# Official Journal C 82/2 Ap

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 82 |
| | |
| English edition | Information and Notices | Volume 482 April 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 82

English edition

Information and Notices

Volume 482 April 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 082/1 | Judgment of the Court (First Chamber) of 27 January 2005 in Case C-422/02 P: Europe Chemi-Con (Deutschland) GmbH v Council of the European Union and Commission of the European Communities (Appeal — Anti-dumping measures — Regulation terminating anti-dumping proceedings — Retroactivity — Equal treatment — Non-discrimination — Imports of certain large aluminium electrolytic capacitors from Japan) | 1 |
| 2005/C 082/2 | Judgment of the Court (Grand Chamber) of 15 February 2005 in Case C-12/03 P: Commission of the European Communities v Tetra Laval BV (Appeal — Competition — Regulation (EEC) No 4064/89 — Decision declaring a conglomerate-type concentration incompatible with the common market — Leveraging — Scope of judicial review — Factors to be taken into consideration — Behavioural commitments) | 1 |
| 2005/C 082/3 | Judgment of the Court (Second Chamber) of 27 January 2005 in Case C-15/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 75/439/EEC — Disposal of waste oils — Priority to processing by regeneration) | 2 |
| 2005/C 082/4 | Judgment of the Court of Justice (Second Chamber) of 13 January 2005 in Case C-84/03 Commission of the European Communities v Kingdom of Spain (Failure to fulfil obligations — Directives 93/36/EEC and 93/37/EEC — Public contracts — Award procedure for public supply and public works contracts — Scope — Definition of contracting authority — Inter-administrative cooperation agreements — Definition of contract — Use of the negotiated procedure in cases not provided for by the directive) | 2 |
| 2005/C 082/5 | Judgment of the Court (Second Chamber) of 27 January 2005 in Case C-92/03: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 75/439/EEC — Disposal of waste oils — Priority to processing by regeneration) | 3 |
| 2005/C 082/6 | Judgment of the Court (Second Chamber) of 27 January 2005 in Case C-188/03 (reference for a preliminary ruling from the Arbeitsgericht Berlin): Irmtraud Junk v Wolfgang Kühnel (Directive 98/59/EC — Collective redundancies — Consultation with workers' representatives — Notification to the competent public authority — Concept of redundancy — Time at which redundancy takes effect) | 3 |
| 2005/C 082/7 | Judgment of the Court (Grand Chamber) of 1 February 2005 in Case C-203/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Articles 249 EC and 307 EC — Articles 2 and 3 of Directive 76/207/EEC — Equal treatment for men and women — Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work) | 4 |
| 2005/C 082/8 | Judgment of the Court of Justice (Fourth Chamber) of 16 December 2004 in Case C-358/03 Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Workers' protection — Health and safety of workers — Manual handling of loads where there is a risk of injury to workers) | 4 |
| 2005/C 082/9 | Judgment of the Court of Justice (Sixth Chamber) of 27 January 2005 in Case C-59/04 Commission of the European Communities v French Republic (Failure to fulfil obligations — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Failure to transpose within the prescribed period) | 5 |
| 2005/C 082/0 | Judgment of the Court (Fourth Chamber) of 27 January 2005 in Case C-125/04 (reference for a preliminary ruling from the Collège d'arbitrage de la Commission de Litiges Voyages): Guy Denuit, Betty Cordenier v Transorient – Mosaïque Voyages and Culture SA (Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal within the meaning of Article 234 EC — Arbitration panel) | 5 |
| 2005/C 082/1 | Case C-1/05 SA: Application for authorisation to serve a garnishee order brought on 28 January 2005 by Intek Company against the Commission of the European Communities | 5 |
| 2005/C 082/2 | Case C-2/05 SA: Application for authorisation to serve a garnishee order brought on 28 January 2005 by Names b.v. against the Commission of the European Communities | 6 |
| 2005/C 082/3 | Case C-3/05 SA: Application for authorisation to serve a garnishee order brought on 28 January 2005 by the Republic of Kazakhistan Statistics Agency against the Commission of the European Communities | 6 |
| 2005/C 082/4 | Case C-2/05: Reference for a preliminary ruling by the Arbeidshof te Brussel of 23 December 2004 in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere | 6 |
| 2005/C 082/5 | Cases C-7/05, C-8/05, C-9/05: References for preliminary rulings from the Bundesgerichtshof by orders of that court of 11 October 2004 in Saatgut-Treuhandverwaltungs GmbH v The heirs of Dieter Deppe: 1.Ulrich Deppe, 2. Hanne-Rose Deppe, 3. Thomas Deppe, 4. Matthias Deppe, 5. Christine Urban, née Deppe (C-7/05), Siegried Hennings (C-8/05) and Hartmut Lübbe (C-9/05) | 7 |
| 2005/C 082/6 | Case C-11/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 28 December 2004 in Friesland Coberco Dairy Foods BV (trading under the name Friesland Supply Point Ede) v Inspecteur van de Belastingdienst/Douane Noord/kantoor Groningen | 8 |
| 2005/C 082/7 | Case C-14/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam of 28 December 2004 in the case of Anagram International Inc. and Inspecteur van de Belastingdienst/Douane Rotterdam | 8 |
| 2005/C 082/8 | Case C-15/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 28 December 2004 in Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam | 9 |
| 2005/C 082/9 | Case C-22/05: Action brought on 25 January 2005 by the Commission of the European Communities against the Kingdom of Belgium | 9 |
| 2005/C 082/0 | Case C-23/05: Action brought on 25 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 9 |
| 2005/C 082/1 | Case C-26/05: Reference for a preliminary ruling from the Landesgericht Korneuburg (Austria) by order of that court of 13 January 2005 in Plato Plastik Robert Frank GmbH v CAROPACK Handels GmbH | 10 |
| 2005/C 082/2 | Case C-27/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 5 January 2005 in Elfering Export GmbH v Hauptzollamt Hamburg-Jonas | 10 |
| 2005/C 082/3 | Case C-29/05 P: Appeal brought on 28 January 2005 (fax: 25 January 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 10 November 2004 by the Fourth Chamber of the Court of First Instance in Case T-164/02 between Kaul GmbH and Office for Harmonisation in the Internal Market (other party to the proceedings before the Board of Appeal of OHIM: Bayer AG) | 11 |
| 2005/C 082/4 | Case C-30/05: Action brought on 28 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 11 |
| 2005/C 082/5 | Case C-31/05: Action brought on 28 January 2005 by the Commission of the European Communities against the French Republic | 12 |
| 2005/C 082/6 | Case C-32/05: Action brought on 31 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 12 |
| 2005/C 082/7 | Case C-33/05: Action brought on 31 January 2005 by the Commission of the European Communities against the Kingdom of Belgium | 13 |
| 2005/C 082/8 | Case C-37/05: Action brought on 31 January 2005 by the Commission of the European Communities against the United Kingdom | 13 |
| 2005/C 082/9 | Case C-38/05: Action brought on 1 February 2005 by the Commission of the European Communities against Ireland | 14 |
| 2005/C 082/0 | Case C-43/05: Action brought on 3 February 2005 by the Commission of the European Communities against the Federal Republic of Germany | 14 |
| 2005/C 082/1 | Case C-44/05: Action brought on 3 February 2005 by the Commission of the European Communities against the Italian Republic | 15 |
| 2005/C 082/2 | Case C-47/05: Action brought on 7 February 2005 by the Commission of the European Communities against the Kingdom of Spain | 15 |
| 2005/C 082/3 | Case C-48/05: Reference for a preliminary ruling from the Landgericht Nürnberg-Fürth by order of that court of 28 January 2005 in Adam Opel AG v Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.) | 15 |
| 2005/C 082/4 | Case C-49/05 P: Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities | 16 |
| 2005/C 082/5 | Case C-51/05 P: Appeal brought on 9 February 2005 (fax of 7 February 2005) by the Commission of the European Communities for the partial annulment of the judgment delivered on 23 November 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-166/98 between Cantina sociale di Dolianova and Others and the Commission of the European Communities | 17 |
| 2005/C 082/6 | Case C-53/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Portuguese Republic | 17 |
| 2005/C 082/7 | Case C-55/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Republic of Finland | 18 |
| 2005/C 082/8 | Case C-57/05: Action brought on 9 February 2005 by the Commission of the European Communities against the French Republic | 18 |
| 2005/C 082/9 | Case C-59/05: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) by order of that court of 2 December 2004 in the case of Siemens AG v VIPA Gesellschaft für Visualisierung und Prozeßautomatisierung mbH | 19 |
| 2005/C 082/0 | Case C-61/05: Action brought on 10 February 2005 by the Commission of the European Communities against the Portuguese Republic | 19 |
| 2005/C 082/1 | Case C-62/05 P: Appeal brought on 11 February 2005 by Nordspedizionieri di Danielis Livio & C. in liquidation against the judgment delivered on 14 December 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-332/02 between Nordspedizionieri and Others and the Commission of the European Communities | 20 |
| 2005/C 082/2 | Case C-63/05: Action brought on 3 February 2005 by the Commission of the European Communities against the Hellenic Republic | 21 |
| 2005/C 082/3 | Case C-65/05: Action brought on 10 February 2005 by the Commission of the European Communities against the Hellenic Republic | 21 |
| 2005/C 082/4 | Case C-67/05: Action brought on 11 February 2005 by the Commission of the European Communities against the Federal Republic of Germany | 22 |
| 2005/C 082/5 | Case C-68/05 P: Appeal brought on 11 February 2005 by Koninklijke Coöperatie Cosun U.A. against the judgment delivered on 7 December 2004 by the Court of First Instance (Fifth Chamber) in Case T-240/02 Koninklijke Coöperatie Cosun U.A.v Commission of the European Communities | 22 |
| 2005/C 082/6 | Case C-70/05: Action brought on 14 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 23 |
| 2005/C 082/7 | Case C-71/05: Action brought on 14 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 23 |
| 2005/C 082/8 | Case C-73/05: Action brought on 15 February 2005 by the Commission of the European Communities against the French Republic | 24 |
| 2005/C 082/9 | Case C-74/05: Action brought on 15 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 24 |
| 2005/C 082/0 | Case C-77/05: Action brought on 17 February 2005 by the United Kingdom of Great Britain and Northern Ireland against the Council of the European Union | 25 |
| 2005/C 082/1 | Case C-83/05: Reference for a preliminary ruling from the Amtsgericht Freiburg by order of that court of 14 January 2005 in the case of Bernd Voigt v Regierungspräsidium Karlsruhe–Bretten | 25 |
| 2005/C 082/2 | Case C-90/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 26 |
| 2005/C 082/3 | Case C-92/05: Action brought on 21 February 2005 by the Commission of the European Communities against the French Republic | 26 |
| | COURT OF FIRST INSTANCE |
| 2005/C 082/4 | Judgment of the Court of First Instance of 26 January 2005 in Case T-193/02: Laurent Piau v Commission of the European Communities (Fédération internationale de football association (FIFA) Players' agents regulation — Decision of an association of undertakings — Articles 49 EC, 81 EC and 82 EC — Complaint — Lack of Community interest — Rejection) | 28 |
| 2005/C 082/5 | Judgment of the Court of First Instance of 26 January 2005 in Case T-267/03 Anna Maria Roccato v the Commission of the European Communities (Officials — Internal competition — Non-admission to oral test — Selection Board's discretion — Scope of judicial review) | 28 |
| 2005/C 082/6 | Case T-489/04: Action brought on 20 December 2004 by U.S. Steel Košice s.r.o. against the Commission of the European Communities | 29 |
| 2005/C 082/7 | Case T-491/04: Action brought on 21 December 2004 by Merant GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 29 |
| 2005/C 082/8 | Case T-492/04: Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities | 30 |
| 2005/C 082/9 | Case T-500/04: Action brought on 24 December 2004 by Commission of the European Communities against IIC Informations-Industrie Consulting GmbH | 31 |
| 2005/C 082/0 | Case T-5/05: Action brought on 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V. against the Commission of the European Communities | 32 |
| 2005/C 082/1 | Case T-6/05: Action brought on 12 January 2005 by DEF-TEC Defense Technology GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 32 |
| 2005/C 082/2 | Case T-16/05: Action brought on 20 January 2005 by Viasat Broadcasting UK Ltd against the Commission of the European Communities | 33 |
| 2005/C 082/3 | Case T-17/05: Action brought on 10 January 2005 by France Télécom against Commission of the European Communities | 34 |
| 2005/C 082/4 | Case T-19/05: Action brought on 20 January 2005 by Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ S.A. against the Commission of the European Communities | 34 |
| 2005/C 082/5 | Case T-20/05: Action brought on 21 January 2005 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities | 35 |
| 2005/C 082/6 | Case T-21/05: Action brought on 21 January 2005 by Halcor Metal Works S.A. against the Commission of the European Communities | 36 |
| 2005/C 082/7 | Case T-22/05: Action brought on 11 January 2005 by Antonello Violetti and Others against Commission of the European Communities | 37 |
| 2005/C 082/8 | Case T-23/05: Action brought on 10 January 2005 by Eric Gippini Fournier against Commission of the European Communities | 37 |
| 2005/C 082/9 | Case T-24/05: Action brought on 21 January 2005 by Standard Commercial Corporation, Standard Commercial Tobacco Corporation and Trans-Continental Leaf Tobacco Corporation against the Commission of the European Communities | 38 |
| 2005/C 082/0 | Case T-25/05: Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities | 39 |
| 2005/C 082/1 | Case T-27/05: Action brought on 14 January 2005 by Carmela Lo Giudice against Commission of the European Communities | 40 |
| 2005/C 082/2 | Case T-28/05: Action brought on 17 January 2005 by Ekabe International SCA against the Office for Harmonisation in the Internal Market | 40 |
| 2005/C 082/3 | Case T-29/05: Action brought on 20 January 2005 by Deltafina SpA against the Commission of the European Communities | 41 |
| 2005/C 082/4 | Case T-33/05: Action brought on 21 January 2005 by Compañía Española de Tabaco en Rama against the Commission of the European Communities | 42 |
| 2005/C 082/5 | Case T-37/05: Action brought on 21 January 2005 by World Wide Tobacco España against the Commission of the European Communities | 42 |
| 2005/C 082/6 | Case T-38/05: Action brought on 22 January 2005 by Agroexpansión S.A. against the Commission of the European Communities | 43 |
| 2005/C 082/7 | Case T-53/05: Action brought on 24 January 2005 by Calavo Growers of California against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 43 |
| 2005/C 082/8 | Case T-87/05: Action brought on 25 February 2005 by EDP-Energias de Portugal S.A. against the Commission of the European Communities | 44 |
| 2005/C 082/9 | Removal from the Register of Case T-131/03 | 45 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 082/1

Judgment of the Court (First Chamber) of 27 January 2005 in Case C-422/02 P: Europe Chemi-Con (Deutschland) GmbH v Council of the European Union and Commission of the European Communities (Appeal — Anti-dumping measures — Regulation terminating anti-dumping proceedings — Retroactivity — Equal treatment — Non-discrimination — Imports of certain large aluminium electrolytic capacitors from Japan)

1

2005/C 082/2

Judgment of the Court (Grand Chamber) of 15 February 2005 in Case C-12/03 P: Commission of the European Communities v Tetra Laval BV (Appeal — Competition — Regulation (EEC) No 4064/89 — Decision declaring a conglomerate-type concentration incompatible with the common market — Leveraging — Scope of judicial review — Factors to be taken into consideration — Behavioural commitments)

1

2005/C 082/3

Judgment of the Court (Second Chamber) of 27 January 2005 in Case C-15/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 75/439/EEC — Disposal of waste oils — Priority to processing by regeneration)

2

2005/C 082/4

Judgment of the Court of Justice (Second Chamber) of 13 January 2005 in Case C-84/03 Commission of the European Communities v Kingdom of Spain (Failure to fulfil obligations — Directives 93/36/EEC and 93/37/EEC — Public contracts — Award procedure for public supply and public works contracts — Scope — Definition of contracting authority — Inter-administrative cooperation agreements — Definition of contract — Use of the negotiated procedure in cases not provided for by the directive)

2

2005/C 082/5

Judgment of the Court (Second Chamber) of 27 January 2005 in Case C-92/03: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 75/439/EEC — Disposal of waste oils — Priority to processing by regeneration)

3

2005/C 082/6

Judgment of the Court (Second Chamber) of 27 January 2005 in Case C-188/03 (reference for a preliminary ruling from the Arbeitsgericht Berlin): Irmtraud Junk v Wolfgang Kühnel (Directive 98/59/EC — Collective redundancies — Consultation with workers' representatives — Notification to the competent public authority — Concept of redundancy — Time at which redundancy takes effect)

3

2005/C 082/7

Judgment of the Court (Grand Chamber) of 1 February 2005 in Case C-203/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Articles 249 EC and 307 EC — Articles 2 and 3 of Directive 76/207/EEC — Equal treatment for men and women — Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work)

4

2005/C 082/8

Judgment of the Court of Justice (Fourth Chamber) of 16 December 2004 in Case C-358/03 Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Workers' protection — Health and safety of workers — Manual handling of loads where there is a risk of injury to workers)

4

2005/C 082/9

Judgment of the Court of Justice (Sixth Chamber) of 27 January 2005 in Case C-59/04 Commission of the European Communities v French Republic (Failure to fulfil obligations — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Failure to transpose within the prescribed period)

5

2005/C 082/0

Judgment of the Court (Fourth Chamber) of 27 January 2005 in Case C-125/04 (reference for a preliminary ruling from the Collège d'arbitrage de la Commission de Litiges Voyages): Guy Denuit, Betty Cordenier v Transorient – Mosaïque Voyages and Culture SA (Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal within the meaning of Article 234 EC — Arbitration panel)

5

2005/C 082/1

Case C-1/05 SA: Application for authorisation to serve a garnishee order brought on 28 January 2005 by Intek Company against the Commission of the European Communities

5

2005/C 082/2

Case C-2/05 SA: Application for authorisation to serve a garnishee order brought on 28 January 2005 by Names b.v. against the Commission of the European Communities

6

2005/C 082/3

Case C-3/05 SA: Application for authorisation to serve a garnishee order brought on 28 January 2005 by the Republic of Kazakhistan Statistics Agency against the Commission of the European Communities

6

2005/C 082/4

Case C-2/05: Reference for a preliminary ruling by the Arbeidshof te Brussel of 23 December 2004 in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere

6

2005/C 082/5

Cases C-7/05, C-8/05, C-9/05: References for preliminary rulings from the Bundesgerichtshof by orders of that court of 11 October 2004 in Saatgut-Treuhandverwaltungs GmbH v The heirs of Dieter Deppe: 1.Ulrich Deppe, 2. Hanne-Rose Deppe, 3. Thomas Deppe, 4. Matthias Deppe, 5. Christine Urban, née Deppe (C-7/05), Siegried Hennings (C-8/05) and Hartmut Lübbe (C-9/05)

née

7

2005/C 082/6

Case C-11/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 28 December 2004 in Friesland Coberco Dairy Foods BV (trading under the name Friesland Supply Point Ede) v Inspecteur van de Belastingdienst/Douane Noord/kantoor Groningen

8

2005/C 082/7

Case C-14/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam of 28 December 2004 in the case of Anagram International Inc. and Inspecteur van de Belastingdienst/Douane Rotterdam

8

2005/C 082/8

Case C-15/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 28 December 2004 in Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam

9

2005/C 082/9

Case C-22/05: Action brought on 25 January 2005 by the Commission of the European Communities against the Kingdom of Belgium

9

2005/C 082/0

Case C-23/05: Action brought on 25 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

9

2005/C 082/1

Case C-26/05: Reference for a preliminary ruling from the Landesgericht Korneuburg (Austria) by order of that court of 13 January 2005 in Plato Plastik Robert Frank GmbH v CAROPACK Handels GmbH

10

2005/C 082/2

Case C-27/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 5 January 2005 in Elfering Export GmbH v Hauptzollamt Hamburg-Jonas

10

2005/C 082/3

Case C-29/05 P: Appeal brought on 28 January 2005 (fax: 25 January 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 10 November 2004 by the Fourth Chamber of the Court of First Instance in Case T-164/02 between Kaul GmbH and Office for Harmonisation in the Internal Market (other party to the proceedings before the Board of Appeal of OHIM: Bayer AG)

Kaul GmbH

Office for Harmonisation in the Internal Market

11

2005/C 082/4

Case C-30/05: Action brought on 28 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

11

2005/C 082/5

Case C-31/05: Action brought on 28 January 2005 by the Commission of the European Communities against the French Republic

12

2005/C 082/6

Case C-32/05: Action brought on 31 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

12

2005/C 082/7

Case C-33/05: Action brought on 31 January 2005 by the Commission of the European Communities against the Kingdom of Belgium

13

2005/C 082/8

Case C-37/05: Action brought on 31 January 2005 by the Commission of the European Communities against the United Kingdom

13

2005/C 082/9

Case C-38/05: Action brought on 1 February 2005 by the Commission of the European Communities against Ireland

14

2005/C 082/0

Case C-43/05: Action brought on 3 February 2005 by the Commission of the European Communities against the Federal Republic of Germany

14

2005/C 082/1

Case C-44/05: Action brought on 3 February 2005 by the Commission of the European Communities against the Italian Republic

15

2005/C 082/2

Case C-47/05: Action brought on 7 February 2005 by the Commission of the European Communities against the Kingdom of Spain

15

2005/C 082/3

Case C-48/05: Reference for a preliminary ruling from the Landgericht Nürnberg-Fürth by order of that court of 28 January 2005 in Adam Opel AG v Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.)

