# Official Journal C 106/30 A

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 106 |
| | |
| English edition | Information and Notices | Volume 4830 April 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 106

English edition

Information and Notices

Volume 4830 April 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 106/1 | Judgment of the Court (First Chamber) of 10 March 2005 in Case C-196/02 (reference for a preliminary ruling from the Irinodikio Athinon): Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (Social policy — Male and female workers — Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) — Directive 75/117/EEC — Equal pay — Directive 76/207/EEC — Equal treatment — Temporary part-time posts — Exclusion from appointment as an established member of staff — Calculation of length of service — Burden of proof) | 1 |
| 2005/C 106/2 | Judgment of the Court (Grand Chamber) of 1 March 2005 in Case C- 281/02 reference for a preliminary ruling from the Court of Appeal (England and Wales) Civil Division (United Kingdom): Andrew Owusu v N.B. Jackson, trading as Villa Holidays Bal-Inn Villas and Others (Brussels Convention — Territorial scope of the Brussels Convention — Article 2 — Jurisdiction — Accident which occurred in a non–Contracting State — Personal injury — Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in a non–Contracting State — Forum non conveniens — Incompatibility with the Brussels Convention) | 2 |
| 2005/C 106/3 | Judgment of the Court (Second Chamber) of 3 March 2005 in Case C-283/02: Italian Republic v Commission of the European Communities (Action for annulment — Wine production — Regulation (EC) No 753/2002 — description, designation, presentation and protection of the products — Protection of additional traditional terms — Erroneous classification of traditional terms — Languages permitted to be used on labels — Principle of equal treatment) | 2 |
| 2005/C 106/4 | Judgment of the Court (First Chamber) of 24 February 2005 in Case C-300/02: Hellenic Republic v Commission of the European Communities (EAGGF — Arable crops — Regulation (EEC) No 729/70 — Article 5(2)(c) — Discrepancies between annual declarations of expenses and eligible expenses — Time-limit of 24 months — Deduction of the amount of aid to farmers) | 3 |
| 2005/C 106/5 | Judgment of the Court (Third Chamber) of 24 February 2005 in Case C-318/02: Kingdom of the Netherlands v Commission of the European Communities (EAGGF — Decision 2002/524/EC — Financial adjustments to expenditure by the Netherlands in the form of exceptional support measures for the market in pigmeat in the Netherlands — Regulation (EC) No 413/97) | 3 |
| 2005/C 106/6 | Judgment of the Court (Grand Chamber) of 1 March 2005 in Case C-377/02: Reference for a preliminary ruling from the Raad van State (Belgium) in Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau (BIRB) (Common organisation of the markets — Bananas — GATT 1994 — Articles I and XIII — Framework agreement of 23 April 1993 between the EEC and the Cartagena Group — Direct effect — Recommendations and decisions of the WTO Dispute Settlement Body — Legal effects) | 4 |
| 2005/C 106/7 | Judgment of the Court (Grand Chamber) of 15 February 2005 in Case C-13/03 P: Commission of the European Communities v Tetra Laval BV (Appeal — Competition — Regulation (EEC) No 4064/89 — Judgment holding that a decision ordering a separation of undertakings is illegal as a result of the illegality of an earlier decision declaring a merger incompatible with the common market) | 4 |
| 2005/C 106/8 | Judgment of the Court (Second Chamber) of 3 March 2005 in Joined Cases C-21/03 and C-34/03 (reference for a preliminary ruling from the Conseil d'État): Fabricom SA v État belge (Public procurement — Works, supplies and services — Water, energy, transport and telecommunications sectors — Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned) | 5 |
| 2005/C 106/9 | Judgment of the Court (Second Chamber) of 3 March 2005 in Case C-172/03 Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) Wolfgang Heiser v Finanzamt Innsbruck (VAT — Exemption for medical care provided in the exercise of the profession of medical practitioner — Adjustment of deductions) | 5 |
| 2005/C 106/0 | Judgment of the Court (Sixth Chamber) of 3 March 2005 in Case C-195/03 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Ministerie van Financiën v Merabi Papismedov and Others (Community Customs Code — Presentation of goods to customs — Meaning — Cigarettes declared under the description cookware — Incurrence of the customs debt on importation — Debtor of the customs debt) | 6 |
| 2005/C 106/1 | Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-279/03: Commission of the European Communities v Implants (International) Ltd (Arbitration clause — Reimbursement of an advance payment — Default interest — Default proceedings) | 6 |
| 2005/C 106/2 | Judgment of the Court (Fourth Chamber) of 3 March 2005 in Case C-414/03: Commission of the European Communities v Federal Republic of Germany (Failure to fulfil obligations — Article 8 of Directive 92/50/EEC — Procedure for awarding contracts for public services — Waste disposal in the Land of Lower Saxony) | 7 |
| 2005/C 106/3 | Judgment of the Court (Fourth Chamber) of 27 January 2005 in Case C-416/03: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2001/18/EC — Failure to transpose within the prescribed period) | 7 |
| 2005/C 106/4 | Judgment of the Court (Sixth Chamber) of 3 March 2005 in Case C-499/03 P: Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European Communities (Appeal — Common Customs Tariff — Subsequent recovery of import duties — Waiver of duties to be recovered — Conditions — Article 220(2)(b) of Regulation (EEC) No 2913/92 — Error of the customs authorities — Detectable error — Combined nomenclature — Remarks — Scope) | 8 |
| 2005/C 106/5 | Judgment of the Court (Fifth Chamber) of 3 March 2005 in Case C-90/04: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil its obligations — Article 7(1) of Directive 1999/32/EC — Failure to supply the report relating to the sulphur content of liquid fuels used on its national territory) | 8 |
| 2005/C 106/6 | Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-225/04: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil its obligations — Directive 2001/106/EC — Maritime transport — Non-transposition within the period prescribed) | 9 |
| 2005/C 106/7 | Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-383/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 1999/105/EC — Marketing of forest reproductive material — Failure to implement within the period prescribed) | 9 |
| 2005/C 106/8 | Order of the Court (First Chamber) of 19 January 2005 in Case C-206/03: (reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division) Commissioners of Customs & Excise v SmithKline Beecham plc (Article 104(3) of the Rules of Procedure — Common customs tariff — Tariff headings — Nicotine patches — Force in law of a classification opinion of the World Customs Organisation) | 10 |
| 2005/C 106/9 | Order of the Court (Second Chamber) of 28 October 2004 in Case C-236/03 P Commission of the European Communities v CMA CGM and Others (Appeal — Cartels — Maritime transport between northern Europe and the Far East — Fines — Limitation period — Appeal partly clearly inadmissible and partly clearly unfounded) | 10 |
| 2005/C 106/0 | Order of the Court (Fourth Chamber) of 18 January 2005 in Case C-325/03 P: José Luis Zuazaga Meabe v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Action for annulment — Inadmissibility because out of time — Appeal manifestly unfounded) | 11 |
| 2005/C 106/1 | Order of the Court (Fourth Chamber) of 7 December 2004 in Case C-521/03 P: Internationaler Hilfsfonds eV v Commission of the European Communities (Appeal — Admissibility of the action — Whether the action is out of time — Fifth paragraph of Article 230 EC — Merely confirmatory decision — Categorisation) | 11 |
| 2005/C 106/2 | Order of the Court (Fifth Chamber) of 21 January 2005 in Case C-75/04 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Ministerie van Financiën v Hendrik Hanssens and Others (Reference for a preliminary ruling — Inadmissibility) | 12 |
| 2005/C 106/3 | Order of the Court (Fifth Chamber) of 26 January 2005 in Case C-153/04 P: Euroagri Srl v Commission of the European Communities (Appeal — EAGGF — Financial participation — Pilot and demonstration project for the use of a new technique called Endovena on fruit trees) | 12 |
| 2005/C 106/4 | Order of the Court (Fifth Chamber) of 28 January 2005 in Case C-208/04: Reference for a preliminary ruling from the Conseil d'État in Inter-Environnement Wallonie ASBL v Région wallonne (Article 104(3) of the Rules of Procedure — Directives 75/442/EEC and 91/156/EEC — Concept of waste — List of materials that are equatable with products) | 12 |
