over the classification of polyarcylamide beyond Norwegian boundaries.

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(1)  OJ L 277, p. 30.

(2)  OJ C185, p. 6.

(3)  Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances OJ English special edition: Series I Chapter 1967 p. 234.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/26 |
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20.11.2004

EN

Official Journal of the European Union

C 284/26

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Action brought on 16 September 2004 by Bart Nijs against the Court of Auditors of the European Communities

(Case T-377/04)

(2004/C 284/52)

Language of the case: French

An action against the Court of Auditors of the European Communities was brought before the Court of First Instance of the European Communities on 16 September 2004 by Bart Nijs, residing in Bereldange (Luxembourg), represented by Fränk Rollinger, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the Court of Auditors, taken in the promotions exercise 2003 not to promote the applicant to the grade of translator-reviser (in 2003: LA5). |
| --- | --- |

—

annul the decision of the Court of Auditors, taken in the promotions exercise 2003 not to promote the applicant to the grade of translator-reviser (in 2003: LA5).

Pleas in law and main arguments:

In support of his action, the applicant alleges that, during the promotions exercise in question, the defendant conducted a comparative examination of the candidates' files, without taking account all of the factors liable to determine its decision, without regard for impartiality, on an unequal basis, neglecting the interests of the service and using information which was not comparable, as it allegedly came from a single reviser whose professional competence is contested by the applicant.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/27 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/27

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Action brought on 17 September 2004 by J against the Commission of the European Communities

(Case T-379/04)

(2004/C 284/53)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 September 2004 by J, represented by Carlo Forte, lawyer.

The applicant claims that the Court should:

| — | annul the Commission's decision of 10 June 2004, rejecting the applicant's complaints lodged against its decisions of 31 October 2003 and 10 December 2003, whereby, respectively, it refused her the expatriation allowance and installation allowance and demanded repayment of sums paid to her in that respect, not acknowledging the applicability of the last sentence of the second indent of Article 4(1)(a) of Annex VII, Article 5(1) of Annex VII, and Article 85 of the Staff Regulations of the European Communities; |
| --- | --- |

—

annul the Commission's decision of 10 June 2004, rejecting the applicant's complaints lodged against its decisions of 31 October 2003 and 10 December 2003, whereby, respectively, it refused her the expatriation allowance and installation allowance and demanded repayment of sums paid to her in that respect, not acknowledging the applicability of the last sentence of the second indent of Article 4(1)(a) of Annex VII, Article 5(1) of Annex VII, and Article 85 of the Staff Regulations of the European Communities;

| — | annul the aforesaid decisions of 31 October 2003 and 10 December 2003; |
| --- | --- |

—

annul the aforesaid decisions of 31 October 2003 and 10 December 2003;

| — | order such measures as may be appropriate to restore the applicant's rights, including interest for delay; |
| --- | --- |

—

order such measures as may be appropriate to restore the applicant's rights, including interest for delay;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant, who before accepting a post as a temporary servant of the Commission with the Directorate General for Research was employed as a researcher at the Brussels establishment of the Consiglio Nazionale di Ricerca (CNR), challenges the Commission's refusal to grant her the expatriation allowance and the installation allowance.

The Commission's position is based on the argument that the CNR, which does not form part of the structure of the public administration, is outside the scope of activity of the Italian State, of which it represents neither the will nor the direct interests.

In support of her claims, the applicant first argues misapplication of the last sentence of the second indent of Article 4(1)(a) of Annex VII and Article 5(1) of Annex VII of the Staff Regulations, maintaining that her status as a State official should allow her to be granted the refused allowances. That was also the interpretation of the Belgian Ministry of Foreign Affairs, which issued the applicant with a ‘Carte d'identité spéciale’, describing her as a ‘Fonctionnaire italienne en mission officielle en Belgique’.

She adds in this respect that the CNR is a legal person under public law to which the organisation of the State attributes an area of competence (belonging to the central power), material resources and an organisational structure, constituted precisely from public bodies and rules applicable to them.

The applicant also claims to have suffered an infringement of Article 85 of the Staff Regulations.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/27 |
| --- | --- | --- | --- |

20.11.2004

EN

Official Journal of the European Union

C 284/27

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Action brought on 20 September 2004 by Gregorio Valero Jordana against Commission of the European Communities

(Case T-385/04)

(2004/C 284/54)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 September 2004 by Gregorio Valero Jordana, residing in Brussels, represented by Massimo Merola and Isabelle van Schendel, lawyers.