15

2005/C 082/4

Case C-49/05 P: Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities

16

2005/C 082/5

Case C-51/05 P: Appeal brought on 9 February 2005 (fax of 7 February 2005) by the Commission of the European Communities for the partial annulment of the judgment delivered on 23 November 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-166/98 between Cantina sociale di Dolianova and Others and the Commission of the European Communities

17

2005/C 082/6

Case C-53/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Portuguese Republic

17

2005/C 082/7

Case C-55/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Republic of Finland

18

2005/C 082/8

Case C-57/05: Action brought on 9 February 2005 by the Commission of the European Communities against the French Republic

18

2005/C 082/9

Case C-59/05: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) by order of that court of 2 December 2004 in the case of Siemens AG v VIPA Gesellschaft für Visualisierung und Prozeßautomatisierung mbH

19

2005/C 082/0

Case C-61/05: Action brought on 10 February 2005 by the Commission of the European Communities against the Portuguese Republic

19

2005/C 082/1

Case C-62/05 P: Appeal brought on 11 February 2005 by Nordspedizionieri di Danielis Livio & C. in liquidation against the judgment delivered on 14 December 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-332/02 between Nordspedizionieri and Others and the Commission of the European Communities

20

2005/C 082/2

Case C-63/05: Action brought on 3 February 2005 by the Commission of the European Communities against the Hellenic Republic

21

2005/C 082/3

Case C-65/05: Action brought on 10 February 2005 by the Commission of the European Communities against the Hellenic Republic

21

2005/C 082/4

Case C-67/05: Action brought on 11 February 2005 by the Commission of the European Communities against the Federal Republic of Germany

22

2005/C 082/5

Case C-68/05 P: Appeal brought on 11 February 2005 by Koninklijke Coöperatie Cosun U.A. against the judgment delivered on 7 December 2004 by the Court of First Instance (Fifth Chamber) in Case T-240/02 Koninklijke Coöperatie Cosun U.A.v Commission of the European Communities

22

2005/C 082/6

Case C-70/05: Action brought on 14 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

23

2005/C 082/7

Case C-71/05: Action brought on 14 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

23

2005/C 082/8

Case C-73/05: Action brought on 15 February 2005 by the Commission of the European Communities against the French Republic

24

2005/C 082/9

Case C-74/05: Action brought on 15 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

24

2005/C 082/0

Case C-77/05: Action brought on 17 February 2005 by the United Kingdom of Great Britain and Northern Ireland against the Council of the European Union

25

2005/C 082/1

Case C-83/05: Reference for a preliminary ruling from the Amtsgericht Freiburg by order of that court of 14 January 2005 in the case of Bernd Voigt v Regierungspräsidium Karlsruhe–Bretten

25

2005/C 082/2

Case C-90/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

26

2005/C 082/3

Case C-92/05: Action brought on 21 February 2005 by the Commission of the European Communities against the French Republic

26

COURT OF FIRST INSTANCE

2005/C 082/4

Judgment of the Court of First Instance of 26 January 2005 in Case T-193/02: Laurent Piau v Commission of the European Communities (Fédération internationale de football association (FIFA) Players' agents regulation — Decision of an association of undertakings — Articles 49 EC, 81 EC and 82 EC — Complaint — Lack of Community interest — Rejection)

28

2005/C 082/5

Judgment of the Court of First Instance of 26 January 2005 in Case T-267/03 Anna Maria Roccato v the Commission of the European Communities (Officials — Internal competition — Non-admission to oral test — Selection Board's discretion — Scope of judicial review)

28

2005/C 082/6

Case T-489/04: Action brought on 20 December 2004 by U.S. Steel Košice s.r.o. against the Commission of the European Communities

29

2005/C 082/7

Case T-491/04: Action brought on 21 December 2004 by Merant GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

29

2005/C 082/8

Case T-492/04: Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities

30

2005/C 082/9

Case T-500/04: Action brought on 24 December 2004 by Commission of the European Communities against IIC Informations-Industrie Consulting GmbH

31

2005/C 082/0

Case T-5/05: Action brought on 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V. against the Commission of the European Communities

32

2005/C 082/1

Case T-6/05: Action brought on 12 January 2005 by DEF-TEC Defense Technology GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

32

2005/C 082/2

Case T-16/05: Action brought on 20 January 2005 by Viasat Broadcasting UK Ltd against the Commission of the European Communities

33

2005/C 082/3

Case T-17/05: Action brought on 10 January 2005 by France Télécom against Commission of the European Communities

34

2005/C 082/4

Case T-19/05: Action brought on 20 January 2005 by Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ S.A. against the Commission of the European Communities

34

2005/C 082/5

Case T-20/05: Action brought on 21 January 2005 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities

35

2005/C 082/6

Case T-21/05: Action brought on 21 January 2005 by Halcor Metal Works S.A. against the Commission of the European Communities

36

2005/C 082/7

Case T-22/05: Action brought on 11 January 2005 by Antonello Violetti and Others against Commission of the European Communities

37

2005/C 082/8

Case T-23/05: Action brought on 10 January 2005 by Eric Gippini Fournier against Commission of the European Communities

37

2005/C 082/9

Case T-24/05: Action brought on 21 January 2005 by Standard Commercial Corporation, Standard Commercial Tobacco Corporation and Trans-Continental Leaf Tobacco Corporation against the Commission of the European Communities

38

2005/C 082/0

Case T-25/05: Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities

39

2005/C 082/1

Case T-27/05: Action brought on 14 January 2005 by Carmela Lo Giudice against Commission of the European Communities

40

2005/C 082/2

Case T-28/05: Action brought on 17 January 2005 by Ekabe International SCA against the Office for Harmonisation in the Internal Market

40

2005/C 082/3

Case T-29/05: Action brought on 20 January 2005 by Deltafina SpA against the Commission of the European Communities

41

2005/C 082/4

Case T-33/05: Action brought on 21 January 2005 by Compañía Española de Tabaco en Rama against the Commission of the European Communities

42

2005/C 082/5

Case T-37/05: Action brought on 21 January 2005 by World Wide Tobacco España against the Commission of the European Communities

42

2005/C 082/6

Case T-38/05: Action brought on 22 January 2005 by Agroexpansión S.A. against the Commission of the European Communities

43

2005/C 082/7

Case T-53/05: Action brought on 24 January 2005 by Calavo Growers of California against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

43

2005/C 082/8

Case T-87/05: Action brought on 25 February 2005 by EDP-Energias de Portugal S.A. against the Commission of the European Communities

44

2005/C 082/9

Removal from the Register of Case T-131/03

45

| | III   Notices |
| --- | --- |
| 2005/C 082/0 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 69, 19.3.2005 | 46 |

III   Notices

2005/C 082/0

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 69, 19.3.2005

Official Journal of the European Union

46

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 2.4.2005 | EN | Official Journal of the European Union | C 82/1 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/1

---

JUDGMENT OF THE COURT

(First Chamber)

of 27 January 2005

in Case C-422/02 P: Europe Chemi-Con (Deutschland) GmbH v Council of the European Union and Commission of the European Communities (1)

(Appeal - Anti-dumping measures - Regulation terminating anti-dumping proceedings - Retroactivity - Equal treatment - Non-discrimination - Imports of certain large aluminium electrolytic capacitors from Japan)

(2005/C 82/01)

Language of the case: English

In Case C-422/02 P: appeal under Article 49 of the EC Statute of the Court of Justice, brought on 21 November 2002, Europe Chemi-Con (Deutschland) GmbH, established in Nuremberg (Germany), (Lawyers: K. Adamantopoulos, J. Branton, and J. Gutiérrez Gisbert) the other parties to the proceedings being: Council of the European Union (Agent: S. Marquardt and G. Berrisch) and Commission of the European Communities (Agents: T. Scharf and S. Meany) – the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 27 January 2005, in which it:

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

1.

Dismisses the appeal.

| 2. | Orders Europe Chemi-Con (Deutschland) GmbH to bear its own costs and to pay those incurred by the Council of the European Union in these proceedings. |
| --- | --- |

2.

Orders Europe Chemi-Con (Deutschland) GmbH to bear its own costs and to pay those incurred by the Council of the European Union in these proceedings.

| 3. | Orders the Commission of the European Communities to bear its own costs. |
| --- | --- |

3.

Orders the Commission of the European Communities to bear its own costs.

---

(1)  OJ C 19 of 25.01.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/1 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/1

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 15 February 2005

in Case C-12/03 P: Commission of the European Communities v Tetra Laval BV (1)

(Appeal - Competition - Regulation (EEC) No 4064/89 - Decision declaring a ‘conglomerate-type’ concentration incompatible with the common market - Leveraging - Scope of judicial review - Factors to be taken into consideration - Behavioural commitments)

(2005/C 82/02)

Language of the case: English

In Case C-12/03 P: appeal under Article 49 of the EC Statute of the Court of Justice lodged on 8 January 2003 by Commission of the European Communities (Agents: M. Petite, A Whelan and P. Hellström), the other party to the proceedings being Tetra Laval BV, established in Amsterdam (Netherlands) (represented by A. Vandencasteele and D. Waelbroeck, M. Johnsson, A. Weitbrecht and S. Völcker) — the Court (Grand Chamber), composed of P. Jann, President of the First Chamber (acting as President), C.W.A. Timmermans and A. Rosas (Rapporteur), Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 15 February 2005, in which it:

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

1.

Dismisses the appeal;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

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

---

(1)  OJ C 70 of 22.03.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/2 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/2

---

JUDGMENT OF THE COURT

(Second Chamber)

of 27 January 2005

in Case C-15/03: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Directive 75/439/EEC - Disposal of waste oils - Priority to processing by regeneration)

(2005/C 82/03)

Language of the case: German

In Case C-15/03: action under Article 226 EC for failure to fulfil obligations, brought on 14 January 2003 – Commission of the European Communities (Agent: J. Grunwald and M. Konstantinidis) v Republic of Austria (Agent: E. Riedl, M. Hauer and E. Wolfslehner) supported by: Republic of Finland (Agent: T. Pynnä) and by United Kingdom of Great Britain and Northern Ireland (Agent: K. Manji and by M. Demetriou) – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, G. Arestis and J. Klučka, Judges; A. Tizzano, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 27 January 2005, in which it:

| 1. | Declares that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Republic of Austria has failed to fulfil its obligations under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986; |
| --- | --- |

1.

Declares that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Republic of Austria has failed to fulfil its obligations under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986;

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

2.

Orders the Republic of Austria to pay the costs;

| 3. | Orders the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 55 of 08.03.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/2 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/2

---

JUDGMENT OF THE COURT OF JUSTICE

(Second Chamber)

of 13 January 2005

in Case C-84/03 Commission of the European Communities v Kingdom of Spain (1)

(Failure to fulfil obligations - Directives 93/36/EEC and 93/37/EEC - Public contracts - Award procedure for public supply and public works contracts - Scope - Definition of contracting authority - Inter-administrative cooperation agreements - Definition of contract - Use of the negotiated procedure in cases not provided for by the directive)

(2005/C 82/04)

Language of the case: Spanish

In Case C-84/03, concerning an action for failure to fulfil obligations under Article 226 EC, brought on 26 February 2003 by the Commission of the European Communities (Agents: K. Wiedner and G. Valero Jordana) against the Kingdom of Spain (Agent: S. Ortiz Vaamonde), the Court of Justice (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, J. Makarczyk (Rapporteur), G. Arestis and J. Klučka, Judges; Advocate General, J. Kokott; Registrar, R. Grass, gave a judgment on 13 January 2005, in which it:

| 1. | Declares that by failing to transpose correctly into its national legal system Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts and, in particular,






  — | by excluding from the scope of the Ley de Contratos de las Administraciones Públicas (Law on contracts awarded by public authorities) of 16 June 2000, in the codified version approved by the Real Decreto Legislativo 2/2000 of 16 June 2000, more particularly in Article 1(3) thereof, the private law undertakings fulfilling the requirements laid down in the first, second and third indents of the second subparagraph of Article 1(b) of each of those directives; |
| --- | --- | --- |

1.

Declares that by failing to transpose correctly into its national legal system Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts and, in particular,

—

by excluding from the scope of the Ley de Contratos de las Administraciones Públicas (Law on contracts awarded by public authorities) of 16 June 2000, in the codified version approved by the Real Decreto Legislativo 2/2000 of 16 June 2000, more particularly in Article 1(3) thereof, the private law undertakings fulfilling the requirements laid down in the first, second and third indents of the second subparagraph of Article 1(b) of each of those directives;

| — | by excluding absolutely from the scope of that law, in Article 3(1)(c) thereof, cooperation agreements concluded between public authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for the purpose of those directives; and |
| --- | --- |

—

by excluding absolutely from the scope of that law, in Article 3(1)(c) thereof, cooperation agreements concluded between public authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for the purpose of those directives; and

| — | by permitting, in Article 141(a) and Article 182(a) and (g) of that law, the negotiated procedure to be used in two cases which are not provided for in those directives, |
| --- | --- |

—

by permitting, in Article 141(a) and Article 182(a) and (g) of that law, the negotiated procedure to be used in two cases which are not provided for in those directives,

the Kingdom of Spain has failed to fulfil its obligations under those directives;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 101 of 26.4.2003

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/3 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/3

---

JUDGMENT OF THE COURT

(Second Chamber)

of 27 January 2005

in Case C-92/03: Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations - Directive 75/439/EEC - Disposal of waste oils - Priority to processing by regeneration)

(2005/C 82/05)

Language of the case: Portuguese

In Case C-92/03: action under Article 226 EC for failure to fulfil obligations, brought on 28 February 2003 – Commission of the European Communities (Agents: A. Caeiros and M. Konstantinidis) v Portuguese Republic (Agents: L. Fernandes and M. Lois) supported by: Republic of Finland (Agent: A. Guimaraes-Purokoski) – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, R. Schintgen and J. Klučka, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 27 January 2005, in which it:

| 1. | Declares that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Portuguese Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986; |
| --- | --- |

1.

Declares that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Portuguese Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986;

| 2. | Orders the Portuguese Republic to pay the costs; |
| --- | --- |

2.

Orders the Portuguese Republic to pay the costs;

| 3. | Orders the Republic of Finland to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Finland to bear its own costs.

---

(1)  OJ C 112 of 10.05.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/3 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/3

---

JUDGMENT OF THE COURT

(Second Chamber)

of 27 January 2005

in Case C-188/03 (reference for a preliminary ruling from the Arbeitsgericht Berlin): Irmtraud Junk v Wolfgang Kühnel (1)

(Directive 98/59/EC - Collective redundancies - Consultation with workers' representatives - Notification to the competent public authority - Concept of ‘redundancy’ - Time at which redundancy takes effect)

(2005/C 82/06)

Language of the case: German

In Case C-188/03, reference for a preliminary ruling under Article 234 EC from the Arbeitsgericht (Labour Court) Berlin (Germany), made by decision of 30 April 2003, received at the Court on 7 May 2003, in the proceedings pending before that court between Irmtraud Junk and Wolfgang Kühnel – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann (Rapporteur), P. Kūris and G. Arestis, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 27 January 2005, the operative part of which is as follows:

| 1. | Articles 2 to 4 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be construed as meaning that the event constituting redundancy consists in the declaration by an employer of his intention to terminate the contract of employment. |
| --- | --- |

1.

Articles 2 to 4 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be construed as meaning that the event constituting redundancy consists in the declaration by an employer of his intention to terminate the contract of employment.

| 2. | An employer is entitled to carry out collective redundancies after the conclusion of the consultation procedure provided for in Article 2 of Directive 98/59 and after notification of the projected collective redundancies as provided for in Articles 3 and 4 of that directive. |
| --- | --- |

2.

An employer is entitled to carry out collective redundancies after the conclusion of the consultation procedure provided for in Article 2 of Directive 98/59 and after notification of the projected collective redundancies as provided for in Articles 3 and 4 of that directive.

---

(1)  OJ C 213 of 06.09.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/4 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/4

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 1 February 2005

in Case C-203/03: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil its obligations - Articles 249 EC and 307 EC - Articles 2 and 3 of Directive 76/207/EEC - Equal treatment for men and women - Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work)

(2005/C 82/07)

Language of the case: German

In Case C-203/03, action under Article 226 EC for failure to fulfil obligations, brought on 12 May 2003, Commission of the European Communities (Agent: N. Yerrell and H. Kreppel) v Republic of Austria (Agent: H. Dossi and E. Riedl) – action under Article 226 EC for failure to fulfil obligations, brought on 12 May 2003 – the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric (Rapporteur), J. Malenovský, J. Klučka, U. Lõhmus and E. Levits, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 1 February 2005, in which it:

| 1. | Declares that, by maintaining in Articles 8 and 31 of the Druckluft- und Taucherarbeiten-Verordnung (Regulation on work in a high-pressure atmosphere and diving work) of 25 July 1973 a general prohibition of the employment of women in work in a high-pressure atmosphere and in diving work, providing a limited number of exceptions in the former case, the Republic of Austria has failed to fulfil its obligations under Articles 2 and 3 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; |
| --- | --- |

1.

Declares that, by maintaining in Articles 8 and 31 of the Druckluft- und Taucherarbeiten-Verordnung (Regulation on work in a high-pressure atmosphere and diving work) of 25 July 1973 a general prohibition of the employment of women in work in a high-pressure atmosphere and in diving work, providing a limited number of exceptions in the former case, the Republic of Austria has failed to fulfil its obligations under Articles 2 and 3 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;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the parties to bear their own costs. |
| --- | --- |

3.

Orders the parties to bear their own costs.

---

(1)  OJ C 158 of 05.07.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/4 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/4

---

JUDGMENT OF THE COURT OF JUSTICE

(Fourth Chamber)

of 16 December 2004

in Case C-358/03 Commission of the European Communities v Republic of Austria (1)

(Failure to fulfil obligations - Workers' protection - Health and safety of workers - Manual handling of loads where there is a risk of injury to workers)

(2005/C 82/08)

Language of the Case: German

In Case C-358/03, concerning an action for failure to fulfil obligations under Article 226 EC, brought on 19 August 2003 by the Commission of the European Communities (Agents: D. Martin and H. Kreppel) against the Republic of Austria (Agent: E. Riedl), the Court of Justice (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, N. Colneric (Rapporteur), and J.N. Cunha Rodrigues, Judges; Advocate General, A. Tizzano; Registrar, R. Grass, gave a judgment on 16 December 2004, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply, in the Land of Carinthia, with Council Directive 90/269/EEC of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers (fourth individual Directive within the meaning of Article 16(1) of Directive 89/391/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 to comply, in the Land of Carinthia, with Council Directive 90/269/EEC of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers (fourth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Republic of Austria has failed to fulfil its obligations under that Directive;

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

2.

Dismisses the remainder of the action;

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

3.

Orders the Commission of the European Communities and the Republic of Austria to bear their own costs.

---

(1)  OJ C 264 of 01.11.2003

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/5 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/5

---

JUDGMENT OF THE COURT OF JUSTICE

(Sixth Chamber)

of 27 January 2005

in Case C-59/04 Commission of the European Communities v French Republic (1)

(Failure to fulfil obligations - Directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights in the information society - Failure to transpose within the prescribed period)

(2005/C 82/09)

Language of the Case: French

In Case C-59/04, concerning an action for failure to fulfil obligations under Article 226 EC, brought on 11 February 2004 by the Commission of the European Communities (Agent: K. Banks) against the French Republic (Agents: G. de Bergues and A. Bodard-Hermant), the Court of Justice (Sixth Chamber), composed of A. Borg-Barthelet, President of the Chamber, J.-P. Puissochet and J. Malenovský (Rapporteur), Judges; Advocate General, A. Tizzano; Registrar, R. Grass, gave a judgment on 27 January 2005, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 5(1) and Articles 6 and 7 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, 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 Article 5(1) and Articles 6 and 7 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the French Republic has failed to fulfil its obligations under that directive;

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

2.

Dismisses the remainder of the action;

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

3.

Orders each party to bear its own costs.

---

(1)  OJ C 71 of 20.3.2004

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/5 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/5

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 27 January 2005

in Case C-125/04 (reference for a preliminary ruling from the Collège d'arbitrage de la Commission de Litiges Voyages): Guy Denuit, Betty Cordenier v Transorient – Mosaïque Voyages and Culture SA (1)

(Questions referred for a preliminary ruling - Reference to the Court - National court or tribunal within the meaning of Article 234 EC - Arbitration panel)

(2005/C 82/10)

Language of the case: French

In Case C-125/04: reference for a preliminary ruling under Article 234 EC from the Collège d'arbitrage de la Commission de Litiges Voyages (Belgium), made by decision of 4 December 2003, received at the Court on 8 March 2004, in the proceedings pending before that court between Guy Denuit, Betty Cordenier and Transorient – Mosaïque Voyages and Culture SA – the Court (Fourth Chamber) composed of K. Lenaerts, President of the Chamber, N. Colneric and J.N. Cunha Rodrigues (Rapporteur), Judges; A. Tizzano, Advocate General, R. Grass, Registrar, gave a judgment on 27 January 2005, the operative part of which is as follows:

| 1. | The Court is not competent to rule on questions referred to it by the College d'àrbitrage de la Commission de Litiges Voyages. |
| --- | --- |

1.

The Court is not competent to rule on questions referred to it by the College d'àrbitrage de la Commission de Litiges Voyages.

---

(1)  OJ C 156 of 12.06.2004.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/5 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/5

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Application for authorisation to serve a garnishee order brought on 28 January 2005 by Intek Company against the Commission of the European Communities

(Case C-1/05 SA)

(2005/C 82/11)

An application for authorisation to serve a garnishee order on the Commission of the European Communities was brought before the Court of Justice of the European Communities on 28 January 2005 by Intek Company, represented by R. Nathan, avocat.