| 2005/C 106/5 | Case C-4/05 SA: Application for authorisation to serve a garnishee order brought on 9 March 2005 by ALT Ylmy — Ömümcilik Paydarlar Jemgyyeti against the Commission of the European Communities | 13 |
| 2005/C 106/6 | Case C-5/05 SA: Application brought on 11 March 2005 by Maria Fernanda Gil do Nascimento and Others for authorisation to serve a garnishee order on the Commission of the European Communities | 13 |
| 2005/C 106/7 | Case C-39/05 P: Appeal brought on 2 February 2005 by Kingdom of Sweden against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities | 13 |
| 2005/C 106/8 | Case C-52/05 P: Appeal brought on 9 February 2005 by Maurizio Turco against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities | 14 |
| 2005/C 106/9 | Case C-69/05: Action brought on 11 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 15 |
| 2005/C 106/0 | Case C-75/05 P: Appeal brought on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH | 15 |
| 2005/C 106/1 | Case C-80/05 P: Appeal brought on 18 February 2005 (by fax/email on 16 February 2005) by Glunz AG and OSB Deutschland GmbH against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 Kronofrance S.A. v Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH | 16 |
| 2005/C 106/2 | Case C-89/05: Reference for a preliminary ruling from the the House of Lords by order of that court of 3 November 2004 in United Utilities plc v Commissioners of Customs and Excise | 17 |
| 2005/C 106/3 | Case C-97/05: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 25 January 2005 in the proceedings between Mohamed Gattoussi and the Municipality of Rüsselsheim | 17 |
| 2005/C 106/4 | Case C-98/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 11 February 2005 in De Danske Bilimportører v Skatteministeriet | 18 |
| 2005/C 106/5 | Case C-100/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 18 February 2005 in the proceedings between ASM Lithography B.V. and Inspecteur van de Belastingdienst/Douane Zuid/kantoor Roermond | 19 |
| 2005/C 106/6 | Case C-101/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in the proceedings Skatteverket v A | 19 |
| 2005/C 106/7 | Case C-102/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in Skatteverket v A and B | 19 |
| 2005/C 106/8 | Case C-111/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 24 February 2005 in Aktiebolaget NN v Skatteverket | 19 |
| 2005/C 106/9 | Case C-115/05: Action brought on 8 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 20 |
| 2005/C 106/0 | Case C-118/05: Action brought on 10 March 2005 by the Commission of the European Communities against the Portuguese Republic | 20 |
| 2005/C 106/1 | Removal from the register of Case C-38/04 | 21 |
| 2005/C 106/2 | Removal from the register of Case C-58/03 | 21 |
| 2005/C 106/3 | Removal from the register of Case C-69/04 | 21 |
| 2005/C 106/4 | Removal from the register of Case C-83/04 | 21 |
| 2005/C 106/5 | Removal from the register of Case C-246/03 | 21 |
| 2005/C 106/6 | Removal from the register of Case C-247/03 | 21 |
| 2005/C 106/7 | Removal from the register of Case C-314/04 | 22 |
| 2005/C 106/8 | Removal from the register of Case C-401/04 | 22 |
| 2005/C 106/9 | Removal from the register of Case C-476/03 | 22 |
| 2005/C 106/0 | Removal from the register of Case C-548/03 | 22 |
| 2005/C 106/1 | Removal from the register of Case C-549/03 | 22 |
| | COURT OF FIRST INSTANCE |
| 2005/C 106/2 | Judgment of the Court of First Instance of 1 March 2005 in Case T-143/03 Elisabeth Saskia Smit v European Police Office (Europol) (Temporary staff — Europol staff — Non-extension of employment contract) | 23 |
| 2005/C 106/3 | Judgment of the Court of First Instance of 1 March 2005 in Case T-169/03 Sergio Rossi SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — National and international word marks MISS ROSSI — Application for a Community word mark SISSI ROSSI — Similarity of the goods — Similarity of the marks — Article 8(1)(b) of Regulation (EC) No 40/94) | 23 |
| 2005/C 106/4 | Judgment of the Court of First Instance of 1 March 2005 in Case T-185/03 Vincenzo Fusco v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark ENZO FUSCO — Earlier Community word mark ANTONIO FUSCO — Likelihood of confusion — Similarity between signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 24 |
| 2005/C 106/5 | Judgment of the Court of First Instance of 1 March 2005 in Case T-258/03 Andreas Mausolf v European Police Office (Europol) (Temporary staff — Europol staff — Non-extension of employment contract) | 24 |
| 2005/C 106/6 | Case T-9/05: Action brought on 12 January 2005 by Hoya Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 24 |
| 2005/C 106/7 | Case T-30/05: Action brought on 28 January 2005 by William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG against the Commission of the European Communities | 25 |
| 2005/C 106/8 | Case T-43/05: Action brought on 31 January 2005 by Camper, S.L., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 26 |
| 2005/C 106/9 | Case T-49/05: Action brought on 31 January 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 27 |
| 2005/C 106/0 | Case T-50/05: Action brought on 28 January 2005 by European Dynamics SA against the Commission of the European Communities | 27 |
| 2005/C 106/1 | Case T-56/05: Action brought on 8 February 2005 by Ireland against the Commission of the European Communities | 28 |
| 2005/C 106/2 | Case T-57/05: Action brought on 8 February 2005 by Jeremy Henry Moore Newsum, Mark Anthony Loveday and Robin Shedden Broadhurst against the Commission of the European Communities | 29 |
| 2005/C 106/3 | Case T-59/05: Action brought on 2 February 2005 by European Dynamics S.A. against the Commission of the European Communities | 30 |
| 2005/C 106/4 | Case T-61/05: Action brought on 10 February 2005 by Cornelius Rozemeijer and others against the Council of the European Union | 30 |
| 2005/C 106/5 | Case T-62/05: Action brought on 15 February 2005 by Lotto Sport Italia S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 31 |
| 2005/C 106/6 | Case T-65/05: Action brought on 7 February 2005 by Thomas Seldis against Commission of the European Communities | 31 |
| 2005/C 106/7 | Case T-66/05: Action brought on 17 February 2005 by Jörn Sack against the Commission of the European Communities | 32 |
| 2005/C 106/8 | Case T-67/05: Action brought on 15 February 2005 by Aytan's Manufacturing Company (UK) Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 32 |
| 2005/C 106/9 | Case T-68/05: Action brought on 16 February 2005 by Aker Warnow Werft GmbH and Kværner ASA against the Commission of the European Communities | 33 |
| 2005/C 106/0 | Case T-69/05: Action brought on 11 February 2005 by European Dynamics S.A. against the European Food Safety Authority | 34 |
| 2005/C 106/1 | Case T-70/05: Action brought on 14 February 2005 by European Dynamics S.A. against the European Maritime Safety Agency | 35 |
| 2005/C 106/2 | Case T-71/05: Action brought on 14 February 2005 by Jacques Wunenburger against the Commission of the European Communities | 35 |
| 2005/C 106/3 | Case T-73/05: Action brought on 14 February 2005 by Alejandro Martín Magone against Commission of the European Communities | 36 |
| 2005/C 106/4 | Case T-74/05: Action brought on 16 February 2005 by The International Institute for the Urban Environment against the Commission of the European Communities | 37 |
| 2005/C 106/5 | Case T-75/05: Action brought on 17 February 2005 by NetScout Systems, Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 37 |
| 2005/C 106/6 | Case T-83/05: Action brought on 18 February 2005 by the Italian Republic against the Commission of the European Communities | 38 |
| 2005/C 106/7 | Case T-84/05: Action brought on 17 February 2005 by Nicole Schmit against the Commission of the European Communities | 38 |
| 2005/C 106/8 | Case T-85/05: Action brought on 16 February 2005 by Dimos Ano Liosia, a self-administering local entity against the Commission of the European Communities | 39 |
| 2005/C 106/9 | Case T-89/05: Action brought on 21 February 2005 by GAEC SALAT against the Commission of the European Communities | 40 |
| 2005/C 106/0 | Case T-94/05: Action brought on 18 February 2005 by Athinaiki Techniki SA against the Commission of the European Communities | 40 |
| 2005/C 106/1 | Case T-95/05: Action brought on 14 February 2005 by Jean Dehon against European Parliament | 40 |
| 2005/C 106/2 | Case T-100/05: Action brought on 21 February 2005 by the Compagnie d'entreprises C.F.E. against the Commission of the European Communities | 41 |
| 2005/C 106/3 | Case T-104/05: Action brought on 28 February 2005 by CEGELEC SA against European Parliament | 42 |
| 2005/C 106/4 | Case T-109/05: Action brought on 8 March 2005 by SpA Navigazione Libera del Golfo against the Commission of the European Communities | 43 |
| 2005/C 106/5 | Removal from the Register of Case T-205/03, T-206/03, T-207/03, T-208/03, T-209/03, and T-210/03 | 43 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 106/1