The applicant claims that the Court should:

| — | annul the decision of the Director General of the Legal Service awarding him only one priority point under the 2003 promotion exercise, as is apparent from the Sysper 2 computerised system; |
| --- | --- |

—

annul the decision of the Director General of the Legal Service awarding him only one priority point under the 2003 promotion exercise, as is apparent from the Sysper 2 computerised system;

| — | annul the decision of the appointing authority to award him a total of 20 points under the 2003 promotion exercise, as is apparent from the Sysper 2 computerised system; the list of merit of officials in grade A5 under the 2003 promotion exercise, following Promotion Committees, published in Administrative Notices No 69-2003 of 13 November 2003; the list of officials promoted to grade A4 under the 2003 exercise, published in Administrative Notices No 73-2003 of 27 November 2003; and the decision not to enter his name on those lists; |
| --- | --- |

—

annul the decision of the appointing authority to award him a total of 20 points under the 2003 promotion exercise, as is apparent from the Sysper 2 computerised system; the list of merit of officials in grade A5 under the 2003 promotion exercise, following Promotion Committees, published in Administrative Notices No 69-2003 of 13 November 2003; the list of officials promoted to grade A4 under the 2003 exercise, published in Administrative Notices No 73-2003 of 27 November 2003; and the decision not to enter his name on those lists;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant in the present case objects to the award of one priority point under the 2003 evaluation exercise and also to the appointing authority's refusal to promote him to grade A4 for the same exercise.

In support of his claims, he asserts first of all that Article 45 of the Staff Regulations requires that merit be the determining criterion for the award of priority points by the Directorate General and for promotion. None the less, in the system called in question in the present case, promotions are determined by the award of priority points, on the proposal of each Directorate General or Promotion Committee, without a comparative examination of the merits of all officials eligible for promotion in each grade. Consequently, Articles 6, 8 and 10 of the Commission's decision of 26 April 2002 on the general provisions for the implementation of Article 45 of the Staff Regulations (DGE) breach Article 45 of the Staff Regulations. Furthermore, by awarding to each Directorate General a uniform quota of points per official, those rules prevent the appointing authority from carrying out that comparative examination.

The applicant states in that regard that the contested decisions are the result of the criteria established in the Legal Service for the award of priority points, which lead to those points being awarded in priority to officials with the most seniority in grade, irrespective of their merits. Such an approach constitutes a misuse of power, since it seeks to bring about the promotion of the largest number and the preparation of promotions for future years, i.e. to achieve an aim different from that envisaged by the Staff Regulations, which is to reward merit.

The applicant further relies on two procedural defects, in so far as the award of the priority points in issue was, he alleges, decided in the absence of a proposal from the Directorate of the Legal Service and in breach of the duty to state reasons.

The applicant also claims that there has been a breach of the principle that an official should have reasonable career prospects and that Articles 9, 12(3) and 13 of the DGE are illegal.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/28 |
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20.11.2004

EN

Official Journal of the European Union

C 284/28

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Action brought on 27 September 2004 by Eridania Sadam S.p.A. and Others against the Commission of the European Communities

(Case T-386/04)

(2004/C 284/55)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 September 2004 by Eridania Sadam S.p.A. and Others, represented by the lawyers Gualtiero Pittalis, Ivano Vigliotti, Gian Michele Roberti, Palo Ziotti and Alessandra Franchi.

The applicants claim that the Court should:

| — | annul Article 1(d) of Commission Regulation (EC) No 1216/2004 of 30 June 2004 fixing the derived intervention price for white sugar for the marketing year 2004/2005 for all areas in Italy; |
| --- | --- |

—

annul Article 1(d) of Commission Regulation (EC) No 1216/2004 of 30 June 2004 fixing the derived intervention price for white sugar for the marketing year 2004/2005 for all areas in Italy;

| — | as a secondary matter, declare, pursuant to Article 241 EC, Article 2 of Council Regulation (EC) No 1260/2001 unlawful and inapplicable, inasmuch as it does not allow the Commission to take into consideration the existence of imports bearing zero duty and not subject to a quota for the purposes of the fixing of the derived intervention price; |
| --- | --- |