The applicant claims that the Court should:

| — | lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD – Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or fact that the Commission, as garnishee, does not validly discharge its liability for the funds which it holds provisionally to the judgment debtor's order by paying them to the judgment creditor; |
| --- | --- |

—

lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD – Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or fact that the Commission, as garnishee, does not validly discharge its liability for the funds which it holds provisionally to the judgment debtor's order by paying them to the judgment creditor;

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

—

order the Commission to pay all the costs.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/6 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/6

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Application for authorisation to serve a garnishee order brought on 28 January 2005 by Names b.v. against the Commission of the European Communities

(Case C-2/05 SA)

(2005/C 82/12)

An application for authorisation to serve a garnishee order on the Commission of the European Communities was brought before the Court of Justice of the European Communities on 28 January 2005 by Names b.v., represented by R. Nathan, avocat.

The applicant claims that the Court should:

| — | lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD – Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or fact that the Commission, as garnishee, does not validly discharge its liability for the funds which it holds provisionally to the judgment debtor's order by paying them to the judgment creditor; |
| --- | --- |

—

lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD – Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or fact that the Commission, as garnishee, does not validly discharge its liability for the funds which it holds provisionally to the judgment debtor's order by paying them to the judgment creditor;

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

—

order the Commission to pay all the costs.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/6 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/6

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Application for authorisation to serve a garnishee order brought on 28 January 2005 by the Republic of Kazakhistan Statistics Agency against the Commission of the European Communities

(Case C-3/05 SA)

(2005/C 82/13)

An application for authorisation to serve a garnishee order on the Commission of the European Communities was brought before the Court of Justice of the European Communities on 28 January 2005 by the Republic of Kazakhistan Statistics Agency, represented by R. Nathan, avocat.

The applicant claims that the Court should:

| — | lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD – Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or fact that the Commission, as garnishee, does not validly discharge its liability for the funds which it holds provisionally to the judgment debtor's order by paying them to the judgment creditor; |
| --- | --- |

—

lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD – Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or fact that the Commission, as garnishee, does not validly discharge its liability for the funds which it holds provisionally to the judgment debtor's order by paying them to the judgment creditor;

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

—

order the Commission to pay all the costs.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/6 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/6

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Reference for a preliminary ruling by the Arbeidshof te Brussel of 23 December 2004 in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere

(Case C-2/05)

(2005/C 82/14)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of 23 December 2004 of the Arbeidshof te Brussel (Brussels Higher Labour Court), which was received at the Court Registry on 5 January 2005, for a preliminary ruling in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere on the following questions:

May a court of the host State examine and/or determine whether a direct relationship exists between the undertaking which has posted a worker and the posted worker himself, in view of the fact that the term ‘undertaking to which he is normally attached’ in Article 14(1)(a) of Regulation (EEC) No 1408/71 (1) requires (pursuant to Decision No 128) that there be a direct relationship throughout the period of posting?

May a court of a Member State other than that which issued the abovementioned certificate (E 101 certificate) disregard and/or annul that certificate if it appears from the factual circumstances presented for its consideration that the direct relationship between the undertaking which posted the worker and the posted worker himself did not exist during the period of posting?

Is the competent institution of the State of origin bound by a decision of a court of the host State which, in circumstances such as those set out above, disregards and/or annuls the abovementioned certificate (E 101 certificate)?

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(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/7 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/7

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References for preliminary rulings from the Bundesgerichtshof by orders of that court of 11 October 2004 in Saatgut-Treuhandverwaltungs GmbH v The heirs of Dieter Deppe: 1.Ulrich Deppe, 2. Hanne-Rose Deppe, 3. Thomas Deppe, 4. Matthias Deppe, 5. Christine Urban, née Deppe (C-7/05), Siegried Hennings (C-8/05) and Hartmut Lübbe (C-9/05)

(Cases C-7/05, C-8/05, C-9/05)

(2005/C 82/15)

Language of the cases: German

References have been made to the Court of Justice of the European Communities by orders of the Bundesgerichtshof (Federal Court of Justice) (Germany) of 11 October 2004, received at the Court Registry on 14 January 2005, for preliminary rulings in the proceedings between Saatgut-Treuhandverwaltungs GmbH and the heirs of Dieter Deppe: 1.Ulrich Deppe, 2. Hanne-Rose Deppe, 3. Thomas Deppe, 4. Matthias Deppe, 5. Christine Urban, née Deppe (C-7/05), Siegried Hennings (C-8/05) and Hartmut Lübbe (C-9/05) on the following questions:

| 1. | Is the requirement that the level of remuneration for the planting of harvested material within the meaning of Article 5(2) of Regulation (EC) No 1768/95 (1) be 'sensibly lower' than the amount charged for the licensed production of propagating material of the same variety in the same area satisfied even if the remuneration is calculated at a flat rate of 80 % of that amount? |
| --- | --- |

1.

Is the requirement that the level of remuneration for the planting of harvested material within the meaning of Article 5(2) of Regulation (EC) No 1768/95 (1) be 'sensibly lower' than the amount charged for the licensed production of propagating material of the same variety in the same area satisfied even if the remuneration is calculated at a flat rate of 80 % of that amount?

| 2. | Does Article 5(4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98 (2), contain a commitment in value terms with respect to the level of remuneration for the planting of harvested material in the event of statutory assessment?
  If so, does that commitment, as the expression of a general idea, also apply to plantings of harvested material occurring before Regulation (EC) No 2605/98 entered into force? |
| --- | --- |

2.

Does Article 5(4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98 (2), contain a commitment in value terms with respect to the level of remuneration for the planting of harvested material in the event of statutory assessment?

If so, does that commitment, as the expression of a general idea, also apply to plantings of harvested material occurring before Regulation (EC) No 2605/98 entered into force?

| 3. | Does the guideline function of an agreement between organisations of holders of plant variety rights and farmers within the meaning of Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, include the possibility, in the event of statutory assessment, of the essential elements (calculation parameters) of that agreement being applied even if, at the time of the calculation of the statutory remuneration, not all of the parameters lying within the sphere of the planter of the harvested material and required for calculation based on the agreement are known to the holder and he is not entitled to be notified of the relevant facts by the farmer?
  If so, does such an agreement, if it is to perform a guiding function along these lines, presuppose, for its effectiveness, compliance with the requirements laid down in Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, even if it was concluded before the latter regulation entered into force? |
| --- | --- |

3.

Does the guideline function of an agreement between organisations of holders of plant variety rights and farmers within the meaning of Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, include the possibility, in the event of statutory assessment, of the essential elements (calculation parameters) of that agreement being applied even if, at the time of the calculation of the statutory remuneration, not all of the parameters lying within the sphere of the planter of the harvested material and required for calculation based on the agreement are known to the holder and he is not entitled to be notified of the relevant facts by the farmer?

If so, does such an agreement, if it is to perform a guiding function along these lines, presuppose, for its effectiveness, compliance with the requirements laid down in Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, even if it was concluded before the latter regulation entered into force?

| 4. | Does Article 5(5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, set an upper limit on the remuneration under contractual and/or statutory remuneration arrangements? |
| --- | --- |

4.

Does Article 5(5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, set an upper limit on the remuneration under contractual and/or statutory remuneration arrangements?

| 5. | Can an agreement between professional organisations be used as a guideline within the meaning of Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, if it exceeds the rate of remuneration of 50 % of the amount defined in Article 5(5) of that regulation? |
| --- | --- |

5.

Can an agreement between professional organisations be used as a guideline within the meaning of Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, if it exceeds the rate of remuneration of 50 % of the amount defined in Article 5(5) of that regulation?

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(1)  OJ 1995 L 173, p. 14.

(2)  OJ 1998 L 328, p. 6.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/8 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/8

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Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 28 December 2004 in Friesland Coberco Dairy Foods BV (trading under the name Friesland Supply Point Ede) v Inspecteur van de Belastingdienst/Douane Noord/kantoor Groningen

(Case C-11/05)

(2005/C 82/16)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Gerechtshof te Amsterdam (Netherlands) of 28 December 2004, received at the Court Registry on 14 January 2005, for a preliminary ruling in the proceedings between Friesland Coberco Dairy Foods BV (trading under the name Friesland Supply Point Ede) and Inspecteur van de Belastingdienst (Taxation Service)/Douane Noord (Customs North)/kantoor Groningen (Office) on the following questions:

| 1. | How should the words ‘without adversely affecting the essential interests of Community producers of similar goods’ in Article 133(e) [of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1)] be interpreted? Can only the market for the finished product be considered or must the economic situation with regard to the raw materials for processing under customs control also be investigated? |
| --- | --- |

1.

How should the words ‘without adversely affecting the essential interests of Community producers of similar goods’ in Article 133(e) [of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1)] be interpreted? Can only the market for the finished product be considered or must the economic situation with regard to the raw materials for processing under customs control also be investigated?

| 2. | In relation to the assessment of the ‘processing activities to be created or maintained’ under Article 502(3) [of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (2)], is there a specific number of jobs which must, as a minimum, be made possible by the activities? What other criteria also apply to the interpretation of the cited text? |
| --- | --- |

2.

In relation to the assessment of the ‘processing activities to be created or maintained’ under Article 502(3) [of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (2)], is there a specific number of jobs which must, as a minimum, be made possible by the activities? What other criteria also apply to the interpretation of the cited text?

| 3. | In the light of the answers to questions 1 and 2, can the Court of Justice examine the validity of a conclusion of the Committee in preliminary ruling proceedings? |
| --- | --- |

3.

In the light of the answers to questions 1 and 2, can the Court of Justice examine the validity of a conclusion of the Committee in preliminary ruling proceedings?

| 4. | If so, is the conclusion in this case valid with respect to both the reasons and the economic arguments adduced? |
| --- | --- |

4.

If so, is the conclusion in this case valid with respect to both the reasons and the economic arguments adduced?

| 5. | If the Court of Justice cannot examine the validity of a conclusion, what interpretation should then be given to the words ‘[t]he Committee's conclusion shall be taken into account by the customs authorities’ in Article 504(4) [of Regulation No 2454/93 (3)] if – in the first instance – the customs authorities and/or – on appeal – the national courts consider that the Committee's conclusion cannot justify the rejection of the application for processing under customs control? |
| --- | --- |

5.

If the Court of Justice cannot examine the validity of a conclusion, what interpretation should then be given to the words ‘[t]he Committee's conclusion shall be taken into account by the customs authorities’ in Article 504(4) [of Regulation No 2454/93 (3)] if – in the first instance – the customs authorities and/or – on appeal – the national courts consider that the Committee's conclusion cannot justify the rejection of the application for processing under customs control?

---

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

(2)  OJ 1993 L 253, p. 1.

(3)  Corrigendum to Commission Regulation (EC) No 993/2001 of 4 May 2001 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Custom Code (OJ 2001 L 141, p. 1).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/8 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/8

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Reference for a preliminary ruling from the Gerechtshof te Amsterdam of 28 December 2004 in the case of Anagram International Inc. and Inspecteur van de Belastingdienst/Douane Rotterdam

(Case C-14/05)

(2005/C 82/17)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal) (Netherlands) of 28 December 2004, received at the Court Registry on 19 January 2005, for a preliminary ruling in the proceedings between Anagram International Inc. and Inspecteur van de Belastingdienst/Douane Rotterdam on the following questions:

| 1. | Must point 3 of the Annex to Regulation (EC) No 442/2000 (1) be interpreted as meaning that it also relates to the goods described under the facts (in section 2 of the reference for a preliminary ruling)? |
| --- | --- |

1.

Must point 3 of the Annex to Regulation (EC) No 442/2000 (1) be interpreted as meaning that it also relates to the goods described under the facts (in section 2 of the reference for a preliminary ruling)?

| 2. | If so, is the Regulation valid in that respect? |
| --- | --- |

2.

If so, is the Regulation valid in that respect?

| 3. | If the Regulation is invalid or if it does not cover the goods at issue, can the CCT be interpreted as meaning that those goods must be classified as ‘festive articles’ of heading 9505 90 00? |
| --- | --- |

3.

If the Regulation is invalid or if it does not cover the goods at issue, can the CCT be interpreted as meaning that those goods must be classified as ‘festive articles’ of heading 9505 90 00?

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(1)  Commission Regulation (EC) No 442/2000 of 25 February 2000 concerning the classification of certain goods in the Combined Nomenclature (OJ 2000 L 54, p. 33).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/9 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/9

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Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 28 December 2004 in Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam

(Case C-15/05)

(2005/C 82/18)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal) (Netherlands) of 28 December 2004, received at the Court Registry on 19 January 2005, for a preliminary ruling in the proceedings between Kawasaki Motors Europe NV and Inspecteur van de Belastingdienst/Douane district Rotterdam on the following questions:

| 1. | Is Commission Regulation (EC) No 2518/98 (1)of 23 November 1998 concerning the classification of certain goods in the Combined Nomenclature (OJ 1998 L 315) valid in so far as the new, four-wheel all terrain vehicles described at point 5 of the Annex thereto are classified as a vehicle designed for the transport of persons within the meaning of subheading 8703 21 of the CCT? |
| --- | --- |

1.

Is Commission Regulation (EC) No 2518/98 (1)of 23 November 1998 concerning the classification of certain goods in the Combined Nomenclature (OJ 1998 L 315) valid in so far as the new, four-wheel all terrain vehicles described at point 5 of the Annex thereto are classified as a vehicle designed for the transport of persons within the meaning of subheading 8703 21 of the CCT?

| 2. | If the regulation is invalid, can the CCT be interpreted as meaning that the goods at issue can be classified under one of the subheadings of heading 8701 90 of the CCT? |
| --- | --- |

2.

If the regulation is invalid, can the CCT be interpreted as meaning that the goods at issue can be classified under one of the subheadings of heading 8701 90 of the CCT?

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(1)  Commission Regulation (EC) No 2518/98 of 23 November 1998 concerning the classification of certain goods in the Combined Nomenclature (OJ 1998 L 315, p. 3).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/9 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/9

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Action brought on 25 January 2005 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-22/05)

(2005/C 82/19)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 25 January 2005 by the Commission of the European Communities, represented by G. Rozet and N. Yerrell, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by excluding persons working in fairground undertakings from the scope of national measures transposing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, (1) the Kingdom of Belgium has failed to fulfil its obligations under Articles 1(3) and 17 of that directive; |
| --- | --- |

1.

declare that, by excluding persons working in fairground undertakings from the scope of national measures transposing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, (1) the Kingdom of Belgium has failed to fulfil its obligations under Articles 1(3) and 17 of that directive;

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

2.

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The exclusion of persons working in fairground undertakings from the scope of national legislation transposing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time is not provided for by Article 1(3) of that directive defining its scope. According to that provision, the Directive applies to all sectors of activity, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training. The category of persons working in fairground undertakings is not referred to in that article and moreover does not satisfy the conditions of any of the derogations allowed by Article 17 of the Directive, which furthermore have not been relied on by the Belgian authorities. By introducing an exception which the Directive itself did not provide for, Belgium has incorrectly transposed that directive, thereby failing to fulfil its obligations.

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(1)  OJ L 307, 13.12.1993, p. 18

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/9 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/9

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Action brought on 25 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-23/05)

(2005/C 82/20)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 25 January 2005 by the Commission of the European Communities, represented by G. Rozet and N. Yerrell, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that directive (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2(1) of that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that directive (1) or, in any event, by failing to communicate those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2(1) of that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of the Directive into national law expired on 1 August 2003.

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(1)  OJ L 195, 01.08.2000, p. 41.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/10 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/10

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Reference for a preliminary ruling from the Landesgericht Korneuburg (Austria) by order of that court of 13 January 2005 in Plato Plastik Robert Frank GmbH v CAROPACK Handels GmbH

(Case C-26/05)

(2005/C 82/21)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht Korneuburg (Regional Court, Korneuburg) (Austria) of 13 January 2005, received at the Court Registry on 27 January 2005, for a preliminary ruling in the proceedings between Plato Plastik Robert Frank GmbH and CAROPACK Handels GmbH on the following questions:

| 1. | Principal question: ‘For the purposes of European Parliament and Council Directive 94/62/EC of 20 December 1994, is the producer of sales packaging, grouped packaging or transport packaging, namely the packaging producer, always the party which, in the course of the exercise of its professional activity, brings goods, or has goods brought, directly or indirectly together with the product intended as packaging, and does this also apply to carrier bags? Is the producer (supplier) of products described in the first sentence of Article 3(1), namely products used for the containment, protection, handling, delivery and presentation of goods, and non-returnable items used for the same purposes, therefore a producer (supplier) of packaging materials (packaging products) and not a producer of sales packaging, grouped packaging or transport packaging (packaging producer; compare the corresponding terms in Article 3(11) of the directive)?’ |
| --- | --- |

1.

Principal question: ‘For the purposes of European Parliament and Council Directive 94/62/EC of 20 December 1994, is the producer of sales packaging, grouped packaging or transport packaging, namely the packaging producer, always the party which, in the course of the exercise of its professional activity, brings goods, or has goods brought, directly or indirectly together with the product intended as packaging, and does this also apply to carrier bags? Is the producer (supplier) of products described in the first sentence of Article 3(1), namely products used for the containment, protection, handling, delivery and presentation of goods, and non-returnable items used for the same purposes, therefore a producer (supplier) of packaging materials (packaging products) and not a producer of sales packaging, grouped packaging or transport packaging (packaging producer; compare the corresponding terms in Article 3(11) of the directive)?’

| 2. | First additional question, should the principal question be answered in the affirmative: ‘Is the producer of a carrier bag accordingly not a producer of sales packaging, grouped packaging or transport packaging but a producer of packaging materials (packaging products)?’ |
| --- | --- |

2.

First additional question, should the principal question be answered in the affirmative: ‘Is the producer of a carrier bag accordingly not a producer of sales packaging, grouped packaging or transport packaging but a producer of packaging materials (packaging products)?’

| 3. | Second additional question, should the first additional question be answered in the affirmative: ‘Is it contrary to Community law, in particular to the principle of equality, to the prohibition on objectively unjustified restrictions on the freedom to carry on a business and to the prohibition on creating distortions of competition, for the legislation of a Member State to provide, on pain of a penalty, that the producer of packaging materials, particularly of carrier bags, must either accept their return or participate in a collection and recovery system in this regard, unless a party further down the distribution chain takes over that obligation and provides the producer of the packaging materials with a legally valid declaration on the matter?’ |
| --- | --- |

3.

Second additional question, should the first additional question be answered in the affirmative: ‘Is it contrary to Community law, in particular to the principle of equality, to the prohibition on objectively unjustified restrictions on the freedom to carry on a business and to the prohibition on creating distortions of competition, for the legislation of a Member State to provide, on pain of a penalty, that the producer of packaging materials, particularly of carrier bags, must either accept their return or participate in a collection and recovery system in this regard, unless a party further down the distribution chain takes over that obligation and provides the producer of the packaging materials with a legally valid declaration on the matter?’

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/10 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/10

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Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 5 January 2005 in Elfering Export GmbH v Hauptzollamt Hamburg-Jonas

(Case C-27/05)

(2005/C 82/22)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg (Finance Court, Hamburg) (Germany) of 5 January 2005, received at the Court Registry on 27 January 2005, for a preliminary ruling in the proceedings between Elfering Export GmbH and Hauptzollamt Hamburg-Jonas on the following question:

Is the declaration made in an export declaration that the product in respect of which a refund is sought is of Community origin information to which a penalty may attach under Article 51(2) of Regulation (EC) No 800/1999 (1) in conjunction with Article 5(4) thereof?

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(1)  OJ 1999 L 102, p. 11.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/11 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/11

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Appeal brought on 28 January 2005 (fax: 25 January 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 10 November 2004 by the Fourth Chamber of the Court of First Instance in Case T-164/02 between
  Kaul GmbH
  and
  Office for Harmonisation in the Internal Market
  (other party to the proceedings before the Board of Appeal of OHIM: Bayer AG)

(Case C-29/05 P)

(2005/C 82/23)

Language of the case: German

An appeal against the judgment delivered on 10 November 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-164/02 between Kaul GmbH and Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 28 January 2005 (fax: 25 January 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs), represented by Alexander von Mühlendahl, Vice President of the Office, and Gregor Schneider, a member of the Industrial Property Litigation Unit, the other party to the proceedings before the Board of Appeal of OHIM having been Bayer AG.

The appellant claims that the Court should:

| 1. | set aside the contested judgment; |
| --- | --- |

1.

set aside the contested judgment;

| 2. | refer the case back to the Court of First Instance for a decision on the additional pleas in law; |
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2.

refer the case back to the Court of First Instance for a decision on the additional pleas in law;

| 3. | order the other parties to the proceedings to pay the costs of the appeal proceedings. |
| --- | --- |

3.

order the other parties to the proceedings to pay the costs of the appeal proceedings.

Pleas in law and main arguments

| 1. | The Court of First Instance infringed Article 43(2) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (‘the CTMR’) and Rules 16(3) and 20(2) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) by obliging the Board of Appeal of the Office, by virtue of continuity in terms of functions, to take into consideration new submissions of fact and new evidence in opposition proceedings, even though the party to the proceedings did not lodge those submissions or submit that evidence within the time-limit set by the Opposition Division. The obligation to examine evidence submitted for the first time before the Board of Appeal, which the Court of First Instance infers in inter partes proceedings from continuity in terms of functions, has no basis in the provisions of the CTMR or the implementing regulation. |
| --- | --- |

1.

The Court of First Instance infringed Article 43(2) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (‘the CTMR’) and Rules 16(3) and 20(2) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) by obliging the Board of Appeal of the Office, by virtue of continuity in terms of functions, to take into consideration new submissions of fact and new evidence in opposition proceedings, even though the party to the proceedings did not lodge those submissions or submit that evidence within the time-limit set by the Opposition Division. The obligation to examine evidence submitted for the first time before the Board of Appeal, which the Court of First Instance infers in inter partes proceedings from continuity in terms of functions, has no basis in the provisions of the CTMR or the implementing regulation.

| 2. | The Court of First Instance infringed Article 74(2) of the CTMR by requiring the Board of Appeal to have regard to new submissions of fact and new evidence even though the time-limits applicable to such submissions are ‘mandatory time-limits’ in proceedings before the Opposition Division and the opposing party did not lodge those submissions or submit that evidence within the time-limit set by the Opposition Division. |
| --- | --- |

2.