Judgment of the Court (First Chamber) of 10 March 2005 in Case C-196/02 (reference for a preliminary ruling from the Irinodikio Athinon): Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (Social policy — Male and female workers — Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) — Directive 75/117/EEC — Equal pay — Directive 76/207/EEC — Equal treatment — Temporary part-time posts — Exclusion from appointment as an established member of staff — Calculation of length of service — Burden of proof)

1

2005/C 106/2

Judgment of the Court (Grand Chamber) of 1 March 2005 in Case C- 281/02 reference for a preliminary ruling from the Court of Appeal (England and Wales) Civil Division (United Kingdom): Andrew Owusu v N.B. Jackson, trading as Villa Holidays Bal-Inn Villas and Others (Brussels Convention — Territorial scope of the Brussels Convention — Article 2 — Jurisdiction — Accident which occurred in a non–Contracting State — Personal injury — Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in a non–Contracting State — Forum non conveniens — Incompatibility with the Brussels Convention)

2

2005/C 106/3

Judgment of the Court (Second Chamber) of 3 March 2005 in Case C-283/02: Italian Republic v Commission of the European Communities (Action for annulment — Wine production — Regulation (EC) No 753/2002 — description, designation, presentation and protection of the products — Protection of additional traditional terms — Erroneous classification of traditional terms — Languages permitted to be used on labels — Principle of equal treatment)

2

2005/C 106/4

Judgment of the Court (First Chamber) of 24 February 2005 in Case C-300/02: Hellenic Republic v Commission of the European Communities (EAGGF — Arable crops — Regulation (EEC) No 729/70 — Article 5(2)(c) — Discrepancies between annual declarations of expenses and eligible expenses — Time-limit of 24 months — Deduction of the amount of aid to farmers)

3

2005/C 106/5

Judgment of the Court (Third Chamber) of 24 February 2005 in Case C-318/02: Kingdom of the Netherlands v Commission of the European Communities (EAGGF — Decision 2002/524/EC — Financial adjustments to expenditure by the Netherlands in the form of exceptional support measures for the market in pigmeat in the Netherlands — Regulation (EC) No 413/97)

3

2005/C 106/6

Judgment of the Court (Grand Chamber) of 1 March 2005 in Case C-377/02: Reference for a preliminary ruling from the Raad van State (Belgium) in Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau (BIRB) (Common organisation of the markets — Bananas — GATT 1994 — Articles I and XIII — Framework agreement of 23 April 1993 between the EEC and the Cartagena Group — Direct effect — Recommendations and decisions of the WTO Dispute Settlement Body — Legal effects)

4

2005/C 106/7

Judgment of the Court (Grand Chamber) of 15 February 2005 in Case C-13/03 P: Commission of the European Communities v Tetra Laval BV (Appeal — Competition — Regulation (EEC) No 4064/89 — Judgment holding that a decision ordering a separation of undertakings is illegal as a result of the illegality of an earlier decision declaring a merger incompatible with the common market)

4

2005/C 106/8

Judgment of the Court (Second Chamber) of 3 March 2005 in Joined Cases C-21/03 and C-34/03 (reference for a preliminary ruling from the Conseil d'État): Fabricom SA v État belge (Public procurement — Works, supplies and services — Water, energy, transport and telecommunications sectors — Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned)

5

2005/C 106/9

Judgment of the Court (Second Chamber) of 3 March 2005 in Case C-172/03 Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) Wolfgang Heiser v Finanzamt Innsbruck (VAT — Exemption for medical care provided in the exercise of the profession of medical practitioner — Adjustment of deductions)

5

2005/C 106/0

Judgment of the Court (Sixth Chamber) of 3 March 2005 in Case C-195/03 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Ministerie van Financiën v Merabi Papismedov and Others (Community Customs Code — Presentation of goods to customs — Meaning — Cigarettes declared under the description cookware — Incurrence of the customs debt on importation — Debtor of the customs debt)

6

2005/C 106/1

Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-279/03: Commission of the European Communities v Implants (International) Ltd (Arbitration clause — Reimbursement of an advance payment — Default interest — Default proceedings)

6

2005/C 106/2

Judgment of the Court (Fourth Chamber) of 3 March 2005 in Case C-414/03: Commission of the European Communities v Federal Republic of Germany (Failure to fulfil obligations — Article 8 of Directive 92/50/EEC — Procedure for awarding contracts for public services — Waste disposal in the Land of Lower Saxony)

7

2005/C 106/3

Judgment of the Court (Fourth Chamber) of 27 January 2005 in Case C-416/03: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2001/18/EC — Failure to transpose within the prescribed period)

7

2005/C 106/4

Judgment of the Court (Sixth Chamber) of 3 March 2005 in Case C-499/03 P: Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European Communities (Appeal — Common Customs Tariff — Subsequent recovery of import duties — Waiver of duties to be recovered — Conditions — Article 220(2)(b) of Regulation (EEC) No 2913/92 — Error of the customs authorities — Detectable error — Combined nomenclature — Remarks — Scope)

8

2005/C 106/5

Judgment of the Court (Fifth Chamber) of 3 March 2005 in Case C-90/04: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil its obligations — Article 7(1) of Directive 1999/32/EC — Failure to supply the report relating to the sulphur content of liquid fuels used on its national territory)

8

2005/C 106/6

Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-225/04: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil its obligations — Directive 2001/106/EC — Maritime transport — Non-transposition within the period prescribed)

9

2005/C 106/7

Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-383/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 1999/105/EC — Marketing of forest reproductive material — Failure to implement within the period prescribed)

9

2005/C 106/8

Order of the Court (First Chamber) of 19 January 2005 in Case C-206/03: (reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division) Commissioners of Customs & Excise v SmithKline Beecham plc (Article 104(3) of the Rules of Procedure — Common customs tariff — Tariff headings — Nicotine patches — Force in law of a classification opinion of the World Customs Organisation)

10

2005/C 106/9

Order of the Court (Second Chamber) of 28 October 2004 in Case C-236/03 P Commission of the European Communities v CMA CGM and Others (Appeal — Cartels — Maritime transport between northern Europe and the Far East — Fines — Limitation period — Appeal partly clearly inadmissible and partly clearly unfounded)

10

2005/C 106/0

Order of the Court (Fourth Chamber) of 18 January 2005 in Case C-325/03 P: José Luis Zuazaga Meabe v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Action for annulment — Inadmissibility because out of time — Appeal manifestly unfounded)

11

2005/C 106/1

Order of the Court (Fourth Chamber) of 7 December 2004 in Case C-521/03 P: Internationaler Hilfsfonds eV v Commission of the European Communities (Appeal — Admissibility of the action — Whether the action is out of time — Fifth paragraph of Article 230 EC — Merely confirmatory decision — Categorisation)

11

2005/C 106/2

Order of the Court (Fifth Chamber) of 21 January 2005 in Case C-75/04 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Ministerie van Financiën v Hendrik Hanssens and Others (Reference for a preliminary ruling — Inadmissibility)

12

2005/C 106/3

Order of the Court (Fifth Chamber) of 26 January 2005 in Case C-153/04 P: Euroagri Srl v Commission of the European Communities (Appeal — EAGGF — Financial participation — Pilot and demonstration project for the use of a new technique called Endovena on fruit trees)

12

2005/C 106/4

Order of the Court (Fifth Chamber) of 28 January 2005 in Case C-208/04: Reference for a preliminary ruling from the Conseil d'État in Inter-Environnement Wallonie ASBL v Région wallonne (Article 104(3) of the Rules of Procedure — Directives 75/442/EEC and 91/156/EEC — Concept of waste — List of materials that are equatable with products)

