# Official Journal C 281/12 N

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 281 |
| | |
| English edition | Information and Notices | Volume 4812 November 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 281

English edition

Information and Notices

Volume 4812 November 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 281/1 | Election of Presidents of Chambers | 1 |
| 2005/C 281/2 | Lists for the determination of the composition of the Fourth, Fifth and Sixth Chambers as from 11 October 2005 | 1 |
| 2005/C 281/3 | Appointment of the First Advocate General | 2 |
| 2005/C 281/4 | Judgment of the Court (Second Chamber) of 2 June 2005 in Case C-282/02: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Water pollution — Directive 76/464/EEC) | 2 |
| 2005/C 281/5 | Judgment of the Court (Second Chamber) of 8 September 2005 in Case C-191/03 (Reference for a preliminary ruling from the Labour Court): North Western Health Board v Margaret McKenna (Equal pay for men and women — Illness arising prior to maternity leave — Pregnancy-related illness — Person subject to the general sick-leave scheme — Effect on pay — Absence offset against the maximum total number of days of paid sick leave over a specified period) | 2 |
| 2005/C 281/6 | Judgment of the Court (First Chamber) of 8 September 2005 in Case C-512/03 (reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch) in J.E.J. Blanckaert v Inspecteur van de Belastingdienst/Particulieren/Ondernemingen buitenland te Heerlen (Direct taxation — Tax on income from savings and investments — Tax convention — Tax credits allowed only for persons insured under the national social security system) | 3 |
| 2005/C 281/7 | Judgment of the Court (First Chamber) of 15 September 2005 in Case C-140/04: Reference for a preliminary ruling from the Hof van beroep te Antwerpen: United Antwerp Maritime Agencies NV v Belgische Staat, and Seaport Terminals NV v Belgische Staat, United Antwerp Maritime Agencies NV (Customs union — Creation of a customs debt on importation — Goods in temporary storage — Unlawful removal of the goods from customs supervision — Person liable for the debt) | 3 |
| 2005/C 281/8 | Judgment of the Court (Fifth Chamber) of 8 September 2005 in Case C-303/04 (reference for a preliminary ruling from the Tribunale di Voghera): Lidl Italia Srl v Comune di Stradella (Technical standards and regulations — Directive 98/34/EC — Concept of technical regulation — Non-biodegradable cotton buds) | 4 |
| 2005/C 281/9 | Case C-301/05 P: Appeal brought on 28 July 2005 (Fax: 27 July 2005) by Hans-Peter Wilfer against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 Hans-Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 4 |
| 2005/C 281/0 | Case C-313/05: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Warszawie by order of that court of 22 June 2005 in Maciej Brzeziński v Dyrektor Izby Celnej w Warszawie | 5 |
| 2005/C 281/1 | Case C-315/05: Reference for a preliminary ruling from the Ufficio del Giudice di Pace di Monselice by order of that court of 12 July 2005 in LIDL Italia Srl v Comune di Arcole (VR) | 6 |
| 2005/C 281/2 | Case C-317/05: Reference for a preliminary ruling from the Sozialgericht Köln by order of that court of 8 August 2005 in G. Pohl-Boskamp GmbH & Co. KG v Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V., (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security | 6 |
| 2005/C 281/3 | Case C-325/05: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 17 August 2005 in Ismail Derin v Landkreis Darmstadt-Dieburg | 7 |
| 2005/C 281/4 | Case C-328/05 P: Appeal brought on 30 August 2005 by SGL Carbon AG against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03,T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03 | 7 |
| 2005/C 281/5 | Case C-332/05: Reference for a preliminary ruling from the Bundessozialgericht by order of that court of 5 July 2005 in Aldo Celozzi v Innungskrankenkasse Baden-Württemberg | 8 |
| 2005/C 281/6 | Case C-337/05: Action brought on 15 September 2005 by the Commission of the European Communities against the Italian Republic | 9 |
| 2005/C 281/7 | Case C-339/05: Reference for a preliminary ruling from the Landesgericht Innsbruck by order of that court of 22 June 2005 in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol | 9 |
| 2005/C 281/8 | Case C-341/05: Reference for a preliminary ruling from the Arbetsdomstolen by order of that court of 15 September 2005 in Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet | 10 |
| 2005/C 281/9 | Case C-342/05: Action brought on 19 September 2005 by the Commission of the European Communities against the Republic of Finland | 10 |
| 2005/C 281/0 | Case C-343/05: Action brought on 19 September 2005 by the Commission of the European Communities against the Republic of Finland | 11 |
| 2005/C 281/1 | Case C-344/05 P: Appeal brought on 21 September 2005 by the Commission of the European Communities against the judgment delivered on 12 July 2005 by the Court of First Instance of the European Communities (single judge) in Case T-157/04 Joël de Bry v Commission of the European Communities | 11 |
| 2005/C 281/2 | Case C-345/05: Action brought on 21 September 2005 by the Commission of the European Communities against the Portuguese Republic | 12 |
| 2005/C 281/3 | Case C-351/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Republic of Estonia | 12 |
| 2005/C 281/4 | Case C-352/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Hellenic Republic | 13 |
| 2005/C 281/5 | Case C-353/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 13 |
| 2005/C 281/6 | Case C-354/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 13 |
| 2005/C 281/7 | Case C-357/05: Action brought on 23 September 2005 by the Commission of the European Communities against the Kingdom of Spain | 14 |
| 2005/C 281/8 | Case C-360/05: Action brought on 23 September 2005 by the Commission of the European Communities against the Italian Republic | 14 |
| 2005/C 281/9 | Case C-362/05 P: Appeal brought on 23 September 2005 by Jacques Wunenburger against the judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-370/03 Jacques Wunenburger v Commission of the European Communities | 15 |
| 2005/C 281/0 | Case C-365/05 P: Appeal brought on 28 September 2005 by Mme Dorte Schmidt-Brown against the Judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities | 15 |
| | COURT OF FIRST INSTANCE |
| 2005/C 281/1 | Case T-306/01: Judgment of the Court of First Instance of 21 September 2005 — Yusuf and Al Barakaat International Foundation v Council and Commission (Common foreign and security policy — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Competence of the Community — Freezing of funds — Fundamental rights — Jus cogens — Review by the Court — Action for annulment) | 17 |
| 2005/C 281/2 | Case T-315/01: Judgment of the Court of First Instance of 21 September 2005 — Kadi v Council and Commission (Common foreign and security policy — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Competence of the Community — Freezing of funds — Fundamental rights — Jus cogens — Review by the Court — Action for annulment) | 17 |
| 2005/C 281/3 | Case T-218/02: Judgment of the Court of First Instance of 29 September 2005 — Napoli Buzzanca v Commission (Officials — Post of director — Procedure to fill vacant posts — Decision rejecting a candidature — Statement of reasons) | 18 |
| 2005/C 281/4 | Case T-26/03: Judgment of the Court of First Instance of 27 September 2005 — GeoLogistics BV v Commission (Customs Union — External Community transit operations — Meat destined for Morocco — Fraud — Application for remission of import duties — Article 239 of Regulation (EEC) No 2913/92 — Article 905 of Regulation (EEC) No 2454/93 — Fairness clause — Special situation — No deception or obvious negligence) | 19 |
| 2005/C 281/5 | Case T-101/03: Judgment of the Court of First Instance of 22 September 2005 — Suproco v Commission (Association of the OCTs — Sugar not entitled to OCT origin — Request for a derogation from the rules of origin — Rejection of the request for a derogation — Duty to give reasons) | 19 |
| 2005/C 281/6 | Case T-130/03: Judgment of the Court of First Instance of 22 September 2005 — Alcon v OHIM (Community trade mark — Opposition proceedings — Earlier national word mark TRIVASTAN — Application for Community word mark TRAVATAN — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 20 |
| 2005/C 281/7 | Case T-132/03: Judgment of the Court of First Instance of 15 September 2005 — Casini v Commission (Commission officials — Promotion — 2002 procedure — Non-inclusion on the list of officials promoted to Grade A 6 — Duty to state reasons — Consideration of the comparative merits — Manifest error of assessment — Probative nature of subsequent statements of members of the personnel service — Action for annulment — Action for damages) | 20 |
| 2005/C 281/8 | Case T-195/03: Judgment of the Court of First Instance of 29 September 2005 — Thommes v Commission (Temporary agents — Installation allowance — Change in place of employment — Refusal to acknowledge installation of the family — Recovery of sum not due) | 21 |
| 2005/C 281/9 | Case T-320/03: Judgment of the Court of First Instance of 15 September 2005 — Citicorp v OHIM (Community trade mark — Word mark LIVE RICHLY — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Right to be heard — Article 73 of Regulation No 40/94) | 21 |
| 2005/C 281/0 | Case T-123/04: Judgment of the Court of First Instance of 27 September 2005 — Cargo Partner AG v OHIM (Community trade mark — Word sign CARGO PARTNER — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Absence of distinctive character) | 21 |
| 2005/C 281/1 | Case T-306/04: Judgment of the Court of First Instance of 15 September 2005 — Luxem v Commission (Officials — Recruitment — Refusal to appoint a successful candidate in a competition who does not fulfil the conditions of admission to the competition) | 22 |
| 2005/C 281/2 | Case T-87/05: Judgment of the Court of First Instance of 21 September 2005 — EDP v Commission (Competition — Concentration — Regulation (EEC) No 4064/89 — Decision declaring a concentration incompatible with the common market — Portuguese electricity and gas markets — Acquisition of GDP by EDP and Eni — Directive 2003/55/EC — Liberalisation of gas markets — Commitments) | 22 |
| 2005/C 281/3 | Case T-302/05: Action brought on 2 August 2005 — Torijano Montero v Council | 23 |
| 2005/C 281/4 | Case T-314/05: Action brought on 10 August 2005 — Arko and Others v Commission | 23 |
| 2005/C 281/5 | Case T-315/05: Action brought on 11 August 2005 — ADOMEX International BV v Commission | 24 |
| 2005/C 281/6 | Case T-318/05: Action brought on 17 August 2005 — De Geest v Council | 25 |
| 2005/C 281/7 | Case T-320/05: Action brought on 23 August 2005 — Maccanti v European Economic and Social Committee | 25 |
| 2005/C 281/8 | Case T-322/05: Action brought on 18 August 2005 — Carsten Brinkmann v OHIM | 26 |
| 2005/C 281/9 | Case T-323/05: Action brought on 24 August 2005 — Coffee Store v OHIM | 26 |
| 2005/C 281/0 | Case T-326/05: Action brought on 29 August 2005 — Rath v OHIM | 27 |
| 2005/C 281/1 | Case T-327/05: Action brought on 11 August 2005 — Thierry v Commission | 27 |
| 2005/C 281/2 | Case T-328/05: Action brought on 26 August 2005 — Apple Computer/OHIM | 28 |
| 2005/C 281/3 | Case T-331/05: Action brought on 1 September 2005 — IKEA/OHIM | 28 |
| 2005/C 281/4 | Case T-333/05: Action brought on 29 August 2005 — Ezerniece Liljeberg and Others v Commission | 29 |
| 2005/C 281/5 | Case T-334/05: Action brought on 29 August 2005 — Wineke Neirinck v Commission | 29 |
| 2005/C 281/6 | Case T-344/05: Action brought on 13 September 2005 — Hellenic Republic v Commission | 30 |
| 2005/C 281/7 | Case T-348/05: Action brought on 14 September 2005 — JSC Kirovo-Chepetsky Khimichesky Kombinat/Council | 31 |
| 2005/C 281/8 | Case T-350/05: Action brought on 16 September 2005 — Republic of Finland v Commission of the European Communities | 32 |
| 2005/C 281/9 | Case T-353/05: Action brought on 20 September 2005 — Gabrielle Giancarla Sharon Kubanski v the Commission of the European Communities | 32 |
| 2005/C 281/0 | Case T-357/05: Action brought on 19 September 2005 — Generalitat Valenciana v Commission of the European Communities | 33 |
| 2005/C 281/1 | Case T -274/00: Order of the Court of First Instance of 12 September 2005 — Comitato Venezia vuole vivere v Commission | 34 |
| 2005/C 281/2 | Case T-76/05: Order of the Court of First Instance of 13 September 2005 — Scotto v Commission | 34 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 281/1

Election of Presidents of Chambers

1

2005/C 281/2

Lists for the determination of the composition of the Fourth, Fifth and Sixth Chambers as from 11 October 2005

1

2005/C 281/3

Appointment of the First Advocate General

2

2005/C 281/4

Judgment of the Court (Second Chamber) of 2 June 2005 in Case C-282/02: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Water pollution — Directive 76/464/EEC)

2

2005/C 281/5

Judgment of the Court (Second Chamber) of 8 September 2005 in Case C-191/03 (Reference for a preliminary ruling from the Labour Court): North Western Health Board v Margaret McKenna (Equal pay for men and women — Illness arising prior to maternity leave — Pregnancy-related illness — Person subject to the general sick-leave scheme — Effect on pay — Absence offset against the maximum total number of days of paid sick leave over a specified period)

2

2005/C 281/6

Judgment of the Court (First Chamber) of 8 September 2005 in Case C-512/03 (reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch) in J.E.J. Blanckaert v Inspecteur van de Belastingdienst/Particulieren/Ondernemingen buitenland te Heerlen (Direct taxation — Tax on income from savings and investments — Tax convention — Tax credits allowed only for persons insured under the national social security system)

3

2005/C 281/7

Judgment of the Court (First Chamber) of 15 September 2005 in Case C-140/04: Reference for a preliminary ruling from the Hof van beroep te Antwerpen: United Antwerp Maritime Agencies NV v Belgische Staat, and Seaport Terminals NV v Belgische Staat, United Antwerp Maritime Agencies NV (Customs union — Creation of a customs debt on importation — Goods in temporary storage — Unlawful removal of the goods from customs supervision — Person liable for the debt)

3

2005/C 281/8

Judgment of the Court (Fifth Chamber) of 8 September 2005 in Case C-303/04 (reference for a preliminary ruling from the Tribunale di Voghera): Lidl Italia Srl v Comune di Stradella (Technical standards and regulations — Directive 98/34/EC — Concept of technical regulation — Non-biodegradable cotton buds)

4

2005/C 281/9

Case C-301/05 P: Appeal brought on 28 July 2005 (Fax: 27 July 2005) by Hans-Peter Wilfer against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 Hans-Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Hans-Peter Wilfer

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

4

2005/C 281/0

Case C-313/05: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Warszawie by order of that court of 22 June 2005 in Maciej Brzeziński v Dyrektor Izby Celnej w Warszawie

5

2005/C 281/1

Case C-315/05: Reference for a preliminary ruling from the Ufficio del Giudice di Pace di Monselice by order of that court of 12 July 2005 in LIDL Italia Srl v Comune di Arcole (VR)

6

2005/C 281/2

Case C-317/05: Reference for a preliminary ruling from the Sozialgericht Köln by order of that court of 8 August 2005 in G. Pohl-Boskamp GmbH & Co. KG v Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V., (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security

6

2005/C 281/3

Case C-325/05: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 17 August 2005 in Ismail Derin v Landkreis Darmstadt-Dieburg

7

2005/C 281/4

Case C-328/05 P: Appeal brought on 30 August 2005 by SGL Carbon AG against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03,T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03

Tokai and Others

Commission of the European Communities

7

2005/C 281/5

Case C-332/05: Reference for a preliminary ruling from the Bundessozialgericht by order of that court of 5 July 2005 in Aldo Celozzi v Innungskrankenkasse Baden-Württemberg

8

2005/C 281/6

Case C-337/05: Action brought on 15 September 2005 by the Commission of the European Communities against the Italian Republic

9

2005/C 281/7

Case C-339/05: Reference for a preliminary ruling from the Landesgericht Innsbruck by order of that court of 22 June 2005 in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol

9

2005/C 281/8

Case C-341/05: Reference for a preliminary ruling from the Arbetsdomstolen by order of that court of 15 September 2005 in Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet

10

2005/C 281/9

Case C-342/05: Action brought on 19 September 2005 by the Commission of the European Communities against the Republic of Finland

10

2005/C 281/0

Case C-343/05: Action brought on 19 September 2005 by the Commission of the European Communities against the Republic of Finland

11

2005/C 281/1

Case C-344/05 P: Appeal brought on 21 September 2005 by the Commission of the European Communities against the judgment delivered on 12 July 2005 by the Court of First Instance of the European Communities (single judge) in Case T-157/04 Joël de Bry v Commission of the European Communities

Joël de Bry

Commission of the European Communities

11

2005/C 281/2

Case C-345/05: Action brought on 21 September 2005 by the Commission of the European Communities against the Portuguese Republic

12

2005/C 281/3

Case C-351/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Republic of Estonia

12

2005/C 281/4

Case C-352/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Hellenic Republic

13

2005/C 281/5

Case C-353/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

13

2005/C 281/6

Case C-354/05: Action brought on 22 September 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

13

2005/C 281/7

Case C-357/05: Action brought on 23 September 2005 by the Commission of the European Communities against the Kingdom of Spain

14

2005/C 281/8

Case C-360/05: Action brought on 23 September 2005 by the Commission of the European Communities against the Italian Republic

14

2005/C 281/9

Case C-362/05 P: Appeal brought on 23 September 2005 by Jacques Wunenburger against the judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-370/03 Jacques Wunenburger v Commission of the European Communities

Jacques Wunenburger

Commission of the European Communities

15

2005/C 281/0

Case C-365/05 P: Appeal brought on 28 September 2005 by Mme Dorte Schmidt-Brown against the Judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities

15

COURT OF FIRST INSTANCE

2005/C 281/1

Case T-306/01: Judgment of the Court of First Instance of 21 September 2005 — Yusuf and Al Barakaat International Foundation v Council and Commission (Common foreign and security policy — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Competence of the Community — Freezing of funds — Fundamental rights — Jus cogens — Review by the Court — Action for annulment)