The Court of First Instance infringed Article 74(2) of the CTMR by requiring the Board of Appeal to have regard to new submissions of fact and new evidence even though the time-limits applicable to such submissions are ‘mandatory time-limits’ in proceedings before the Opposition Division and the opposing party did not lodge those submissions or submit that evidence within the time-limit set by the Opposition Division.

| 3. | The Court of First Instance also infringed Article 74(2) of the CTMR by allowing application of that provision in appeal proceedings only where new submissions are lodged or new evidence submitted after the expiry of the time-limit for substantiating the appeal. |
| --- | --- |

3.

The Court of First Instance also infringed Article 74(2) of the CTMR by allowing application of that provision in appeal proceedings only where new submissions are lodged or new evidence submitted after the expiry of the time-limit for substantiating the appeal.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/11 |
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2.4.2005

EN

Official Journal of the European Union

C 82/11

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Action brought on 28 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-30/05)

(2005/C 82/24)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 28 January 2005 by the Commission of the European Communities, represented by C.F. Durand and F. Simonetti, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with






  — | Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1999 L 200, p. 1); and |
| --- | --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with

—

Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1999 L 200, p. 1); and

| — | Commission Directive 2001/60/EC of 7 August 2001 adapting to technical progress Directive 1999/45/EC of the European Parliament and of the Council concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (Text with EEA relevance) (OJ 2001 L 226, p. 5), or, in any event, by not notifying the Commission of such provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under those directives; |
| --- | --- |

—

Commission Directive 2001/60/EC of 7 August 2001 adapting to technical progress Directive 1999/45/EC of the European Parliament and of the Council concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (Text with EEA relevance) (OJ 2001 L 226, p. 5), or, in any event, by not notifying the Commission of such provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under those directives;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directives into national law expired on 30 July 2002.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/12 |
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2.4.2005

EN

Official Journal of the European Union

C 82/12

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Action brought on 28 January 2005 by the Commission of the European Communities against the French Republic

(Case C-31/05)

(2005/C 82/25)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 28 January 2005 by the Commission of the European Communities, represented by Michael Shotter, acting as Agent, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with






  — | Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7); |
| --- | --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with

—

Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7);

| — | Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21); |
| --- | --- |

—

Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21);

| — | Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33); |
| --- | --- |

—

Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33);

or, in any event, by failing to communicate those provisions to the Commission, the French Republic has failed to fulfil its obligations under Article 18 of the Access Directive, Article 18 of the Authorisation Directive and Article 28 of the Framework Directive.

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of the directives into national law expired on 24 July 2003.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/12 |
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2.4.2005

EN

Official Journal of the European Union

C 82/12

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Action brought on 31 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-32/05)

(2005/C 82/26)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 31 January 2005 by the Commission of the European Communities, represented by Sara Pardo Quintillán and Joanna Hottiaux, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (1) and, in any event, by failing to communicate them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (1) and, in any event, by failing to communicate them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of the Directive into national law expired on 22 December 2003.

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(1)  OJ L 327, 22.12.2000, p. 1

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/13 |
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2.4.2005

EN

Official Journal of the European Union

C 82/13

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Action brought on 31 January 2005 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-33/05)

(2005/C 82/27)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 31 January 2005 by the Commission of the European Communities, represented by Sara Pardo Quintillán and Joanna Hottiaux, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (1) and, in any event, by failing to communicate them to the Commission, 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 in law and main arguments

The period for transposition of the Directive into national law expired on 22 December 2003.

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(1)  OJ L 327, 22.12.2000, p. 1

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/13 |
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2.4.2005

EN

Official Journal of the European Union

C 82/13

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Action brought on 31 January 2005 by the Commission of the European Communities against the United Kingdom

(Case C-37/05)

(2005/C 82/28)

Language of procedure: English

An action against the United Kingdom was brought before the Court of Justice of the European Communities on 31 January 2005 by the Commission of the European Communities, represented by Mr Michel van Beek, acting as agent, assisted by Mr Frédéric Louis, avocat, and Mr A. Capobianco, avvocato, with an address for service in Luxembourg.

The Commission requests that the Court should:

| — | declare that, in failing to correctly transpose the requirements of Articles 2(1) and 4 of the Council Directive 85/337/CEE on the assessment of certain public and private projects on the environment (1) as amended by Council Directive 97/11/EC (2), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive and under the Treaty. |
| --- | --- |

—

declare that, in failing to correctly transpose the requirements of Articles 2(1) and 4 of the Council Directive 85/337/CEE on the assessment of certain public and private projects on the environment (1) as amended by Council Directive 97/11/EC (2), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive and under the Treaty.

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

—

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

Pleas in law and main arguments:

A directive must be transposed into binding provisions of national law in a manner that fully satisfies the requirements of clarity and legal certainty. Administrative guidance does not ensure compliance with these requirements. A mere assurance that a practical breach of the provisions of Council directive 85/337/CEE is unlikely to arise in practice does not constitute effective transposition of that directive.

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(1)  OJ L 175, 05.07.1985, p. 4

(2)  OJ L 73, 14.03.1997, p. 5

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/14 |
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2.4.2005

EN

Official Journal of the European Union

C 82/14

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Action brought on 1 February 2005 by the Commission of the European Communities against Ireland

(Case C-38/05)

(2005/C 82/29)

Language of procedure: English

An action against Ireland was brought before the Court of Justice of the European Communities on 1 February 2005 by the Commission of the European Communities, represented by Mr Barry Doherty, acting as agent, with an address for service in Luxembourg.

The Commission requests the Court

| — | to declare that Ireland has breached its obligations under Articles 15 (4), 18 (1), 19i first and third indents of Council Regulation (EEC) 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (1), by failing to communicate the data required by those provisions for the years 1999 and 2000; and |
| --- | --- |

—

to declare that Ireland has breached its obligations under Articles 15 (4), 18 (1), 19i first and third indents of Council Regulation (EEC) 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (1), by failing to communicate the data required by those provisions for the years 1999 and 2000; and

| — | to order Ireland to pay the costs of these proceedings. |
| --- | --- |

—

to order Ireland to pay the costs of these proceedings.

Pleas in law and main arguments:

Articles 15(4), 18(1) and 19i of Regulation 2847/93 require the Member States to transmit certain date by computer transmission within a specific deadline. It is essential that the Commission has this data available in order to manage and develop the common fisheries policy, in particular with regard to conservation, management and exploitation of living aquatic resources.

Ireland did not communicate the data required by the aforementioned Articles for the years 1999 or 2000 and is therefore in breach of its obligations.

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(1)  OJ L 261, 20.10.1993, p. 1

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/14 |
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2.4.2005

EN

Official Journal of the European Union

C 82/14

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Action brought on 3 February 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-43/05)

(2005/C 82/30)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 3 February 2005 by the Commission of the European Communities, represented by Denis Martin and Horstpeter Kreppel, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt, by 2 December 2003, the/all laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78 (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, or to inform the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under Article 18 of that directive. This does not relate to the provisions of the directive regarding age discrimination; |
| --- | --- |

1.

declare that, by failing to adopt, by 2 December 2003, the/all laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78 (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, or to inform the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under Article 18 of that directive. This does not relate to the provisions of the directive regarding age discrimination;

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

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2000/78/EC with regard to the provisions of the directive on age discrimination has not yet expired for the Federal Republic of Germany. The period for transposition of the remaining provisions of the directive expired on 2 December 2003.

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(1)  OJ 2000 L 303, p. 16.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/15 |
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2.4.2005

EN

Official Journal of the European Union

C 82/15

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Action brought on 3 February 2005 by the Commission of the European Communities against the Italian Republic

(Case C-44/05)

(2005/C 82/31)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 3 February 2005 by the Commission of the European Communities, represented by E. Traversa and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by not having adopted the laws, regulations and administrative provisions necessary to comply with Directive 2002/30/EC (1) of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports or, in any case, by not having communicated such measures to the Commission, the Italian Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by not having adopted the laws, regulations and administrative provisions necessary to comply with Directive 2002/30/EC (1) of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports or, in any case, by not having communicated such measures to the Commission, the Italian Republic has failed to fulfil its obligations under that directive;

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

2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into national law expired on 28 September 2003.

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(1)  OJ L 85 of 28 March 2002, p. 40.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/15 |
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2.4.2005

EN

Official Journal of the European Union

C 82/15

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Action brought on 7 February 2005 by the Commission of the European Communities against the Kingdom of Spain

(Case C-47/05)

(2005/C 82/32)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 7 February 2005 by the Commission of the European Communities, represented by R. Lyal, Legal Adviser, and L. Escobar Guerrero, of the Commission's legal service, with an address for service in Luxembourg.

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

| 1. | declare that, by having adopted and maintained in force, in the matter of life insurance and pensions, a system under which tax concessions (Article 48 of Law 40/1998) are applicable solely to contributions paid under contracts concluded with undertakings established in Spain but not to those paid under contracts concluded with undertakings formed in other Member States, the Kingdom of Spain has failed to fulfil its obligations under Articles 39, 43, 49 and 56 of the Treaty establishing the European Community and Articles 28, 31, 36 and 40 of the EEA Agreement; |
| --- | --- |

1.

declare that, by having adopted and maintained in force, in the matter of life insurance and pensions, a system under which tax concessions (Article 48 of Law 40/1998) are applicable solely to contributions paid under contracts concluded with undertakings established in Spain but not to those paid under contracts concluded with undertakings formed in other Member States, the Kingdom of Spain has failed to fulfil its obligations under Articles 39, 43, 49 and 56 of the Treaty establishing the European Community and Articles 28, 31, 36 and 40 of the EEA Agreement;

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

2.

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The fact that tax treatment differs by reference to whether pension plans are taken out with undertakings established in Spain or with undertakings formed in other Member States is a restriction on the fundamental freedoms laid down by the EC Treaty (Articles 39, 43, 49 and 56 EC and Articles 28, 31, 36 and 40 of the EEA Agreement).

The requirement for establishment, in accordance with national law, which Spanish fiscal legislation imposes on pension managers, constitutes, as well as discrimination restricting the right of undertakings formed in the European Union or the EEA to provide their services freely to persons resident in Spain, a clear restriction on the freedom of movement of workers and of capital and on the freedom of establishment.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/15 |
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2.4.2005

EN

Official Journal of the European Union

C 82/15

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Reference for a preliminary ruling from the Landgericht Nürnberg-Fürth by order of that court of 28 January 2005 in Adam Opel AG v Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.)

(Case C-48/05)

(2005/C 82/33)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landgericht Nürnberg-Fürth (Germany) of 28 January 2005, received at the Court Registry on 8 February 2005, in the proceedings between Adam Opel AG and Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.) for a preliminary ruling on the following questions of the interpretation of Article 5(l)(a) and Article 6(l)(b) of the First Directive of the Council No 89/104/EC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks:

| 1. | Does the use of a trade mark registered also for ‘toys’ constitute use as a trade mark for the purposes of Article 5(1)(a) of the Trade Mark Directive if the manufacturer of a toy model car copies a real car in a reduced scale, including the trade mark of the proprietor of the trade mark as applied to the real car, and markets it? |
| --- | --- |

1.

Does the use of a trade mark registered also for ‘toys’ constitute use as a trade mark for the purposes of Article 5(1)(a) of the Trade Mark Directive if the manufacturer of a toy model car copies a real car in a reduced scale, including the trade mark of the proprietor of the trade mark as applied to the real car, and markets it?

| 2. | If the answer to Question in 1 is in the affirmative: is the type of use of the trade mark described in Question 1 an indication of the kind or quality of the model car within the meaning of Article 6(1)(а) of the Trade Mark Directive? |
| --- | --- |

2.

If the answer to Question in 1 is in the affirmative: is the type of use of the trade mark described in Question 1 an indication of the kind or quality of the model car within the meaning of Article 6(1)(а) of the Trade Mark Directive?

| 3. | If the answer to Question 2 is in the affirmative:
  In cases of this type what are the decisive criteria to be applied in assessing whether the trade mark corresponds to honest practices in industrial or commercial matters? |
| --- | --- |

3.

If the answer to Question 2 is in the affirmative:

In cases of this type what are the decisive criteria to be applied in assessing whether the trade mark corresponds to honest practices in industrial or commercial matters?

| 4. | Is this in particular the case if the manufacturer of the model car applies to the packaging, and to an accessory required in order to use the model, a mark recognisable to the trade as its own trade mark together with its company name and the address of its seat? |
| --- | --- |

4.

Is this in particular the case if the manufacturer of the model car applies to the packaging, and to an accessory required in order to use the model, a mark recognisable to the trade as its own trade mark together with its company name and the address of its seat?

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(1)  OJ 1989 L 40, p. 1.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/16 |
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2.4.2005

EN

Official Journal of the European Union

C 82/16

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Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities

(Case C-49/05 P)

(2005/C 82/34)

Language of the case: Italian

An appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) of 18 November 2004 in Case T-176/01 between Ferriere Nord, supported by the Italian Republic, and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 7 February 2005 by Ferriere Nord SpA, represented by W. Viscardini and G. Donà, avvocati.

The applicant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities in Case T-276/01; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities in Case T-276/01;

| — | annul, through a declaration of inapplicability under Article 241 EC of point 82 of the ‘Community guidelines on State aid for environmental protection’ of 2001, Commission Decision 2001/829/EC, ECSC of 28 March 2001 (1), in which the aid of the autonomous Region of Friuli-Venezia Giulia in favour of Ferriere Nord SpA for environmental investment in a new production plant for electrowelded wire mesh was considered incompatible with the common market; |
| --- | --- |

—

annul, through a declaration of inapplicability under Article 241 EC of point 82 of the ‘Community guidelines on State aid for environmental protection’ of 2001, Commission Decision 2001/829/EC, ECSC of 28 March 2001 (1), in which the aid of the autonomous Region of Friuli-Venezia Giulia in favour of Ferriere Nord SpA for environmental investment in a new production plant for electrowelded wire mesh was considered incompatible with the common market;

| — | order, pursuant to Article 235 and the second paragraph of Article 288 EC, the Commission of the European Communities to pay compensation for harm suffered by Ferriere Nord SpA owing to the unlawfulness of the abovementioned decision and the delay with which the aid unlawfully denied will actually be granted to Ferriere Nord SpA, together with interest and an amount to take account of monetary revaluation; |
| --- | --- |

—

order, pursuant to Article 235 and the second paragraph of Article 288 EC, the Commission of the European Communities to pay compensation for harm suffered by Ferriere Nord SpA owing to the unlawfulness of the abovementioned decision and the delay with which the aid unlawfully denied will actually be granted to Ferriere Nord SpA, together with interest and an amount to take account of monetary revaluation;

| — | order the Commission to pay the applicant's costs and legal fees, both at first instance and in these proceedings. |
| --- | --- |

—

order the Commission to pay the applicant's costs and legal fees, both at first instance and in these proceedings.

Pleas in law and main arguments:

The applicant claims that the Court of First Instance erred in:

| — | its description of the legal basis of the notification of the contested aid and therefore did not consider that the initiation of the formal examination procedure of 3 June 1999 was unlawful; |
| --- | --- |

—

its description of the legal basis of the notification of the contested aid and therefore did not consider that the initiation of the formal examination procedure of 3 June 1999 was unlawful;

| — | considering that the procedural time limits for opening and closing the formal examination procedure had been observed; |
| --- | --- |

—

considering that the procedural time limits for opening and closing the formal examination procedure had been observed;

| — | finding that there had been no infringement of the rights of the ‘parties concerned’, even though those parties had not been able to submit observations in the light of the 2001 guidelines on State aid for environmental protection (which had come into force in the meantime and on which the Commission based its final measure in the formal examination procedure), while all the preparatory enquiries had been conducted on the basis of the ‘Community guidelines on State aid for environmental protection’ (2) of 1994; |
| --- | --- |

—

finding that there had been no infringement of the rights of the ‘parties concerned’, even though those parties had not been able to submit observations in the light of the 2001 guidelines on State aid for environmental protection (which had come into force in the meantime and on which the Commission based its final measure in the formal examination procedure), while all the preparatory enquiries had been conducted on the basis of the ‘Community guidelines on State aid for environmental protection’ (2) of 1994;

| — | finding that the Commission had not infringed the legitimate procedural expectations of Ferriere Nord, even though it had based its decision on certain documents which were not submitted by Ferriere Nord only because they had never been requested by the Commission itself; |
| --- | --- |

—

finding that the Commission had not infringed the legitimate procedural expectations of Ferriere Nord, even though it had based its decision on certain documents which were not submitted by Ferriere Nord only because they had never been requested by the Commission itself;

| — | holding that the aid granted to Ferriere Nord did not constitute a measure implementing a system already approved in 1992; |
| --- | --- |

—

holding that the aid granted to Ferriere Nord did not constitute a measure implementing a system already approved in 1992;

| — | interpreting point 82 of the 2001 guidelines cited above so as to give them unlawful retroactive application, instead of treating that point as void ab initio; |
| --- | --- |

—

interpreting point 82 of the 2001 guidelines cited above so as to give them unlawful retroactive application, instead of treating that point as void ab initio;

| — | finding that the investment for which Ferriere Nord was granted aid had no environmental purpose; |
| --- | --- |

—

finding that the investment for which Ferriere Nord was granted aid had no environmental purpose;

| — | failing to apply the burden of proof which requires that the Commission, not the undertaking, isolate from the total cost of the investment the cost corresponding to environmental protection. |
| --- | --- |

—

failing to apply the burden of proof which requires that the Commission, not the undertaking, isolate from the total cost of the investment the cost corresponding to environmental protection.

---

(1)  OJ L 310 of 28.11.2001, p. 22.

(2)  OJ C 72 of 10.03.1994, p. 3.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/17 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/17

---

Appeal brought on 9 February 2005 (fax of 7 February 2005) by the Commission of the European Communities for the partial annulment of the judgment delivered on 23 November 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-166/98 between Cantina sociale di Dolianova and Others and the Commission of the European Communities

(Case C-51/05 P)

(2005/C 82/35)

Language of the case: Italian

An appeal against the judgment delivered on 23 November 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-166/98 between Cantina sociale di Dolianova and Others and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities represented by C. Cattabriga and L. Visaggio, acting as Agents.

The appellant claims that the Court should:

| 1 – | annul the judgment of the Court of First Instance of the European Communities in Case T-166/98 Cantina sociale di Dolianova and Others v Commission of the European Communities in so far as it accedes to the claim for damages against the Commission and, conseqeuently |
| --- | --- |

1 –

annul the judgment of the Court of First Instance of the European Communities in Case T-166/98 Cantina sociale di Dolianova and Others v Commission of the European Communities in so far as it accedes to the claim for damages against the Commission and, conseqeuently

| 2 – | deliver final judgment in the matter by dismissing that action as inadmissible; |
| --- | --- |

2 –

deliver final judgment in the matter by dismissing that action as inadmissible;

| 3 – | order Cantina sociale di Dolianova and the other applicants at first instance to pay the costs at first instance and on appeal. |
| --- | --- |

3 –

order Cantina sociale di Dolianova and the other applicants at first instance to pay the costs at first instance and on appeal.

Pleas in law and main arguments

The Commission confines the present appeal to paragraphs 129 to 150 of the judgment of the Court of First Instance concerning the determination of the starting date of the five-year limitation period prescribed by Article 46 of the Statute of the Court of Justice. In the Commission's view, the assessment reached on the matter in the contested judgment – which found that time started to run for the purposes of that limitation period when the applicants realised that they would not receive payment of Community aid on the basis of the security lodged at the time by the DAI in favour of AIMA – is the result of a clear error of law.

In determining the starting date of the limitation period of the action brought by the applicant cooperatives, the Court of First Instance failed wholly to take account of the fact that, from 1983, Regulation (EEC) No 2499/82 (1) had objectively caused damage to those cooperatives, concentrating instead on the latter's perception of that damage. The Court found that it did not suffice that the applicants knew that they had suffered damage as a result of the application of Regulation No 2499/82; it also found to be necessary a wholly subjective element, namely the applicants' awareness that they could not obtain a remedy without bringing an action for damages against the Commission.

Such a finding is contrary to settled Community case-law and to the principle of legal certainty.

---

(1)  OJ 1982 L 267 of 16.09.1982, p. 16 (no longer in force).

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/17 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/17

---

Action brought on 9 February 2005 by the Commission of the European Communities against the Portuguese Republic

(Case C-53/05)

(2005/C 82/36)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities, represented by P. Andrade and W.Wils, acting as Agents, with an address for service in Luxembourg.

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

| — | declare that the Portuguese Republic, by having exempted all categories of establishments from the obligation to pay remuneration to authors on public lending, has failed to fulfil its obligations under Article 5, in conjunction with Article 1, of Council Directive 92/100/EEC (1) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property; |
| --- | --- |

—

declare that the Portuguese Republic, by having exempted all categories of establishments from the obligation to pay remuneration to authors on public lending, has failed to fulfil its obligations under Article 5, in conjunction with Article 1, of Council Directive 92/100/EEC (1) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Before the adoption of Directive 92/100, Portuguese law did not recognise an author's right to remuneration on the lending of a work in relation to which the distribution right was exhausted. Currently Portuguese law recognises the right to remuneration but, by exempting all categories of public-lending establishments from the obligation to pay such remuneration, for the purposes of Directive 92/100, it has rendered that right ineffective and has failed to fulfil its obligations under Articles 1 and 5 of the directive.

---

(1)  OJ 1992 L 346, p. 61.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/18 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/18

---

Action brought on 9 February 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-55/05)

(2005/C 82/37)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities, represented by M. Huttunen and K. Simonsson, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships, (1) or at least by not communicating them to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships, (1) or at least by not communicating them to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive;

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

2.

order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The prescribed period for implementing the directive expired on 23 November 2003.