12

2005/C 106/5

Case C-4/05 SA: Application for authorisation to serve a garnishee order brought on 9 March 2005 by ALT Ylmy — Ömümcilik Paydarlar Jemgyyeti against the Commission of the European Communities

13

2005/C 106/6

Case C-5/05 SA: Application brought on 11 March 2005 by Maria Fernanda Gil do Nascimento and Others for authorisation to serve a garnishee order on the Commission of the European Communities

13

2005/C 106/7

Case C-39/05 P: Appeal brought on 2 February 2005 by Kingdom of Sweden against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

13

2005/C 106/8

Case C-52/05 P: Appeal brought on 9 February 2005 by Maurizio Turco against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

14

2005/C 106/9

Case C-69/05: Action brought on 11 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

15

2005/C 106/0

Case C-75/05 P: Appeal brought on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH

15

2005/C 106/1

Case C-80/05 P: Appeal brought on 18 February 2005 (by fax/email on 16 February 2005) by Glunz AG and OSB Deutschland GmbH against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 Kronofrance S.A. v Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH

16

2005/C 106/2

Case C-89/05: Reference for a preliminary ruling from the the House of Lords by order of that court of 3 November 2004 in United Utilities plc v Commissioners of Customs and Excise

17

2005/C 106/3

Case C-97/05: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 25 January 2005 in the proceedings between Mohamed Gattoussi and the Municipality of Rüsselsheim

17

2005/C 106/4

Case C-98/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 11 February 2005 in De Danske Bilimportører v Skatteministeriet

18

2005/C 106/5

Case C-100/05: Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 18 February 2005 in the proceedings between ASM Lithography B.V. and Inspecteur van de Belastingdienst/Douane Zuid/kantoor Roermond

19

2005/C 106/6

Case C-101/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in the proceedings Skatteverket v A

19

2005/C 106/7

Case C-102/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in Skatteverket v A and B

19

2005/C 106/8

Case C-111/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 24 February 2005 in Aktiebolaget NN v Skatteverket

19

2005/C 106/9

Case C-115/05: Action brought on 8 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

20

2005/C 106/0

Case C-118/05: Action brought on 10 March 2005 by the Commission of the European Communities against the Portuguese Republic

20

2005/C 106/1

Removal from the register of Case C-38/04

21

2005/C 106/2

Removal from the register of Case C-58/03

21

2005/C 106/3

Removal from the register of Case C-69/04

21

2005/C 106/4

Removal from the register of Case C-83/04

21

2005/C 106/5

Removal from the register of Case C-246/03

21

2005/C 106/6

Removal from the register of Case C-247/03

21

2005/C 106/7

Removal from the register of Case C-314/04

22

2005/C 106/8

Removal from the register of Case C-401/04

22

2005/C 106/9

Removal from the register of Case C-476/03

22

2005/C 106/0

Removal from the register of Case C-548/03

22

2005/C 106/1

Removal from the register of Case C-549/03

22

COURT OF FIRST INSTANCE

2005/C 106/2

Judgment of the Court of First Instance of 1 March 2005 in Case T-143/03 Elisabeth Saskia Smit v European Police Office (Europol) (Temporary staff — Europol staff — Non-extension of employment contract)

23

2005/C 106/3

Judgment of the Court of First Instance of 1 March 2005 in Case T-169/03 Sergio Rossi SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — National and international word marks MISS ROSSI — Application for a Community word mark SISSI ROSSI — Similarity of the goods — Similarity of the marks — Article 8(1)(b) of Regulation (EC) No 40/94)

23

2005/C 106/4

Judgment of the Court of First Instance of 1 March 2005 in Case T-185/03 Vincenzo Fusco v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark ENZO FUSCO — Earlier Community word mark ANTONIO FUSCO — Likelihood of confusion — Similarity between signs — Article 8(1)(b) of Regulation (EC) No 40/94)

24

2005/C 106/5

Judgment of the Court of First Instance of 1 March 2005 in Case T-258/03 Andreas Mausolf v European Police Office (Europol) (Temporary staff — Europol staff — Non-extension of employment contract)

24

2005/C 106/6

Case T-9/05: Action brought on 12 January 2005 by Hoya Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

24

2005/C 106/7

Case T-30/05: Action brought on 28 January 2005 by William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG against the Commission of the European Communities

25

2005/C 106/8

Case T-43/05: Action brought on 31 January 2005 by Camper, S.L., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

26

2005/C 106/9

Case T-49/05: Action brought on 31 January 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

27

2005/C 106/0

Case T-50/05: Action brought on 28 January 2005 by European Dynamics SA against the Commission of the European Communities

27

2005/C 106/1

Case T-56/05: Action brought on 8 February 2005 by Ireland against the Commission of the European Communities

28

2005/C 106/2

Case T-57/05: Action brought on 8 February 2005 by Jeremy Henry Moore Newsum, Mark Anthony Loveday and Robin Shedden Broadhurst against the Commission of the European Communities

29

2005/C 106/3

Case T-59/05: Action brought on 2 February 2005 by European Dynamics S.A. against the Commission of the European Communities

30

2005/C 106/4

Case T-61/05: Action brought on 10 February 2005 by Cornelius Rozemeijer and others against the Council of the European Union

30

2005/C 106/5

Case T-62/05: Action brought on 15 February 2005 by Lotto Sport Italia S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

31

2005/C 106/6

Case T-65/05: Action brought on 7 February 2005 by Thomas Seldis against Commission of the European Communities

31

2005/C 106/7

Case T-66/05: Action brought on 17 February 2005 by Jörn Sack against the Commission of the European Communities

32

2005/C 106/8

Case T-67/05: Action brought on 15 February 2005 by Aytan's Manufacturing Company (UK) Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

32

2005/C 106/9

Case T-68/05: Action brought on 16 February 2005 by Aker Warnow Werft GmbH and Kværner ASA against the Commission of the European Communities

33

2005/C 106/0

Case T-69/05: Action brought on 11 February 2005 by European Dynamics S.A. against the European Food Safety Authority

34

2005/C 106/1

Case T-70/05: Action brought on 14 February 2005 by European Dynamics S.A. against the European Maritime Safety Agency

35

2005/C 106/2

Case T-71/05: Action brought on 14 February 2005 by Jacques Wunenburger against the Commission of the European Communities

35

2005/C 106/3

Case T-73/05: Action brought on 14 February 2005 by Alejandro Martín Magone against Commission of the European Communities

36

2005/C 106/4

Case T-74/05: Action brought on 16 February 2005 by The International Institute for the Urban Environment against the Commission of the European Communities

37

2005/C 106/5

Case T-75/05: Action brought on 17 February 2005 by NetScout Systems, Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

37

2005/C 106/6

Case T-83/05: Action brought on 18 February 2005 by the Italian Republic against the Commission of the European Communities

38

2005/C 106/7

Case T-84/05: Action brought on 17 February 2005 by Nicole Schmit against the Commission of the European Communities

38

2005/C 106/8

Case T-85/05: Action brought on 16 February 2005 by Dimos Ano Liosia, a self-administering local entity against the Commission of the European Communities

39

2005/C 106/9

Case T-89/05: Action brought on 21 February 2005 by GAEC SALAT against the Commission of the European Communities

40

2005/C 106/0

Case T-94/05: Action brought on 18 February 2005 by Athinaiki Techniki SA against the Commission of the European Communities

40

2005/C 106/1

Case T-95/05: Action brought on 14 February 2005 by Jean Dehon against European Parliament

40

2005/C 106/2

Case T-100/05: Action brought on 21 February 2005 by the Compagnie d'entreprises C.F.E. against the Commission of the European Communities

41

2005/C 106/3

Case T-104/05: Action brought on 28 February 2005 by CEGELEC SA against European Parliament

42

2005/C 106/4

Case T-109/05: Action brought on 8 March 2005 by SpA Navigazione Libera del Golfo against the Commission of the European Communities

43

2005/C 106/5

Removal from the Register of Case T-205/03, T-206/03, T-207/03, T-208/03, T-209/03, and T-210/03

43

| | III   Notices |
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| 2005/C 106/6 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 93, 16.4.2005 | 44 |