17

2005/C 281/2

Case T-315/01: Judgment of the Court of First Instance of 21 September 2005 — Kadi v Council and Commission (Common foreign and security policy — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Competence of the Community — Freezing of funds — Fundamental rights — Jus cogens — Review by the Court — Action for annulment)

17

2005/C 281/3

Case T-218/02: Judgment of the Court of First Instance of 29 September 2005 — Napoli Buzzanca v Commission (Officials — Post of director — Procedure to fill vacant posts — Decision rejecting a candidature — Statement of reasons)

18

2005/C 281/4

Case T-26/03: Judgment of the Court of First Instance of 27 September 2005 — GeoLogistics BV v Commission (Customs Union — External Community transit operations — Meat destined for Morocco — Fraud — Application for remission of import duties — Article 239 of Regulation (EEC) No 2913/92 — Article 905 of Regulation (EEC) No 2454/93 — Fairness clause — Special situation — No deception or obvious negligence)

19

2005/C 281/5

Case T-101/03: Judgment of the Court of First Instance of 22 September 2005 — Suproco v Commission (Association of the OCTs — Sugar not entitled to OCT origin — Request for a derogation from the rules of origin — Rejection of the request for a derogation — Duty to give reasons)

19

2005/C 281/6

Case T-130/03: Judgment of the Court of First Instance of 22 September 2005 — Alcon v OHIM (Community trade mark — Opposition proceedings — Earlier national word mark TRIVASTAN — Application for Community word mark TRAVATAN — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

20

2005/C 281/7

Case T-132/03: Judgment of the Court of First Instance of 15 September 2005 — Casini v Commission (Commission officials — Promotion — 2002 procedure — Non-inclusion on the list of officials promoted to Grade A 6 — Duty to state reasons — Consideration of the comparative merits — Manifest error of assessment — Probative nature of subsequent statements of members of the personnel service — Action for annulment — Action for damages)

20

2005/C 281/8

Case T-195/03: Judgment of the Court of First Instance of 29 September 2005 — Thommes v Commission (Temporary agents — Installation allowance — Change in place of employment — Refusal to acknowledge installation of the family — Recovery of sum not due)

21

2005/C 281/9

Case T-320/03: Judgment of the Court of First Instance of 15 September 2005 — Citicorp v OHIM (Community trade mark — Word mark LIVE RICHLY — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Right to be heard — Article 73 of Regulation No 40/94)

21

2005/C 281/0

Case T-123/04: Judgment of the Court of First Instance of 27 September 2005 — Cargo Partner AG v OHIM (Community trade mark — Word sign CARGO PARTNER — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Absence of distinctive character)

21

2005/C 281/1

Case T-306/04: Judgment of the Court of First Instance of 15 September 2005 — Luxem v Commission (Officials — Recruitment — Refusal to appoint a successful candidate in a competition who does not fulfil the conditions of admission to the competition)

22

2005/C 281/2

Case T-87/05: Judgment of the Court of First Instance of 21 September 2005 — EDP v Commission (Competition — Concentration — Regulation (EEC) No 4064/89 — Decision declaring a concentration incompatible with the common market — Portuguese electricity and gas markets — Acquisition of GDP by EDP and Eni — Directive 2003/55/EC — Liberalisation of gas markets — Commitments)

22

2005/C 281/3

Case T-302/05: Action brought on 2 August 2005 — Torijano Montero v Council

23

2005/C 281/4

Case T-314/05: Action brought on 10 August 2005 — Arko and Others v Commission

23

2005/C 281/5

Case T-315/05: Action brought on 11 August 2005 — ADOMEX International BV v Commission

24

2005/C 281/6

Case T-318/05: Action brought on 17 August 2005 — De Geest v Council

25

2005/C 281/7

Case T-320/05: Action brought on 23 August 2005 — Maccanti v European Economic and Social Committee

25

2005/C 281/8

Case T-322/05: Action brought on 18 August 2005 — Carsten Brinkmann v OHIM

26

2005/C 281/9

Case T-323/05: Action brought on 24 August 2005 — Coffee Store v OHIM

26

2005/C 281/0

Case T-326/05: Action brought on 29 August 2005 — Rath v OHIM

27

2005/C 281/1

Case T-327/05: Action brought on 11 August 2005 — Thierry v Commission

27

2005/C 281/2

Case T-328/05: Action brought on 26 August 2005 — Apple Computer/OHIM

28

2005/C 281/3

Case T-331/05: Action brought on 1 September 2005 — IKEA/OHIM

28

2005/C 281/4

Case T-333/05: Action brought on 29 August 2005 — Ezerniece Liljeberg and Others v Commission

29

2005/C 281/5

Case T-334/05: Action brought on 29 August 2005 — Wineke Neirinck v Commission

29

2005/C 281/6

Case T-344/05: Action brought on 13 September 2005 — Hellenic Republic v Commission

30

2005/C 281/7

Case T-348/05: Action brought on 14 September 2005 — JSC Kirovo-Chepetsky Khimichesky Kombinat/Council

31

2005/C 281/8

Case T-350/05: Action brought on 16 September 2005 — Republic of Finland v Commission of the European Communities

32

2005/C 281/9

Case T-353/05: Action brought on 20 September 2005 — Gabrielle Giancarla Sharon Kubanski v the Commission of the European Communities

32

2005/C 281/0

Case T-357/05: Action brought on 19 September 2005 — Generalitat Valenciana v Commission of the European Communities

33

2005/C 281/1

Case T -274/00: Order of the Court of First Instance of 12 September 2005 — Comitato Venezia vuole vivere v Commission

34

2005/C 281/2

Case T-76/05: Order of the Court of First Instance of 13 September 2005 — Scotto v Commission

34

| | III   Notices |
| --- | --- |
| 2005/C 281/3 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 271, 29.10.2005 | 35 |

III   Notices

2005/C 281/3

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 271, 29.10.2005

Official Journal of the European Union

35

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 12.11.2005 | EN | Official Journal of the European Union | C 281/1 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/1

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Election of Presidents of Chambers

(2005/C 281/01)

At a meeting on 6 October 2005, the Judges of the Court of Justice, pursuant to the second subparagraph of Article 10(1) of the Rules of Procedure, elected Sir Konrad Schiemann as President of the Fourth Chamber, Mr Makarczyk as President of the Fifth Chamber and Mr Malenovský as President of the Sixth Chamber, for a period of one year expiring on 6 October 2006.

The composition of the Chambers of the Court of Justice is as follows:

First Chamber

Mr Jann, President,

Sir Konrad Schiemann, Ms Colneric, Mr Cunha Rodrigues, Mr Lenaerts, Mr Juhász, Mr Ilešič and Mr Levits, Judges

Second Chamber

Mr Timmermans, President,

Mr Makarczyk, Mr Gulmann, Mr Schintgen, Ms Silva de Lapuerta, Mr Kūris, Mr Arestis and Mr Klučka, Judges

Third Chamber

Mr Rosas, President,

Mr Malenovský, Mr La Pergola, Mr Puissochet, Mr von Bahr, Mr Borg Barthet, Mr Lõhmus and Mr Ó Caoimh, Judges

Fourth Chamber

Sir Konrad Schiemann, President,

Ms Colneric, Mr Cunha Rodrigues, Mr Lenaerts, Mr Juhász, Mr Ilešič and Mr Levits, Judges

Fifth Chamber

Mr Makarczyk, President,

Mr Gulmann, Mr Schintgen, Ms Silva de Lapuerta, Mr Kūris, Mr Arestis and Mr Klučka, Judges

Sixth Chamber

Mr Malenovský, President,

Mr La Pergola, Mr Puissochet, Mr von Bahr, Mr Borg Barthet, Mr Lõhmus and Mr Ó Caoimh, Judges

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Lists for the determination of the composition of the Fourth, Fifth and Sixth Chambers as from 11 October 2005

(2005/C 281/02)

At its meeting on 11 October 2005, the Court drew up the lists referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for the determination of the composition of the Chambers of three Judges as follows:

Fourth Chamber

Ms Colneric

Mr Cunha Rodrigues

Mr Lenaerts

Mr Juhász

Mr Ilešič

Mr Levits

Fifth Chamber

Mr Gulmann

Mr Schintgen

Ms Silva de Lapuerta

Mr Kūris

Mr Arestis

Mr Klučka

Sixth Chamber

Mr La Pergola

Mr Puissochet

Mr von Bahr

Mr Borg Barthet

Mr Lõhmus

Mr Ó Caoimh

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/2 |
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Appointment of the First Advocate General

(2005/C 281/03)

Pursuant to the third subparagraph of Article 10(1) of the Rules of Procedure, the Court of Justice has appointed, for a period of one year from 7 October 2005, Ms Stix-Hackl as First Advocate General.

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JUDGMENT OF THE COURT

(Second Chamber)

of 2 June 2005

in Case C-282/02: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Water pollution - Directive 76/464/EEC)

(2005/C 281/04)

Language of the case: English

In Case C-282/02, action under Article 226 EC for failure to fulfil obligations, brought on 31 July 2002, Commission of the European Communities (Agent: M. Shotter) v Ireland (Agent: D.J. O'Hagan, assisted by A.M. Collins, lawyer) the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann, J. Makarczyk and P. Kūris, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 2 June 2005, in which it:

| 1. | Declares that, in failing to take all of the measures necessary to ensure a correct transposition and application of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, Ireland has failed to comply with its obligations under Article 7 of that directive; |
| --- | --- |

1.

Declares that, in failing to take all of the measures necessary to ensure a correct transposition and application of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, Ireland has failed to comply with its obligations under Article 7 of that directive;

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

2.

Dismisses the remainder of the action;

| 3. | Orders Ireland to pay the costs. |
| --- | --- |

3.

Orders Ireland to pay the costs.

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(1)  OJ C 261 of 26.10.2002.

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JUDGMENT OF THE COURT

(Second Chamber)

of 8 September 2005

in Case C-191/03 (Reference for a preliminary ruling from the Labour Court): North Western Health Board v Margaret McKenna (1)

(Equal pay for men and women - Illness arising prior to maternity leave - Pregnancy-related illness - Person subject to the general sick-leave scheme - Effect on pay - Absence offset against the maximum total number of days of paid sick leave over a specified period)

(2005/C 281/05)

Language of the case: English

In Case C-191/03: reference for a preliminary ruling under Article 234 EC from the Labour Court (Ireland), made by decision of 14 April 2003, received at the Court on 12 May 2003, in the proceedings pending before that court between North Western Health Board and Margaret McKenna — the Court (Second Chamber) composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur) and R. Schintgen, Judges; P. Léger, Advocate General, L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 8 September 2005, the operative part of which is as follows:

| 1. | A sick-leave scheme which treats identically female workers suffering from a pregnancy-related illness and other workers suffering from an illness that is unrelated to pregnancy comes within the scope of Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. |
| --- | --- |

1.

A sick-leave scheme which treats identically female workers suffering from a pregnancy-related illness and other workers suffering from an illness that is unrelated to pregnancy comes within the scope of Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

| 2. | Article 141 EC and Directive 75/117 must be construed as meaning that the following do not constitute discrimination on grounds of sex:






  — | a rule of a sick-leave scheme which provides, in regard to female workers absent prior to maternity leave by reason of an illness related to their pregnancy, as also in regard to male workers absent by reason of any other illness, for a reduction in pay in the case where the absence exceeds a certain duration, provided that the female worker is treated in the same way as a male worker who is absent on grounds of illness and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers; |
| --- | --- | --- |

2.

Article 141 EC and Directive 75/117 must be construed as meaning that the following do not constitute discrimination on grounds of sex:

—

a rule of a sick-leave scheme which provides, in regard to female workers absent prior to maternity leave by reason of an illness related to their pregnancy, as also in regard to male workers absent by reason of any other illness, for a reduction in pay in the case where the absence exceeds a certain duration, provided that the female worker is treated in the same way as a male worker who is absent on grounds of illness and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers;

| — | a rule of a sick-leave scheme which provides for absences on grounds of illness to be offset against a maximum total number of days of paid sick-leave to which a worker is entitled over a specified period, whether or not the illness is pregnancy-related, provided that the offsetting of the absences on grounds of a pregnancy-related illness does not have the effect that, during the absence affected by that offsetting after the maternity leave, the female worker receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant. |
| --- | --- |

—

a rule of a sick-leave scheme which provides for absences on grounds of illness to be offset against a maximum total number of days of paid sick-leave to which a worker is entitled over a specified period, whether or not the illness is pregnancy-related, provided that the offsetting of the absences on grounds of a pregnancy-related illness does not have the effect that, during the absence affected by that offsetting after the maternity leave, the female worker receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant.

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(1)  OJ C 158 of 05. 07. 2003.

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JUDGMENT OF THE COURT

(First Chamber)

of 8 September 2005

in Case C-512/03 (reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch) in J.E.J. Blanckaert v Inspecteur van de Belastingdienst/Particulieren/Ondernemingen buitenland te Heerlen (1)

(Direct taxation - Tax on income from savings and investments - Tax convention - Tax credits allowed only for persons insured under the national social security system)

(2005/C 281/06)

Language of the case: Dutch

In Case C-512/03: reference for a preliminary ruling under Article 234 EC from the Gerechtshof te 's-Hertogenbosch ('s-Hertogenbosch Regional Court of Appeal) (Netherlands), made by decision of 4 December 2003, received at the Court on 8 December 2003, in the proceedings between J.E.J. Blanckaert and Inspecteur van de Belastingdienst/Particulieren/Ondernemingen buitenland te Heerlen — the Court (First Chamber), composed of K. Lenaerts, (Rapporteur) President of the Fourth Chamber, acting for the President of the First Chamber, N. Colneric, K. Schiemann, E. Juhász and M. Ilešič, Judges; C. Stix-Hackl, Advocate General; L. Hewlett, Principal Administrator for the Registrar, gave a judgment on 8 September 2005, the operative part of which is as follows:

Articles 56 EC and 58 EC must be interpreted as not precluding a law of a Member State under which a non-resident taxpayer who receives income in that State only from savings and investments and who is not insured under the social security system of that Member State cannot claim entitlement to tax credits in respect of national insurance, whereas a resident taxpayer who is insured under that social security system is entitled to those credits when his taxable income is calculated, even if he receives only income of that same kind and does not pay social security contributions.

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(1)  OJ C 47 of 21.02.2004.

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JUDGMENT OF THE COURT

(First Chamber)

of 15 September 2005

in Case C-140/04: Reference for a preliminary ruling from the Hof van beroep te Antwerpen: United Antwerp Maritime Agencies NV v Belgische Staat, and Seaport Terminals NV v Belgische Staat, United Antwerp Maritime Agencies NV (1)

(Customs union - Creation of a customs debt on importation - Goods in temporary storage - Unlawful removal of the goods from customs supervision - Person liable for the debt)

(2005/C 281/07)

Language of the case: Dutch

In Case C-140/04: reference for a preliminary ruling under Article 234 EC from the Hof van beroep te Antwerpen (Belgium), made by decision of 11 March 2004, received at the Court on 16 March 2004, in the proceedings between United Antwerp Maritime Agencies NV v Belgische Staat, and Seaport Terminals NV and Belgische Staat, United Antwerp Maritime Agencies NV — the Court (First Chamber) composed of P. Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur), E. Juhász and M. Ilešič, Judges; D. Ruiz-Jarabo Colomer, Advocate General, M. Ferreira, Principal administrator, for the, Registrar, gave a judgment on 15 September 2005, the operative part of which is as follows:

The fourth indent of Article 203(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that ‘the person required to fulfil the obligations arising from temporary storage of the goods’ is the person who holds the goods after they have been unloaded in order to move or store them.

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(1)  OJ C 106 of 30.04.2004.

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 8 September 2005

in Case C-303/04 (reference for a preliminary ruling from the Tribunale di Voghera): Lidl Italia Srl v Comune di Stradella (1)

(Technical standards and regulations - Directive 98/34/EC - Concept of ‘technical regulation’ - Non-biodegradable cotton buds)

(2005/C 281/08)

Language of the case: Italian

In Case C-303/04: reference for a preliminary ruling under Article 234 EC from the Tribunale di Voghera (District Court of Voghera) (Italy), made by decision of 1 July 2004, received at the Court on 16 July 2004, in the proceedings between Lidl Italia Srl and Comune di Stradella — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, C. Gulmann (Rapporteur) and J. Klučka, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 8 September 2005, the operative part of which is as follows:

| 1. | Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that a national legislative provision such as Article 19 of Law No 93 of 23 March 2001 on the environment constitutes a technical regulation to the extent to which it includes a prohibition on the marketing of cotton buds which are not manufactured from biodegradable materials in accordance with a national standard. |
| --- | --- |

1.

Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that a national legislative provision such as Article 19 of Law No 93 of 23 March 2001 on the environment constitutes a technical regulation to the extent to which it includes a prohibition on the marketing of cotton buds which are not manufactured from biodegradable materials in accordance with a national standard.

| 2. | The first subparagraph of Article 8(1) of Directive 98/34, as amended by Directive 98/48, must be interpreted as meaning that a national provision which constitutes a technical regulation, such as Article 19 of Law No 93 of 23 March 2001, must be notified to the Commission of the European Communities prior to its adoption. |
| --- | --- |

2.

The first subparagraph of Article 8(1) of Directive 98/34, as amended by Directive 98/48, must be interpreted as meaning that a national provision which constitutes a technical regulation, such as Article 19 of Law No 93 of 23 March 2001, must be notified to the Commission of the European Communities prior to its adoption.

| 3. | The first subparagraph of Article 8(1) of Directive 98/34, as amended by Directive 98/48, must be interpreted as meaning that the national courts may refuse to apply a national legal provision constituting a technical regulation, such as Article 19 of Law No 93/2001 of 23 March 2001, if it has not been notified to the Commission of the European Communities prior to its adoption. |
| --- | --- |

3.