---

(1)  OJ L 324 of 29.11.2002, p. 53.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/18 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/18

---

Action brought on 9 February 2005 by the Commission of the European Communities against the French Republic

(Case C-57/05)

(2005/C 82/38)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities, represented by J.-P. Keppenne, acting as Agent, with an address for service in Luxembourg.

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

| 1. | declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (1) or, in any event, by not informing the Commission thereof, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (1) or, in any event, by not informing the Commission thereof, the French Republic has failed to fulfil its obligations under that directive;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directive into national law expired on 31 July 2003.

---

(1)  OJ 2002 L 183, p. 51.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/19 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/19

---

Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) by order of that court of 2 December 2004 in the case of Siemens AG v VIPA Gesellschaft für Visualisierung und Prozeßautomatisierung mbH

(Case C-59/05)

(2005/C 82/39)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof (Federal Court of Justice) (Germany) of 2 December 2004, received at the Court Registry on 10 February 2005, for a preliminary ruling in the proceedings between Siemens AG and VIPA Gesellschaft für Visualisierung und Prozeßautomatisierung mbH on the following questions concerning the interpretation of Article 3a(1)(g) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (1), as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 (2):

| 1. | Is the reputation of an ‘other distinguishing mark’ within the meaning of Article 3a(1)(g) of Directive 84/450/EEC taken advantage of unfairly where an advertiser adopts in identical form the core elements of a distinguishing mark which is known in trade circles (in this case, a system of order numbers) of a competitor, and refers to those identical elements in advertising? |
| --- | --- |

1.

Is the reputation of an ‘other distinguishing mark’ within the meaning of Article 3a(1)(g) of Directive 84/450/EEC taken advantage of unfairly where an advertiser adopts in identical form the core elements of a distinguishing mark which is known in trade circles (in this case, a system of order numbers) of a competitor, and refers to those identical elements in advertising?

| 2. | In determining whether unfair advantage is taken of a reputation for the purposes of Article 3(1)(g) of Directive 84/450/EC, is the benefit to the advertiser and the consumer procured by the adoption of the identical system a relevant factor? |
| --- | --- |

2.

In determining whether unfair advantage is taken of a reputation for the purposes of Article 3(1)(g) of Directive 84/450/EC, is the benefit to the advertiser and the consumer procured by the adoption of the identical system a relevant factor?

---

(1)  OJ 1984 L 250, p. 17.

(2)  OJ 1997 L 290, p. 18.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/19 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/19

---

Action brought on 10 February 2005 by the Commission of the European Communities against the Portuguese Republic

(Case C-61/05)

(2005/C 82/40)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 10 February 2005 by the Commission of the European Communities, represented by P.Andrade and W.Wils, acting as Agents, with an address for service in Luxembourg.

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

| — | declare that the Portuguese Republic, by creating in Portuguese law a rental right in favour of producers of videograms, has failed to fulfil its obligations under Council Directive 92/100/EEC (1) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, and in particular under Article 2(1) thereof; |
| --- | --- |

—

declare that the Portuguese Republic, by creating in Portuguese law a rental right in favour of producers of videograms, has failed to fulfil its obligations under Council Directive 92/100/EEC (1) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, and in particular under Article 2(1) thereof;

| — | declare that the Portuguese Republic, by creating in Portuguese law some doubt as to who is responsible for paying the remuneration owed to artists on termination of the rental right, has failed to fulfil its obligations under Directive 92/100/EEC, in particular under Article 4 in conjunction with Article 2(5) and (7) thereof; |
| --- | --- |

—

declare that the Portuguese Republic, by creating in Portuguese law some doubt as to who is responsible for paying the remuneration owed to artists on termination of the rental right, has failed to fulfil its obligations under Directive 92/100/EEC, in particular under Article 4 in conjunction with Article 2(5) and (7) thereof;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that by failing to an grant exclusive rental right to the producer of the first fixation of a film, the Portuguese State is in breach of Directive 92/100 since it transposed the provisions of Article 2(1) of the directive incorrectly.

Moreover, the use of the term ‘producer’ in the Portuguese legislation creates confusion as to who must pay the artists the remuneration to which they are entitled, constituting an incorrect transposition of the directive, in particular of Article 2(5) and (7) in conjunction with Article 4 thereof.

---

(1)  OJ 1992 L 346, p. 61.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/20 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/20

---

Appeal brought on 11 February 2005 by Nordspedizionieri di Danielis Livio & C. in liquidation against the judgment delivered on 14 December 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-332/02 between Nordspedizionieri and Others and the Commission of the European Communities

(Case C-62/05 P)

(2005/C 82/41)

Language of the case: Italian

An appeal against the judgment delivered on 14 December 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-332/02 between Nordspedizionieri and Others and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 11 February 2005 by Nordspedizionieri and Others, represented by G. Leone, lawyer.

The appellant claims that the Court should:

| 1 – | Annul the contested decision of the Commission of the European Communities of 28 June 2002 (file REM 1401), notified on 2 September 2002, by which it found the remission of import duties to be unjustified, and declare on the contrary that in the present case the remission is justified pursuant to Article 13(1) of Regulation (EEC) No 1430/79 (1) on the basis of special circumstances in which no negligence or deception may be attributed to the appellants; |
| --- | --- |

1 –

Annul the contested decision of the Commission of the European Communities of 28 June 2002 (file REM 1401), notified on 2 September 2002, by which it found the remission of import duties to be unjustified, and declare on the contrary that in the present case the remission is justified pursuant to Article 13(1) of Regulation (EEC) No 1430/79 (1) on the basis of special circumstances in which no negligence or deception may be attributed to the appellants;

| 2 – | Order the Commission to pay the costs at first instance and on appeal. |
| --- | --- |

2 –

Order the Commission to pay the costs at first instance and on appeal.

Pleas in law and main arguments:

The appellants, who are customs agents, issued in October 1992 two T1 Community transit declarations that loads originating in Yugoslavia and destined for Spain contained cardboard boxes. The Italian customs authorities requested the appellants to pay the customs duties chargeable on the two loads in question declaring that the loads did not contain boxes but cigarettes.

The appellants brought legal proceedings, which they lost, and then applied to the Commission for remission of the customs duties, which it refused, holding that the appellants did not satisfy the prescribed requirements.

The appellants therefore brought an action before the Court of First Instance of the European Communities based on Article 13 of Regulation (EEC) No 1430/79, submitting that they could not be liable for the customs duties because in this case there are ‘special circumstances’ exempting Nordspedizionieri from the obligation to pay those duties. They claim that they were entitled to rely on the documents (commercial and transport) presented to them by the driver of the lorry at the time of the customs declaration, from which it appeared that the loads were of cardboard boxes.

The special situation permitting remission arises from the fact that the customs agent is unable to inspect the contents of lorries which ‘legitimately’ cross the border between Italy and Yugoslavia and moreover that, in the present case, the documentation appeared to be in order so that the loads cleared customs under the ‘fast track’ customs procedure.

The applicants further point to the fulfilment in the present case of the other requirement of Article 13 that there be no ‘negligence’ or ‘deception’, in that the T1 declaration was drawn up on the basis of the information given in the commercial and transport documentation.

Lastly, in the application to the Court of First Instance, the appellants pleaded in the alternative the application of Article 8(1)(b) of Regulation EEC No 2144/87 (2), which excludes the payment of customs duties on those goods which were seized and then confiscated.

By judgment of 14 December 2004, the Fifth Chamber of the Court of First Instance dismissed the action in its entirety, holding that there were no ‘special circumstances’, and therefore leaving aside the question whether or not in the present case there was no ‘negligence or deception’.

The appeal restates the same arguments advanced at first instance, including the fact that in the present case there appears to have been an infringement of the 1965 Belgrade Agreement on mutual administrative assistance between Italy and Yugoslavia, which obliges the Yugoslav customs authorities to notify the Italian customs authorities of the transit of fiscally sensitive goods (such as cigarettes) with reference to the two lorries in question; a third lorry was stopped and the goods seized thanks to the warning received (albeit late) by the Italian customs from their Yugoslav counterparts.

---

(1)  OJ 1979 L 175 of 12.07.1979, p. 1.

(2)  OJ 1987 L 201 of 22.07.1987, p. 15.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/21 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/21

---

Action brought on 3 February 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-63/05)

(2005/C 82/42)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 3 February 2005 by the Commission of the European Communities, represented by Minas Konstantinidis, of the Commission's Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/3/EC of the European Parliament and of the Council of 12 February 2002 relating to ozone in ambient air (OJ L 67 of 9.3.2002, p. 14) and, in any event, by failing to inform the Commission of such measures, the Hellenic Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/3/EC of the European Parliament and of the Council of 12 February 2002 relating to ozone in ambient air (OJ L 67 of 9.3.2002, p. 14) and, in any event, by failing to inform the Commission of such measures, the Hellenic Republic has failed to fulfil its obligations under that directive.

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 9 September 2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/21 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/21

---

Action brought on 10 February 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-65/05)

(2005/C 82/43)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 10 February 2005 by the Commission of the European Communities, represented by Maria Patakia, Legal Adviser in the Commission's Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare that, by prohibiting, in Article 2(1), Article 3, second part, Article 4 and Article 5 of Law 3037/2002, the installation and operation of all electrical, electronic and electromechanical games, including recreational games of skill and all games for electronic computers, on all public or private premises apart from casinos, the Hellenic Republic is failing to fulfil its obligations under Articles 28, 43 and 49 of the EC Treaty and Article 8 of Directive 98/34 EC. |
| --- | --- |

—

declare that, by prohibiting, in Article 2(1), Article 3, second part, Article 4 and Article 5 of Law 3037/2002, the installation and operation of all electrical, electronic and electromechanical games, including recreational games of skill and all games for electronic computers, on all public or private premises apart from casinos, the Hellenic Republic is failing to fulfil its obligations under Articles 28, 43 and 49 of the EC Treaty and Article 8 of Directive 98/34 EC.

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

—

order the Hellenic Republic to pay the costs

Pleas in law and main arguments

The Commission has objected to the legislative prohibition on installing and operating all electrical, electronic and electromechanical games, including recreational games of skill and all games for electronic computers, on all public or private premises apart from casinos.

In the light of the case-law of the Court of Justice, the Commission considers that the above prohibition constitutes a measure restricting the free movement of goods, freedom of establishment and freedom to provide services. The Commission also points out that the Law in question was not notified to it when it was being drafted, in infringement of Article 8(1) of Directive 98/34/EC (1) of the European Parliament and of the Council of 22 June 1998 which provides for a procedure for provision of information in the field of technical standards and regulations and for rules concerning the services of the information society.

The Commission also considers that the grounds cited of protecting public order and in particular the concern that recreational machines should not be converted into games of chance, with the consequence of creating a social problem, do not constitute sufficient reasons for laying down the prohibitive measures in issue, since the purpose cited could be achieved by measures that were more appropriate and proportionate and less restrictive of the above freedoms.

In addition, according to the Commission, the need cited by the Greek authorities for laying down the measures as a matter of urgency does not justify the failure to inform the Commission, since Directive 98/34 provides for an accelerated procedure.

The Commission therefore considers that the Hellenic Republic is in infringement of its obligations under Articles 28, 43 and 49 of the EC Treaty and Article 8 of Directive 98/34/EC.

---

(1)  OJ L 204 of 21.07.98, p. 37.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/22 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/22

---

Action brought on 11 February 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-67/05)

(2005/C 82/44)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 11 February 2005 by the Commission of the European Communities, represented by Ulrich Wölker and Sara Pardo Quintillian, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to give effect to Directive 2000/60/EC of the European Parliament and the Council (1) of 23 October 2000 establishing a framework for Community action in the field of water policy, or to inform the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to give effect to Directive 2000/60/EC of the European Parliament and the Council (1) of 23 October 2000 establishing a framework for Community action in the field of water policy, or to inform the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

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

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2000/60/EC expired on 22 December 2003.

---

(1)  OJ 2000 L 327, p. 1.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/22 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/22

---

Appeal brought on 11 February 2005 by Koninklijke Coöperatie Cosun U.A. against the judgment delivered on 7 December 2004 by the Court of First Instance (Fifth Chamber) in Case T-240/02 Koninklijke Coöperatie Cosun U.A.v Commission of the European Communities

(Case C-68/05 P)

(2005/C 82/45)

Language of the case: Dutch

An appeal against the judgment delivered on 7 December 2004 by the Court of First Instance (Fifth Chamber) in Case T-240/02, Koninklijke Coöperatie Cosun U.A. v Commission of the European Communities, was brought before the Court of Justice of the European Communities on 11 February 2005 by Koninklijke Coöperatie Cosun U.A., represented by M. Slotboom and N.J. Helder, advocates.

The appellant claims that the Court should:

| — | Annul the contested judgment; |
| --- | --- |

—

Annul the contested judgment;

| — | Determine the dispute itself by setting aside the contested decision; |
| --- | --- |

—

Determine the dispute itself by setting aside the contested decision;

| — | In the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

—

In the alternative, refer the case back to the Court of First Instance;

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

Pleas in law and main arguments

First plea

Infringement of Community law by virtue of the fact that the Court of First Instance held that the levy on non-exported C-sugar is not an import or export duty for the purposes of Article 13 of Regulation No 1430/79.

Second alternative plea

The Court of First Instance disregarded the fact that the levy on non-exported C-sugar must indeed be treated as an import duty for the purposes of Regulation No 1430/79.

That plea is subdivided into the following limbs:

| A. | The Court of First Instance disregarded the fact that the levy on non-exported C-sugar must be regarded as a customs duty because it pursues the same objective as a customs duty. |
| --- | --- |

A.

The Court of First Instance disregarded the fact that the levy on non-exported C-sugar must be regarded as a customs duty because it pursues the same objective as a customs duty.

| B. | The Court of First Instance disregarded the fact that the manner of establishing the level of the levy on non-exported C-sugar indicates that the levy must be regarded as a customs duty. |
| --- | --- |

B.

The Court of First Instance disregarded the fact that the manner of establishing the level of the levy on non-exported C-sugar indicates that the levy must be regarded as a customs duty.

| C. | The Court of First Instance disregarded the fact that the manner of establishing the amount to be levied on non-exported C-sugar indicates that the levy must be regarded as a customs duty. |
| --- | --- |

C.

The Court of First Instance disregarded the fact that the manner of establishing the amount to be levied on non-exported C-sugar indicates that the levy must be regarded as a customs duty.

Third alternative plea

In dealing with the second and third pleas put forward in the alternative by Cosun in its application, the Court of First Instance acted in breach of Community law.

That plea may be subdivided as follows:

| A. | In dealing with the second and third pleas put forward in the alternative by Cosun in its application, the Court of First Instance exceeded the bounds of the dispute. |
| --- | --- |

A.

In dealing with the second and third pleas put forward in the alternative by Cosun in its application, the Court of First Instance exceeded the bounds of the dispute.

| B. | The Court of First Instance unlawfully failed to deal with the third plea put forward by Cosun in its application. |
| --- | --- |

B.

The Court of First Instance unlawfully failed to deal with the third plea put forward by Cosun in its application.

Fourth alternative plea

Infringement of the principles of equal treatment, legal certainty and proportionality.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/23 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/23

---

Action brought on 14 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-70/05)

(2005/C 82/46)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 14 February 2005 by the Commission of the European Communities, represented by Denis Martin, of its Legal Service.

The Commission claims that the Court should:

| 1. | Declare that by not having adopted the laws, regulations and administrative measures necessary to comply with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declare that by not having adopted the laws, regulations and administrative measures necessary to comply with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into domestic law expired on 2 December 2003.

---

(1)  OJ L 303 of 2 December 2000, p. 16.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/23 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/23

---

Action brought on 14 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-71/05)

(2005/C 82/47)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 14 February 2005 by the Commission of the European Communities, represented by Mikko Huttunen, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to adopt, and in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports, (1) the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt, and in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports, (1) the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 28 September 2003.

---

(1)  OJ No L 85, 28.3.2002, p. 40.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/24 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/24

---

Action brought on 15 February 2005 by the Commission of the European Communities against the French Republic

(Case C-73/05)

(2005/C 82/48)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 15 February 2005 by the Commission of the European Communities, represented by Nicola Yerrell, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

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

1.

Declare that by having failed to adopt all the laws, regulations and administrative measures necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive, (1) and/or by having failed to communicate them to the Commission, the French Republic has failed to fulfil its obligations under the EC Treaty;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into domestic law expired on 1 August 2003.

---

(1)  OJ L 195 of 1 August 2000, p. 41.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/24 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/24

---

Action brought on 15 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-74/05)

(2005/C 82/49)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 15 February 2005 by the Commission of the European Communities, represented by Nicola Yerrell, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (1) or ensuring that management and labour introduced the necessary measures by agreement and/or by not notifying the Commission of those provisions or measures, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EC Treaty; |
| --- | --- |

1.

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (1) or ensuring that management and labour introduced the necessary measures by agreement and/or by not notifying the Commission of those provisions or measures, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EC Treaty;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 1 December 2003.

---

(1)  OJ No L 302, 1.12.2000, p. 57.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/25 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/25

---

Action brought on 17 February 2005 by the United Kingdom of Great Britain and Northern Ireland against the Council of the European Union

(Case C-77/05)

(2005/C 82/50)

Language of the case: English

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 17 February 2005 by the United Kingdom of Great Britain and Northern Ireland, represented by Elizabeth O'Neill, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | annul Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (1); |
| --- | --- |

1.

annul Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (1);

| 2. | determine, pursuant to Article 233 EC, that, following the annulment of the Border Agency Regulation, and pending the adoption of new legislation in this matter, the provisions of the Border Agency Regulation should remain effective, except in so far as they have the effect of excluding the United Kingdom from participating in the application of the Border Agency Regulation; |
| --- | --- |

2.

determine, pursuant to Article 233 EC, that, following the annulment of the Border Agency Regulation, and pending the adoption of new legislation in this matter, the provisions of the Border Agency Regulation should remain effective, except in so far as they have the effect of excluding the United Kingdom from participating in the application of the Border Agency Regulation;

| 3. | order the Council to pay the costs of the proceedings. |
| --- | --- |

3.

order the Council to pay the costs of the proceedings.

Pleas in law and main arguments:

The United Kingdom was denied the right to take part in the adoption of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (
  the Border Agency Regulation
  ), despite having given notice of its wish to do so pursuant to Article 5(1) of the Protocol integrating the Schengen acquis into the framework of the European Union (
  the Schengen Protocol
  ) and to Article 3(1) of the Protocol on the position of the United Kingdom and Ireland. The annulment of the Border Agency Regulation is sought on the grounds that the exclusion of the United Kingdom from its adoption entails the infringement of an essential procedural requirement and/or the infringement of the Treaty, within the meaning of Article 230, second paragraph, EC.

The main contention of the United Kingdom is that, in so excluding it from the adoption of the Border Agency Regulation, the Council acted on the basis of an erroneous interpretation of the relationship between Article 5 and Article 4 of the Schengen Protocol. It is contended more particularly as follows:

| (a) | The Council's interpretation, according to which the right of participation conferred by Article 5 of the Schengen Protocol applies only to measures building on provisions of the Schengen acquis in which the United Kingdom particpates pursuant to a Council decision adopted on the basis of Article 4, is contradicted by the structure and language of those Articles, by the very nature of the Article 5 mechanism, and by the Declaration on Article 5 that was annexed to the Final Act of the Treaty of Amsterdam. |
| --- | --- |

(a)

The Council's interpretation, according to which the right of participation conferred by Article 5 of the Schengen Protocol applies only to measures building on provisions of the Schengen acquis in which the United Kingdom particpates pursuant to a Council decision adopted on the basis of Article 4, is contradicted by the structure and language of those Articles, by the very nature of the Article 5 mechanism, and by the Declaration on Article 5 that was annexed to the Final Act of the Treaty of Amsterdam.

| (b) | The Council's interpretation of the Schengen Protocol is not required to enable the ‘without prejudice’ rule in Article 7 of the Protocol on the Position of the United Kingdom and Ireland to have useful effect. Nor is such an intepretation required to preserve the integrity of the Schengen acquis. Indeed, as a means of safeguarding the acquis, its adverse impact on the United Kingdom would be grossly disproportionate. |
| --- | --- |

(b)

The Council's interpretation of the Schengen Protocol is not required to enable the ‘without prejudice’ rule in Article 7 of the Protocol on the Position of the United Kingdom and Ireland to have useful effect. Nor is such an intepretation required to preserve the integrity of the Schengen acquis. Indeed, as a means of safeguarding the acquis, its adverse impact on the United Kingdom would be grossly disproportionate.

| (c) | Given the broad and loose conception of measures building on the Schengen acquis which the Council employs in its practice, the mechanism of Article 5 of the Schengen Protocol, as interpreted by the Council, would be liable to function in a way that violates the principle of legal certainty and the fundamental principles governing enhanced cooperation. |
| --- | --- |

(c)

Given the broad and loose conception of measures building on the Schengen acquis which the Council employs in its practice, the mechanism of Article 5 of the Schengen Protocol, as interpreted by the Council, would be liable to function in a way that violates the principle of legal certainty and the fundamental principles governing enhanced cooperation.

In the alternative, the United Kingdom contends that, if the Council's interpretation of the relationship between Article 5 and Article 4 of the Schengen Protocol were correct, this would necessarily entail taking a narrow view of the notion of a measure that builds upon the Schengen acquis within the meaning of Article 5, as a measure inextricably connected with the acquis; and the Border Agency Regulation is not such a measure.