III   Notices

2005/C 106/6

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 93, 16.4.2005

Official Journal of the European Union

44

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 30.4.2005 | EN | Official Journal of the European Union | C 106/1 |
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30.4.2005

EN

Official Journal of the European Union

C 106/1

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JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-196/02 (reference for a preliminary ruling from the Irinodikio Athinon): Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (1)

(Social policy - Male and female workers - Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) - Directive 75/117/EEC - Equal pay - Directive 76/207/EEC - Equal treatment - Temporary part-time posts - Exclusion from appointment as an established member of staff - Calculation of length of service - Burden of proof)

(2005/C 106/01)

Language of the case: Greek

In Case C-196/02: reference for a preliminary ruling under Article 234 EC from the Irinodikio Athinon (Greece), made by decision of 13 May 2002, received at the Court on 27 May 2002, in the proceedings between Vasiliki Nikoloudi and Organismos Tilepikinonion Ellados AE — the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), A. La Pergola, S. von Bahr and K. Schiemann, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

| 1. | Community law, in particular Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, is to be interpreted as meaning that the existence and application of a provision such as Article 24a(2)(a) of the General Staff Regulations of Organismos Tilepikinonion Ellados, under which only female cleaners, and therefore only women, can be taken on under a contract of indefinite duration for part-time work, do not constitute, in themselves, direct discrimination on grounds of sex against women. However, the subsequent exclusion of a possibility of appointment as an established member of staff by reference, ostensibly neutral as to the worker's sex, to a category of workers which, under national rules having the force of law, is composed exclusively of women constitutes direct discrimination on grounds of sex within the meaning of Directive 76/207. In order for there to be no direct discrimination on grounds of sex, the factor characterising the category to which the excluded worker belongs must be such as to place that worker in a situation that is objectively different, with regard to appointment as an established member of staff, from the situation of those who are eligible to become established. |
| --- | --- |

1.

Community law, in particular Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, is to be interpreted as meaning that the existence and application of a provision such as Article 24a(2)(a) of the General Staff Regulations of Organismos Tilepikinonion Ellados, under which only female cleaners, and therefore only women, can be taken on under a contract of indefinite duration for part-time work, do not constitute, in themselves, direct discrimination on grounds of sex against women. However, the subsequent exclusion of a possibility of appointment as an established member of staff by reference, ostensibly neutral as to the worker's sex, to a category of workers which, under national rules having the force of law, is composed exclusively of women constitutes direct discrimination on grounds of sex within the meaning of Directive 76/207. In order for there to be no direct discrimination on grounds of sex, the factor characterising the category to which the excluded worker belongs must be such as to place that worker in a situation that is objectively different, with regard to appointment as an established member of staff, from the situation of those who are eligible to become established.

| 2. | Should the premiss that only part-time female cleaners have been denied the possibility of appointment as an established member of staff prove incorrect, and if a much higher percentage of women than men has been affected by the provisions of the specific collective agreements of 2 November 1987 and 10 May 1991, the exclusion, brought about by those agreements, of the appointment of part-time temporary staff as established staff constitutes indirect discrimination. Such a situation is contrary to Article 3 of Directive 76/207 unless the difference of treatment between these workers and those working full-time is justified by factors unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case. |
| --- | --- |

2.

Should the premiss that only part-time female cleaners have been denied the possibility of appointment as an established member of staff prove incorrect, and if a much higher percentage of women than men has been affected by the provisions of the specific collective agreements of 2 November 1987 and 10 May 1991, the exclusion, brought about by those agreements, of the appointment of part-time temporary staff as established staff constitutes indirect discrimination. Such a situation is contrary to Article 3 of Directive 76/207 unless the difference of treatment between these workers and those working full-time is justified by factors unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case.

| 3. | Where the total exclusion of part-time employment when calculating length of service affects a much higher percentage of female workers than male workers, it constitutes indirect discrimination on grounds of sex contrary to Directive 76/207, unless that exclusion is attributable to factors which are objectively justified and are unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case. The proportional counting of part-time employment when making that calculation is also contrary to Directive 76/207, unless the employer establishes that it is justified by factors whose objectivity depends in particular on the aim pursued by taking length of service into account and, should it be a question of recognition of experience acquired, on the relationship between the nature of the duties carried out and the experience which performance of those duties brings after a certain number of hours of work have been completed. |
| --- | --- |

3.

Where the total exclusion of part-time employment when calculating length of service affects a much higher percentage of female workers than male workers, it constitutes indirect discrimination on grounds of sex contrary to Directive 76/207, unless that exclusion is attributable to factors which are objectively justified and are unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case. The proportional counting of part-time employment when making that calculation is also contrary to Directive 76/207, unless the employer establishes that it is justified by factors whose objectivity depends in particular on the aim pursued by taking length of service into account and, should it be a question of recognition of experience acquired, on the relationship between the nature of the duties carried out and the experience which performance of those duties brings after a certain number of hours of work have been completed.

| 4. | Where employees plead that the principle of equal treatment has been infringed to their detriment and establish facts from which it may be presumed that there has been direct or indirect discrimination, Community law, in particular Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, is to be interpreted as meaning that it shall be for the respondent to prove that there has been no breach of that principle. |
| --- | --- |

4.

Where employees plead that the principle of equal treatment has been infringed to their detriment and establish facts from which it may be presumed that there has been direct or indirect discrimination, Community law, in particular Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, is to be interpreted as meaning that it shall be for the respondent to prove that there has been no breach of that principle.

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(1)  OJ C 169 of 13.07.2002.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/2 |
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30.4.2005

EN

Official Journal of the European Union

C 106/2

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JUDGMENT OF THE COURT

(Grand Chamber)

of 1 March 2005

in Case C- 281/02 reference for a preliminary ruling from the Court of Appeal (England and Wales) Civil Division (United Kingdom): Andrew Owusu v N.B. Jackson, trading as ‘Villa Holidays Bal-Inn Villas’ and Others (1)

(Brussels Convention - Territorial scope of the Brussels Convention - Article 2 - Jurisdiction - Accident which occurred in a non–Contracting State - Personal injury - Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in a non–Contracting State - Forum non conveniens - Incompatibility with the Brussels Convention)

(2005/C 106/02)

Language of the case: English

In Case C-281/02, Reference for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Court of Appeal (England and Wales) Civil Division (United Kingdom), by decision of 5 July 2002, received at the Court on 31 July 2002, in the proceedings Andrew Owusu v N.B. Jackson, trading as ‘Villa Holidays Bal-Inn Villas’, Mammee Bay Resorts Ltd, Mammee Bay Club Ltd, The Enchanted Garden Resorts & Spa Ltd, Consulting Services Ltd, Town & Country Resorts Ltd — the Court (Grand Chamber), composed of P. Jann, President of the First Chamber, acting for the President, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur), N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 1 March 2005, the operative part of which is as follows:

| | The Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State. |
| --- | --- |

The Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.

---

(1)  OJ C 233 of 28.09.2002.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/2 |
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30.4.2005

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Official Journal of the European Union

C 106/2

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JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Case C-283/02: Italian Republic v Commission of the European Communities (1)

(Action for annulment - Wine production - Regulation (EC) No 753/2002 - description, designation, presentation and protection of the products - Protection of additional traditional terms - Erroneous classification of traditional terms - Languages permitted to be used on labels - Principle of equal treatment)

(2005/C 106/03)

Language of the case: Italian

In Case C-283/02 Italian Republic (Agent: I.M. Braguglia and M. Fiorilli, lawyer) v Commission of the European Communities (Agent: A. Alves Vieira, V. Di Bucci and M. Nolin) — action for annulment under Article 230 EC — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), R. Schintgen, P. Kūris and G. Arestis, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 3 March 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ 2002 C 233 of 28.09.2002.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/3 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/3

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JUDGMENT OF THE COURT

(First Chamber)

of 24 February 2005

in Case C-300/02: Hellenic Republic v Commission of the European Communities (1)

(EAGGF - Arable crops - Regulation (EEC) No 729/70 - Article 5(2)(c) - Discrepancies between annual declarations of expenses and eligible expenses - Time-limit of 24 months - Deduction of the amount of aid to farmers)

(2005/C 106/04)

Language of the case: Greek

In Case C-300/02: Action for annulment under Article 230 EC, brought on 21 August 2002 — Hellenic Republic (Agents: I. Chalkias and G. Kanellopoulos) v Commission of the European Communities (Agent: M. Condou-Durande and N. Korogiannakis, avocat) — Action for annulment under Article 230 EC, brought on 21 August 2002 — the Court (First Chamber Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, N. Colneric (Rapporteur), E. Juhász and M. Ilešič, Judges; P. Léger, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 24 February 2005, in which it:

| 1. | Annuls Commission Decision 2002/524/EC of 26 June 2002, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the (European Agriculture Guidance and Guarantee Fund (EAGGF), in so far as it excludes from Community financing expenditure incurred by the Hellenic Republic in the arable crops sector prior to 20 August 1999, to the extent that that expenditure is affect by the correction because of discrepancies between the expenses declared and the areas eligible for aid notified; |
| --- | --- |

1.