The first subparagraph of Article 8(1) of Directive 98/34, as amended by Directive 98/48, must be interpreted as meaning that the national courts may refuse to apply a national legal provision constituting a technical regulation, such as Article 19 of Law No 93/2001 of 23 March 2001, if it has not been notified to the Commission of the European Communities prior to its adoption.

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(1)  OJ C 228 of 11.09.2004.

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Appeal brought on 28 July 2005 (Fax: 27 July 2005) by Hans-Peter Wilfer against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 Hans-Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-301/05 P)

(2005/C 281/09)

Language of the case: German

An appeal against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 between Hans-Peter Wilfer and Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) was brought before the Court of Justice of the European Communities on 28 July 2005 by Hans-Peter Wilfer, represented by A. Kockläuner, lawyer, of Kanzlei Meissner, Bolte & Partner, Widenmayerstraße 48, D-80538 Munich, Germany.

The appellant claims that the Court should:

| 1. | set aside, in its entirety, paragraph 1 of the operative part of the judgment of the Court of First Instance of 8 June 2005 in Case T-315/03 (1) under appeal, and set aside paragraphs 2 and 3 of the operative part, in so far as to order OHIM to pay all of its own costs and those incurred by the applicant; |
| --- | --- |

1.

set aside, in its entirety, paragraph 1 of the operative part of the judgment of the Court of First Instance of 8 June 2005 in Case T-315/03 (1) under appeal, and set aside paragraphs 2 and 3 of the operative part, in so far as to order OHIM to pay all of its own costs and those incurred by the applicant;

| 2. | order OHIM to pay the remainder of the costs of the proceedings. |
| --- | --- |

2.

order OHIM to pay the remainder of the costs of the proceedings.

Grounds of appeal and main arguments

In his appeal against the abovementioned judgment, the appellant relies on pleas of procedural irregularities and an infringement of Community law by the Court of First Instance:

| 1. | As regards the question whether, or to what extent, the appellant can be represented and assisted by a patent agent, the Court misinterpreted Article 19 of the Rules of Procedure of the Court of First Instance. Under that provision, the term ‘lawyer’ also covers patent agents provided that their legal system authorises them to represent parties before a court and provided that their national legal order grants them a status within their legal system which, in terms of the rights and responsibilities transferred to them, is comparable to that of a lawyer. |
| --- | --- |

1.

As regards the question whether, or to what extent, the appellant can be represented and assisted by a patent agent, the Court misinterpreted Article 19 of the Rules of Procedure of the Court of First Instance. Under that provision, the term ‘lawyer’ also covers patent agents provided that their legal system authorises them to represent parties before a court and provided that their national legal order grants them a status within their legal system which, in terms of the rights and responsibilities transferred to them, is comparable to that of a lawyer.

| 2. | In assessing the questions whether, or to what extent, the attestation concerning the registration of US trade mark 76/302,601 ‘ROCKBASS’ and the new arguments and evidence contained in the appellant's written statement were to be considered in the present proceedings, the Court not only misjudged the scope of the principle of examination of the facts by the Office of its own motion in Article 74 of the Community Trade Mark Regulation (2), but also misapplied the provisions laid down in Article 7(1)(b) and (c) thereof. |
| --- | --- |

2.

In assessing the questions whether, or to what extent, the attestation concerning the registration of US trade mark 76/302,601 ‘ROCKBASS’ and the new arguments and evidence contained in the appellant's written statement were to be considered in the present proceedings, the Court not only misjudged the scope of the principle of examination of the facts by the Office of its own motion in Article 74 of the Community Trade Mark Regulation (2), but also misapplied the provisions laid down in Article 7(1)(b) and (c) thereof.

| 3. | As regards the meaning and grammatical structure of the sign ‘ROCKBASS’, the Court misrepresented or falsified the facts submitted. The Court overlooked the fact that the sign ‘ROCKBASS’ is extremely complex and did not consider that many different grammatical combinations are possible for that mark. Since the Court did not give any reasons for those misrepresentations it also breached its duty to give reasons. |
| --- | --- |

3.

As regards the meaning and grammatical structure of the sign ‘ROCKBASS’, the Court misrepresented or falsified the facts submitted. The Court overlooked the fact that the sign ‘ROCKBASS’ is extremely complex and did not consider that many different grammatical combinations are possible for that mark. Since the Court did not give any reasons for those misrepresentations it also breached its duty to give reasons.

| 4. | The Court misrepresented or falsified the facts submitted as regards the possibility of using the goods in Classes 9 and 18 independently of the goods claimed in Class 15 and, since it did not provide any coherent reasons for doing so, it thereby also breached its duty to give reasons. |
| --- | --- |

4.

The Court misrepresented or falsified the facts submitted as regards the possibility of using the goods in Classes 9 and 18 independently of the goods claimed in Class 15 and, since it did not provide any coherent reasons for doing so, it thereby also breached its duty to give reasons.

| 5. | As regards the question whether the registered trade mark ‘ROCKBASS’ is directly descriptive of all the goods claimed, the Court misapplied Article 7(1)(c) of the Community Trade Mark Regulation. In so doing, it erroneously based its findings on the point of view of the average observer with certain preconceptions instead of the point of view of the average observer with no preconceptions and, in assessing the question, it took into account only insignificant characteristics and characteristics which are not immediately obvious to the relevant public. |
| --- | --- |

5.

As regards the question whether the registered trade mark ‘ROCKBASS’ is directly descriptive of all the goods claimed, the Court misapplied Article 7(1)(c) of the Community Trade Mark Regulation. In so doing, it erroneously based its findings on the point of view of the average observer with certain preconceptions instead of the point of view of the average observer with no preconceptions and, in assessing the question, it took into account only insignificant characteristics and characteristics which are not immediately obvious to the relevant public.

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(1)  OJ 2005 C 193, p. 26.

(2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

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Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Warszawie by order of that court of 22 June 2005 in Maciej Brzeziński v Dyrektor Izby Celnej w Warszawie

(Case C-313/05)

(2005/C 281/10)

Language of the case: Polish

Reference has been made to the Court of Justice of the European Communities by order of the Wojewódzki Sąd Administracyny w Warszawie (Regional Administrative Court, Warsaw), Poland of 22 June 2005, received at the Court Registry on 9 August 2005, for a preliminary ruling in the proceedings between Maciej Brzeziński and Dyrektor Izby Celnej w Warszawie (Director of the Customs Chamber in Warsaw) on the following questions:

| 1. | Does Article 25 of the Treaty establishing the European Community, which prohibits customs duties on imports and exports and charges having equivalent effect between Member States, prohibit a Member State from applying Article 80 of the Ustawa o Podatku Akcyzowym (Polish Law on Excise Duty) of 23 January 2004 (Dziennik Ustaw (Official Journal of the Republic of Poland) No 29, heading 257, as amended) where excise duty is charged on the purchase of any car, irrespective of its place of origin prior to its initial registration in Poland? |
| --- | --- |

1.

Does Article 25 of the Treaty establishing the European Community, which prohibits customs duties on imports and exports and charges having equivalent effect between Member States, prohibit a Member State from applying Article 80 of the Ustawa o Podatku Akcyzowym (Polish Law on Excise Duty) of 23 January 2004 (Dziennik Ustaw (Official Journal of the Republic of Poland) No 29, heading 257, as amended) where excise duty is charged on the purchase of any car, irrespective of its place of origin prior to its initial registration in Poland?

| 2. | Does the first paragraph of Article 90 of the Treaty establishing the European Community, under which no Member State may impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products, allow a Member State to impose excise duty on second-hand cars imported from other Member States without charging such duty on the sale of second-hand cars already registered in Poland, where the excise duty has been imposed, under Article 80 of the Polish Law on Excise Duty, on all cars not registered in Poland? |
| --- | --- |

2.

Does the first paragraph of Article 90 of the Treaty establishing the European Community, under which no Member State may impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products, allow a Member State to impose excise duty on second-hand cars imported from other Member States without charging such duty on the sale of second-hand cars already registered in Poland, where the excise duty has been imposed, under Article 80 of the Polish Law on Excise Duty, on all cars not registered in Poland?

| 3. | Does the second paragraph of Article 90 of the Treaty establishing the European Community, under which no Member State may impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products, allow a Member State to impose on second-hand cars imported from other Member States excise duty at a variable rate depending on the vehicle's age and engine capacity, which is laid down in the Polish implementing order (Article 7 of the Rozporządzenie Ministra Finansów w Sprawie Obniżenia Stawek Podatku Akcyzowego (Order of the Minister for Finance on the lowering of the rates of excise duty) of 22 April 2004 — Dziennik Ustaw No 87, heading 825, as amended), where the duty on the sale of second-hand cars in Poland is calculated according to a similar formula before their initial registration in Poland and this duty subsequently affects the price of that car when it is resold? |
| --- | --- |

3.

Does the second paragraph of Article 90 of the Treaty establishing the European Community, under which no Member State may impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products, allow a Member State to impose on second-hand cars imported from other Member States excise duty at a variable rate depending on the vehicle's age and engine capacity, which is laid down in the Polish implementing order (Article 7 of the Rozporządzenie Ministra Finansów w Sprawie Obniżenia Stawek Podatku Akcyzowego (Order of the Minister for Finance on the lowering of the rates of excise duty) of 22 April 2004 — Dziennik Ustaw No 87, heading 825, as amended), where the duty on the sale of second-hand cars in Poland is calculated according to a similar formula before their initial registration in Poland and this duty subsequently affects the price of that car when it is resold?

| 4. | Does Article 28 of the Treaty establishing the European Community, under which quantitative restrictions on imports and all measures having equivalent effect are to be prohibited between Member States — and also having regard to Article 3(3) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products — prohibit a Member State from maintaining in force Article 81 of the Polish Law on Excise Duty, under which persons effecting intra-Community acquisition of passenger cars not registered in Poland in accordance with the provisions relating to road traffic are required, after importing them into Poland, to submit a simplified declaration to the head of the relevant customs office within five days of the intra-Community acquisition? |
| --- | --- |

4.

Does Article 28 of the Treaty establishing the European Community, under which quantitative restrictions on imports and all measures having equivalent effect are to be prohibited between Member States — and also having regard to Article 3(3) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products — prohibit a Member State from maintaining in force Article 81 of the Polish Law on Excise Duty, under which persons effecting intra-Community acquisition of passenger cars not registered in Poland in accordance with the provisions relating to road traffic are required, after importing them into Poland, to submit a simplified declaration to the head of the relevant customs office within five days of the intra-Community acquisition?

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Reference for a preliminary ruling from the Ufficio del Giudice di Pace di Monselice by order of that court of 12 July 2005 in LIDL Italia Srl v Comune di Arcole (VR)

(Case C-315/05)

(2005/C 281/11)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Ufficio del Giudice di Pace di Monselice (Italy) of 12 July 2005, received at the Court Registry on 12 August 2005, for a preliminary ruling in the proceedings between LIDL Italia Srl and Comune di Arcole (VR) on the following questions:

| 1. | Must Directive 2000/13/EC (1) of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs be interpreted as meaning, in respect of pre-packaged foodstuffs under Article 1 thereof, that the obligations provided for therein, and in particular those in Articles 2, 3 and 12, are imposed only on the producer of the pre-packaged food product? |
| --- | --- |

1.

Must Directive 2000/13/EC (1) of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs be interpreted as meaning, in respect of pre-packaged foodstuffs under Article 1 thereof, that the obligations provided for therein, and in particular those in Articles 2, 3 and 12, are imposed only on the producer of the pre-packaged food product?

| 2. | If the answer to the first question is affirmative, must Articles 2, 3 and 12 of Directive 2000/13/EC be interpreted as precluding the possibility that a mere distributor, located within a Member State, of a foodstuff pre-packaged (as defined in Article 1 of Directive 2000/13/EC) by a trader in another Member State, may be held liable for an infringement alleged by a public authority involving a discrepancy between the value (in this case percentage of alcohol content) stated on the label by the producer of the pre-packaged foodstuff, and may thus be penalised, even if that distributor simply markets the foodstuff in the form in which it is delivered by the producer of the food product itself? |
| --- | --- |

2.

If the answer to the first question is affirmative, must Articles 2, 3 and 12 of Directive 2000/13/EC be interpreted as precluding the possibility that a mere distributor, located within a Member State, of a foodstuff pre-packaged (as defined in Article 1 of Directive 2000/13/EC) by a trader in another Member State, may be held liable for an infringement alleged by a public authority involving a discrepancy between the value (in this case percentage of alcohol content) stated on the label by the producer of the pre-packaged foodstuff, and may thus be penalised, even if that distributor simply markets the foodstuff in the form in which it is delivered by the producer of the food product itself?

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(1)  OJ L 109 of 06.05.2000, p. 29.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/6 |
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Reference for a preliminary ruling from the Sozialgericht Köln by order of that court of 8 August 2005 in G. Pohl-Boskamp GmbH & Co. KG v Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V., (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security

(Case C-317/05)

(2005/C 281/12)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Sozialgericht Köln (Social Court, Cologne) (Germany) of 8 August 2005, received at the Court Registry on 17 August 2005, for a preliminary ruling in the proceedings between G. Pohl-Boskamp GmbH & Co. KG and Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V. (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security, on the following questions:

| 1. | Is Council Directive 89/105/EEC (1) of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems ('the transparency directive') to be interpreted as precluding rules of a Member State which, following the exclusion of non-prescription medicinal products from the range of benefits provided by the national health system, empower an authority under that system to adopt rules derogating from that exclusion in respect of certain medicines without making provision for a procedure under Article 6(1), second sentence, and 6(2) of the transparency directive? |
| --- | --- |

1.

Is Council Directive 89/105/EEC (1) of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems ('the transparency directive') to be interpreted as precluding rules of a Member State which, following the exclusion of non-prescription medicinal products from the range of benefits provided by the national health system, empower an authority under that system to adopt rules derogating from that exclusion in respect of certain medicines without making provision for a procedure under Article 6(1), second sentence, and 6(2) of the transparency directive?

| 2. | Is Directive 89/105/EEC of 21 December 1988 to be interpreted as granting the manufacturers of the medicinal products referred to in point 1 above a subjective right vis-à-vis the public authorities, in particular a right to a decision, containing a statement of reasons and information as to the available avenues of appeal, on the inclusion of one of their medicinal products on a list of the type mentioned above, even though the rules of the Member State make no provision for any corresponding decision-making or appeal procedures? |
| --- | --- |

2.

Is Directive 89/105/EEC of 21 December 1988 to be interpreted as granting the manufacturers of the medicinal products referred to in point 1 above a subjective right vis-à-vis the public authorities, in particular a right to a decision, containing a statement of reasons and information as to the available avenues of appeal, on the inclusion of one of their medicinal products on a list of the type mentioned above, even though the rules of the Member State make no provision for any corresponding decision-making or appeal procedures?

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(1)  OJ 1989 L 40, p. 8.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/7 |
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Official Journal of the European Union

C 281/7

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Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 17 August 2005 in Ismail Derin v Landkreis Darmstadt-Dieburg

(Case C-325/05)

(2005/C 281/13)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Darmstadt of 17 August 2005, received at the Court Registry on 26 August 2005, for a preliminary ruling in the proceedings between Ismail Derin and Landkreis Darmstadt-Dieburg on the following questions:

| 1. | Does a Turkish national who, as a child, joined his parents who were employed as workers in the Federal Republic of Germany, and lived with them as a family, lose his right of residence derived from the right under the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council (‘Decision No 1/80’) to free access to any paid employment — apart from in cases under Article 14 of Decision No 1/80 or where he leaves the host Member State without legitimate reason for a significant period of time — also where he has attained the age of 21 and no longer lives with or is maintained by his parents?
  If the answer to the first question is in the affirmative: |
| --- | --- |

1.

Does a Turkish national who, as a child, joined his parents who were employed as workers in the Federal Republic of Germany, and lived with them as a family, lose his right of residence derived from the right under the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council (‘Decision No 1/80’) to free access to any paid employment — apart from in cases under Article 14 of Decision No 1/80 or where he leaves the host Member State without legitimate reason for a significant period of time — also where he has attained the age of 21 and no longer lives with or is maintained by his parents?

If the answer to the first question is in the affirmative:

| 2 | Notwithstanding the loss of his legal status under the second indent of the first paragraph of Article 7 of Decision No 1/80, does that Turkish national enjoy special protection against expulsion under Article 14 of Decision No 1/80 where, after having ceased to live with his parents as a family, he was employed from time to time but has not acquired in his own right the legal status conferred by Article 6(1) of Decision No 1/80 by virtue of being a worker and for a number of years has worked exclusively on a self-employed basis? |
| --- | --- |

2

Notwithstanding the loss of his legal status under the second indent of the first paragraph of Article 7 of Decision No 1/80, does that Turkish national enjoy special protection against expulsion under Article 14 of Decision No 1/80 where, after having ceased to live with his parents as a family, he was employed from time to time but has not acquired in his own right the legal status conferred by Article 6(1) of Decision No 1/80 by virtue of being a worker and for a number of years has worked exclusively on a self-employed basis?

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/7 |
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12.11.2005

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Official Journal of the European Union

C 281/7

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Appeal brought on 30 August 2005 by SGL Carbon AG against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03,T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03

(Case C-328/05 P)

(2005/C 281/14)

Language of the case: German

On 30 August 2005, SGL Carbon AG, represented by Martin Klusmann and Frederik Wiemer, of Freshfields Bruckhaus Deringer, Feldmühleplatz 1, D-40008 Düsseldorf, brought an appeal before the Court of Justice of the European Communities against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03.