---

(1)  OJ L 349, p. 1.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/25 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/25

---

Reference for a preliminary ruling from the Amtsgericht Freiburg by order of that court of 14 January 2005 in the case of Bernd Voigt v Regierungspräsidium Karlsruhe–Bretten

(Case C-83/05)

(2005/C 82/51)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Amtsgericht Freiburg (Freiburg Regional Court) (Germany) of 14 January 2005, received at the Court Registry on 18 February 2005, for a preliminary ruling in the proceedings between Bernd Voigt and Regierungspräsidium Karlsruhe–Bretten on the following questions:

| 1. | Is Directive 70/156/EEC on type-approval, (1) as amended by Council Directive 92/53/EEC of 18 June 1992, (2) implemented in German law in the EG-TypV (Verordnung über die EG-Typgenehmigung für Fahrzeuge und Fahrzeugteile (Regulation on EC type-approval of vehicles and vehicle components) of 9 December 1994, most recently amended on 7 February 2004), to be interpreted as meaning that the driver of a motor vehicle whose vehicle has been registered as a passenger car in accordance with a vehicle authorisation based on EC type-approval is also entitled to use that vehicle, as an authorised vehicle type, on the public highway, and in particular is the driver of such a motor vehicle also subject only to the speed requirements applicable to passenger cars? |
| --- | --- |

1.

Is Directive 70/156/EEC on type-approval, (1) as amended by Council Directive 92/53/EEC of 18 June 1992, (2) implemented in German law in the EG-TypV (Verordnung über die EG-Typgenehmigung für Fahrzeuge und Fahrzeugteile (Regulation on EC type-approval of vehicles and vehicle components) of 9 December 1994, most recently amended on 7 February 2004), to be interpreted as meaning that the driver of a motor vehicle whose vehicle has been registered as a passenger car in accordance with a vehicle authorisation based on EC type-approval is also entitled to use that vehicle, as an authorised vehicle type, on the public highway, and in particular is the driver of such a motor vehicle also subject only to the speed requirements applicable to passenger cars?

| 2. | May the authorities responsible for prosecuting road traffic offences declare that the vehicle authorisations in accordance with EC type-approval issued by the Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles) and the registrations issued by the German registration authorities based on these EC type-approvals are not decisive when establishing the speed requirements to be complied with by the driver of such a vehicle type? |
| --- | --- |

2.

May the authorities responsible for prosecuting road traffic offences declare that the vehicle authorisations in accordance with EC type-approval issued by the Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles) and the registrations issued by the German registration authorities based on these EC type-approvals are not decisive when establishing the speed requirements to be complied with by the driver of such a vehicle type?

---

(1)  Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (OJ, English Special Edition 1970 (I), p. 96).

(2)  Council Directive 92/53/EEC of 18 June 1992 amending Directive 70/156/EEC (OJ 1992 L 225, p. 1).

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/26 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/26

---

Action brought on 18 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-90/05)

(2005/C 82/52)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 18 February 2005 by the Commission of the European Communities, represented by Dimitris Triantafyllou, acting as Agent, with an address for service in Luxembourg.

The Commission of the European Communities

Having put the Grand Duchy of Luxembourg on notice to submit its observations and having issued a reasoned opinion on 7 July 2004 and regard being had to the reply of the government of the Grand Duchy of Luxembourg, registered at the Secretariat General on 13 October 2004,

Claims that the Court should:

| 1. | declare that, by not observing the six-month period for refunds of VAT to taxable persons established within the country, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7(4) of Eighth Council Directive 79/1072/EEC of 6 December 1979, (1) |
| --- | --- |

1.

declare that, by not observing the six-month period for refunds of VAT to taxable persons established within the country, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7(4) of Eighth Council Directive 79/1072/EEC of 6 December 1979, (1)

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

2.

order the defendant to pay the costs.

Pleas in law and main arguments

The Grand Duchy of Luxembourg, whilst having correctly transposed the directive into national law, is not in practice observing the six-month period provided for in Article 7(4) for the refund of VAT to taxable persons not established within the country. In fact refunds made by the Luxembourg authorities are systematically paid with considerable delays. Moreover, Luxembourg legislation does not provide for interest on late payment to offset damage suffered as a result of those delays.

---

(1)  Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/26 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/26

---

Action brought on 21 February 2005 by the Commission of the European Communities against the French Republic

(Case C-92/05)

(2005/C 82/53)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 21 February 2005 by the Commission of the European Communities, represented by Bruno Stromsky and Bernhard Schima, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/32/EC of 23 April 2003 introducing detailed specifications as regards the requirements laid down in Council Directive 93/42/EEC with respect to medical devices manufactured utilising tissues of animal origin, (1) the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/32/EC of 23 April 2003 introducing detailed specifications as regards the requirements laid down in Council Directive 93/42/EEC with respect to medical devices manufactured utilising tissues of animal origin, (1) the French Republic has failed to fulfil its obligations under that directive;

| 2. | in the alternative, declare that by failing to notify the Commission of those provisions, the French Republic has failed to fulfil its obligations under Directive 2003/32/EC; |
| --- | --- |

2.

in the alternative, declare that by failing to notify the Commission of those provisions, the French Republic has failed to fulfil its obligations under Directive 2003/32/EC;

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

3.

order the French Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 1 January 2004.

---

(1)  OJ No L 105, 26.04.2003, p. 18.

---

COURT OF FIRST INSTANCE

| 2.4.2005 | EN | Official Journal of the European Union | C 82/28 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/28

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 26 January 2005

in Case T-193/02: Laurent Piau v Commission of the European Communities (1)

(Fédération internationale de football association (FIFA) Players' agents regulation - Decision of an association of undertakings - Articles 49 EC, 81 EC and 82 EC - Complaint - Lack of Community interest - Rejection)

(2005/C 82/54)

Language of the case: French

In Case T-193/02: Laurent Piau, residing in Nantes (France), represented by M. Fauconnet, lawyer, against Commission of the European Communities (Agent: O. Beynet and A. Bouquet with an address for service in Luxembourg), supported by Fédération internationale de football association (FIFA), established in Zurich (Switzerland), represented by F. Louis and A. Vallery, lawyers — application for annulment of the Commission decision of 15 April 2002 rejecting the applicant's complaint concerning the Fédération internationale de football association (FIFA) Players' agents regulation — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 26 January 2005, 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.

| 3. | Orders the Fédération internationale de football association to bear its own costs. |
| --- | --- |

3.

Orders the Fédération internationale de football association to bear its own costs.

---

(1)  OJ C 219 of 14.09.2002.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/28 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/28

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 26 January 2005

in Case T-267/03 Anna Maria Roccato v the Commission of the European Communities (1)

(Officials - Internal competition - Non-admission to oral test - Selection Board's discretion - Scope of judicial review)

(2005/C 82/55)

Language of the case: French

In Case T-267/03: Anna Maria Roccato a former official of the Commission of the European Communities, residing in Bruxelles (Belgium), represented by G. Vandersanden and L. Levi, lawyers, against the Commission of the European Communities (Agents: H. Tserepa-Lacombe and F. Clotuche-Duvieusart, with an address for service in Luxembourg) – application for annulment of the decision of the Selection Board in competition COM/PB/99 of 24 January 2003 and claim for damages – the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and V. Vadapalas, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 26 January 2005, in which it:

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

1.

Dismisses the application.

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

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 239 of 4.10.2003.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/29 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/29

---

Action brought on 20 December 2004 by U.S. Steel Košice s.r.o. against the Commission of the European Communities

(Case T-489/04)

(2005/C 82/56)

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 20 December 2004 by U.S. Steel Košice, Košice, Slovak Republic, represented by D. Hueting, Barrister, C. Thomas Solicitor and E. Vermulst, lawyer.

The applicant claims that the Court should:

| — | annul the Commission Decision of 20 October 2004 concerning the national allowances for the allocation of greenhouse gas allowances notified by the Slovak Republic in accordance with Directive 2003/87/EC of the European Parliament and Council; |
| --- | --- |

—

annul the Commission Decision of 20 October 2004 concerning the national allowances for the allocation of greenhouse gas allowances notified by the Slovak Republic in accordance with Directive 2003/87/EC of the European Parliament and Council;

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

—

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant is a Slovak company, the only steel producer in that country. By its application it seeks the annulment of the Commission's Decision of 20 October 2004 concerning the national allowances for the allocation of greenhouse gas allowances notified by the Slovak Republic in accordance with Directive 2003/87 (1).

In support of its application the applicant first of all submits that the contested decision infringes Article 9 paragraph 3 of Directive 2003/87 in that it purports to approve a national allocation plan where the total amount of allowances approved is lower than the aggregate of the individual allocations and reserves listed in the plan. The applicant further alleges that the contested decision infringes criteria 1 and 2 of Annex III to Directive 2003/87 in that it limits the allocation of allowances by the Slovak Republic to a level substantially lower than the amount originally notified, which was consistent with the Slovak Republic's commitments under the Kyoto Protocol. The applicant also invokes a misuse of the Commission's powers in that the contested decision allegedly intends to achieve a scarcity of allowances, an objective different to those stated in Directive 2003/87 and that, further, it was based on non-transparent bilateral negotiations which Directive 2003/87 does not allow. The applicant contends further that the contested decision violates the principle of non-discrimination in that the Commission improperly treated the Slovak Republic differently from Germany and the first eight Member States whose allocation plans were received and that, in other respects, improperly failed to treat the Slovak Republic differently from Latvia and Estonia. According to the applicant, the contested decision also infringes the principle of proportionality in that, firstly, it purports to approve a plan where the total amount of allowances proposed by Slovakia is reduced beyond what is appropriate and necessary, and secondly, the Commission failed to evaluate the effects that the decrease in total allocation would have on individual installations. Finally, the applicant contends that the contested decision fails to provide a meaningful or adequate statement of reasons.

---

(1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, Official Journal L 275, 25/10/2003, p. 32.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/29 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/29

---

Action brought on 21 December 2004 by Merant GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-491/04)

(2005/C 82/57)

Language in which the application was drafted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 21 December 2004 by Merant GmbH, Ismaning (Germany), represented by A. Schulz, Rechtsanwalt.

Focus Magazin Verlag GmbH, Munich (Germany) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2004 in Case R-542/2002-2; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2004 in Case R-542/2002-2;

| — | reinstate the decision of the Opposition Division of 29 April 2002 (Decision No 1198/2002), namely to reject Community trade mark application No 453 720 for the following goods and services:






  — | ‘Machine readable data carriers of all types equipped with information, and software, in particular digital and analog data carriers containing, for example, cultural, scientific, industrial or technical information; programmed floppy disks, CD-ROM video cassettes, compact discs, chip discs; magnetic data carriers in Class 9; |
| --- | --- | --- |

—

reinstate the decision of the Opposition Division of 29 April 2002 (Decision No 1198/2002), namely to reject Community trade mark application No 453 720 for the following goods and services:

—

‘Machine readable data carriers of all types equipped with information, and software, in particular digital and analog data carriers containing, for example, cultural, scientific, industrial or technical information; programmed floppy disks, CD-ROM video cassettes, compact discs, chip discs; magnetic data carriers in Class 9;

| — | Publications, newspapers and periodicals, books, posters, calendars, photographs; typewriter and office requisites, namely non-electric office equipment, writing implements, ball-point pens, fountain pens, teaching and instructional material, including in the form of models and display boards in Class 16; |
| --- | --- |

—

Publications, newspapers and periodicals, books, posters, calendars, photographs; typewriter and office requisites, namely non-electric office equipment, writing implements, ball-point pens, fountain pens, teaching and instructional material, including in the form of models and display boards in Class 16;

| — | Publication of digital and analog data carriers containing, for example, cultural, scientific, sports, industrial or technical information in Class 41 and up-dating services, including for CD ROMs; editor's services in Class 42.’; |
| --- | --- |

—

Publication of digital and analog data carriers containing, for example, cultural, scientific, sports, industrial or technical information in Class 41 and up-dating services, including for CD ROMs; editor's services in Class 42.’;

| — | 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: | Focus Magazin Verlag GmbH |
| --- | --- |
| Community trade mark sought: | Word mark 'FOCUS' for goods and services in Classes 3, 6, 7, 8, 9, 14, 15, 16, 20, 21, 24, 25, 26, 28, 29, 32, 33, 35, 36, 38, 39, 41, 42 – application No 453 720. |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant. |
| Mark or sign cited in opposition: | The international figurative mark 'MICRO FOCUS' for goods and services in Classes 9, 16, 41 and 42. |
| Decision of the Opposition Division: | Opposition allowed in part. |
| Decision of the Board of Appeal: | Appeal brought by Focus Magazin Verlag GmbH allowed and applicant's opposition rejected. |
| Pleas in law: | Article 8(1)(b) of Regulation (EC) No 40/94 has been misapplied. There is a likelihood of confusion between the conflicting marks. The later mark applied for has adopted an element of the earlier mark identically and the goods and services covered by the marks are partly identical and partly extremely similar. |

Applicant for Community trade mark:

Focus Magazin Verlag GmbH

Community trade mark sought:

Word mark 'FOCUS' for goods and services in Classes 3, 6, 7, 8, 9, 14, 15, 16, 20, 21, 24, 25, 26, 28, 29, 32, 33, 35, 36, 38, 39, 41, 42 – application No 453 720.

Proprietor of mark or sign cited in the opposition proceedings:

The applicant.

Mark or sign cited in opposition:

The international figurative mark 'MICRO FOCUS' for goods and services in Classes 9, 16, 41 and 42.

Decision of the Opposition Division:

Opposition allowed in part.

Decision of the Board of Appeal:

Appeal brought by Focus Magazin Verlag GmbH allowed and applicant's opposition rejected.

Pleas in law:

Article 8(1)(b) of Regulation (EC) No 40/94 has been misapplied. There is a likelihood of confusion between the conflicting marks. The later mark applied for has adopted an element of the earlier mark identically and the goods and services covered by the marks are partly identical and partly extremely similar.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/30 |
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2.4.2005

EN

Official Journal of the European Union

C 82/30

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Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities

(Case T-492/04)

(2005/C 82/58)

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 23 December 2004 by Jungbunzlauer AG, Basel (Switzerland), Jungbunzlauer Ladenburg GmbH, Ladenburg (Germany), Jungbunzlauer Holding AG, Chur (Switzerland) and Jungbunzlauer Austria AG, Vienna, represented by R. Bechtold, M. Karl, U. Soltész and C. Steinle, lawyers.

The applicants claim that the Court should:

| 1. | annul in its entirety the Commission's decision of 29 September 2004 (Case COMP/E-1/36.756 – Sodium gluconate);
  alternatively, annul the decision in regard to individual addressees,
  alternatively, reduce the fine imposed in the decision; |
| --- | --- |

1.

annul in its entirety the Commission's decision of 29 September 2004 (Case COMP/E-1/36.756 – Sodium gluconate);

alternatively, annul the decision in regard to individual addressees,

alternatively, reduce the fine imposed in the decision;

| 2. | order the Commission to pay the applicants' costs; |
| --- | --- |

2.

order the Commission to pay the applicants' costs;

| 3. | obtain and refer to the documents in case T-312/01 and adopt any other procedural measures which the Court considers appropriate. |
| --- | --- |

3.

obtain and refer to the documents in case T-312/01 and adopt any other procedural measures which the Court considers appropriate.

Pleas in law and main arguments

By the contested decision, the Commission found that the applicants had participated in a continuous agreement and/or concerted practice in the sodium gluconate sector and had thereby infringed Article 81(1) EC and Article 53 of the EEA Agreement. As a result, fines were imposed on those undertakings.

The applicants are contesting that decision and submit that it was only Jungbunzlauer Ladenburg GmbH which was responsible for the infringement. Jungbunzlauer Austria AG and Jungbunzlauer AG did not at any time participate in the infringement and had no influence on the market behaviour or company policies of Jungbunzlauer Ladenburg GmbH. Nor, in the applicants' submission, were they liable by virtue of their association with Jungbunzlauer Ladenburg GmbH from the point of view of company law, or by virtue of their membership of the Jungbunzlauer group. Jungbunzlauer Holding AG was merely a holding company without any decisive influence on the production volume and pricing policies and thereby on the behaviour of Jungbunzlauer Ladenburg GmbH in the sodium gluconate market.

Even if Jungbunzlauer Austria AG, Jungbunzlauer AG and Jungbunzlauer Holding AG had been responsible for the infringement, which, according to the applicants, is not the case, the Commission's power to impose fines on those companies had already been lost through lapse of time.

Furthermore, the applicants claim that, in so far as the decision is addressed to Jungbunzlauer Ladenburg AG, it is defective in form and substance, because the Commission was in breach of a number of rules and principles. Among other, the Commission infringed the principles of presumed innocence and good administration by carrying out a second administrative procedure while the court proceedings relating to a decision of 2 October 2001 concerning the same cartel were still pending. By its ‘second’ decision of 29 September 2004, the Commission also infringed the principle of legitimate expectation and the principle of ne bis indem. Moreover, the length of the proceedings was unreasonable.

With regard to the fine imposed, the applicants assert, among other, that the fine is disproportionately high and exceeds the upper limit of fines, that the Commission is mistaken in its assumption of duration, that Jungbunzlauer Ladenburg GmbH is not the ringleader and that there are extenuating circumstances due to the excessive length of the proceedings.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/31 |
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2.4.2005

EN

Official Journal of the European Union

C 82/31

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Action brought on 24 December 2004 by Commission of the European Communities against IIC Informations-Industrie Consulting GmbH

(Case T-500/04)

(2005/C 82/59)

Language of the case: German

An action against IIC Informations-Industrie Consulting GmbH, Königswinter (Germany), was brought before the Court of First Instance of the European Communities on 24 December 2004 by the Commission of the European Communities, represented by G. Braun, W. Wils and N. Knittlmayer, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | order the defendant to pay to the applicant EUR 181 236,61 together with interest at 4 % as from 1 November 1998; |
| --- | --- |

1.

order the defendant to pay to the applicant EUR 181 236,61 together with interest at 4 % as from 1 November 1998;

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

2.

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In 1996 the applicant concluded with the defendant two contracts in which the applicant undertook to grant the defendant financial aid for the implementation of two trans European cultural projects. The financial aid was intended to cover 50 % of the defendant's project costs in so far as those costs were incurred and claimed in a contractually permissible manner. In 1997, on the basis of those contracts, the defendant received a sum totalling DM 400 821 (EUR 204 936,52) as an advance payment of the total financial aid.

Following completion of the projects, the defendant claimed from the applicant purported project costs, the amount of which it intended to deduct from the financial aid paid in advance. However, the applicant carried out a check and came to the conclusion that the defendant was entitled only to financial aid totalling DM 46 300,18 (EUR 23 672,91) for both projects. The applicant therefore claims repayment of the remaining sum of EUR 181 263,61 (DM 354 520,82).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/32 |
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2.4.2005

EN

Official Journal of the European Union

C 82/32

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Action brought on 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V. against the Commission of the European Communities

(Case T-5/05)

(2005/C 82/60)

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 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V., represented by K. Kühne, lawyer.

The applicant claims that the Court should:

| 1. | annul the refusal, notified by letter of 11 November 2004, of access to the request of the German authorities, sent to the Commission on 12 May 1978, for authorisation to introduce derogating measures; |
| --- | --- |

1.

annul the refusal, notified by letter of 11 November 2004, of access to the request of the German authorities, sent to the Commission on 12 May 1978, for authorisation to introduce derogating measures;

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

2.

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In the contested letter, the Commission rejected, pursuant to Article 4(5) and (6) of the Regulation on Access to Documents, (1) a request from the applicant to consult the file concerning the request of the Federal Republic of Germany for authorisation to introduce special derogating measures pursuant to Article 27 of the Sixth VAT Directive. (2)

The applicant claims that the refusal of access to the request constitutes a de facto denial of legal protection vis-à-vis the applicant, because the dismissal of the applicant's appeal in the main proceedings is based on the requested document. The applicant further claims that the refusal to grant access infringes the Regulation on Access to Documents.

The applicant argues that the refusal of access and, as the case may be, Article 4(5) of the Regulation on Access to Documents infringe Article 1 EU and Articles 21 EC, 207 EC, 253 EC and 255 EC because essentially no reasons are given for the withholding of agreement to disclosure of the requested document.

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001regarding public access to European Parliament, Council and Commission documents (OJ L 145, p. 43).

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

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/32 |
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2.4.2005

EN

Official Journal of the European Union

C 82/32

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Action brought on 12 January 2005 by DEF-TEC Defense Technology GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-6/05)

(2005/C 82/61)

Language in which the application was lodged: English

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 12 January 2005 by DEF-TEC Defense Technology GmbH established in Frankfurt am Main, (Germany) represented by H. Daniel, lawyer.

Defense Technology Corporation of America, established in Jacksonville, Florida (USA) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the Decision of the Second Board of Appeal of the OHIM of 8 November 2004 in case R 493/2002-2; |
| --- | --- |

—

annul the Decision of the Second Board of Appeal of the OHIM of 8 November 2004 in case R 493/2002-2;

| — | declare the invalidity of the opposition Decision of OHIM No. 722/2002; |
| --- | --- |

—

declare the invalidity of the opposition Decision of OHIM No. 722/2002;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘FIRST DEFENSE AEROSOL PEPPER PROJECTOR’ for products in class 5 (pharmaceutical products etc.), 8 (hand tools and implements etc.) and 13 (ammunition etc.) - Community trade mark application No 643668 |
| Proprietor of mark or sign cited in the opposition proceedings: | Defense Technology Corporation of America |
| Mark or sign cited in opposition: | National international, word and figurative marks ‘FIRST DEFENSE’ |
| Decision of the Opposition Division: | Refusal of registration |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Violation of Article 8(3) of Regulation 40/94 (1). The applicant contests the finding that it has failed to furnish sufficient evidence in order to prove that the filing of the contested mark was with the owner's consent. |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

Figurative mark ‘FIRST DEFENSE AEROSOL PEPPER PROJECTOR’ for products in class 5 (pharmaceutical products etc.), 8 (hand tools and implements etc.) and 13 (ammunition etc.) - Community trade mark application No 643668

Proprietor of mark or sign cited in the opposition proceedings:

Defense Technology Corporation of America

Mark or sign cited in opposition:

National international, word and figurative marks ‘FIRST DEFENSE’

Decision of the Opposition Division:

Refusal of registration

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Violation of Article 8(3) of Regulation 40/94 (1). The applicant contests the finding that it has failed to furnish sufficient evidence in order to prove that the filing of the contested mark was with the owner's consent.