Annuls Commission Decision 2002/524/EC of 26 June 2002, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the (European Agriculture Guidance and Guarantee Fund (EAGGF), in so far as it excludes from Community financing expenditure incurred by the Hellenic Republic in the arable crops sector prior to 20 August 1999, to the extent that that expenditure is affect by the correction because of discrepancies between the expenses declared and the areas eligible for aid notified;

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

2.

Dismisses the remainder of the application;

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

3.

Orders each party to bear its own costs.

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(1)  OJ C 247 of 12.10. 2002.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/3 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/3

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JUDGMENT OF THE COURT

(Third Chamber)

of 24 February 2005

in Case C-318/02: Kingdom of the Netherlands v Commission of the European Communities (1)

(EAGGF - Decision 2002/524/EC - Financial adjustments to expenditure by the Netherlands in the form of exceptional support measures for the market in pigmeat in the Netherlands - Regulation (EC) No 413/97)

(2005/C 106/05)

Language of the case: Dutch

In Case C-318/02 Kingdom of the Netherlands (Agent: H.G. Sevenster, S. Terstal and N.A.J. Bel) v Commission of the European Communities (Agent: T. van Rijn) — action for annulment under Article 230 EC — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges; A. Tizzano, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 24 February 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the Kingdom of the Netherlands to pay the costs.

---

(1)  OJ 2002 C 305 of 07.04.2002.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/4 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/4

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JUDGMENT OF THE COURT

(Grand Chamber)

of 1 March 2005

in Case C-377/02: Reference for a preliminary ruling from the Raad van State (Belgium) in Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau (BIRB) (1)

(Common organisation of the markets - Bananas - GATT 1994 - Articles I and XIII - Framework agreement of 23 April 1993 between the EEC and the Cartagena Group - Direct effect - Recommendations and decisions of the WTO Dispute Settlement Body - Legal effects)

(2005/C 106/06)

Language of the case: Dutch

In Case C-377/02: reference for a preliminary ruling under Article 234 EC from the Raad van State (Belgium), made by decision of 7 October 2002, received at the Court on 21 October 2002, in the proceedings between Léon Van Parys NV and Belgisch Interventie- en Restitutiebureau (BIRB) — the Court: (Grand Chamber) composed of V. Skouris, President, P. Jann, C.W.A. Timmermans and A. Borg Barthet, Presidents of Chambers, J.-P. Puissochet, R. Schintgen (Rapporteur), N. Colneric, S. von Bahr, G. Arestis, M. Ilešič, J. Malenovský, J. Klučka and U. Lõhmus,, Judges; A. Tizzano, Advocate General, M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 1 March 2005, in which it ruled:

| | In circumstances such as those in the main proceedings, an operator may not rely in proceedings before a national court on the fact that Community legislation is incompatible with certain rules of the World Trade Organisation even where the Dispute Settlement Body referred to in Article 2(1) of the Understanding on rules and procedures governing the settlement of disputes, which forms Annex 2 to the Agreement establishing the World Trade Organisation, approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), has declared that legislation to be incompatible with those rules. |
| --- | --- |

In circumstances such as those in the main proceedings, an operator may not rely in proceedings before a national court on the fact that Community legislation is incompatible with certain rules of the World Trade Organisation even where the Dispute Settlement Body referred to in Article 2(1) of the Understanding on rules and procedures governing the settlement of disputes, which forms Annex 2 to the Agreement establishing the World Trade Organisation, approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), has declared that legislation to be incompatible with those rules.

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(1)  OJ C 7 of 11.01.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/4 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/4

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JUDGMENT OF THE COURT

(Grand Chamber)

of 15 February 2005

in Case C-13/03 P: Commission of the European Communities v Tetra Laval BV (1)

(Appeal - Competition - Regulation (EEC) No 4064/89 - Judgment holding that a decision ordering a separation of undertakings is illegal as a result of the illegality of an earlier decision declaring a merger incompatible with the common market)

(2005/C 106/07)

Language of the case: English

In Case C-13/03 P: appeal under Article 49 of the EC Statute of the Court of Justice lodged on 8 January 2003 by Commission of the European Communities (Agents: M. Petite, A. Whelan and P. Hellström), the other party to the proceedings being Tetra Laval BV established in Amsterdam (Netherlands) (represented by A. Vandencasteele and D. Waelbroeck, M. Johnsson, A. Weitbrecht and S. Völcker) — the Court (Grand Chamber), composed of P. Jann, President of the First Chamber (acting as President), C.W.A. Timmermans and A. Rosas (Rapporteur), Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 15 February 2005, in which it:

| 1. | Declares that there is no need to give a ruling on the appeal; |
| --- | --- |

1.

Declares that there is no need to give a ruling on the appeal;

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

2.

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

---

(1)  OJ C 70 of 22.03.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/5 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/5

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JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Joined Cases C-21/03 and C-34/03 (reference for a preliminary ruling from the Conseil d'État): Fabricom SA v État belge (1)

(Public procurement - Works, supplies and services - Water, energy, transport and telecommunications sectors - Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned)

(2005/C 106/08)

Language of the case: French

In Joined Cases C-21/03 and C-34/03: reference for a preliminary ruling under Article 234 EC from the Conseil d'État (Belgium), made by decision of 27 December 2002, received at the Court on 29 and 22 January 2003, respectively, in the proceedings pending before that court between Fabricom SA and État belge — the Court (Second Chamber) composed of C.W.A. Timmermans, President of the Chamber (Rapporteur), C. Gulmann, J.-P. Puissochet, N. Colneric and J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

| 1. | Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and, more particularly, Article 3(2) thereof, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Directive 97/52, and, more particularly, Article 5(7) thereof, Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, and, more particularly, Article 6(6) thereof, and also Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by European Parliament and Council Directive 98/4/EC of 16 February 1998, and, more particularly, Article 4(2) thereof, preclude a rule such as that laid down in Article 25 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 on public works, supply and service contracts in the water, energy, transport and telecommunications sectors, and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996 on public works, supply and service contracts and on the award of public contracts, whereby a person who has been instructed to carry out research, experiments, studies or development in connection with a public works, supplies or services contract is not permitted to apply to participate in or to submit a tender for those works, supplies or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition. |
| --- | --- |

1.

Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and, more particularly, Article 3(2) thereof, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Directive 97/52, and, more particularly, Article 5(7) thereof, Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, and, more particularly, Article 6(6) thereof, and also Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by European Parliament and Council Directive 98/4/EC of 16 February 1998, and, more particularly, Article 4(2) thereof, preclude a rule such as that laid down in Article 25 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 on public works, supply and service contracts in the water, energy, transport and telecommunications sectors, and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996 on public works, supply and service contracts and on the award of public contracts, whereby a person who has been instructed to carry out research, experiments, studies or development in connection with a public works, supplies or services contract is not permitted to apply to participate in or to submit a tender for those works, supplies or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition.

| 2. | Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and, more particularly, Articles 2(1)(a) and 5 thereof, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors and, more particularly, Articles 1 and 2 thereof, preclude the contracting entity from refusing, until the end of the procedure for the examination of tenders, to allow an undertaking connected with any person who has been instructed to carry out research, experiments, studies or development in connection with works, supplies or services to participate in the procedure or to submit a tender, even though, when questioned on that point by the awarding authority, that undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of competition. |
| --- | --- |

2.