The appellant claims that the Court should:

| — | whilst upholding the submissions made at first instance, partially set aside the judgment of the Court of First Instance of the European Communities of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, (1) in so far as it dismissed the action in Case T-91/03 brought against the Commission's decision C(2002) 5083 final, of 17 December 2002 relating to a proceeding under Article 81 EC; |
| --- | --- |

—

whilst upholding the submissions made at first instance, partially set aside the judgment of the Court of First Instance of the European Communities of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, (1) in so far as it dismissed the action in Case T-91/03 brought against the Commission's decision C(2002) 5083 final, of 17 December 2002 relating to a proceeding under Article 81 EC;

| — | in the alternative, reduce the fine imposed on the appellant in Article 3 of the decision of 17 December 2002 and further reduce the amount of the interest payable pending judgment and the default interest laid down in the operative part of the judgment under appeal, as appropriate; |
| --- | --- |

—

in the alternative, reduce the fine imposed on the appellant in Article 3 of the decision of 17 December 2002 and further reduce the amount of the interest payable pending judgment and the default interest laid down in the operative part of the judgment under appeal, as appropriate;

| — | order the respondent to pay the entire costs of the proceedings. |
| --- | --- |

—

order the respondent to pay the entire costs of the proceedings.

Grounds of appeal and main arguments

The appellant reasons its appeal against the abovementioned judgment of the Court of First Instance by alleging erroneous application of procedural rules and infringement of Community law:

| 1. | It is claimed that, according to the fundamental principle non bis in idem — generally applicable in the laws of the Member States and the Community and also in relation to non-member countries — in the present case, the earlier fine imposed on the appellant in the United States should have been taken into account. The absolute refusal to take account of the previous fines imposed abroad — in infringement of that principle and thus, also of the principle of material justice — is unlawful and does not fall within the discretion of the authority which made the decision or that of the Court of First Instance. |
| --- | --- |

1.

It is claimed that, according to the fundamental principle non bis in idem — generally applicable in the laws of the Member States and the Community and also in relation to non-member countries — in the present case, the earlier fine imposed on the appellant in the United States should have been taken into account. The absolute refusal to take account of the previous fines imposed abroad — in infringement of that principle and thus, also of the principle of material justice — is unlawful and does not fall within the discretion of the authority which made the decision or that of the Court of First Instance.

| 2. | No justification was given for increasing the amount of the fine by 35 % as a result of the allegation that the appellant was the sole ringleader, since the indisputable facts and the Court of First Instance's own contradictory findings do not provide a basis for so doing. Since it was not apparent from the Commission's points of complaint that it was intending to consider the appellant as the sole ringleader, the right to a fair hearing was also thereby infringed. |
| --- | --- |

2.

No justification was given for increasing the amount of the fine by 35 % as a result of the allegation that the appellant was the sole ringleader, since the indisputable facts and the Court of First Instance's own contradictory findings do not provide a basis for so doing. Since it was not apparent from the Commission's points of complaint that it was intending to consider the appellant as the sole ringleader, the right to a fair hearing was also thereby infringed.

| 3. | The Court of First Instance did not clarify the appellant's objection according to which its rights of defence were irreparably infringed by the inadequate language knowledge of the members of the Commission's team working on the case, and this in spite of the appellant's substantiated submissions and offers to produce evidence. |
| --- | --- |

3.

The Court of First Instance did not clarify the appellant's objection according to which its rights of defence were irreparably infringed by the inadequate language knowledge of the members of the Commission's team working on the case, and this in spite of the appellant's substantiated submissions and offers to produce evidence.

| 4. | The cooperation provided by the appellant was undervalued. Given that the cooperation which it provided was worth at least as much as that of the other participants it was — by reason of the significantly smaller reduction of its fine in comparison with those of the other participants — the victim of discrimination. |
| --- | --- |

4.

The cooperation provided by the appellant was undervalued. Given that the cooperation which it provided was worth at least as much as that of the other participants it was — by reason of the significantly smaller reduction of its fine in comparison with those of the other participants — the victim of discrimination.

| 5. | The fines imposed were disproportionally high since the fact that the appellant was going through a difficult period at the time of the decision was not taken into account. The Commission and the Court of First Instance could not presume that economic efficiency is generally not to be taken into account when determining the amount of a fine: they must both check whether the fine imposed is economically viable. |
| --- | --- |

5.

The fines imposed were disproportionally high since the fact that the appellant was going through a difficult period at the time of the decision was not taken into account. The Commission and the Court of First Instance could not presume that economic efficiency is generally not to be taken into account when determining the amount of a fine: they must both check whether the fine imposed is economically viable.

| 6. | Finally, the determination of the interest rate was also erroneous: the particularly high interest during the proceedings amounts specifically to an additional fine, for which there is no legal basis. |
| --- | --- |

6.

Finally, the determination of the interest rate was also erroneous: the particularly high interest during the proceedings amounts specifically to an additional fine, for which there is no legal basis.

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(1)  OJ 2005 C 205 of 20 August 2005.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/8 |
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Reference for a preliminary ruling from the Bundessozialgericht by order of that court of 5 July 2005 in Aldo Celozzi v Innungskrankenkasse Baden-Württemberg

(Case C-332/05)

(2005/C 281/15)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundessozialgericht of 5 July 2005, received at the Court Registry on 12 September 2005, for a preliminary ruling in the proceedings between Aldo Celozzi and Innungskrankenkasse Baden-Württemberg on the following question:

Is it compatible with the primary and/or secondary law of the European Community (in particular Article 39 EC (formerly Article 48 of the EC Treaty), Articles 3(1) and 23(3) of Regulation (EEC) No 1408/71, and Article 7(2) of Regulation (EEC) No 1612/68) (1) for a married migrant worker employed in Germany, whose spouse resides in another Member State, to receive sick pay always linked to net remuneration established on the basis of the wage tax class stated on his wage tax card without account being taken of a subsequent retroactive amendment, which is favourable to him, of the tax classification relating to his marital status?

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(1)  OJ L 257 p. 2.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/9 |
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C 281/9

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Action brought on 15 September 2005 by the Commission of the European Communities against the Italian Republic

(Case C-337/05)

(2005/C 281/16)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 15 September 2005 by the Commission of the European Communities, represented by D. Recchia and X. Lewis, acting as Agents.

The Commission claims that the Court should:

| — | Declare that, since the Italian Government and, in particular, the Ministries of Home Affairs, Defence, Economics and Finance, for Agricultural and Forestry Policy, and for Infrastructure and Transport, and the Department of Civil Protection of the Presidency of the Council of Ministers, have adopted a procedure, which has been in existence for a long time and is still followed, of directly awarding to the firm ‘Agusta’ contracts for the purchase of helicopters manufactured by ‘Agusta’ and ‘Agusta Bell’ to meet the requirements of the military corps of the fire brigade, the Carabinieri, the State Forestry Corps, the Coastguard, the Revenue Guard Corps, the State Police and the Department of Civil Protection, without any tendering procedure, in particular without complying with the procedures provided for by Directive 93/36/EEC (1) and, earlier, by Directive 77/62/EEC, (2) Directive 80/767/EEC (3) and 88/295/EEC, (4) the Italian Republic has failed to fulfil its obligations under the abovementioned directives; |
| --- | --- |

—

Declare that, since the Italian Government and, in particular, the Ministries of Home Affairs, Defence, Economics and Finance, for Agricultural and Forestry Policy, and for Infrastructure and Transport, and the Department of Civil Protection of the Presidency of the Council of Ministers, have adopted a procedure, which has been in existence for a long time and is still followed, of directly awarding to the firm ‘Agusta’ contracts for the purchase of helicopters manufactured by ‘Agusta’ and ‘Agusta Bell’ to meet the requirements of the military corps of the fire brigade, the Carabinieri, the State Forestry Corps, the Coastguard, the Revenue Guard Corps, the State Police and the Department of Civil Protection, without any tendering procedure, in particular without complying with the procedures provided for by Directive 93/36/EEC (1) and, earlier, by Directive 77/62/EEC, (2) Directive 80/767/EEC (3) and 88/295/EEC, (4) the Italian Republic has failed to fulfil its obligations under the abovementioned directives;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Government of the Italian Republic and, in particular, the Ministries of Home Affairs, Defence, Economics and Finance, for Agricultural and Forestry Policy, and for Infrastructure and Transport, and the Department of Civil Protection of the Presidency of the Council of Ministers, have adopted a procedure, which has been in existence for a long time and is still followed, of directly awarding to the firm ‘Agusta’ contracts for the purchase of helicopters manufactured by ‘Agusta’ and ‘Agusta Bell’ to meet the requirements of the military corps of the fire brigade, the Carabinieri, the State Forestry Corps, the Coastguard, the Revenue Guard Corps, the State Police and the Department of Civil Protection, without any tendering procedure, in particular without complying with the procedures provided for by Directive 93/36/EEC and, earlier, by Directive 77/62/EEC, Directive 80/767/EEC and 88/295/EEC, and has thereby failed to fulfil its obligations under the abovementioned directives.

Following receipt of a complaint, the Commission acquired information from which it appears that the Italian Government has operated that procedure for a long time.

The Commission takes the view that that practice is incompatible with the directives on public supply contracts referred to above in so far as none of the conditions to which recourse to the negotiated procedure without publication of a contract notice is subject appears to have been satisfied.

The Commission considers, moreover, that Italy has not shown that the practice in question is justified on the basis of Article 2 of Directive 93/36/EEC, according to which the directive is not to apply to supply contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member States concerned or when the protection of the basic interests of the Member State's security so requires.

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(1)  OJ L 199 of 09.08.1993, p. 1.

(2)  OJ L 13 of 15.01.1977, p. 1.

(3)  OJ L 215 of 18.08.1980, p. 1.

(4)  OJ L 127 of 20.05.1988, p. 1.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/9 |
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Reference for a preliminary ruling from the Landesgericht Innsbruck by order of that court of 22 June 2005 in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol

(Case C-339/05)

(2005/C 281/17)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht Innsbruck (Austria) of 22 June 2005, received at the Court Registry on 19 September 2005, for a preliminary ruling in the proceedings between Zentralbetriebsrat der Landeskrankenhäuser Tirols and Land Tirol on the following question:

Must a Member State or one of a Member State's regional or local authorities take account, when calculating the remuneration of contractual public servants, of periods of employment in certain institutions in Switzerland, which are comparable to institutions listed in Paragraph 41(2) of the Tiroler Landesvertragsbedienstetengesetz (Law of the Province of Tyrol on Contractual Public Servants) (or, in the alternative, of Paragraph 26(2) of the Vertragsbedienstetengesetz 1948 (Federal Law on Contractual Public Servants of 1948)) without temporal limitation, or is the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114), in particular Article 9(1) of Annex I thereto, rather to be interpreted as meaning that it is permissible to take account only of periods of employment by contractual public servants in Switzerland after the entry into force of that agreement on 1 June 2002?

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/10 |
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12.11.2005

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Official Journal of the European Union

C 281/10

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Reference for a preliminary ruling from the Arbetsdomstolen by order of that court of 15 September 2005 in Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet

(Case C-341/05)

(2005/C 281/18)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Arbetsdomstolen of 15 September 2005, received at the Court Registry on 19 September 2005, for a preliminary ruling in the proceedings between Laval un Partneri Ltd and Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet on the following questions:

| 1. | Is it compatible with rules of the EC Treaty on the freedom to provide services and the prohibition of discrimination on the grounds of nationality and with the provisions of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services for trade unions to attempt, by means of industrial action in the form of a blockade, to force a foreign temporary provider of services in the host country to sign a collective agreement in respect of terms and conditions of employment such as that set out in the above-mentioned decision of the Arbetsdomstolen, if the situation in the host country is such that the legislation intended to implement Directive 96/71 has no express provisions concerning the application of terms and conditions of employment in collective agreements? |
| --- | --- |

1.

Is it compatible with rules of the EC Treaty on the freedom to provide services and the prohibition of discrimination on the grounds of nationality and with the provisions of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services for trade unions to attempt, by means of industrial action in the form of a blockade, to force a foreign temporary provider of services in the host country to sign a collective agreement in respect of terms and conditions of employment such as that set out in the above-mentioned decision of the Arbetsdomstolen, if the situation in the host country is such that the legislation intended to implement Directive 96/71 has no express provisions concerning the application of terms and conditions of employment in collective agreements?

| 2. | The Swedish Medbestämmandelagen (Law on workers' participation in decisions) prohibits industrial action taken with the intention of circumventing a collective agreement concluded by other parties. That prohibition applies, however, pursuant to a special provision contained in part of the law known as the ‘lex Britannia’, only where a trade union takes measures in respect of industrial relations to which the Medbestämmandelagen is directly applicable, which means in practice that the prohibition is not applicable to industrial action against a foreign undertaking which is temporarily active in Sweden and which brings its own workforce. Do the rules of the EC Treaty on the freedom to provide services and the prohibition on discrimination on grounds of nationality and the provisions of Directive 96/71 constitute an obstacle to an application of the latter rule — which, together with other parts of the lex Britannia also mean in practice that Swedish collective agreements become applicable and take precedence over foreign collective agreements already concluded — to industrial action in the form of a blockade taken by Swedish trade unions against a foreign temporary provider of services in Sweden? |
| --- | --- |

2.

The Swedish Medbestämmandelagen (Law on workers' participation in decisions) prohibits industrial action taken with the intention of circumventing a collective agreement concluded by other parties. That prohibition applies, however, pursuant to a special provision contained in part of the law known as the ‘lex Britannia’, only where a trade union takes measures in respect of industrial relations to which the Medbestämmandelagen is directly applicable, which means in practice that the prohibition is not applicable to industrial action against a foreign undertaking which is temporarily active in Sweden and which brings its own workforce. Do the rules of the EC Treaty on the freedom to provide services and the prohibition on discrimination on grounds of nationality and the provisions of Directive 96/71 constitute an obstacle to an application of the latter rule — which, together with other parts of the lex Britannia also mean in practice that Swedish collective agreements become applicable and take precedence over foreign collective agreements already concluded — to industrial action in the form of a blockade taken by Swedish trade unions against a foreign temporary provider of services in Sweden?

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/10 |
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Action brought on 19 September 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-342/05)

(2005/C 281/19)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 19 September 2005 by the Commission of the European Communities, represented by M. van Beek and I. Koskinen, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by regularly permitting the hunting of wolves contrary to the principles for derogations laid down in Article 16(1) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Finland has failed to fulfil its obligations under Articles 12(1) and 16(1) of the directive; |
| --- | --- |

1.

declare that, by regularly permitting the hunting of wolves contrary to the principles for derogations laid down in Article 16(1) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Finland has failed to fulfil its obligations under Articles 12(1) and 16(1) of the 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

Article 16 of Directive 92/43/EEC is an exception to the system of the strict protection of species in Article 12, so that it must be interpreted strictly. Article 12(1) lays down two preconditions for derogating on the basis of points (a) to (e). First, the derogation must not be detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. Second, a derogation is possible only where there is no other satisfactory solution.

Since the level of protection of the wolf is not favourable in Finland and other alternative methods are available, and since permits for hunting wolves are regularly issued without there being a properly ascertained connection with individuals causing particularly significant damage, the hunting of wolves is permitted in Finland to an extent which exceeds the conditions laid down in Article 16(1) of Directive 92/43/EEC.

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(1)  OJ L 206 of 22.7.1992, p. 7.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/11 |
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12.11.2005

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Official Journal of the European Union

C 281/11

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Action brought on 19 September 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-343/05)

(2005/C 281/20)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 19 September 2005 by the Commission of the European Communities, represented by L. Pignataro Nolin and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that:
  by not ensuring that Ahvenanmaa (Åland) has transposed into its legislation Article 8a of Directive 89/622/EEC, which was added by Directive 92/41/EC and is contained in Article 8 of Directive 2001/37/EC, (1) and
  by not enduring that the prohibition in the abovementioned Community provisions of marketing nuuska (oral tobacco) is complied with on vessels registered in Finland,
  the Republic of Finland has failed to fulfil its obligations under the EC Treaty and Directive 2001/37/EC; |
| --- | --- |

1.

declare that:

by not ensuring that Ahvenanmaa (Åland) has transposed into its legislation Article 8a of Directive 89/622/EEC, which was added by Directive 92/41/EC and is contained in Article 8 of Directive 2001/37/EC, (1) and

by not enduring that the prohibition in the abovementioned Community provisions of marketing nuuska (oral tobacco) is complied with on vessels registered in Finland,

the Republic of Finland has failed to fulfil its obligations under the EC Treaty and Directive 2001/37/EC;

| 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 list in Annex II to Directive 2001/37/EC mentions Directive 92/41/EEC and the time-limit for transposing its provisions into national legislation was 1 July 1992. In the case of Finland, the time-limit for transposing the provisions into national legislation based on Finland's accession was 1 January 1995, even though it must be stated that compliance with the directive was already mandatory for Finland from 1 January 1994 under the Agreement on the European Economic Area.

---

(1)  Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, OJ L 194 of 18.7.2001, p. 26.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/11 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/11

---

Appeal brought on 21 September 2005 by the Commission of the European Communities against the judgment delivered on 12 July 2005 by the Court of First Instance of the European Communities (single judge) in Case T-157/04 Joël de Bry v Commission of the European Communities

(Case C-344/05 P)

(2005/C 281/21)

Language of the case: French

An appeal against the judgment delivered on 12 July 2005 by the Court of First Instance of the European Communities (single judge) in Case T-157/04 Joël de Bry v Commission of the European Communities was brought before the Court of Justice of the European Communities on 21 September 2005 by the Commission of the European Communities, represented by Lidia Lozano Palacios and Hannes Kraemer, acting as Agents.