—

as a secondary matter, declare, pursuant to Article 241 EC, Article 2 of Council Regulation (EC) No 1260/2001 unlawful and inapplicable, inasmuch as it does not allow the Commission to take into consideration the existence of imports bearing zero duty and not subject to a quota for the purposes of the fixing of the derived intervention price;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In this action the companies Eridania Sadam S.p.A., Italia Zuccheri S.p.A., Zuccherificio del Molise S.p.A., Cooperativa Produttori Bieticoli a.r.l. (CO.PRO.B.) and Società Fondiaria Romagnola S.p.A. (SFIR) challenge, pursuant to the fourth paragraph of Article 230 EC, Commission Regulation (EC) No 1216/2004 of 30 June 2004 fixing the derived intervention price for white sugar for the marketing year 2004/2005 for all areas in Italy (OJEC L 232 of 1 July 2004, p. 25).

In support of their action the applicants raise the following pleas in law.

First, the applicants maintain that the contested regulation is in various ways incompatible with the basic rules laid down by the Council in Regulation (EC) No 1260/2001 of 19 June 2001. Most particularly, they complain that the regulation at issue wrongly classes Italy as a ‘deficit area’ in respect of sugar supplies, applying to it as a result the derived prices rules (known as ‘regionalisation’).

That classification, based as the applicants believe it to be, on an incorrect economic analysis of the situation, gives rise to damage to the applicants, inasmuch as the introduction of the derived prices brings in a rise in the costs of production for the sugar businesses operating within Italy. In particular, according to the applicants, when computing the domestic supply in Italy, the Commission failed to take account of the quantities of white sugar imported subject to zero duty from the Balkan States, imports that appreciably alter the conditions on which the common organisation of the market operates, causing major imbalances in that market, which are increased as a result of the applying of regionalisation to the Italian market.

The applicants therefore consider that Article 1(d) of the contested regulation is at the same time defective in its grounds and potentially contrary, in its effects, to the Community principles underlying the Common Agricultural Policy and to the rules governing the common organisation of the market in sugar, and also to the principles of proportionality and equal treatment.

If it should happen, which the applicants strongly contest, that the Court of First Instance should be unwilling to uphold the criticisms directed against the regulation at issue in the principal head of claim, the applicants request, as a secondary claim, that the Court should as an interlocutory matter declare unlawful and inapplicable Article 2 of Regulation No 1260/2001, in that it permits the Commission not to take account of the effect on trends in the market of imports not subject to duty or to a quota for the purposes of the fixing of the derived intervention price.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/29 |
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20.11.2004

EN

Official Journal of the European Union

C 284/29

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Action brought on 28 September 2004 by Habib Kachakil Amar against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-388/04)

(2004/C 284/56)

Language in which the application was submitted: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 28 September 2004 by Habib Kachakil Amar, represented by Juan Carlos Heder, lawyer.

The applicant claims that the Court should:

| — | Annul the contested decision of the OHIM First Board of Appeal of 20 July 2004 in Case R 175/2004-1, and |
| --- | --- |

—

Annul the contested decision of the OHIM First Board of Appeal of 20 July 2004 in Case R 175/2004-1, and

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

Pleas in law and main arguments:

| Community trade mark sought: | Figurative mark consisting of a thick black longitudinal line ending in a triangle B application No 3 235 157 for products in Class 25 (Clothing, footwear, headgear, in particular sports footwear) |
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| Examiner's decision: | Application rejected as falling within the absolute grounds of refusal provided for in Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. |
| Decision of the Board of Appeal: | Application dismissed. |
| Pleas in law: | Misapplication of the abovementioned regulation and breach of the rights of the defence and of the principle of the protection of legitimate expectations |

Community trade mark sought:

Figurative mark consisting of a thick black longitudinal line ending in a triangle B application No 3 235 157 for products in Class 25 (Clothing, footwear, headgear, in particular sports footwear)

Examiner's decision:

Application rejected as falling within the absolute grounds of refusal provided for in Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

Decision of the Board of Appeal:

Application dismissed.

Pleas in law:

Misapplication of the abovementioned regulation and breach of the rights of the defence and of the principle of the protection of legitimate expectations

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/29 |
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20.11.2004

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Official Journal of the European Union

C 284/29

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Action brought on 24 September 2004 by Salvatore Gagliardi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.)