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and, more particularly, Articles 2(1)(a) and 5 thereof, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors and, more particularly, Articles 1 and 2 thereof, preclude the contracting entity from refusing, until the end of the procedure for the examination of tenders, to allow an undertaking connected with any person who has been instructed to carry out research, experiments, studies or development in connection with works, supplies or services to participate in the procedure or to submit a tender, even though, when questioned on that point by the awarding authority, that undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of competition.

---

(1)  OJ C 55 of 08.03.2003.

OJ C 70 of 22.03.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/5 |
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30.4.2005

EN

Official Journal of the European Union

C 106/5

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JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Case C-172/03 Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) Wolfgang Heiser v Finanzamt Innsbruck (1)

(VAT - Exemption for medical care provided in the exercise of the profession of medical practitioner - Adjustment of deductions)

(2005/C 106/09)

Language of the case: German

In Case C-172/03: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof (Austria), made by decision of 31 March 2003, received at the Court on 14 April 2003, in the proceedings pending before that court between Wolfgang Heiser and Finanzamt Innsbruck — the Court: (Second Chamber) composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, J. Makarczyk and J. Klučka, Judges; A. Tizzano, Advocate General, K. Sztranc, Administrator, for the Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

| | Article 92 of the Treaty (now, after amendment, Article 87 EC) must be interpreted as meaning that a rule, such as that laid down by Paragraph XIV(3) of Federal Law 21/1995, as amended by Federal Law 756/1996, providing that the changeover for medical practitioners from taxable to exempt status for the purposes of VAT does not, in relation to goods that continue to be used in the business, entail the reduction of input tax already deducted that is prescribed by Article 20 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, must be classified as State aid. |
| --- | --- |

Article 92 of the Treaty (now, after amendment, Article 87 EC) must be interpreted as meaning that a rule, such as that laid down by Paragraph XIV(3) of Federal Law 21/1995, as amended by Federal Law 756/1996, providing that the changeover for medical practitioners from taxable to exempt status for the purposes of VAT does not, in relation to goods that continue to be used in the business, entail the reduction of input tax already deducted that is prescribed by Article 20 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, must be classified as State aid.

---

(1)  OJ C 158 of 5.7.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/6 |
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30.4.2005

EN

Official Journal of the European Union

C 106/6

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 3 March 2005

in Case C-195/03 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Ministerie van Financiën v Merabi Papismedov and Others (1)

(Community Customs Code - Presentation of goods to customs - Meaning - Cigarettes declared under the description ‘cookware’ - Incurrence of the customs debt on importation - Debtor of the customs debt)

(2005/C 106/10)

Language of the case: Dutch

In Case C-195/03: reference for a preliminary ruling under Article 234 EC from the Hof van Beroep te Antwerpen (Belgium), by decision of 7 May 2003, received at the Court on 12 May 2003, in the proceedings pending before that court between Ministerie van Financiën and Merabi Papismedov and Others, intervening parties: KBC Lease Belgium NV, Volvo Truck Finance Belgium NV — the Court (Sixth Chamber) composed of J.-P. Puissochet, acting as President of the Sixth Chamber, S. von Bahr and U. Lõhmus (Rapporteur), Judges; J. Kokott, Advocate General, R. Grass, Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

| 1. | Goods presented to customs, for which a summary declaration was lodged and an external Community transit document validated, were not lawfully introduced into the customs territory of the Community if, in the documents lodged with the customs authorities, the goods were wrongly designated. |
| --- | --- |

1.

Goods presented to customs, for which a summary declaration was lodged and an external Community transit document validated, were not lawfully introduced into the customs territory of the Community if, in the documents lodged with the customs authorities, the goods were wrongly designated.

| 2. | The customs debt in respect of goods presented to customs and declared under an incorrect designation is based on Article 202 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. |
| --- | --- |

2.

The customs debt in respect of goods presented to customs and declared under an incorrect designation is based on Article 202 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code.

| 3. | It is for the national court to establish, in the light of the circumstances of the main proceedings, whether the person who lodged the summary declaration or the customs declaration was, because he stated an incorrect designation, responsible for the unlawful introduction of the goods. If such is not the case, it is for that court to consider whether, by that action, the person participated in the introduction of the goods whilst he was or should reasonably have been aware that it was unlawful. |
| --- | --- |

3.

It is for the national court to establish, in the light of the circumstances of the main proceedings, whether the person who lodged the summary declaration or the customs declaration was, because he stated an incorrect designation, responsible for the unlawful introduction of the goods. If such is not the case, it is for that court to consider whether, by that action, the person participated in the introduction of the goods whilst he was or should reasonably have been aware that it was unlawful.

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(1)  OJ C 158 of 5.7.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/6 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/6

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 February 2005

in Case C-279/03: Commission of the European Communities v Implants (International) Ltd (1)

(Arbitration clause - Reimbursement of an advance payment - Default interest - Default proceedings)

(2005/C 106/11)

Language of the case: English

In Case C-279/03, an action under Article 238 EC brought on 26 June 2003, Commission of the European Communities (Agents: R. Lyal and C. Giolito) v Implants (International) Ltd, established in Cleveland (United Kingdom) — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, C. Gulmann and J. Klučka (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 24 February 2005, in which it:

| 1. | Orders Implants (International) Ltd to pay to the Commission of the European Communities the principal sum due of EUR 284 000, together with default interest:






  — | at the rate of 4,8 % per annum from 31 August 2002 until 31 December 2002; |
| --- | --- | --- |

1.

Orders Implants (International) Ltd to pay to the Commission of the European Communities the principal sum due of EUR 284 000, together with default interest:

—

at the rate of 4,8 % per annum from 31 August 2002 until 31 December 2002;

| — | at the rate of 6,8 % per annum from 1 January 2003 until the sums payable have been reimbursed in full; |
| --- | --- |

—

at the rate of 6,8 % per annum from 1 January 2003 until the sums payable have been reimbursed in full;

| 2. | Orders Implants (International) Ltd to pay the costs. |
| --- | --- |

2.

Orders Implants (International) Ltd to pay the costs.

---

(1)  OJ C 200 of 23.08.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/7 |
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30.4.2005

EN

Official Journal of the European Union

C 106/7

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 3 March 2005

in Case C-414/03: Commission of the European Communities v Federal Republic of Germany (1)

(Failure to fulfil obligations - Article 8 of Directive 92/50/EEC - Procedure for awarding contracts for public services - Waste disposal in the Land of Lower Saxony)

(2005/C 106/12)

Language of the case: German

In Case C-414/03 Commission of the European Communities (Agent: K. Wiedner) v Federal Republic of Germany (Agent: W.-D. Plessing and M. Lumma) — action for failure to fulfil obligations under Article 226 EC — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, K. Schiemann (Rapporteur) and M. Ilešič, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 3 March 2005, in which it:

| 1. | Declares that by the Landkreis Friesland in the Land of Lower Saxony awarding a contract for the disposal of waste without complying with the rules on advertising and the procedure laid down by Article 8 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts together with Titles III and VI of that directive, the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by the Landkreis Friesland in the Land of Lower Saxony awarding a contract for the disposal of waste without complying with the rules on advertising and the procedure laid down by Article 8 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts together with Titles III and VI of that directive, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

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

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ 2003 C 275 of 15.11.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/7 |
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30.4.2005

EN

Official Journal of the European Union

C 106/7

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 27 January 2005

in Case C-416/03: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2001/18/EC - Failure to transpose within the prescribed period)

(2005/C 106/13)

Language of the case: Greek

In Case C-416/03: Commission of the European Communities (Agent: M. Konstantinidis) v Hellenic Republic (Agent: N. Dafniou) — action under Article 226 EC for failure to fulfil obligations, brought on 3 October 2003 — the Court (Fourth Chamber), composed of: K. Lenaerts, President of the Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges; J. Kokott, Advocate General, gave a judgment on 27 January 2005, in which it:

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

1.