The appellant claims that the Court should:

| — | set aside the judgment under appeal |
| --- | --- |

—

set aside the judgment under appeal

| — | pass final judgment on the dispute, allowing the claims submitted by the defendant at first instance and, consequently, dismissing the application in Case T-157/04; |
| --- | --- |

—

pass final judgment on the dispute, allowing the claims submitted by the defendant at first instance and, consequently, dismissing the application in Case T-157/04;

| — | 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;

| — | order the applicant at first instance to pay the costs of the proceedings, including its own costs in the proceedings before the Court of First Instance. |
| --- | --- |

—

order the applicant at first instance to pay the costs of the proceedings, including its own costs in the proceedings before the Court of First Instance.

Pleas in law and main arguments:

The Commission relies on a single plea against the judgment under appeal, alleging a breach of Community law in paragraphs 79 to 91 of that judgment. It submits that the Court of First Instance erred in holding, essentially, that the procedure resulting in the drawing up of a staff report containing unfavourable value judgments about the official being assessed is vitiated by a breach of this official's right to a fair hearing, where the assessors failed to record the factual basis of those value judgments, in the form of a written warning, in a ‘document’ within the meaning of the first and second paragraphs of Article 26 of the Staff Regulations, and that there was also a failure to add such documents to the personal file of the official concerned within a reasonable time of the conduct alleged or, at the very least, to bring them to the official's knowledge.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/12 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/12

---

Action brought on 21 September 2005 by the Commission of the European Communities against the Portuguese Republic

(Case C-345/05)

(2005/C 281/22)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 21 September 2005 by the Commission of the European Communities, represented by R. Lyal and M. Afonso, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by having maintained in force fiscal provisions making entitlement to exemption from tax on capital gains arising from the transfer for valuable consideration of real property intended for the taxable person's own and permanent residence or for that of a member of his family subject, as provided for by Article 10(5) of the Personal Income Tax Code, to the condition, laid down in subparagraph (a) of that provision, that the gains realised should be reinvested in the purchase of property situated in Portuguese territory, the Portuguese Republic has failed to fulfil its obligations under Articles 18, 39, 43 and 56(1) EC, and under Articles 28, 31 and 40 of the Agreement on the European Economic Area; |
| --- | --- |

1.

declare that, by having maintained in force fiscal provisions making entitlement to exemption from tax on capital gains arising from the transfer for valuable consideration of real property intended for the taxable person's own and permanent residence or for that of a member of his family subject, as provided for by Article 10(5) of the Personal Income Tax Code, to the condition, laid down in subparagraph (a) of that provision, that the gains realised should be reinvested in the purchase of property situated in Portuguese territory, the Portuguese Republic has failed to fulfil its obligations under Articles 18, 39, 43 and 56(1) EC, and under Articles 28, 31 and 40 of the Agreement on the European Economic Area;

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

2.

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The condition requiring the reinvestment of gains realised on the sale of real property used for the personal and permanent residence of a taxable person or for that of a member of his family in the purchase of other real property in Portuguese territory clearly constitutes an impediment to the fundamental freedoms guaranteed by the EC Treaty and the EEA Agreement.

The explanations and justifications for that condition presented by the Portuguese Republic do not merit consideration.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/12 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/12

---

Action brought on 22 September 2005 by the Commission of the European Communities against the Republic of Estonia

(Case C-351/05)

(2005/C 281/23)

Language of the case: Estonian

An action against the Republic of Estonia was brought before the Court of Justice of the European Communities on 22 September 2005 by the Commission of the European Communities, represented by B. Schima and E. Randvere, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| — | declare that, by failing to comply with the obligation under Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 (1) concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC to notify all the laws, regulations and administrative provisions necessary to transpose that directive into national law, and by notifying only in part the laws, regulations and administrative provisions necessary to transpose it into national law, the Republic of Estonia has failed to fulfil its obligations under the directive; |
| --- | --- |

—

declare that, by failing to comply with the obligation under Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 (1) concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC to notify all the laws, regulations and administrative provisions necessary to transpose that directive into national law, and by notifying only in part the laws, regulations and administrative provisions necessary to transpose it into national law, the Republic of Estonia has failed to fulfil its obligations under the directive;

| — | order the Republic of Estonia to pay the costs. |
| --- | --- |

—

order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The prescribed period for transposition of the directive expired on 1 July 2004.

---

(1)  OJ L 176 of 15.7.2003, p. 57.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/13 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/13

---

Action brought on 22 September 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-352/05)

(2005/C 281/24)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 22 September 2005 by the Commission of the European Communities, represented by M. Patakia, Legal Adviser in its Legal Service, and B. Schima, a member of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities, (1) or 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 bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities, (1) or 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 the national legal system expired on 1 July 2004.

---

(1)  OJ L 176 of 15.7.2003, p. 37.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/13 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/13

---

Action brought on 22 September 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-353/05)

(2005/C 281/25)

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 22 September 2005 by the Commission of the European Communities, represented by Bernard Schima and Florence 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 Dircetive 2003/54/EC (1) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92 EC and, in any event, by not informing the Commission of their adoption, 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 Dircetive 2003/54/EC (1) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92 EC and, in any event, by not informing the Commission of their adoption, 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 implementing the Directive expired on 1 July 2004.

---

(1)  OJ L 176 of 15.07.2003, p. 37

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/13 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/13

---

Action brought on 22 September 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-354/05)

(2005/C 281/26)

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 22 September 2005 by the Commission of the European Communities, represented by Muriel Heller and Bernhard Schima, 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 2003/55/EC (1) 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 and, in any event, by not informing the Commission thereof, 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 2003/55/EC (1) 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 and, in any event, by not informing the Commission thereof, 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 transposing the Directive expired on 1 July 2004.

---

(1)  OJ L 176 of 15.07.2003, p. 57

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/14 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/14

---

Action brought on 23 September 2005 by the Commission of the European Communities against the Kingdom of Spain

(Case C-357/05)

(2005/C 281/27)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 23 September 2005 by the Commission of the European Communities, represented by B. Schima and S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by having failed to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/55/EC (1) 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 or, in any case, by having failed to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 33 of that directive; |
| --- | --- |

1.

declare that, by having failed to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/55/EC (1) 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 or, in any case, by having failed to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 33 of that directive;

| 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 period prescribed for transposition of the directive into the domestic legal system expired on 1 July 2004.

---

(1)  OJ L 176 of 15 July 2003, p. 57

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/14 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/14

---

Action brought on 23 September 2005 by the Commission of the European Communities against the Italian Republic

(Case C-360/05)

(2005/C 281/28)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 23 September 2005 by the Commission of the European Communities, represented by K. Gross and M. Velardo, acting as Agents.

The Commission claims that the Court should:

| — | Declare that, by failing to adopt and communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/96/EEC (1) of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, the Italian State has failed to fulfil its obligations under Article 28 of that directive; |
| --- | --- |

—

Declare that, by failing to adopt and communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/96/EEC (1) of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, the Italian State has failed to fulfil its obligations under Article 28 of that directive;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 28(1) of Council Directive 2003/96/EC, which concerns restructuring of the Community framework for the taxation of energy products and electricity, provides:

‘Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive not later than 31 December 2003. They shall forthwith inform the Commission thereof.’

The Italian State does not appear to have adopted the implementing measures provided for by Article 28(1), and, in any event, has not informed the Commission thereof or provided any evidence which permits the inference that the necessary measures have been adopted. Under those circumstances, the Italian State is to be regarded as having failed to fulfil its obligations under that provision.

---

(1)  OJ L 283 of 31.10. 2003, p. 51.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/15 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/15

---

Appeal brought on 23 September 2005 by Jacques Wunenburger against the judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-370/03 Jacques Wunenburger v Commission of the European Communities

(Case C-362/05 P)

(2005/C 281/29)

Language of the case: French

An appeal against the judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-370/03 Jacques Wunenburger v Commission of the European Communities was brought before the Court of Justice of the European Communities on 23 September 2005 by Jacques Wunenburger, represented by Eric Boigelot, avocat.

The appellant claims that the Court should:

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

—

declare the appeal admissible and well founded;

| — | set aside the judgment of the Court of First Instance of the European Communities of 5 July 2005 in Case T-370/03 Wunenburger v Commission |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities of 5 July 2005 in Case T-370/03 Wunenburger v Commission

The appellant also requests the Court of Justice to give final judgment on the dispute and, granting the appellant's initial application in Case T-370/03, to:

| — | annul the decision made by the appointing authority on 11 March 2003 to reject the appellant's candidature for the post of Director of the ‘Sub-Saharan Africa, Caribbean, Pacific’ Directorate (AIDCO.C), subsequent to the appointing authority's decision of 8 January 2003 to appoint Amir NAQVI to that post; |
| --- | --- |

—

annul the decision made by the appointing authority on 11 March 2003 to reject the appellant's candidature for the post of Director of the ‘Sub-Saharan Africa, Caribbean, Pacific’ Directorate (AIDCO.C), subsequent to the appointing authority's decision of 8 January 2003 to appoint Amir NAQVI to that post;

| — | annul the explicit decision to reject the appellant's complaint, that complaint having been made under Article 90(2) of the Staff Regulations on 2 April 2003, and rejected by an explicit decision of 14 July 2003, notified to the appellant on 11 August 2003; |
| --- | --- |

—

annul the explicit decision to reject the appellant's complaint, that complaint having been made under Article 90(2) of the Staff Regulations on 2 April 2003, and rejected by an explicit decision of 14 July 2003, notified to the appellant on 11 August 2003;

| — | annul the appointment of Amir NAQVI to the post of Director of the ‘Sub-Saharan Africa, Caribbean, Pacific’ Directorate (AIDCO.C), which, inter alia, led to the rejection of the appellant's candidature for the vacant post; |
| --- | --- |

—

annul the appointment of Amir NAQVI to the post of Director of the ‘Sub-Saharan Africa, Caribbean, Pacific’ Directorate (AIDCO.C), which, inter alia, led to the rejection of the appellant's candidature for the vacant post;

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

—

order the defendant to pay the costs in any event.

Pleas in law and main arguments:

The grounds of the appeal are, in accordance with Article 58 of the Statute of the Court of Justice, infringement of Community law and a breach of procedure before the Court of First Instance which adversely affects the appellant's interests.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/15 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/15

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Appeal brought on 28 September 2005 by Mme Dorte Schmidt-Brown against the Judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities

(Case C-365/05 P)

(2005/C 281/30)

Language of the case: French

An appeal against the judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 28 September 2005 by Mme Dorte Schmidt-Brown, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.

The appellant claims that the Court of Justice should:

| | set aside in its entirety the judgment of the Court of First Instance (First Chamber) of 5 July 2005 in case T-387/02 (Dorte Schmidt-Brown v the Commission of the European Communities); |
| --- | --- |

set aside in its entirety the judgment of the Court of First Instance (First Chamber) of 5 July 2005 in case T-387/02 (Dorte Schmidt-Brown v the Commission of the European Communities);

| | give a final decision in the case that: |
| --- | --- |

give a final decision in the case that:

| | the decision of the Commission of 26 April 2002 rejecting the applicant's request for financial assistance to allow her to recover the entire costs incurred in defending the action seeking compensation for non-material, professional and material damage suffered as a result of defamatory statements made against her by Eurogramme Ltd be set aside; |
| --- | --- |

the decision of the Commission of 26 April 2002 rejecting the applicant's request for financial assistance to allow her to recover the entire costs incurred in defending the action seeking compensation for non-material, professional and material damage suffered as a result of defamatory statements made against her by Eurogramme Ltd be set aside;

| | order the Commission of the European Communities to pay the costs of the case at first instance and of the appeal. |
| --- | --- |

order the Commission of the European Communities to pay the costs of the case at first instance and of the appeal.

Pleas in law and main arguments

The appellant claims that the Court of First Instance acted unlawfully in considering whether, in the circumstances of the case, there had been infringement of Article 24 of the Staff Regulations to the detriment of the appellant without taking account of the decision made by the Vice-President of the Commission, Neil Kinnock, upon reviewing the request for aid and assistance of 15 January 2002, that that particular request should be granted.

The appellant was notified of that decision by letters dated 16 and 22 May 2003.

In so doing, the Court of First Instance failed to take into account all the circumstances of the case, and, in particular, the decisions made by the Commission after the appellant had brought proceedings before the High Court of Justice (England and Wales), the measures taken by the Vice-President of the Commission, Neil Kinnock, after reviewing the merits of the appellant's request for assistance of 15 January 2002, and the measures taken by the President of the Commission to restore the appellant's reputation and dignity both among her colleagues within DG Eurostat and within the Budgetary Control Committee (Cocobu) of the European Parliament.

Further, the Court of First Instance erred in law by confining its consideration to the applicability of Article 24(1) of the Staff Regulations, whereas in circumstances such as those of this case, it should also have considered the legality of the contested decision in the light of the requirements laid down by Article 24(2) of the Staff Regulations.

---

COURT OF FIRST INSTANCE

| 12.11.2005 | EN | Official Journal of the European Union | C 281/17 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/17

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Judgment of the Court of First Instance of 21 September 2005 — Yusuf and Al Barakaat International Foundation v Council and Commission

(Case T-306/01) (1)

(Common foreign and security policy - Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Competence of the Community - Freezing of funds - Fundamental rights - Jus cogens - Review by the Court - Action for annulment)

(2005/C 281/31)

Language of the case: Swedish

Parties

Applicant(s): Ahmed Ali Yusuf (Spånga, Sweden) and Al Barakaat International Foundation (represented by: L. Silbersky and T. Olsson, lawyers)

Defendant(s): Council of the European Union (represented by: M. Vitsentzatos, I. Rådestad, E. Karlsson and M. Bishop, Agents,)

Intervener(s) in support of the defendant(s): United Kingdom of Great Britain and Northern Ireland (originally represented by J. Collins, and then by R. Caudwell, Agents, and by S. Moore, Barrister)

Application

originally, for annulment of, first, Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 (OJ 2001 L 67, p. 1) and, second, Commission Regulation (EC) No 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation No 467/2001 (OJ 2001 L 295, p. 16) and, subsequently, for an application for annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001 (OJ 2002 L 139, p. 9),

Operative part of the judgment

The Court:

| 1) | Declares that there is no longer any need to adjudicate on the application for annulment of Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 and for annulment of Commission Regulation (EC) No 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation No 467/2001; |
| --- | --- |

1)

Declares that there is no longer any need to adjudicate on the application for annulment of Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 and for annulment of Commission Regulation (EC) No 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation No 467/2001;

| 2) | Dismisses the action in so far as it is brought against Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001; |
| --- | --- |

2)

Dismisses the action in so far as it is brought against Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001;

| 3) | Orders the applicants to bear, in addition to their own costs, those of the Council and those incurred by the Commission until 10 July 2002, including the costs of the interlocutory proceedings; |
| --- | --- |

3)

Orders the applicants to bear, in addition to their own costs, those of the Council and those incurred by the Commission until 10 July 2002, including the costs of the interlocutory proceedings;

| 4) | Orders the United Kingdom of Great Britain and Northern Ireland, and the Commission for the period after 10 July 2002, to bear their own costs. |
| --- | --- |

4)

Orders the United Kingdom of Great Britain and Northern Ireland, and the Commission for the period after 10 July 2002, to bear their own costs.

---

(1)  OJ C 44, 16.2.2002.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/17 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/17

---

Judgment of the Court of First Instance of 21 September 2005 — Kadi v Council and Commission

(Case T-315/01) (1)

(Common foreign and security policy - Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Competence of the Community - Freezing of funds - Fundamental rights - Jus cogens - Review by the Court - Action for annulment)

(2005/C 281/32)

Language of the case: English

Parties

Applicant(s): Yassin Abdullah Kadi (Jeddah, Saudi Arabia) (represented by: D. Pannick QC, P. Saini, Barrister, G. Martin and A. Tudor, Solicitors)

Defendant(s): Council of the European Union (represented by: M. Vitsentzatos and M. Bishop, Agents) and Commission of the European Communities (represented by: A. Van Solinge and C. Brown, Agents)

Intervener(s) in support of the defendant(s): United Kingdom of Great Britain and Northern Ireland (originally represented by J.E. Collins, and subsequently by R. Caudwell, Agents, and S. Moore, Barrister)

Application

originally, for annulment of, first, Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 (OJ 2001 L 67, p. 1) and, second, Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/2001 (OJ 2001 L 277, p. 25) and, subsequently, for annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001 (OJ 2002 L 139, p. 9), in so far as those acts concern the applicant,

Operative part of the judgment

The Court:

| 1) | Declares that there is no need to adjudicate on the application for annulment in part of Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 and for annulment of Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/2001; |
| --- | --- |

1)

Declares that there is no need to adjudicate on the application for annulment in part of Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 and for annulment of Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/2001;

| 2) | Dismisses the action in so far as it is brought against Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001; |
| --- | --- |

2)

Dismisses the action in so far as it is brought against Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation No 467/2001;

| 3) | Orders the applicant to bear, in addition to his own costs, those of the Council and those incurred by the Commission until 1 July 2002; |
| --- | --- |

3)

Orders the applicant to bear, in addition to his own costs, those of the Council and those incurred by the Commission until 1 July 2002;

| 4) | Orders the United Kingdom of Great Britain and Northern Ireland, and the Commission for the period after 1 July 2002, to bear their own costs. |
| --- | --- |

4)

Orders the United Kingdom of Great Britain and Northern Ireland, and the Commission for the period after 1 July 2002, to bear their own costs.