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

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/33 |
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2.4.2005

EN

Official Journal of the European Union

C 82/33

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Action brought on 20 January 2005 by Viasat Broadcasting UK Ltd against the Commission of the European Communities

(Case T-16/05)

(2005/C 82/62)

Language of the case: Danish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 January 2005 by Viasat Broadcasting UK Ltd, West Drayton (United Kingdom), represented by Simon Evers Hjelmborg, lawyer.

The applicant claims that the Court should:

| 1. | annul point 55 of the Commission decision of 6 October 2004 in State Aid Case No N 313/2004 – Denmark (C(2004)3632 final) concerning the recapitalisation of TV 2/DANMARK A/S; |
| --- | --- |

1.

annul point 55 of the Commission decision of 6 October 2004 in State Aid Case No N 313/2004 – Denmark (C(2004)3632 final) concerning the recapitalisation of TV 2/DANMARK A/S;

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

2.

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments:

The contested decision relates to a recapitalisation plan for the State-owned public service television broadcasting company TV 2/DANMARK A/S. The recapitalisation, which comprises a capital injection by the Danish State and conversion of debt into equity, was deemed to be necessary as a result of the Commission's decision of 19 May 2004 (1) whereby the Commission required Denmark to recover unlawfully granted State aid from TV 2/DANMARK A/S, which would, however, have resulted in technical bankruptcy of the company.

According to the contested decision, the Commission was unable to discount the possibility that the recapitalisation of TV 2 under consideration might contain elements of State aid under Article 87(1) EC. In point 55 of the contested decision, however, the Commission found that any element of State aid that might be linked to the planned recapitalisation of TV 2 would be compatible with the common market under Article 86(2) EC.

In support of the form of order which it seeks, the applicant submits that the Commission erred in law in not holding that the recapitalisation plan was incompatible with Article 87(1) EC. That submission is based inter alia on the following grounds:

| — | the reason why TV 2/DANMARK A/S is seeking recapitalisation lies in the demand for reimbursement of illegal State aid. Consequently, authorisation to provide new aid (recapitalisation) would mean that Article 87(1) EC and the Commission's decision of 19 May 2004 will be deprived of their independent meaning; |
| --- | --- |

—

the reason why TV 2/DANMARK A/S is seeking recapitalisation lies in the demand for reimbursement of illegal State aid. Consequently, authorisation to provide new aid (recapitalisation) would mean that Article 87(1) EC and the Commission's decision of 19 May 2004 will be deprived of their independent meaning;

| — | recapitalisation under which equity is increased to the optimal capital structure cannot be regarded as being compatible with the market investor principle; |
| --- | --- |

—

recapitalisation under which equity is increased to the optimal capital structure cannot be regarded as being compatible with the market investor principle;

| — | TV 2/DANMARK A/S generated a profit in 2003 without State aid; this would suggest that the company is itself in a position to build up its desired equity; and |
| --- | --- |

—

TV 2/DANMARK A/S generated a profit in 2003 without State aid; this would suggest that the company is itself in a position to build up its desired equity; and

| — | an optimal capital structure is not necessary to enable TV 2/DANMARK A/S to perform its public-service obligations. |
| --- | --- |

—

an optimal capital structure is not necessary to enable TV 2/DANMARK A/S to perform its public-service obligations.

The applicant further submits that the Commission erred in law in finding that any element of State aid which might be linked to recapitalisation would be compatible with the common market under Article 86(2) EC. In support of its plea in law, the applicant submits inter alia as follows:

| — | the scope of Article 86(2) EC is limited to compensation for the net supplementary costs connected with the provision of services of general economic interest (public service). That provision therefore does not cover State investments in companies which are required to provide those services; |
| --- | --- |

—

the scope of Article 86(2) EC is limited to compensation for the net supplementary costs connected with the provision of services of general economic interest (public service). That provision therefore does not cover State investments in companies which are required to provide those services;

| — | the Danish State's investment in TV 2/DANMARK A/S (recapitalisation) is not compensation for the public-service related services which it has purchased and is therefore not compensation for the net supplementary costs arising from the public-service obligations; |
| --- | --- |

—

the Danish State's investment in TV 2/DANMARK A/S (recapitalisation) is not compensation for the public-service related services which it has purchased and is therefore not compensation for the net supplementary costs arising from the public-service obligations;

| — | TV 2/DANMARK A/S is not considered to have net supplementary costs connected with its public-service obligations; |
| --- | --- |

—

TV 2/DANMARK A/S is not considered to have net supplementary costs connected with its public-service obligations;

| — | the Commission did not check the definition of public service and thereby accepted a very wide definition of that term, under which the entire programme schedule of TV 2/DANMARK A/S constitutes a public service, with the result that the proportionality test under Article 86(2) EC is voided of substance; and |
| --- | --- |

—

the Commission did not check the definition of public service and thereby accepted a very wide definition of that term, under which the entire programme schedule of TV 2/DANMARK A/S constitutes a public service, with the result that the proportionality test under Article 86(2) EC is voided of substance; and

| — | Article 86(2) EC cannot establish an exemption for State aid which was granted with a view to making State companies attractive as a step in the State's sale of those companies. |
| --- | --- |

—

Article 86(2) EC cannot establish an exemption for State aid which was granted with a view to making State companies attractive as a step in the State's sale of those companies.

The applicant also submits that the Commission was limited to appraising the planned recapitalisation under Article 87(2) EC and 87(3) EC, in particular Article 87(3)(c) EC, and the Community guidelines on State aid for rescuing and restructuring firms in difficulty, (2) and that the planned recapitalisation does not meet the conditions for exemption under those provisions.

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(1)  Commission Decision C(2004)1814 final of 19 May 2004 in Case C 2/2003 (ex NN 22/2002) on Danish measures benefiting TV 2/DANMARK.

(2)  Communication from the Commission, OJ C 244 of 1 October 2004, p. 2.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/34 |
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2.4.2005

EN

Official Journal of the European Union

C 82/34

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Action brought on 10 January 2005 by France Télécom against Commission of the European Communities

(Case T-17/05)

(2005/C 82/63)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 January 2005 by France Télécom, having its principal place of business in Paris, represented by Antoine Gosset-Grainville and Laurent Godfroid, lawyers.

The applicant claims that the Court should:

| 1. | annul Decision No C(2004)3061 adopted by the Commission on 2 August 2004 concerning State aid implemented by France in favour of France Télécom; |
| --- | --- |

1.

annul Decision No C(2004)3061 adopted by the Commission on 2 August 2004 concerning State aid implemented by France in favour of France Télécom;

| 2. | the Commission to pay all the costs of the proceedings. |
| --- | --- |

2.

the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments put forward by the applicant in the present case are identical to those which it put forward in Case T-427/04.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/34 |
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2.4.2005

EN

Official Journal of the European Union

C 82/34

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Action brought on 20 January 2005 by Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ S.A. against the Commission of the European Communities

(Case T-19/05)

(2005/C 82/64)

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 20 January 2005 by Boliden AB, established in Stockholm (Sweden), Outokumpu Copper Fabrication AB, established in Västerås (Sweden) and Outokumpu Copper BCZ S.A., established in Liège (Belguim) represented by C. Wetter and O. Rislund, lawyers.

The applicants claim that the Court should:

| — | annul Articles 1(a), 1 (b) and 1 (c) of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as these articles relate to the periods from 1 July 1995 until 27 August 1998 and from 10 December 1998 until 7 October 1999; |
| --- | --- |

—

annul Articles 1(a), 1 (b) and 1 (c) of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as these articles relate to the periods from 1 July 1995 until 27 August 1998 and from 10 December 1998 until 7 October 1999;

| — | amend Article 2 of the contested decision, and reduce the fine imposed on the applicants; |
| --- | --- |

—

amend Article 2 of the contested decision, and reduce the fine imposed on the applicants;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In the contested decision the Commission found that the applicants, among other undertakings, infringed Article 81(1) EC by participating in a complex of agreements and concerted practices consisting of price fixing and market sharing in the copper plumbing tubes sector.

In support of their application the applicants claim that the Commission committed an error of law in the application of Article 81(1) EC when concluding that the applicants participated in one single continuous infringement which lasted from 3 June 1998 until 22 March 2001. The applicants further argue that even if their infringement should be qualified as single and continuous, the Commission infringed the principle of proportionality by not taking into account the applicants' reduced participation during a substantial period of that infringement. The applicants also claim that the Commission erroneously considered as inapplicable to the applicants' case the rules on limitation periods and that, therefore, no fine should have been imposed for infringements that ceased prior to 22 March 1996 given that the Commission's investigation started on 22 March 2001. Finally, they claim that the Commission did not correctly apply its Leniency Notice and the 1998 Guidelines on the method of setting fines in their regard, since the reduction of the fine granted by the Commission does not correctly reflect the applicants' co-operation. In the same context, the applicants also invoke a violation of the principle of equal treatment on the grounds that they were granted the same reduction as another participant to the infringement in question even though the applicants' cooperation went further than that of the other company.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/35 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/35

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Action brought on 21 January 2005 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities

(Case T-20/05)

(2005/C 82/65)

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 21 January 2005 by Outokumpu OYJ, established in Espoo (Finland) and Outokumpu Copper Products OY, established in Espoo (Finland), represented by J. Ratliff, Barrister and F. Distefano and J. Luostarinen, lawyers.

The applicants claim that the Court should:

| — | annul Article 2 of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as it relates to the amount of the fine imposed on the applicants; |
| --- | --- |

—

annul Article 2 of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as it relates to the amount of the fine imposed on the applicants;

| — | reduce the fine imposed on the applicants in the said decision under the Court's jurisdiction; |
| --- | --- |

—

reduce the fine imposed on the applicants in the said decision under the Court's jurisdiction;

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

—

order the Commission to pay the costs of the proceedings including those of the applicants.

Pleas in law and main arguments

In the contested decision the Commission found that the applicants, among other undertakings, infringed Article 81(1) EC by participating in a complex of agreements and concerted practices consisting of price fixing and market sharing in the copper plumbing tubes sector.

In support of its application the applicants claim first of all that the Commission erred in law when it increased the fine imposed on the applicants by 50 % for recidivism, based on the fact that the applicants had already been found to have committed a similar infringement in the case of stainless steel. In this context the applicants claim that the Commission violated Article 23 of Regulation 1/2003 (1) as well its own 1998 Fining Guidelines, violated the general principles of proportionality and equal treatment and committed a manifest error of assessment.

The applicants further claim that the Commission erred both in law and in its assessment of the facts when it increased the fine imposed on the applicants by 50 % for deterrence. In this context the applicants submit that the Commission assessed such deterrent effects incorrectly and contrary to Article 23 of Council Regulation 1/2003, its own 1998 Fining Guidelines as well as the general principles of fining, punishment and proportionality, given that the applicants only became larger than the other companies involved in the infringement in question through acquisitions at the very end or even after the infringement. In the same context the applicants submit that the Commission erred by considering only turnover instead of the full circumstances of the applicants.

Finally, the applicants claim that the Commission manifestly erred in law by taking into account, for fining purposes, not only the producers ‘conversion margin’ for processing copper metal into plumbing tubes, but also the underlying copper metal turnover, which was not part of any unlawful co-operation. According to the applicants, this error has resulted in a disproportionately high fine.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4/1/2003 p. 1.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/36 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/36

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Action brought on 21 January 2005 by Halcor Metal Works S.A. against the Commission of the European Communities

(Case T-21/05)

(2005/C 82/66)

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 21 January 2005 by Halcor Metal Works S.A., established in Athens (Greece), represented by I. S. Forrester, Barrister and A. P. Schulz and A. Komninos, lawyers.

The applicant claims that the Court should:

| — | annul Articles 1(f) and 2(d) of the decision to the extent that a fine is imposed upon Halcor; |
| --- | --- |

—

annul Articles 1(f) and 2(d) of the decision to the extent that a fine is imposed upon Halcor;

| — | in the alternative, impose such lower amount as may appear appropriate to the Court in the exercise of its unlimited discretion pursuant to Article 229 EC; |
| --- | --- |

—

in the alternative, impose such lower amount as may appear appropriate to the Court in the exercise of its unlimited discretion pursuant to Article 229 EC;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests the fine imposed on it by the Commission's Decision of 3 September 2004 relating to a proceeding pursuant to Article 81(1) EC in Case Comp/E-1/38-069 finding three separate infringements in the copper plumbing tube sector.

In support of it application, the applicant submits in the first place that its conduct did not deserve a fine. According to the applicant, its conduct did not involve behaviour worthy of a fine under Article 81 EC, in that it was subject to coercion from the other addressees of the decision and in that its participation in the cartel, as an export- and growth-oriented undertaking, was reluctant and passive.

The applicant also submits that the starting point of its fine was manifestly erroneously set and infringes the principle of equal treatment. The applicant states that, whereas the decision accuses other addressees of engaging in three separate infringements, the applicant is accused of engaging in only one while the basic amount of the fine was calculated in the same manner for all addressees. The applicant also claims that it did not reinforce the arrangements and that the geographical scope of the infringement in the decision wrongly included Greece.

The applicant furthermore submits that the increase for duration constitutes a manifest error of appreciation and an error in law.

Finally, the applicant claims that the fine imposed on it was disproportionate by comparison to the fines imposed on the other addressees of the decision and in the light of the applicant's particular circumstances. The applicant refers in this respect to its voluntarily termination of its attendance at the meetings in 1999, two years before the Commission heard allegations about the cartel, to the short duration of its attendance at the meetings, to its passive presence and to the fact that it furnished the Commission with complete documentation on which the statement of objections and the decision were based.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/37 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/37

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Action brought on 11 January 2005 by Antonello Violetti and Others against Commission of the European Communities

(Case T-22/05)

(2005/C 82/67)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 January 2005 by Antonello Violetti, residing in Cittiglio (Italy), and 12 other officials, represented by E. Boigelot, lawyer.

The applicants claim that the Court should:

| 1. | order the production of all the files concerning the applicants and sealed by the European Anti-Fraud Office (OLAF); |
| --- | --- |

1.

order the production of all the files concerning the applicants and sealed by the European Anti-Fraud Office (OLAF);

| 2. | order the production of the report which concludes the internal investigation into the applicants; |
| --- | --- |

2.

order the production of the report which concludes the internal investigation into the applicants;

| 3. | annul the investigation into the applicants; |
| --- | --- |

3.

annul the investigation into the applicants;

| 4. | annul the Note from OLAF containing the notification of the investigation and the information of the Italian judicial authorities; |
| --- | --- |

4.

annul the Note from OLAF containing the notification of the investigation and the information of the Italian judicial authorities;

| 5. | annul the report of the investigation sent to the Italian judicial authorities; |
| --- | --- |

5.

annul the report of the investigation sent to the Italian judicial authorities;

| 6. | annul all measures which may be taken subsequently to the bringing of this action following and/or relating to those decisions; |
| --- | --- |

6.

annul all measures which may be taken subsequently to the bringing of this action following and/or relating to those decisions;

| 7. | order the Commission to pay damages and interest, assessed on an equitable basis at EUR 30 000 for each applicant, subject to increase and/or decrease in the course of the proceedings; |
| --- | --- |

7.

order the Commission to pay damages and interest, assessed on an equitable basis at EUR 30 000 for each applicant, subject to increase and/or decrease in the course of the proceedings;

| 8. | in any event, order the defendant to pay the costs. |
| --- | --- |

8.

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

Pleas in law and main arguments

OLAF notified the applicants that an internal investigation had been opened concerning the application of the accident insurance scheme. Following that notification, the officials concerned applied for access to their medical files. That access was refused them.

The plea in law alleges infringement of Article 73 of the Staff Regulations, Article 28 of the Conditions of employment of other servants, infringement of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease, disregard of the general principles of law, such as the principle of sound administration and the principle of equal treatment, and disregard of the duty to have regard for the welfare of officials and of the principles which require OLAF and the Commission to adopt decisions only on the basis of lawful grounds, that is to say grounds which are relevant and not vitiated by a manifest error of assessment.

The applicants submit also that Regulation 1073/1999 (1) and Commission Decision 1999/396/EC of 2 June 1999 (2) are illegal and, as a result, plead their illegality within the meaning of Article 241 of the EC Treaty.

---

(1)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).

(2)  Commission Decision 1999/396/EC, ECSC, Euratom of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests (OJ 1999 L 149, p. 57).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/37 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/37

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Action brought on 10 January 2005 by Eric Gippini Fournier against Commission of the European Communities

(Case T-23/05)

(2005/C 82/68)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 January 2005 by Eric Gippini Fournier, residing in Brussels, represented by A. Theissen, lawyer.

The applicant claims that the Court should:

| 1. | annul the decisions to award zero ‘DG priority points’ to the applicant in the 2003 promotion procedure; to reject his appeal to the Promotions Committee seeking the award to the applicant of ‘DG priority points’ (or of ‘appeal’ points or of priority points by whatever description); to refuse to award priority points for work in the interest of the institution under Article 9 of the General Provisions implementing Article 45 of the Staff Regulations; |
| --- | --- |

1.

annul the decisions to award zero ‘DG priority points’ to the applicant in the 2003 promotion procedure; to reject his appeal to the Promotions Committee seeking the award to the applicant of ‘DG priority points’ (or of ‘appeal’ points or of priority points by whatever description); to refuse to award priority points for work in the interest of the institution under Article 9 of the General Provisions implementing Article 45 of the Staff Regulations;

| 2. | order the Commission to pay the applicant the sum of EUR 2 500 as compensation for non-material loss suffered; |
| --- | --- |

2.

order the Commission to pay the applicant the sum of EUR 2 500 as compensation for non-material loss suffered;

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

3.

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official seconded to the Court of Justice in the interests of the service from 1 March 2002 to 6 October 2003, raises an objection of illegality against the General Provisions implementing Article 45 of the Staff Regulations because of a lack of comparison of his merits with those of other officials in other Directorates General. He also claims that most of the categories of priority points are illegal because they are contrary to Article 45 of the Staff Regulations and to the principle of non-discrimination.

The applicant pleads infringement of Articles 5, 25, 43 and 45 of the Staff Regulations, of the second subparagraph of Article 2(1) of the General Provisions implementing Article 43 of the Staff Regulations, as well as of Article 2(1) and Article 6(3), (4) and (5) of the General Provisions implementing Article 45 of the Staff Regulations. The applicant also pleads infringement of the principles of proportionality, non-discrimination, equal treatment and protection of legitimate expectations. The applicant claims finally that there were also procedural irregularities, misuse of powers, failure to state reasons and to inform him of various measures and decisions, as well as manifest errors of assessment.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/38 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/38

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Action brought on 21 January 2005 by Standard Commercial Corporation, Standard Commercial Tobacco Corporation and Trans-Continental Leaf Tobacco Corporation against the Commission of the European Communities

(Case T-24/05)

(2005/C 82/69)

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 21 January 2005 by Standard Commercial Corporation, established in Wilson, North Carolina (USA), Standard Commercial Tobacco Corporation, established in Wilson, North Carolina (USA) and Trans-Continental Leaf Tobacco Corporation established in Vaduz (Liechtenstein), represented by M. Odriozola, M.Marañón and A. Emch, lawyers.

The applicants claim that the Court should:

| — | annul the Decision of the Commission of the European Communities of 20 October 2004 in Case COMP/C.38.238/B.2 - Raw Tobacco Spain, insofar as it relates to the applicants; |
| --- | --- |

—

annul the Decision of the Commission of the European Communities of 20 October 2004 in Case COMP/C.38.238/B.2 - Raw Tobacco Spain, insofar as it relates to the applicants;

| — | order the Commission to pay the applicants' legal fees and expenses. |
| --- | --- |

—

order the Commission to pay the applicants' legal fees and expenses.

Pleas in law and main arguments

In the contested decision the Commission found that the applicants, among other undertakings, infringed Article 81(1) EC by concluding agreements and/or concerted practices, during the period 1996-2001, designed to fix each year the (maximum) average delivery price of each variety of raw tobacco (all qualities) and to share out the quantities of each variety of raw tobacco to be bought. The Commission further found that for the last three years (1999 - 2001) they had also agreed among themselves price brackets per quality grade of each variety of raw tobacco and additional conditions.

In support of their application the applicants claim first of all that the Commission misapplied Article 81(1) EC and Article 23 (2) of Regulation 1/2003 (1) in holding the applicants liable for the infringement committed by their subsidiary. According to the applicants the Commission proved neither that the applicants were in a position to exercise decisive influence over their subsidiary during the whole duration of the infringement nor that they actually exercised any influence over the subsidiary's policy. In the alternative, the applicants also claim that the Commission stated insufficient reasons for holding them liable for their subsidiary's infringement.

Further, the applicants claim that the Commission violated the principle of equal treatment by failing to apply to the applicants the criteria it had applied in excluding liability of other parent companies for subsidiaries participating in the infringement in question. This includes failing to take into account that one of the applicants' interest in its subsidiary was of purely financial nature even though the Commission had excluded liability of another parent undertaking on exactly these grounds.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4/1/2003 p. 1.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/39 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/39

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Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities

(Case T-25/05)

(2005/C 82/70)

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 21 January 2005 by KM Europa Metal AG, established in Osnabruck (Germany), Tréfimétaux S.A., established in Courbevoie Cedex (France) and Europa Metalli S.p.A., established in Florence (Italy), represented by R. Elderkin, Barrister and M. Siragusa, A. Winckler, G. Cesare Rizza, T. Graf and M. Piergiovanni, lawyers.