(Case T-392/04)

(2004/C 284/57)

Language in which the application was submitted: Italian

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 24 September 2004 by Salvatore Gagliardi, proprietor of the one-man business of the same name, represented by Alex Schmitt, Prof. Paolo Biavati and Sandro Corona, lawyers.

The company Norma Lebensmittelfilaialbetrieb GmbH & Co. KG was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision inter partes of the Fourth Appeal Board of the O.H.I.M. (proceedings R 0154/2002-4), and |
| --- | --- |

—

annul the decision inter partes of the Fourth Appeal Board of the O.H.I.M. (proceedings R 0154/2002-4), and

| — | pursuant to Article 87 of the Rules of Procedure, order the unsuccessful parties (the O.H.I.M. in so far as it incurs liability, for example, for being at fault on account of its having gone beyond the limits of the action brought before it) to pay the costs. |
| --- | --- |

—

pursuant to Article 87 of the Rules of Procedure, order the unsuccessful parties (the O.H.I.M. in so far as it incurs liability, for example, for being at fault on account of its having gone beyond the limits of the action brought before it) to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Applicant |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘MANU’ — Application for registration No 1.021.690, claim in respect of several products in Classes 18, 24 and 25 |
| Proprietor of mark or sign cited in the opposition proceedings: | Norma Lebensmittelfilialbetrieb GmbH & Co. KG |
| Mark or sign cited in opposition: | German word mark ‘MANOU’, in respect of products in Class 25 (clothing, footwear, headgear) |
| Decision of the Opposition Division: | Opposition dismissed |
| Decision of the Board of Appeal: | Appeal granted and application for registration rejected |
| Pleas in law: | Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant also claims that the contested decision is flawed because it goes beyond the limits of the action brought before the Board in rejecting the application for registration of the trade mark, in respect of Classes 18 and 24 also, which unarguably were never the subject-matter of the opposition, in addition to other products in Class 25 other than items of clothing, despite the fact that only those last formed the basis of the opposition. |

Applicant for Community trade mark:

Applicant

Community trade mark sought:

Figurative mark ‘MANU’ — Application for registration No 1.021.690, claim in respect of several products in Classes 18, 24 and 25

Proprietor of mark or sign cited in the opposition proceedings:

Norma Lebensmittelfilialbetrieb GmbH & Co. KG

Mark or sign cited in opposition:

German word mark ‘MANOU’, in respect of products in Class 25 (clothing, footwear, headgear)

Decision of the Opposition Division:

Opposition dismissed

Decision of the Board of Appeal:

Appeal granted and application for registration rejected

Pleas in law:

Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant also claims that the contested decision is flawed because it goes beyond the limits of the action brought before the Board in rejecting the application for registration of the trade mark, in respect of Classes 18 and 24 also, which unarguably were never the subject-matter of the opposition, in addition to other products in Class 25 other than items of clothing, despite the fact that only those last formed the basis of the opposition.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/30 |
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Official Journal of the European Union

C 284/30

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Removal from the Register of Case T-224/02 (1)

(2004/C 284/58)

(Language of the case: French)

By order of 16 September 2004, the President of the First Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-224/02, Miguel Forcat Icardo v Commission of the European Communities.

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(1)  OJ L 247 of 12.10.2002.

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| 20.11.2004 | EN | Official Journal of the European Union | C 284/30 |
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20.11.2004

EN

Official Journal of the European Union

C 284/30

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Removal from the Register of Case T-306/02 (1)

(2004/C 284/59)

(Language of the case: French)

By order of 7 September 2004, the President of the First Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-306/02, Renaud Denuit v Commission of the European Communities.

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(1)  OJ C 323 of 21.12.2002.

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III Notices

| 20.11.2004 | EN | Official Journal of the European Union | C 284/31 |
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20.11.2004

EN

Official Journal of the European Union

C 284/31

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(2004/C 284/60)

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

OJ C 273, 6.11.2004

Past publications

OJ C 262, 23.10.2004

OJ C 251, 9.10.2004

OJ C 239, 25.9.2004

OJ C 228, 11.9.2004

OJ C 217, 28.8.2004

OJ C 201, 7.8.2004

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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