---

(1)  OJ C 56, 2.3.2002.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/18 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/18

---

Judgment of the Court of First Instance of 29 September 2005 — Napoli Buzzanca v Commission

(Case T-218/02) (1)

(Officials - Post of director - Procedure to fill vacant posts - Decision rejecting a candidature - Statement of reasons)

(2005/C 281/33)

Language of the case: French

Parties

Applicant(s): Daniela Napoli Buzzanca (Brussels, Belgium) (represented by: G. Vandersanden and L. Levi, lawyers)

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

Application for

firstly, annulment of the decisions of the Commission of 30 January 2002 appointing Ms S. as director, in grade A2, of Directorate ‘Multilateral relations and human rights’ of the ‘External Relations’ Directorate-General and rejecting the applicant's candidature for that post, and annulment, to the extent necessary, of the implied rejection by the Commission of her complaint under Article 90(2) of the Staff Regulations, secondly, an order that the defendant pay damages assessed, as at the date of the action and subject to possible increase, in the sum of EUR 23 213,96 and, finally, an order that the Commission produce her administrative file.

Operative part of the judgment

The Court:

| 1) | Annuls the decisions of the Commission of 30 January 2002 appointing Ms S. to the post concerned by vacancy notice COM/156/01 and rejecting the applicant's candidature for that post. |
| --- | --- |

1)

Annuls the decisions of the Commission of 30 January 2002 appointing Ms S. to the post concerned by vacancy notice COM/156/01 and rejecting the applicant's candidature for that post.

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

2)

Dismisses the remainder of the application.

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

3)

Orders the Commission to pay the costs.

---

(1)  OJ C 247, 12.10.2002.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/19 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/19

---

Judgment of the Court of First Instance of 27 September 2005 — GeoLogistics BV v Commission

(Case T-26/03) (1)

(Customs Union - External Community transit operations - Meat destined for Morocco - Fraud - Application for remission of import duties - Article 239 of Regulation (EEC) No 2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause - Special situation - No deception or obvious negligence)

(2005/C 281/34)

Language of the case: Dutch

Parties

Applicant(s): GeoLogistics BV (Schiphol Rijk, Netherlands) (represented initially by H. de Bie and K. Schellaars, and subsequently by H. De Bie and A. Huizing, lawyers)

Defendant(s): Commission of the European Communities (represented by X. Lewis, Agent, assisted by F. Tuytschaever, lawyer)

Intervener(s) in support of the defendant(s): Kingdom of Spain (represented by L. Fraguas Gadea and J.M. Rodríguez Cárcamo, abogados del Estado)

Application for

annulment of Commission Decision REM 08/00 of 7 October 2002 declaring there to be no grounds for the applicant to be granted remission of import duties, as requested in the application submitted by the Kingdom of the Netherlands

Operative part of the judgment

The Court:

| 1) | Annuls Commission Decision REM 08/00 of 7 October 2002 in so far as it refuses to remit the import duties for which the applicant was found liable in respect of customs operations carried out by it on or after 12 June 1995; |
| --- | --- |

1)

Annuls Commission Decision REM 08/00 of 7 October 2002 in so far as it refuses to remit the import duties for which the applicant was found liable in respect of customs operations carried out by it on or after 12 June 1995;

| 2) | Order the Commission to bear its own costs and to pay those of the applicant; |
| --- | --- |

2)

Order the Commission to bear its own costs and to pay those of the applicant;

| 3) | Orders the Kingdom of Spain to bear its own costs. |
| --- | --- |

3)

Orders the Kingdom of Spain to bear its own costs.

---

(1)  OJ C 70, 22.3.2003.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/19 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/19

---

Judgment of the Court of First Instance of 22 September 2005 — Suproco v Commission

(Case T-101/03) (1)

(Association of the OCTs - Sugar not entitled to OCT origin - Request for a derogation from the rules of origin - Rejection of the request for a derogation - Duty to give reasons)

(2005/C 281/35)

Language of the case: Dutch

Parties

Applicant(s): Suproco (Curaçao, Netherlands Antilles) (represented by M. Slotboom and N.J. Helder, lawyers)

Defendant(s): Commission of the European Communities (represented by T. van Rijn and X. Lewis, agents)

Intervener(s) in support of the applicant(s): Kingdom of the Netherlands (represented by H. Sevenster, agent)

Intervener(s) in support of the defendant(s): Council of the European Union (represented by initially by G. Houttuin and M. Bishop, and subsequently by G. Houttuin and D. Canga Fano, agents) and by Kingdom of Spain (represented by N. Díaz Abad, lawyer)

Application for

the annulment of Commission Decision 2003/34/EC of 10 January 2003 refusing to grant a derogation from Council Decision 2001/822/EC, as regards the rules of origin for sugar from the Netherlands Antilles (OJ 2003 L 11, p. 50)

Operative part of the judgment

The Court:

| 1) | Annuls Commission Decision 2003/34/EC of 10 January 2003 refusing to grant a derogation from Council Decision 2001/822/EC, as regards the rules of origin for sugar from the Netherlands Antilles; |
| --- | --- |

1)

Annuls Commission Decision 2003/34/EC of 10 January 2003 refusing to grant a derogation from Council Decision 2001/822/EC, as regards the rules of origin for sugar from the Netherlands Antilles;

| 2) | Orders the Commission to bear its own costs and those of Suproco; |
| --- | --- |

2)

Orders the Commission to bear its own costs and those of Suproco;

| 3) | Orders the Council, the Kingdom of Spain and the Kingdom of the Netherlands to bear their own costs. |
| --- | --- |

3)

Orders the Council, the Kingdom of Spain and the Kingdom of the Netherlands to bear their own costs.

---

(1)  OJ C 135, 7.6.2003.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/20 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/20

---

Judgment of the Court of First Instance of 22 September 2005 — Alcon v OHIM

(Case T-130/03) (1)

(Community trade mark - Opposition proceedings - Earlier national word mark TRIVASTAN - Application for Community word mark TRAVATAN - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 281/36)

Language of the case: English

Parties

Applicant(s): Alcon Inc. (Hünenberg, Switzerland) (represented by: G. Breen, Solicitor, and J. Gleeson, Barrister)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Palmero Cabezas and S. Laitinen, Agents)

Other party or parties to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance

  :
  Biofarma SA, (Neuilly-sur-Seine, France) (represented by: V. Gil Vega, A. Ruiz Lopez, and D. González Maroto, lawyer)

Application for

annulment of the decision of the Third Board of Appeal of OHIM of 30 January 2003 (Case R 968/2001-3) concerning opposition proceedings between Alcon Inc. and Biofarma SA

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 158, 5.7.2003.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/20 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/20

---

Judgment of the Court of First Instance of 15 September 2005 — Casini v Commission

(Case T-132/03) (1)

(Commission officials - Promotion - 2002 procedure - Non-inclusion on the list of officials promoted to Grade A 6 - Duty to state reasons - Consideration of the comparative merits - Manifest error of assessment - Probative nature of subsequent statements of members of the personnel service - Action for annulment - Action for damages)

(2005/C 281/37)

Language of the case: French

Parties

Applicant(s): Paola Casini (Brussels, Belgium) (represented by: G. Vandersanden, lawyer)

Defendant(s): Commission of the European Communities (represented by: V. Joris, Agent, and D. Waelbroeck, lawyer)

Application for

annulment of the decision of the Commission not to promote the applicant to Grade A 6 in respect of the 2002 promotion procedure, and damages for material and non-material damage suffered

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Commission of 14 August 2002 not to promote the applicant to Grade A 6 in respect of the 2002 promotion procedure; |
| --- | --- |

1.

Annuls the decision of the Commission of 14 August 2002 not to promote the applicant to Grade A 6 in respect of the 2002 promotion procedure;

| 2. | Orders the defendant to pay the applicant the sum of EUR 2 000 to compensate for non-material damage she has suffered; |
| --- | --- |

2.

Orders the defendant to pay the applicant the sum of EUR 2 000 to compensate for non-material damage she has suffered;

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

3.

Dismisses the remainder of the action;

| 4. | Orders the defendant to pay the costs. |
| --- | --- |

4.

Orders the defendant to pay the costs.

---

(1)  OJ C 146 of 21.6.2003.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/21 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/21

---

Judgment of the Court of First Instance of 29 September 2005 — Thommes v Commission

(Case T-195/03) (1)

(Temporary agents - Installation allowance - Change in place of employment - Refusal to acknowledge installation of the family - Recovery of sum not due)

(2005/C 281/38)

Language of the case: German

Parties

Applicant(s): Gustav Thommes (Wezembeek-Oppem, Belgium) (represented by: M. Thewes and V. Wiot, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall, Agent, assisted by B. Wägenbaur, lawyer)

Application for

Application for annulment of the Commission's decisions relating to the recovery of a part of the installation allowance paid to the applicant in the context of a change in his place of employment and the refusal to grant him an installation allowance in connection with a further re-assignment.

Operative part of the judgment

The Court:

| 1) | Dismisses the action. |
| --- | --- |

1)

Dismisses the action.

| 2) | Orders each party to bear its own costs. |
| --- | --- |

2)

Orders each party to bear its own costs.

---

(1)  OJ C 200, 23.8.2003.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/21 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/21

---

Judgment of the Court of First Instance of 15 September 2005 — Citicorp v OHIM

(Case T-320/03) (1)

(Community trade mark - Word mark LIVE RICHLY - Absolute grounds for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Right to be heard - Article 73 of Regulation No 40/94)

(2005/C 281/39)

Language of the case: English

Parties

Applicant(s): Citicorp (New York, United States) (represented by: V. von Bomhard, A. Renck and A. Pohlmann, lawyers)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Laitinen, P. Bullock and A. von Mühlendahl, Agents)

Application for

annulment of the decision of the Third Board of Appeal of OHIM of 25 June 2003 (Case R 85/2002-3), concerning an application to register the word mark LIVE RICHLY as a Community trade mark

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders the applicant to bear its own costs, in addition to one half of the costs incurred by the defendant; |
| --- | --- |

2)

Orders the applicant to bear its own costs, in addition to one half of the costs incurred by the defendant;

| 3) | Orders the defendant to bear one half of its own costs. |
| --- | --- |

3)

Orders the defendant to bear one half of its own costs.

---

(1)  OJ C 275, 15.11.2003.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/21 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/21

---

Judgment of the Court of First Instance of 27 September 2005 — Cargo Partner AG v OHIM

(Case T-123/04) (1)

(Community trade mark - Word sign CARGO PARTNER - Absolute ground for refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Absence of distinctive character)

(2005/C 281/40)

Language of the case: German

Parties

Applicant(s): Cargo Partner AG (Fischamend, Austria) (represented by: M. Wolner, lawyer)

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

Application for

annulment of the decision of the First Board of Appeal of OHIM of 26 January 2004 (Case R 346/2003-1), in relation to the application for registration of the word sign CARGO PARTNER as a Community trade mark

Operative part of the judgment

The Court:

| 1) | Dismisses the action. |
| --- | --- |

1)

Dismisses the action.

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

2)

Orders the applicant to pay the costs.

---

(1)  OJ C 168, 26.6.2004.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/22 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/22

---

Judgment of the Court of First Instance of 15 September 2005 — Luxem v Commission

(Case T-306/04) (1)

(Officials - Recruitment - Refusal to appoint a successful candidate in a competition who does not fulfil the conditions of admission to the competition)

(2005/C 281/41)

Language of the case: French

Parties

Applicant(s): Monika Luxem (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall and L. Lozano Palacios, Agents)

Application for

Annulment of the Commission's decision of 30 July 2003 refusing to appoint the applicant as an official

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders each party to pay its own costs. |
| --- | --- |

2)

Orders each party to pay its own costs.

---

(1)  OJ C 262, 23.10.2004

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/22 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/22

---

Judgment of the Court of First Instance of 21 September 2005 — EDP v Commission

(Case T-87/05) (1)

(Competition - Concentration - Regulation (EEC) No 4064/89 - Decision declaring a concentration incompatible with the common market - Portuguese electricity and gas markets - Acquisition of GDP by EDP and Eni - Directive 2003/55/EC - Liberalisation of gas markets - Commitments)

(2005/C 281/42)

Language of the case: English

Parties

Applicant(s): EDP — Energias de Portugal SA (Lisbon, Portugal) (represented by C. Botelho Moniz, R. García-Gallardo, A. Weitbrecht and J. Ruiz Calzado, lawyers)

Defendant(s): Commission of the European Communities (represented by A. Bouquet and M. Schneider, agents)

Intervener(s) in support of the defendant(s): Gas Natural SDG SA (Barcelona, Spain) (represented by J. Perez-Bustamante Köster and P. Suárez Fernández, lawyers)

Application for

for annulment of Commission Decision C(2004) 4715 final of 9 December 2004 declaring incompatible with the common market the concentration by which EDP — Energias de Portugal SA and Eni Portugal Investment SpA proposed to acquire joint control of Gás de Portugal SGPS SA (Case COMP/M.3440 — EDP/ENI/GDP

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders the applicant to pay the costs; |
| --- | --- |

2)

Orders the applicant to pay the costs;

| 3) | Orders the parties to bear their own costs in relation to the intervention. |
| --- | --- |

3)

Orders the parties to bear their own costs in relation to the intervention.

---

(1)  OJ C 82, 2.4.2005.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/23 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/23

---

Action brought on 2 August 2005 — Torijano Montero v Council

(Case T-302/05)

(2005/C 281/43)

Language of the case: French

Parties

Applicant(s): Javier Torijano Montero (Brussels, Belgium) (represented by: S. Rodrigues, lawyer, A. Jaume, lawyer)

Defendant(s): Council of the European Union

Form of order sought

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

Principally:

| — | annul the decision of the appointing authority rejecting the applicant's complaint together with the decision of appointment adopted by the appointing authority on 20 October 2004 in so far as it determined his grade pursuant to Article 12(3) of Annex XIII to the Staff Regulations; |
| --- | --- |

—

annul the decision of the appointing authority rejecting the applicant's complaint together with the decision of appointment adopted by the appointing authority on 20 October 2004 in so far as it determined his grade pursuant to Article 12(3) of Annex XIII to the Staff Regulations;

| — | advise the appointing authority of the consequences of the annulment of the contested decisions, in particular the regrading of the applicant in grade A*8 with retroactive effect as from 16 October 2004, the date on which the decision of appointment of 20 October 2004 took effect; |
| --- | --- |

—

advise the appointing authority of the consequences of the annulment of the contested decisions, in particular the regrading of the applicant in grade A*8 with retroactive effect as from 16 October 2004, the date on which the decision of appointment of 20 October 2004 took effect;

In the alternative:

| — | order the Commission to compensate the loss suffered by the applicant as a result of not having been graded, at least in grade A*8, as from 16 October 2004, the date on which the decision of appointment of 20 October 2004 took effect. |
| --- | --- |

—

order the Commission to compensate the loss suffered by the applicant as a result of not having been graded, at least in grade A*8, as from 16 October 2004, the date on which the decision of appointment of 20 October 2004 took effect.

In any event:

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicant are, for the most part, identical to those relied on in Case T-207/05 Schulze v Commission.
   (1) The applicant also claims that there has been a breach of the rules concerning the correspondence between types of posts, on the one hand, and categories and grades, on the other.

---

(1)  OJ C 193, 6.8.2005, p. 36.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/23 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/23

---

Action brought on 10 August 2005 — Arko and Others v Commission

(Case T-314/05)

(2005/C 281/44)

Language of the case: French

Parties

Applicant(s): Eva Arko (Brussels, Belgium) and 28 others (represented by: S Rodrigues and A. Jaume, lawyers)

Defendant(s): Commission of the European Communities

The applicants claim that the Court should

Primarily:

| — | annul the decisions of appointment taken by the defendants in that they determine the applicants' grade under Article 12(3) of Annex XIII to the Staff Regulations and their step under the provisions in force since the 1 May 2004; |
| --- | --- |

—

annul the decisions of appointment taken by the defendants in that they determine the applicants' grade under Article 12(3) of Annex XIII to the Staff Regulations and their step under the provisions in force since the 1 May 2004;

| — | state to the defendants what the effect is of the annulment of the contested decisions and, in particular, of the reclassification of the applicants in accordance with the table of equivalence in Article 2(1) of Annex XIII to the Staff Regulations, with retroactive effect from the dates on which the decisions to appoint the applicants took effect; |
| --- | --- |

—

state to the defendants what the effect is of the annulment of the contested decisions and, in particular, of the reclassification of the applicants in accordance with the table of equivalence in Article 2(1) of Annex XIII to the Staff Regulations, with retroactive effect from the dates on which the decisions to appoint the applicants took effect;

In the alternative:

| — | order the Commission to make reparation for the damage the applicants suffered as a result of the fact that they were not classified under Article 2(1) of Annex XIII to the Staff Regulations, from the dates on which the decisions to appoint the applicants took effect. |
| --- | --- |

—

order the Commission to make reparation for the damage the applicants suffered as a result of the fact that they were not classified under Article 2(1) of Annex XIII to the Staff Regulations, from the dates on which the decisions to appoint the applicants took effect.

In any event:

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

—

order the defendants to pay all the costs.

Pleas in law and main arguments

The applicants, Commission officials, are successful candidates of a competition which took place before the amendments to the Staff Regulations entered into force on 1 May 2004. Recruited after that date, they were appointed to the grade and step prescribed in the new Staff Regulations, which they consider to be less advantageous. By this action, they dispute their appointments.

They submit that Article 12 of Annex XIII to the Staff Regulations is inapplicable in the present case and, in the alternative, that that provision is unlawful and in breach of a number of principles of Community law. In that respect, they refer, firstly, to the principles of non-discrimination, equal treatment and freedom of movement for workers. The applicants submit that these principles have been infringed because the majority of the officials affected are nationals of the new Member States. They also submit that they have been discriminated against in comparison with officials included on the same list of suitable candidates and appointed prior to 1 May 2004.