The applicants claim that the Court should:

| — | to reduce substantially KME's Fine; |
| --- | --- |

—

to reduce substantially KME's Fine;

| — | to order the Commission to pay the applicants' legal fees and expenses; |
| --- | --- |

—

to order the Commission to pay the applicants' legal fees and expenses;

| — | to take any other measures that this Honourable Court considers appropriate. |
| --- | --- |

—

to take any other measures that this Honourable Court considers appropriate.

Pleas in law and main arguments

The applicants contest the fine imposed on them by the Commission Decision of 3 September 2004 relating to a proceeding pursuant to Article 81(1) EC in Case Comp/E-1/38-069 finding three separate infringements in the copper plumbing tube sector.

By their first plea, the applicants submit that the Commission, in establishing the basic amount of their fines, failed to assess the actual market impact of the infringement, in contrast with the principles of proportionality and equal treatment. The impact of the cartel on customers and final consumers was very limited due to the frequent deviation and continued competition by producers, the absence of any monitoring and sanctioning mechanism, and the strong purchasing power of customers.

By their second plea, the applicants claim that the Commission's assessment of the gravity of the infringement was vitiated by an overstatement of the infringement's economic impact. According to the applicants, the price of the raw material, i.e. copper, should not have been included in the calculation of the relevant market value because the infringement concerned only the added value. The applicants claim also that tube producers not only do not have any degree of control over the cost of the metal, but also are bound to source copper in the strict observance of the purchasing instructions that they receive from their customers.

By their third plea, the applicants submit that the Commission grossly overstated the importance of the applicants in the copper plumbing tube market, compared to other players, and thus set the starting amount of the fine too high. In particular, the Commission ignored that, during a significant period of time, the applicants acted as competitors in the market.

By their fourth plea, the applicants submit that the Commission's calculation of the duration element of the starting amount was contrary to the principles of proportionality and equal treatment. In particular, the Commission, when determining the increase of the fine on account of duration, should not have taken into account the year during which the European meetings were interrupted and the years during which the arrangements were particularly loose and ineffective.

By their fifth plea, the applicants contend that the Commission failed to take into account several attenuating circumstances, namely the non-implementation of the arrangements and the crisis in the copper plumbing tube industry. Moreover, the applicants claim that the decision violated the principle of equal treatment in that it unlawfully discriminated between KME and Outokumpu by applying to the latter company a greater fine reduction than that granted to KME on account of cooperation outside the 1996 Leniency Notice.

By their sixth plea, the applicants submit that the reduction they were granted under the 1996 Leniency Notice was inadequate. The Commission based its conclusion in this matter on erroneous factual premises, departed from its own practice and the case law, and violated the principle of equal treatment.

By their seventh plea, the applicants submit that the Commission should have taken into account the applicants' precarious financial situation and resulting inability to pay a high fine, in particular as a result of the onerous penalty already imposed on it in the parallel Industrial Tubes case (1).

---

(1)  Case COMP/E-1/38.240 Industrial Tubes

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/40 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/40

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Action brought on 14 January 2005 by Carmela Lo Giudice against Commission of the European Communities

(Case T-27/05)

(2005/C 82/71)

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 14 January 2005 by Carmela Lo Giudice, residing in Strombeek-Bever (Belgium), represented by F. Frabetti and G. Bounéou, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | annul the appraisal exercise for the year 2003 (the period from 01.01.2003 to 31.12.2003); |
| --- | --- |

1.

annul the appraisal exercise for the year 2003 (the period from 01.01.2003 to 31.12.2003);

| 2. | if not, annul the decision of 4 May 2004 which closed the applicant's career development report (CDR) for the period from 1 January 2003 to 31 December 2003; |
| --- | --- |

2.

if not, annul the decision of 4 May 2004 which closed the applicant's career development report (CDR) for the period from 1 January 2003 to 31 December 2003;

| 3. | decide on the costs, expenses and fees and order the Commission of the European Communities to pay them. |
| --- | --- |

3.

decide on the costs, expenses and fees and order the Commission of the European Communities to pay them.

Pleas in law and main arguments

The applicant, a Commission official, was on sick leave from 1 December 2003 to 10 May 2004. During that period the Commission established her career development report without her participation in it.

In support of her action, the applicant first of all claims that the creation, as part of the new system of establishing career development reports, of computer files directly completed on the screen and stored in the computer staff management system, is equivalent to the creation of parallel files in breach of Article 26 of the Staff Regulations.

The applicant also claims that the lack of any participation by her in the establishment of the report infringes Article 43 of the Staff Regulations, the General Provisions for implementing that article, as well as the principles of sound administration, non-discrimination and prohibition of arbitrary procedures. In the same context, the applicant pleads abuse of power, failure to state reasons, infringement of the principle of the protection of legitimate expectations and of the rule ‘Patere legem quam ipse fecisti’ (obey the rules which you yourself have made), as well as breach of the duty to have regard to the welfare of officials.

---

| 2.4.2005 | EN | Official Journal of the European Union | C 82/40 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/40

---

Action brought on 17 January 2005 by Ekabe International SCA against the Office for Harmonisation in the Internal Market

(Case T-28/05)

(2005/C 82/72)

Language in which the application was submitted: French

An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 17 January 2005 by Ekabe International SCA, established in Luxembourg, represented by Charles de Haas, lawyer.

Puleva SA was also a party to the proceedings before the Fourth Board of Appeal.

The applicant claims that the Court should:

| — | annul and alter the decision of the Fourth Board of Appeal in so far as it confirmed the rejection of the application for Community trade mark OMEGA 3 No 824 573 following Opposition No B 148 132; |
| --- | --- |

—

annul and alter the decision of the Fourth Board of Appeal in so far as it confirmed the rejection of the application for Community trade mark OMEGA 3 No 824 573 following Opposition No B 148 132;

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

—

order OHIM to pay all the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | CEMA. The mark was transferred to Primalliance and subsequently to Ekabe International. |
| --- | --- |
| Community trade mark concerned: | Figurative mark ‘OMEGA 3’ for goods in Class 29 (margarine) — application No 824 573 |
| Proprietor of mark or sign cited in the opposition proceedings: | Puleva SA |
| Mark or sign cited in opposition: | The national word mark ‘PULEVA-OMEGA 3’ in respect of goods in Class 29 (Meat, fish, poultry and game; preserved, dried and cooked fruits and vegetables; eggs, milk and milk products, etc) |
| Decision of the Opposition Division: | Rejection of the application |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 8(1)(b) of Council Regulation No 40/94 |

Applicant for Community trade mark:

CEMA. The mark was transferred to Primalliance and subsequently to Ekabe International.

Community trade mark concerned:

Figurative mark ‘OMEGA 3’ for goods in Class 29 (margarine) — application No 824 573

Proprietor of mark or sign cited in the opposition proceedings:

Puleva SA

Mark or sign cited in opposition:

The national word mark ‘PULEVA-OMEGA 3’ in respect of goods in Class 29 (Meat, fish, poultry and game; preserved, dried and cooked fruits and vegetables; eggs, milk and milk products, etc)

Decision of the Opposition Division:

Rejection of the application

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

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

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/41 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/41

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Action brought on 20 January 2005 by Deltafina SpA against the Commission of the European Communities

(Case T-29/05)

(2005/C 82/73)

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 20 January 2005 by Deltafina SpA, established in Orvieto (TR), represented by Roberto A. Jacchia, Antonella Terranova, Irene Picciano and Fabio Ferraro, lawyers.

The applicant claims that the Court should:

| 1. | annul Commission Decision C (2004) 4030 final of 20 October 2004 (‘the contested decision’); |
| --- | --- |

1.

annul Commission Decision C (2004) 4030 final of 20 October 2004 (‘the contested decision’);

| 2. | in the alternative, annul in part and vary the contested decision, and accordingly reduce the amount of the fine imposed on Deltafina; |
| --- | --- |

2.

in the alternative, annul in part and vary the contested decision, and accordingly reduce the amount of the fine imposed on Deltafina;

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

3.

order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision is the same as that in Case T-24/05 Standard Commercial and Others v Commission
   (1). The pleas in law and main arguments are similar to those relied on in that case.

The applicant claims in particular that the defendant:

| — | found that it had participated, even as the lead undertaking, in a cartel put into effect on a relevant market in which it was not present; |
| --- | --- |

—

found that it had participated, even as the lead undertaking, in a cartel put into effect on a relevant market in which it was not present;

| — | failed to identify that relevant market; |
| --- | --- |

—

failed to identify that relevant market;

| — | addressed to it a statement of objections without indicating consistent grounds in support; |
| --- | --- |

—

addressed to it a statement of objections without indicating consistent grounds in support;

| — | failed to have regard to the duty to state sufficient reasons for measures, as regards proving that trade was, at least indirectly or potentially, adversely affected; |
| --- | --- |

—

failed to have regard to the duty to state sufficient reasons for measures, as regards proving that trade was, at least indirectly or potentially, adversely affected;

| — | wrongly assessed the duration and seriousness of the infringement, and the aggravating and mitigating circumstances; |
| --- | --- |

—

wrongly assessed the duration and seriousness of the infringement, and the aggravating and mitigating circumstances;

| — | wrongly assessed the applicant's role, and should therefore reduce the fine imposed on it. |
| --- | --- |

—

wrongly assessed the applicant's role, and should therefore reduce the fine imposed on it.

The applicant also pleads failure to take account of the maximum limits for fines and of the objective elements relating to the economic and social context as relevant factors in setting the fine.

Finally, the applicant pleads infringement of the principles of equal treatment, non-retroactivity of penalties and protection of legitimate expectations, as well as misuse of powers, since the Commission departed from its past practice of imposing purely nominal penalties on persons who encourage or abet or are external competitors of cartels, contrary to its declared intention to depart from the same only for the future.

---

(1)  Not yet published in the ECR.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/42 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/42

---

Action brought on 21 January 2005 by Compañía Española de Tabaco en Rama against the Commission of the European Communities

(Case T-33/05)

(2005/C 82/74)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 January 2005 by Compañía Española de Tabaco en Rama S.A., established in Navalmoral de la Mata (Spain), represented by Marcos Araujo, of the Madrid Bar.

The applicant claims that the Court should:

| 1. | annul the Commission Decision of 20 October 2004 relating to a proceeding under Article 81(1) of the EC Treaty [C(2004) 4030 final] in Case COMP/C.38.238/B.2 – Raw Tobacco Spain; |
| --- | --- |

1.

annul the Commission Decision of 20 October 2004 relating to a proceeding under Article 81(1) of the EC Treaty [C(2004) 4030 final] in Case COMP/C.38.238/B.2 – Raw Tobacco Spain;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

The decision at issue is the same as in case T-24/05 Standard Commercial and Others v Commission
   (1).

All the allegations are based on the principle of proportionality. That is clear from the fact that the practices investigated were engaged in a market of EUR 25 million and that the fines imposed amount to almost the same sum. In particular, CETARSA was unprepared for a fine equivalent to 7.5 % of its turnover in 2003.

In support of its arguments the applicant relies on the following pleas:

| — | Infringement of the principle of equal treatment arising from the imposition of substantial fines on processors and token fines on producers on the basis of arguments applicable to both sectors. |
| --- | --- |

—

Infringement of the principle of equal treatment arising from the imposition of substantial fines on processors and token fines on producers on the basis of arguments applicable to both sectors.

| — | Incorrect assessment of the facts of the case (official support for regulation of the sector by way of agreements between producers and processors, the limited scale of the markets affected, the absence of effects, etc) which would have justified considering the practices involved as 'serious' conduct, rather than 'very serious' |
| --- | --- |

—

Incorrect assessment of the facts of the case (official support for regulation of the sector by way of agreements between producers and processors, the limited scale of the markets affected, the absence of effects, etc) which would have justified considering the practices involved as 'serious' conduct, rather than 'very serious'

| — | Incorrect assessment of the duration of the practices. |
| --- | --- |

—

Incorrect assessment of the duration of the practices.

| — | Incorrect assessment of the applicant's participation in the practices complained of, which was based solely on its market share and failed to take account of other factors which distinguish its position. |
| --- | --- |

—

Incorrect assessment of the applicant's participation in the practices complained of, which was based solely on its market share and failed to take account of other factors which distinguish its position.

| — | The methodology used by the Commission in order to determine the basic amounts leads to the imposition of disproportionate fines in the case of small undertakings, such as the applicant. |
| --- | --- |

—

The methodology used by the Commission in order to determine the basic amounts leads to the imposition of disproportionate fines in the case of small undertakings, such as the applicant.

| — | Arbitrary application of the Leniency Notice without any justification by the Commission of that difference in treatment and the breach of the applicant's rights of defence. |
| --- | --- |

—

Arbitrary application of the Leniency Notice without any justification by the Commission of that difference in treatment and the breach of the applicant's rights of defence.

---

(1)  Not yet published in the Official Journal.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/42 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/42

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Action brought on 21 January 2005 by World Wide Tobacco España against the Commission of the European Communities

(Case T-37/05)

(2005/C 82/75)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 January 2005 by World Wide Tobacco España (WWTE) S.A. of Madrid (Spain), represented by Miguel Odriozola Alén, Marta Marañón Hermoso and Adrian Emch, of the Madrid Bar.

The applicant claims that the Court should:

| 1. | reduce the fine imposed on WWTE in Article 3 of the Commission Decision of 20 October 2004; |
| --- | --- |

1.

reduce the fine imposed on WWTE in Article 3 of the Commission Decision of 20 October 2004;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

The decision at issue is the same as in case T-24/05 Standard Commercial and Others v Commission
   (1).

The grounds put forward by the applicant are similar to those relied on in that case (infringement of the principle of equal treatment and of Article 23(2) of Regulation No 1/2003).

In particular, it is stated that the Commission applied more severe dissuasive factors against the applicant than against other Spanish processors, in the calculation of the basic amount of the fine imposed. Futhermore, the applicant's conduct cannot be imputed to its parent companies Trans-Continental Corporation Leaf Tobacco, Standard Commercial Tobacco Corporation and Standard Commercial Corporation.

Likewise, the applicant submits that the guidelines on the calculation of fines and the principle of the protection of legitimate expectations have been infringed, in so far as the Commission failed to take into consideration attenuating circumstances that it is the first time that the raw tobacco has been investigated, that the applicant put an end to the infringements as soon as the Commission took action, and in 1996 and 1997 the agreements were not implemented.

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(1)  Not yet published in the Official Journal.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/43 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/43

---

Action brought on 22 January 2005 by Agroexpansión S.A. against the Commission of the European Communities

(Case T-38/05)

(2005/C 82/76)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 January 2005 by Agroexpansión S.A., Madrid (Spain), represented by Jaime Folguera Crespo and Patricia Vidal Martínez, of the Madrid Bar.

The applicant claims that the Court should:

| 1. | partially annul Article 3 of the Decision of the Commission of 20 October 2004, reducing the amount of the fine imposed on Agroexpansión; |
| --- | --- |

1.

partially annul Article 3 of the Decision of the Commission of 20 October 2004, reducing the amount of the fine imposed on Agroexpansión;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

The decision at issue is the same as in Case T-24/05 Standard Commercial and Others v Commission
   (1).

The grounds put forward by the applicant are similar to those relied on in that case (infringement of the principle of equal treatment and of Article 23(2) of Regulation No 1/2003).

In particular, it is alleged that the Commission erred in taking into consideration the consolidated turnover of the group of undertakings headed by DIMON INC., in order to determine the amount of the fine imposed on the applicant. Furthermore, AGROEXPANSION only became part of that group in November 1997.

Moreover, the Commission failed to take account of the attenuating circumstance that the applicant ceased to engage in those practices as soon as it became aware of the Commission's measures of inspection.

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(1)  Not yet published in the Official Journal.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/43 |
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2.4.2005

EN

Official Journal of the European Union

C 82/43

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Action brought on 24 January 2005 by Calavo Growers of California against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-53/05)

(2005/C 82/77)

Language in which the application was submitted: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.) was brought before the Court of First Instance of the European Communities on 24 January 2005 by Calavo Growers of California, represented by Enrique Armijo Chavarri and Antonio Castán Pérez-Gómez, lawyers.

The applicant claims that the Court should:

| — | set aside the decision of the First Board of Appeal of 8 November 2004 in Case R 159/2004, and |
| --- | --- |

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set aside the decision of the First Board of Appeal of 8 November 2004 in Case R 159/2004, and

| — | order O.H.I.M. to pay the costs. |
| --- | --- |

—

order O.H.I.M. to pay the costs.

Pleas in law and main arguments:

On 8 March 2001 Luis Calvo Sanz applied for registration of the figurative mark ‘CALVO’ (No 2.127.132) in respect of products in Classes 29, 30 and 31.

On 21 December 2001 Calavo Growers of California, the applicant in these proceedings, lodged a notice of opposition against the earlier application, on the basis of the word Community trade mark ‘CALAVO’ (No 102.822) registered for products in Classes 29 and 31. This notice of opposition fell into two parts. The first contained a form in Spanish, indicating the language of the opposition proceedings, the application for registration under challenge, the opponent and its representative, the current account for payment of the fee and the earlier Community trade mark. This first part also stated that the opposition was based on ‘all the products/services in respect of which the earlier trade mark has been registered/applied for’, and on ‘an earlier trade mark and the risk of confusion’.

The second part of the notice of opposition contained a statement of the grounds of opposition. That part of the notice was drafted in English.

On 18 December 2003 the Opposition Division gave its decision No 2927/2003, upholding in part the applicant's opposition. That decision did not take into consideration the claims made in English, because they had not been translated into the language of the case within the period prescribed for that purpose.

The competent Board of Appeal upheld the action brought by the applicant for a Community trade mark against that decision, on the ground that the Opposition Division had no jurisdiction to rule on the opposition, because the applicant's arguments on the merits of the case were inadmissible, for want of translation into the language of the case.

In support of its claims, the applicant alleges infringement of Articles 42(3) and 74(1) of Regulation (European Communities) No 40/94 on the Community trade mark, in conjunction with Rule 20(3) of the Implementing Regulations.

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/44 |
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2.4.2005

EN

Official Journal of the European Union

C 82/44

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Action brought on 25 February 2005 by EDP-Energias de Portugal S.A. against the Commission of the European Communities

(Case T-87/05)

(2005/C 82/78)

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 25 February 2005 by EDP-Energias de Portugal, established in Lisbon (Portugal), represented by C. Botelho Moniz, R. García-Gallardo, A. Weitbrecht and J. Ruiz Calzado, lawyers.

The applicant claims that the Court should:

| — | annul the Commission's Decision of 9 December 2004 in case number COMP/M.3440 EDP/GNI/GDP declaring the concentration by which Energias de Portugal SA and ENI Portugal Investment S.p.A. acquire joint control over Gás de Portugal SGPS S.A. incompatible with the common market; |
| --- | --- |

—

annul the Commission's Decision of 9 December 2004 in case number COMP/M.3440 EDP/GNI/GDP declaring the concentration by which Energias de Portugal SA and ENI Portugal Investment S.p.A. acquire joint control over Gás de Portugal SGPS S.A. incompatible with the common market;

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

—

order the Commission to pay the costs of the proceedings including the costs of the applicant.

Pleas in law and main arguments

By the contested decision the Commission declared incompatible with the common market the concentration by which the applicant together with ENI Portugal Investment S.p.A. acquired joint control over Gás de Portugal SGPS S.A., a company whose activities in the gas sector cover all levels of the distribution and supply chain in Portugal.

In support of its application the applicant submits first of all that in conducting the procedure leading up to the contested decision the Commission infringed the principle of good administration and disregarded essential procedural requirements by not granting the applicant sufficient access to the outcome of the market test of the commitments proposed by the parties to the concentration and by failing to make an impartial and diligent assessment of the proposed commitments when evaluating the market test.

The applicant further contends that the Commission also violated its duty under Article 253 EC to provide adequate reasons for its decision, since it relied on information considered confidential and not disclosed to the applicant.

The applicant also invokes the fact that Portugal's gas market qualifies as ‘emergent’ under Article 28(2) of Directive 2003/55 (1) and benefits from a derogation from that directive until April 2007. The applicant considers that by assessing the effects of the concentration on a gas market not open to competition, the Commission infringed the right of the Portuguese government to restructure the gas sector during the derogation period. Further, it alleges that the Commission misapplied the substantive test in Article 2 of Regulation 4064/89 (2) by purporting to evaluate the effects of the proposed concentration at the end of the derogation period, several years later.

A further violation of that article as well as of the duty to state reasons consists, according to the applicant, in the Commission's failure to assess whether the strengthening of the applicant and of Gás de Portugal's dominant position in the electricity and gas markets would have significantly impeded competition.

Finally, the applicant contends that the Commission violated Article 8(2) and 8(3) of Regulation 4064/89 by concluding that, despite the commitments proposed by the parties, the proposed transaction should be declared incompatible with the common market.

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(1)  Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ L 176 p. 57).

(2)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 257/90 p. 13).

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| 2.4.2005 | EN | Official Journal of the European Union | C 82/45 |
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2.4.2005

EN

Official Journal of the European Union

C 82/45

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Removal from the Register of Case T-131/03 (1)

(2005/C 82/79)

(Language of the case: German)

By order of 13 January 2005, the President of the Second Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-131/03, Sinziger Mineralbrunnen GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs).

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(1)  OJ C 158 of 5.7.2003.

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III Notices

| 2.4.2005 | EN | Official Journal of the European Union | C 82/46 |
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2.4.2005

EN

Official Journal of the European Union

C 82/46

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(2005/C 82/80)

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

OJ C 69, 19.3.2005

Past publications

OJ C 57, 5.3.2005

OJ C 45, 19.2.2005

OJ C 31, 5.2.2005

OJ C 19, 22.1.2005

OJ C 6, 8.1.2005

OJ C 314, 18.12.2004

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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