In the same context, the applicants plead the alleged infringement of Article 31 of the Staff Regulations, which provides that new officials are to be nominated to the grade and function group set out in the competition notice, the alleged infringement of the principles of protection of legitimate expectations, legal certainty, sound administration and proportionality, and the administration's duty to have regard for the interests of officials, and misuse of powers.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/24 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/24

---

Action brought on 11 August 2005 — ADOMEX International BV v Commission

(Case T-315/05)

(2005/C 281/45)

Language of the case: Dutch

Parties

Applicant(s): ADOMEX International BV (represented by G. Van der Wal, Advocate, and T. Boesmans, Advocate)

Defendant(s): Commission

Form of order sought

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

| — | Annul Commission Decision C(2005) 592 fin, Case N 372/2003 of 16 March 2005; |
| --- | --- |

—

Annul Commission Decision C(2005) 592 fin, Case N 372/2003 of 16 March 2005;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is an importer and wholesaler of floral products and is principally engaged in importing into the Netherlands and further processing various kinds of cut foliage originating mainly in non-Member States.

The applicant is challenging the Commission's decision not to object to an alteration in aid to flower producers approved in the framework of Files N 766/95 and NN 84/00. That system of aid concerns the rules governing a trade association for floral products established by the Horticultural commodity board, a subgrouping of the Netherlands trade organisation established under public law.

In support of its application the applicant submits that the Commission wrongly did not inquire whether the aid scheme in question is compatible with the common market and is in conflict with Articles 23 and 25 EC. According to the applicant there is therefore an infringement of the duty under Article 253 EC to provide a statement of the reasons on which the decision is based.

The applicant further submits that the contested decision runs counter to Articles 23 and 25 EC. According to the applicant the aid scheme approved by the Commission does not constitute internal taxation within the meaning of Article 90 EC but rather a charge having equivalent effect to a customs duty within the meaning of Articles 23 and 25 EC. This conclusion follows from the fact that the charge does not affect the national and imported product with like severity, at the same transactional stage and on the basis of the same chargeable event, and that there are no national products of the same kind as or competing with the taxed imported product with the result that there cannot be said to be an internal system of taxation.

In the applicant's view, the Commission decision is also incomprehensible or at least inadequately reasoned and thus in conflict with Article 253 EC. The applicant submits that the Commission refers in the decision to earlier decisions which are unsupported by a statement of reasons or in which the Commission gives its approval to an entirely different charge that that which is appraised in the decision. Moreover, the Commission appears to be manifestly in error as to the facts, inter alia by finding in the decision that the charge at issue is not imposed on imported products.

Finally, the applicant declares that as a party concerned it was not given an opportunity to make known its views and was unable to exercise its procedural rights under Article 88(2) EC.

---

| 12.11.2005 | EN | Official Journal of the European Union | C 281/25 |
| --- | --- | --- | --- |

12.11.2005

EN

Official Journal of the European Union

C 281/25

---

Action brought on 17 August 2005 — De Geest v Council

(Case T-318/05)

(2005/C 281/46)

Language of the case: French

Parties

Applicant(s): Johan De Geest (Rhode-St-Genèse, Belgium) (represented by: S. Orlandi, X. Martin, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant(s): Council of the European Union

Form of order sought

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

| — | annul the decision of the Council of 3 January 2005 rejecting the applicant's claim to be recruited in grade A6 or A7, which have been renamed A*10 and A*8 since 1 May 2004; |
| --- | --- |

—

annul the decision of the Council of 3 January 2005 rejecting the applicant's claim to be recruited in grade A6 or A7, which have been renamed A*10 and A*8 since 1 May 2004;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-164/05 De Geest v Council. (1)

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(1)  OJ C 171, 9.7.2005, p. 28.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/25 |
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Action brought on 23 August 2005 — Maccanti v European Economic and Social Committee

(Case T-320/05)

(2005/C 281/47)

Language of the case: French

Parties

Applicant(s): Sandra Maccanti (Woluwé-St-Pierre, Belgium) (represented by: L. Vogel, lawyer)

Defendants: European Economic and Social Committee

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision adopted by the appointing authority on 11 May 2005 (notified on 13 May 2005) rejecting the applicant's complaint of 22 March 2005 challenging her grading when her contract as a member of the temporary staff, previously entered into on 7 July 2004, was renewed on 23 December 2004; |
| --- | --- |

—

Annul the decision adopted by the appointing authority on 11 May 2005 (notified on 13 May 2005) rejecting the applicant's complaint of 22 March 2005 challenging her grading when her contract as a member of the temporary staff, previously entered into on 7 July 2004, was renewed on 23 December 2004;

| — | So far as may be necessary, also annul the decision setting the grade in the contract extending her employment as a member of the temporary staff, signed on 23 December 2004; |
| --- | --- |

—

So far as may be necessary, also annul the decision setting the grade in the contract extending her employment as a member of the temporary staff, signed on 23 December 2004;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was recruited as a member of the temporary staff of the European Economic and Social Committee for an initial period of six months beginning on 1 January 2004. That contract was then renewed for the period from 7 July 2004 to 31 December 2004. Upon that renewal she was graded at Grade B*4, step 2, passing then upon an advance in step in December 2004 to Grade B*4/3.

On 23 December 2004, the applicant was invited to sign a new contract renewing her engagement until 31 December 2006. In the new contract, she was graded at Grade B*3/1.

By the present action, the applicant challenges that less favourable grading. She alleges an infringement of Articles 8 and 15 of the conditions of employment of other servants of the European Communities. In her view, it is clear from those provisions that the renewal of a contract of a member of the temporary staff is merely an extension in time of its effects and that, therefore, the grading of that member cannot be changed on the occasion of that renewal.

The applicant further alleges an infringement of the principle of non-discrimination, submitting that some of the members of the defendant's temporary staff had their contracts renewed keeping their original grading, and infringement of her legitimate expectations.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/26 |
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Action brought on 18 August 2005 — Carsten Brinkmann v OHIM

(Case T-322/05)

(2005/C 281/48)

Language of the case: German

Parties

Applicant(s): Carsten Brinkmann (Cologne, Germany) (representative: K.Van Bebber, lawyer)

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

Other party(ies) to the proceedings before the Board of Appeal: Terra Networks SA (Madrid, Spain)

Forms of order sought by the claimant(s)

| — | annulment of Decision No 646/2004 of the Office for Harmonisation of 29 October 2004 in the form of the decision of the Board of Appeal of 10 June 2005 (R 1145/2004-1), together with an order for costs in its favour; |
| --- | --- |

—

annulment of Decision No 646/2004 of the Office for Harmonisation of 29 October 2004 in the form of the decision of the Board of Appeal of 10 June 2005 (R 1145/2004-1), together with an order for costs in its favour;

| — | dismissal of the opposition of Terra Networks SA of 12 April 2002 (Opposition proceedings B 502 676), together with an order for costs in its favour, and |
| --- | --- |

—

dismissal of the opposition of Terra Networks SA of 12 April 2002 (Opposition proceedings B 502 676), together with an order for costs in its favour, and

| — | registration of the word mark ‘Terranus’ (2 061 968), as applied for on 29 January 2001, for goods and services in Class 36 ‘Insurance; financial affairs; monetary affairs; real estate affairs’. |
| --- | --- |

—

registration of the word mark ‘Terranus’ (2 061 968), as applied for on 29 January 2001, for goods and services in Class 36 ‘Insurance; financial affairs; monetary affairs; real estate affairs’.

Pleas in law and main arguments

Applicant for the Community trade mark: the claimant

Community trade mark affected: The word mark ‘Terranus’ in respect of goods in Class 36 (Application No 1 739 697).

Owner of the opposing mark or sign in the opposition proceedings: Terra Networks SA.

Opposing mark or sign: The figurative mark ‘TERRA’ for goods and services in Class 36 (Community mark No 1 332 691), and Spanish mark No 2 261 483).

Decision of the Opposition Division: Dismissal of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas: There is no likelihood of confusion as between the opposing marks.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/26 |
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Action brought on 24 August 2005 — Coffee Store v OHIM

(Case T-323/05)

(2005/C 281/49)

Language in which the application was lodged: German

Parties

Applicant(s): The Coffee Store GmbH (Mannheim, Germany) (represented by: M. Buddeberg, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | set aside the decision of the Second Board of Appeal of OHIM of 15 June 2005, reference No R 855/2004-2; |
| --- | --- |

—

set aside the decision of the Second Board of Appeal of OHIM of 15 June 2005, reference No R 855/2004-2;

| — | order that Community trade mark application 3 346 228 THE COFFEE STORE be registered; |
| --- | --- |

—

order that Community trade mark application 3 346 228 THE COFFEE STORE be registered;

| — | order OHIM to bear the costs of the proceedings. |
| --- | --- |

—

order OHIM to bear the costs of the proceedings.

Pleas in law and main arguments

Community trade mark sought: The word mark ‘THE COFFEE STORE’ for goods and services in Classes 30, 32, 41 and 43.

Decision of the examiner: Refusal to register the goods and services in Classes 30, 32 and 43.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The trade mark applied for cannot be considered as a sign exclusively of descriptive character within the meaning of Article 7(1)(c) of Council Regulation (EC) No 40/94. Furthermore, the trade mark applied for is not devoid of any distinctive character within the meaning of Article 7(1)(b) of Council Regulation (EC) No 40/94.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/27 |
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12.11.2005

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C 281/27

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Action brought on 29 August 2005 — Rath v OHIM

(Case T-326/05)

(2005/C 281/50)

Language of the case: German

Parties

Applicant(s): Matthias Rath (Cape Town, South Africa) [representative: S. Ziegler, lawyer, C. Kleiner, lawyer and F. Dehn, lawyer]

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

Other party(ies) to the proceedings before the Board of Appeal: AstraZeneca AB (Södertälje, Sweden)

Forms of order sought by the claimant(s)

| — | annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation within the Internal Market (Trade Marks and Designs) (OHIM) of 18 May 2005; |
| --- | --- |

—

annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation within the Internal Market (Trade Marks and Designs) (OHIM) of 18 May 2005;

| — | order of costs against OHIM. |
| --- | --- |

—

order of costs against OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: AstraZeneca AB

Community trade mark affected: The word mark ‘VIXACOR’ in respect of goods in Class 5 (Application No 1 739 697).

Owner of the opposing mark or sign in the opposition proceedings: the claimant.

Opposing mark or sign: The Community mark ‘Vitacor’ for goods and services in Classes 5, 16 and 41 (No 689 018), the Community mark ‘Vitacor Plus’ for goods and services in Classes 5, 16 and 32 (No 1 668 565) and the German trade mark ‘Vitacor Plus’ for goods in Classes 5, 16 and 31 (No 399 65 690).

Decision of the Opposition Division: Dismissal of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 since there is a likelihood of confusion between the mark applied for and the opposing marks.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/27 |
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Action brought on 11 August 2005 — Thierry v Commission

(Case T-327/05)

(2005/C 281/51)

Language of the case: French

Parties

Applicant(s): Michel Thierry (Howald, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | annul the list of officials promoted in 2004 in so far as that list does not include the applicant's name and, indirectly, the preparatory measures for that decision; |
| --- | --- |

—

annul the list of officials promoted in 2004 in so far as that list does not include the applicant's name and, indirectly, the preparatory measures for that decision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By his action, the applicant challenges the decision of the Commission not to promote him to Grade A5 in 2004. He submits that the new system of promotion based on priority points attributed to the official, applied by the Commission in the present case, places too much weight on seniority as the promotion criterion. Therefore, the applicant considers that, in his case, there was no consideration of the comparative merits in breach of Article 45 of the Staff Regulations, of the general provisions implementing that article, of the Administrative Guide on appraisal and promotion and of the principle of equality. On the same basis, he also alleges a breach of the principle precluding arbitrary proceedings, of the duty to state reasons, of legitimate expectations, of the ‘patere legem quam ipse fecisti’ rule and abuse of power.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/28 |
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Official Journal of the European Union

C 281/28

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Action brought on 26 August 2005 — Apple Computer/OHIM

(Case T-328/05)

(2005/C 281/52)

Language in which the application was lodged: English

Parties

Applicant(s): Apple Computer, Inc. (Cupertino, USA) [represented by: P. Rawlinson, S. Jones, J. Rutter, solicitors]

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

Other party/parties to the proceedings before the Board of Appeal: TKS-Teknosoft S.A. (Treplex, Switzerland)

Form of order sought

| — | Annulment of the Decision of the Fourth Board of Appeal No. R 416/2004-4; |
| --- | --- |

—

Annulment of the Decision of the Fourth Board of Appeal No. R 416/2004-4;

| — | Annulment of the Decision of the Opposition Division No. 851/2004; and |
| --- | --- |

—

Annulment of the Decision of the Opposition Division No. 851/2004; and

| — | Order the opponent to pay the costs incurred by the applicant/appellant in connection with this appeal and the appeal before the Board of Appeal and the opposition before the Opposition Division. |
| --- | --- |

—

Order the opponent to pay the costs incurred by the applicant/appellant in connection with this appeal and the appeal before the Board of Appeal and the opposition before the Opposition Division.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Figurative mark QUARTZ for goods in class 9 (application No 1 421 130)

Proprietor of the mark or sign cited in the opposition proceedings: TKS-Teknosoft S.A.

Mark or sign cited: Figurative Community trade mark QUARTZ for goods in classes 9 and 42

Decision of the Opposition Division: Opposition upheld for all the contested goods

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

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as there is no likelihood of confusion amongst the relevant public between the two conflicting trade marks. The Opposition Division and the Board of Appeal erred in finding similarity between the relevant goods and failed to assess the likelihood of confusion by reference to the relevant consumers thereby giving the opponent TKS-Teknosoft S.A. a trade mark monopoly.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/28 |
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Action brought on 1 September 2005 — IKEA/OHIM

(Case T-331/05)

(2005/C 281/53)

Language of the case: English

Parties

Applicant(s): Inter IKEA Systems B.V. (Delft, The Netherlands) [represented by: J. Gulliksson, J. Olsson, lawyers]

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

Form of order sought

| — | Annul the Decision of the First Board of Appeal of July 1, 2005 in case R 799/2004-1, and |
| --- | --- |

—

Annul the Decision of the First Board of Appeal of July 1, 2005 in case R 799/2004-1, and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A figurative mark consisting of the colour combination blue and yellow for goods and services in classes 20 and 35 (furniture, advertising etc.) — application No 3 160 363

Decision of the examiner: Refusal of the application for all goods and services

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and Article 7(3) of Council Regulation No 40/94 as the trade mark is sufficiently distinctive per se to be registrable and further has acquired distinctiveness through use in Germany, the Netherlands and Sweden.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/29 |
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Action brought on 29 August 2005 — Ezerniece Liljeberg and Others v Commission

(Case T-333/05)

(2005/C 281/54)

Language of the case: French

Parties

Applicant(s): Kristine Ezerniece Liljeberg (Brussels, Belgium), and Others (represented by: G. Vandersanden, L. Levi, C. Ronzi, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | Annul the decision appointing the applicants in so far as it establishes their grade as grade A*6; |
| --- | --- |

—

Annul the decision appointing the applicants in so far as it establishes their grade as grade A*6;

| — | Consequently, wholly restore the applicants' rightful career prospects (including giving proper weight to their experience in the grade thus adjusted, their promotion rights and their pension rights), whilst observing strict equality in relation to the other officials who were successful candidates in the same competition and work in European institutions other than the Commission; |
| --- | --- |

—

Consequently, wholly restore the applicants' rightful career prospects (including giving proper weight to their experience in the grade thus adjusted, their promotion rights and their pension rights), whilst observing strict equality in relation to the other officials who were successful candidates in the same competition and work in European institutions other than the Commission;

| — | Grant the applicants default interest at the rate fixed by the European Central Bank on all the sums corresponding to the difference between the salary corresponding to their grade in the decision of recruitment and the grade to which they should have been entitled, up to the date on which the decision properly grading them is taken; |
| --- | --- |

—

Grant the applicants default interest at the rate fixed by the European Central Bank on all the sums corresponding to the difference between the salary corresponding to their grade in the decision of recruitment and the grade to which they should have been entitled, up to the date on which the decision properly grading them is taken;

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

—

Order the defendant to pay all the costs.

Pleas in law and main arguments

The applicants are officials of the Commission entrusted with lawyer-linguist duties who were recruited on the basis of lists of suitable candidates resulting from competitions at LA 7/LA 6 levels before 1 May 2004. Article 13(2) of Annex XIII to the Staff Regulations provides that in such a case the institutions may recruit lawyer-linguists at grade A*7 instead of A*6. However, the Commission did not exercise that power and recruited the applicants at grade A*6.

The applicants are challenging that decision with their application, claiming that the other institutions would have appointed successful candidates in the same position at grade A*7 and that the Commission itself employs lawyer-linguists as temporary agents at grade A*7. On that basis, the applicants claim infringement of the principle of equal treatment and non-discrimination, of Article 1d(1) of the Staff Regulations, of the principle of assignment to an equivalent post and grade, of Article 9(3) of the Treaty of Amsterdam and, finally, of Article 13(2) of Annex XIII to the Staff Regulations.

Moreover, the applicants claim that the Commission assured them that they would be recruited at grade A*7 and, on that basis, they allege infringement of the principle of the protection of legitimate expectations, the principle of legal certainty, the principle of good administration, the principle of good faith, the principle of transparency and of the duty to have regard for the welfare and interests of officials.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/29 |
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Action brought on 29 August 2005 — Wineke Neirinck v Commission

(Case T-334/05)

(2005/C 281/55)

Language of the case: French

Parties

Applicant(s): Wineke Neirinck (Brussels, Belgium) (represented by: G. Vandersanden, L. Levi and C. Ronzi, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | Annul the implied decision rejecting her claim for damages and, so far as may be necessary, the express decision rejecting her complaint; |
| --- | --- |

—

Annul the implied decision rejecting her claim for damages and, so far as may be necessary, the express decision rejecting her complaint;

| — | Award damages for the pecuniary and non-pecuniary loss sustained by her following the breach of the Commission's promise to recruit her to the Investigatory and Disciplinary Office (IDOC) with effect from 1 May 2004 at the latest, that amount being fixed ex aequo et bono at EUR 576 593,20; |
| --- | --- |

—

Award damages for the pecuniary and non-pecuniary loss sustained by her following the breach of the Commission's promise to recruit her to the Investigatory and Disciplinary Office (IDOC) with effect from 1 May 2004 at the latest, that amount being fixed ex aequo et bono at EUR 576 593,20;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant first of all worked in the Commission as a seconded national expert from 1 May 1998 to 30 April 2001, then as a member of the temporary staff under a contract which expired on 30 April 2004.

From October 2003 the applicant took steps to obtain a new contract as a member of the temporary staff with effect from 1 May 2004. She claims that she was offered a post in the Investigatory and Disciplinary Office but that finally she was not recruited by reason of fault on the part of the Commission's staff. She alleges that DG ADMIN refused to recruit her on the basis that she had already served the maximum period of six years. According to the applicant that interpretation is erroneous as her first three years in the Commission as a seconded national expert should not have been taken into account. She submits that the administration finally admitted its error but, in the meantime, the post which had been offered to her had already disappeared as a result of restructuring.

By her action, the applicant seeks compensation for the damage she allegedly suffered. She alleges a breach of the general principles of legitimate expectations, legal certainty, good faith, the duty to state reasons, transparency, ‘patere legem quam ipse fecisti legem’, sound administration, the right to be heard, the duty to have regard to the interests of the official and the interests of the service.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/30 |
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Action brought on 13 September 2005 — Hellenic Republic v Commission

(Case T-344/05)

(2005/C 281/56)

Language of the case: Greek

Parties:

Applicant(s): Hellenic Republic (represented by: Ioannis Khalkias, Eleni Svolopoulou)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | annul or amend the contested decision of the Commission of 15 July 2005 refusing the request for Community financing of certain expenditure incurred by the Member States under the European Agricultural and Guidance Fund (EAGGF), Guarantee Section; (1) |
| --- | --- |

—

annul or amend the contested decision of the Commission of 15 July 2005 refusing the request for Community financing of certain expenditure incurred by the Member States under the European Agricultural and Guidance Fund (EAGGF), Guarantee Section; (1)

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision the Commission, in clearing the accounts under Regulation (EEC) No 729/70, (2) excluded from Community financing various expenditure incurred by the Hellenic Republic in the animal premia — extensification, fruit and vegetables and arable crops sectors.

The applicant seeks annulment of that decision, maintaining in principle that the entire clearance of accounts procedure is invalid because Article 7 of Regulation No 1258/1999, (3) in conjunction with Article 8 of Regulation No 1663/1995, (4) was infringed by reason of the fact that the consultation and bilateral contacts between the applicant and the Commission did not include the specific evaluation of the expenditure to be refused, while in addition the expenditure excluded was effected prior to the 24 months preceding the Commission's written communication. According to the applicant, the period of 24 months commences much later than the Commission considers.

As regards the correction of 100 % in respect of the premium for extensification, the applicant disputes the Commission's assessment of the factual circumstances and claims that it erred as to the facts and gave an inadequate statement of reasons for the contested decision. The applicant considers, moreover, that the imposition of a correction at the rate of 100 % contravenes the guidelines in Commission document VI/5330/97/23.12.97, is unjustified and clearly disproportionate, and goes beyond the bounds of proper use of the Commission's discretion.

As regards the correction in the arable crops sector, the applicant disputes the Commission's finding that there was an infringement of Regulation No 3508/1992, (5) in connection with the identification of agricultural parcels. It also considers that it complied fully with the conditions in Article 15 of Regulation No 2419/2001 (6) as regards administrative and on-the-spot checks. In addition, it cites lack of reasoning and infringement of the principle of proportionality.

Lastly, in connection with the correction in the fruit and vegetables sector, the applicant considers that the Commission has misinterpreted Article 20(5) and (7) of Regulation No 1169/1997. (7) In any event, the applicant disputes the reasons given in the contested decision with regard to that chapter and alleges infringement of the principle of proportionality.

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(1)  OJ L 188 of 20.7.2005, p. 36.

(2)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy, OJ English Special Edition 1970(I), p. 218.

(3)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy, OJ L 160 of 26.06.1999, p. 103.

(4)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section, OJ L 158 of 08.07.1995, p. 6.

(5)  Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes, OJ L 355 of 05.12.1992, p. 1.

(6)  Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92, OJ L 327 of 12.12.2001, p. 11.

(7)  Commission Regulation (EC) No 1169/97 of 26 June 1997 laying down detailed rules for the application of Council Regulation (EC) No 2202/96 introducing a Community aid scheme for producers of certain citrus fruits, OJ L 169 of 27.06.1997, p. 15.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/31 |
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Action brought on 14 September 2005 — JSC Kirovo-Chepetsky Khimichesky Kombinat/Council

(Case T-348/05)

(2005/C 281/57)

Language of the case: English

Parties

Applicant(s): JSC Kirovo-Chepetsky Khimichesky Kombinat (Kirovo Cheptesk, Russia) [represented by: B. Servais, Y. Melin, lawyers]

Defendant(s): Council of the European Union

Form of order sought

| — | Annul Council Regulation (EC) No 945/2005 (1) of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, insofar as






  — | it extends the existing anti-dumping measures to products other than the product under investigation in breach of Article 1(1), Article 1(2), Article 3(2), Article 4(1) and Article 5(4) of the basic Regulation; and |
| --- | --- | --- |

—

Annul Council Regulation (EC) No 945/2005 (1) of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, insofar as

—

it extends the existing anti-dumping measures to products other than the product under investigation in breach of Article 1(1), Article 1(2), Article 3(2), Article 4(1) and Article 5(4) of the basic Regulation; and

| — | it was adopted in breach of the applicant's right of defence and procedural rights in that (i) the applicant was not granted the hearing it had requested under Article 6(5) of the basic Regulation and (ii) the Commission did not adequately disclose the essential facts and consideration on the basis of which it intended to recommend the modification of the scope of the measures as required by Article 20 of the basic Regulation, and that, had it not been for these breaches, the outcome of the anti-dumping investigation might have been different; and |
| --- | --- |

—

it was adopted in breach of the applicant's right of defence and procedural rights in that (i) the applicant was not granted the hearing it had requested under Article 6(5) of the basic Regulation and (ii) the Commission did not adequately disclose the essential facts and consideration on the basis of which it intended to recommend the modification of the scope of the measures as required by Article 20 of the basic Regulation, and that, had it not been for these breaches, the outcome of the anti-dumping investigation might have been different; and

| — | order the Council to bear the costs of the proceedings. |
| --- | --- |

—

order the Council to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant is a Russian company specialising in the production of fluoroplastics, chemicals, medical products and fertilisers, including ammonium nitrate. The applicant exports ammonium nitrate and other fertilisers to the Community.

It seeks the annulment of the contested Regulation on the grounds that it violates Articles 1(1), 1(2), 3(2), 4(1) and 5(4) of Council Regulation (EC) No 384/96 (2) in that it extends the existing anti-dumping measures to products which are not the product concerned.

It further contends that the contested Regulation was adopted in breach of its right of defence and of its procedural rights in that (i) it was not granted the hearing it had requested pursuant to Article 6(5) of Council Regulation (EC) No 384/96 and (ii) the Commission did not adequately disclose the essential facts and consideration on the basis of which it intended to recommend the modification of the scope of the measures as required by Article 20 of Council Regulation (EC) No 384/96.

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(1)  OJ L 160, 23/06/2005, p. 1

(2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community. OJ L 56, 06/03/1996, p. 1

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/32 |
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Official Journal of the European Union

C 281/32

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Action brought on 16 September 2005 — Republic of Finland v Commission of the European Communities

(Case T-350/05)

(2005/C 281/58)

Language of the case: Finnish

Parties

Applicant(s): Republic of Finland (represented by: Tuula Pynnä, Agent)

Defendant(s): Commission of the European Communities

Form of order sought

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

| — | annul the Commission's decision, dated 8 July 2005 and notified on the same day, refusing, contrary to the principle of loyal cooperation under Article 10 EC and to the case-law of the Court of Justice concerning conditional payments, to open negotiations with Finland on the conditional payment of the retroactive customs duties and default interest on them up to the date of payment demanded by the Commission from Finland in infringement proceedings 2003/2180 under Article 226 EC, and |
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annul the Commission's decision, dated 8 July 2005 and notified on the same day, refusing, contrary to the principle of loyal cooperation under Article 10 EC and to the case-law of the Court of Justice concerning conditional payments, to open negotiations with Finland on the conditional payment of the retroactive customs duties and default interest on them up to the date of payment demanded by the Commission from Finland in infringement proceedings 2003/2180 under Article 226 EC, and

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

Pleas in law and main arguments

In the contested decision the Commission considered that in the present case it was not under an obligation to act within the meaning of Article 232 EC. Finland had, in its letter under Article 232 EC, called on the Commission, under the principle of loyal cooperation under Article 10 EC and the case-law of the Court of Justice on conditional payments, to take a decision to enter into negotiations with Finland on the conditional payment, pending the decision of the Court of Justice in the case, of the disputed customs debt and the associated default interest.

Finland submits that by taking the contested decision the Commission infringed the EC Treaty or the legislation relating to its application within the meaning of the second paragraph of Article 230 EC by refusing, contrary to the principle of loyal cooperation under Article 10 EC and the case-law of the Court of Justice on conditional payments, to start negotiations on the conditional payment of the retroactive customs duties and default interest on them up to the date of payment demanded by the Commission from Finland under Regulation (EC, Euratom) No 1150/2000 (1) in infringement proceedings 2003/2180, and by not giving reasons for the refusal contrary to Article 253 EC.

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(1)  Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources, OJ L 130 of 31.5.2000, p. 1.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/32 |
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12.11.2005

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Official Journal of the European Union

C 281/32

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Action brought on 20 September 2005 — Gabrielle Giancarla Sharon Kubanski v the Commission of the European Communities

(Case T-353/05)

(2005/C 281/59)

Language of the case: Italian

Parties:

Applicant(s): Gabrielle Giancarla Sharon Kubanski (Leggiuno, Italy) (represented by: Massimo Condinanzi and Devis Bono, lawyers)

Defendant(s): the Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission's decision of 14 June 2005 rejecting the applicant's complaint No R/170/05 of 16 February 2005 and, consequently, annul decision D(2002)34440 of 16 December 2004; |
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annul the Commission's decision of 14 June 2005 rejecting the applicant's complaint No R/170/05 of 16 February 2005 and, consequently, annul decision D(2002)34440 of 16 December 2004;

| — | order the Commission to pay the shortfall in the applicant's salary as of 16 January 2005 until the date of the applicant's actual reinstatement in Grade B IV, step 2, at a figure to be quantified in the course of the proceedings, if necessary with the aid of expert evidence; |
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order the Commission to pay the shortfall in the applicant's salary as of 16 January 2005 until the date of the applicant's actual reinstatement in Grade B IV, step 2, at a figure to be quantified in the course of the proceedings, if necessary with the aid of expert evidence;

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

Pleas in law and main arguments

The applicant in this case is contesting the defendant's decision to terminate her fixed-term contract as a temporary agent signed on 4 October 2004. It should be pointed out in this respect that the reasons given by the Commission for the termination were connected with the applicant's alleged failure to meet the requirements under Article 5 of the Staff Regulations of officials of the European Communities. In particular, the Commission alleges that Mrs Kubanski's educational qualification (diploma di Addetto agli Uffici Turistici — Tourist Agency diploma of accreditation) does not qualify her for classification in Category B*4, step 2, which was allocated to her in the contract.

In support of her claims, the applicant submits:

| — | that the requirements laid down in notice of competition COM/2004/5352/R, which is the basis of the procedure under which the applicant was engaged and which has given rise to these proceedings, did not state that it was necessary for the applicant to possess a specific educational qualification; |
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that the requirements laid down in notice of competition COM/2004/5352/R, which is the basis of the procedure under which the applicant was engaged and which has given rise to these proceedings, did not state that it was necessary for the applicant to possess a specific educational qualification;

| — | infringement and misapplication of Article 5(3)(a)(i) and (ii) of the Staff Regulations. She alleges in this respect, on the one hand, that her diploma is a qualification which attests that she has completed a three-year course of secondary studies conferring a vocational qualification giving access to post-secondary education and, on the other hand, that between 1 May 2001 and 30 April 2004 the applicant performed duties with the Joint Research Centre in Ispra which are absolutely identical to those required for the post announced in the notice of competition in the present case. |
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infringement and misapplication of Article 5(3)(a)(i) and (ii) of the Staff Regulations. She alleges in this respect, on the one hand, that her diploma is a qualification which attests that she has completed a three-year course of secondary studies conferring a vocational qualification giving access to post-secondary education and, on the other hand, that between 1 May 2001 and 30 April 2004 the applicant performed duties with the Joint Research Centre in Ispra which are absolutely identical to those required for the post announced in the notice of competition in the present case.

| — | Infringement of Articles 14 and 47 to 50(a) of the conditions of employment of other servants of the European Communities. |
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Infringement of Articles 14 and 47 to 50(a) of the conditions of employment of other servants of the European Communities.

| — | Infringement of the principle of protection of legitimate expectations. |
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Infringement of the principle of protection of legitimate expectations.

| — | Unlawful conduct on the part of the Administration in that it breached the principles of legal certainty and equal treatment. |
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Unlawful conduct on the part of the Administration in that it breached the principles of legal certainty and equal treatment.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/33 |
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12.11.2005

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Official Journal of the European Union

C 281/33

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Action brought on 19 September 2005 — Generalitat Valenciana v Commission of the European Communities

(Case T-357/05)

(2005/C 281/60)

Language of the case: Spanish

Parties:

Applicant(s): Generalitat Valenciana (Valencia, Spain) (represented by José Vicente Sánchez-Tarazaga Marcelino, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C (2005) 1867 concerning the reduction of the assistance granted from the Cohesion Fund to Project No 97/11/61/028. |
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annul Commission Decision C (2005) 1867 concerning the reduction of the assistance granted from the Cohesion Fund to Project No 97/11/61/028.

Pleas in law and main arguments

This action arises out of Commission Decision C (97) 3882 of 5 December 1997, by virtue of which assistance of EUR 75 011 715 was granted from the Cohesion Fund to Project No 97/11/61/028 in Spain, called the ‘Project for the collection and treatment of waste water on the Mediterranean coast of the Autonomous Community of Valencia’ (a general project consisting of 12 different schemes). The original amount was later increased to EUR 92 742 913.

After carrying out an audit mission, the Commission uncovered a series of irregularities in the award procedure followed, essentially the use of experience as a criterion for the award of contracts and the average price method as the procedure for evaluating the price tendered. In the contested decision, which reduces the total assistance granted by EUR 2 217 537, the defendant considers that there have been infringements of Articles 18 and 30 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, (1) and of Article 2 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities.

In support of its claims, the applicant argues:

| — | that the Community legislation expressly refers to experience as a criterion for selection, whereas, although experience is not expressly mentioned in the list of possible implementing criteria, it may readily be observed that the listing of those criteria in the legislation is merely illustrative, and not exhaustive, and does not envisage excluding the possible use of experience as an additional criterion for the award of the contract. This conclusion is reinforced by Community case-law itself; |
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that the Community legislation expressly refers to experience as a criterion for selection, whereas, although experience is not expressly mentioned in the list of possible implementing criteria, it may readily be observed that the listing of those criteria in the legislation is merely illustrative, and not exhaustive, and does not envisage excluding the possible use of experience as an additional criterion for the award of the contract. This conclusion is reinforced by Community case-law itself;

| — | that, in any case, it is plainly impossible to consider that including experience as one of the award criteria in the contract documents constitutes a serious and obvious infringement, without which, in accordance with Community legislation and case-law, liability cannot be incurred; |
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that, in any case, it is plainly impossible to consider that including experience as one of the award criteria in the contract documents constitutes a serious and obvious infringement, without which, in accordance with Community legislation and case-law, liability cannot be incurred;

| — | that application of the ‘average price’ methodology as a means of evaluating the price criterion is not expressly forbidden by Community rules and that the case-law precludes it only when it is the only criterion used, but not where it is used together with others. |
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that application of the ‘average price’ methodology as a means of evaluating the price criterion is not expressly forbidden by Community rules and that the case-law precludes it only when it is the only criterion used, but not where it is used together with others.

The applicant also alleges breach of the principles of legal certainty, protection of legitimate expectations, non-retroactive effect and proportionality.

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(1)  OJ L 199 of 9 August 1993, p. 54.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/34 |
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12.11.2005

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Official Journal of the European Union

C 281/34

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Order of the Court of First Instance of 12 September 2005 — Comitato ‘Venezia vuole vivere’ v Commission

(Case T -274/00) (1)

(2005/C 281/61)

Language of the case: Italian

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

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(1)  OJ C 272, 23.12.2000.

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| 12.11.2005 | EN | Official Journal of the European Union | C 281/34 |
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C 281/34

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Order of the Court of First Instance of 13 September 2005 — Scotto v Commission

(Case T-76/05) (1)

(2005/C 281/62)

Language of the case: Italian

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

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(1)  OJ C 93, 16.4.2005.

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III Notices

| 12.11.2005 | EN | Official Journal of the European Union | C 281/35 |
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12.11.2005

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Official Journal of the European Union

C 281/35

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(2005/C 281/63)

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

OJ C 271, 29.10.2005

Past publications

OJ C 257, 15.10.2005

OJ C 243, 1.10.2005

OJ C 229, 17.9.2005

OJ C 217, 3.9.2005

OJ C 205, 20.8.2005

OJ C 193, 6.8.2005

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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