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

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 275, 15.11.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/8 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/8

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 3 March 2005

in Case C-499/03 P: Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European Communities (1)

(Appeal - Common Customs Tariff - Subsequent recovery of import duties - Waiver of duties to be recovered - Conditions - Article 220(2)(b) of Regulation (EEC) No 2913/92 - Error of the customs authorities - Detectable error - Combined nomenclature - Remarks - Scope)

(2005/C 106/14)

Language of the case: German

In Case C-499/03 P: appeal under Article 56 of the Statute of the Court of Justice lodged at the Court on 25 November 2003 by Peter Biegi Nahrungsmittel GmbH, established in Frankfurt am Main (Germany) and Commonfood Handelsgesellschaft für Agrar-Produkte mbH, established in Langen (Germany) (laywers: K. Landry and L. Harings), the other party to the proceedings being the Commission of the European Communities (Agents: X. Lewis and J. Schieferer) — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and J. Malenovský (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 3 March 2005, in which it:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 17 September 2003 in Joined Cases T-309/01 and T-239/02 Biegi Nahrungsmittel and Commonfood v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 17 September 2003 in Joined Cases T-309/01 and T-239/02 Biegi Nahrungsmittel and Commonfood v Commission;

| 2. | Annuls Commission Decision C (2001) 2533 of 14 August 2001 (REC 4/00) in so far as it orders the subsequent entry in the accounts of import duties payable by Peter Biegi Nahrungsmittel GmbH in the amount of DEM 218 605,64; |
| --- | --- |

2.

Annuls Commission Decision C (2001) 2533 of 14 August 2001 (REC 4/00) in so far as it orders the subsequent entry in the accounts of import duties payable by Peter Biegi Nahrungsmittel GmbH in the amount of DEM 218 605,64;

| 3. | Annuls Commission Decision C (2002) 857 of 5 March 2002 (REC 4/01) ordering the subsequent entry in the accounts of import duties payable by Commonfood Handelsgesellschaft für Agrar-Produkte mbH in the amount of DEM 222 116,06; |
| --- | --- |

3.

Annuls Commission Decision C (2002) 857 of 5 March 2002 (REC 4/01) ordering the subsequent entry in the accounts of import duties payable by Commonfood Handelsgesellschaft für Agrar-Produkte mbH in the amount of DEM 222 116,06;

| 4. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

4.

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

---

(1)  OJ C 21 of 24.01.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/8 |
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30.4.2005

EN

Official Journal of the European Union

C 106/8

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 3 March 2005

in Case C-90/04: Commission of the European Communities v Republic of Austria (1)

(Failure by a Member State to fulfil its obligations - Article 7(1) of Directive 1999/32/EC - Failure to supply the report relating to the sulphur content of liquid fuels used on its national territory)

(2005/C 106/15)

Language of the case: German

In Case C-90/04: Action for failure to fulfil obligations under Article 226 EC, brought on 23 February 2004 — Commission of the European Communities (Agents: J. Schieferer and G. Valero Jordana) v Republic of Austria (Agent: E. Riedl) –the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk (Rapporteur) and P. Kūris, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 3 March 2005, in which it:

| 1. | Declares that, by failing to supply to the Commission of the European Communities, before 30 June 2002, the report for 2001, the Republic of Austria has failed to fulfil its obligations under Article 7(1) of Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC; |
| --- | --- |

1.

Declares that, by failing to supply to the Commission of the European Communities, before 30 June 2002, the report for 2001, the Republic of Austria has failed to fulfil its obligations under Article 7(1) of Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC;

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

2.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 94 of 17.04.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/9 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/9

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 February 2005

in Case C-225/04: Commission of the European Communities v Republic of Finland (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/106/EC - Maritime transport - Non-transposition within the period prescribed)

(2005/C 106/16)

Language of the case: Finnish

In Case C-225/04 Commission of the European Communities (Agents: K. Simonsson and M. Huttunen) v Republic of Finland (Agent: A. Guimares-Purokoski) — action under Article 226 EC for failure to fulfil obligations, brought on 1 June 2004 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, G. Arestis (Rapporteur) and J. Klučka, Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 24 February 2005, in which it:

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

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001 amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control), the Republic of Finland has failed to fulfil its obligations under that directive;

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

2.

Orders the Republic of Finland to pay the costs.

---

(1)  OJ C 262 of 23.10.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/9 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/9

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 February 2005

in Case C-383/04: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil its obligations - Directive 1999/105/EC - Marketing of forest reproductive material - Failure to implement within the period prescribed)

(2005/C 106/17)

Language of the case: French

In Case C-383/04: action under Article 226 EC for failure to fulfil obligations, brought on 6 September 2004, between Commission of the European Communities (Agent: A. Bordes) and Grand Duchy of Luxembourg (Agent: S. Schreiner) — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of Chamber, R. Schintgen and G. Arestis (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 24 February 2005 in which it:

| 1. | Declares that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/105/EC of 22 December 1999 on the marketing of forest reproductive material the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/105/EC of 22 December 1999 on the marketing of forest reproductive material the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 262 of 23.10.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/10 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/10

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ORDER OF THE COURT

(First Chamber)

of 19 January 2005

in Case C-206/03: (reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division) Commissioners of Customs & Excise v SmithKline Beecham plc (1)

(Article 104(3) of the Rules of Procedure - Common customs tariff - Tariff headings - Nicotine patches - Force in law of a classification opinion of the World Customs Organisation)

(2005/C 106/18)

Language of the case: English

In Case C-206/03: reference for a preliminary ruling under Article 234 EC from the High Court of Justice (England and Wales), Chancery Division, (United Kingdom) made by decision of 7 December 2000, received at the Court on 14 May 2003, in the proceedings between Commissioners of Customs & Excise and SmithKline Beecham plc — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, N. Colneric, K. Schiemann, E. Juhász and E. Levits, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, made an order on 19 January 2005, the operative part of which is as follows:

| 1. | Nicotine patches, such as those at issue in the main proceedings, must be classed under heading 3004 of the Combined Nomenclature, contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 2086/97 of 4 November 1997. |
| --- | --- |

1.

Nicotine patches, such as those at issue in the main proceedings, must be classed under heading 3004 of the Combined Nomenclature, contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 2086/97 of 4 November 1997.

| 2. | If a competent authority has issued incorrect binding tariff information, a national court is required under Article 10 EC to take, within the sphere of its competence, all the measures necessary to ensure that that information is annulled and that new binding tariff information, consistent with Community law, is issued.
  In that context, the procedure for and the effects of the decisions adopted by the national court hearing the action fall, within the bounds set by the principles of equivalence and effectiveness, within the ambit of domestic law.
  In that regard, it is not contrary to Article 12(5) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, for a national court to annul a decision of a customs authority which, while it is consistent with a classification opinion of the W.C.O., fails to take account of the Combined Nomenclature contained in Annex I to Council Regulation (EEC) No 2658/87, as amended by Commission Regulation (EC) No 2086/97, and to declare that goods must be classified otherwise than in accordance with that classification opinion. |
| --- | --- |

2.

If a competent authority has issued incorrect binding tariff information, a national court is required under Article 10 EC to take, within the sphere of its competence, all the measures necessary to ensure that that information is annulled and that new binding tariff information, consistent with Community law, is issued.

In that context, the procedure for and the effects of the decisions adopted by the national court hearing the action fall, within the bounds set by the principles of equivalence and effectiveness, within the ambit of domestic law.

In that regard, it is not contrary to Article 12(5) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, for a national court to annul a decision of a customs authority which, while it is consistent with a classification opinion of the W.C.O., fails to take account of the Combined Nomenclature contained in Annex I to Council Regulation (EEC) No 2658/87, as amended by Commission Regulation (EC) No 2086/97, and to declare that goods must be classified otherwise than in accordance with that classification opinion.

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(1)  OJ C 158 of 05.07.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/10 |
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30.4.2005

EN

Official Journal of the European Union

C 106/10

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ORDER OF THE COURT

(Second Chamber)

of 28 October 2004

in Case C-236/03 P Commission of the European Communities v CMA CGM and Others (1)

(Appeal - Cartels - Maritime transport between northern Europe and the Far East - Fines - Limitation period - Appeal partly clearly inadmissible and partly clearly unfounded)

(2005/C 106/19)

Language of the case: English

In Case C-236/03 P: appeal under Article 56 of the Statute of the Court of Justice lodged at the Court on 2 June 2003 by the Commission of the European Communities (Agent: P. Oliver), the other parties to the proceedings being CMA CGM, established in Marseilles (France), Evergreen Marine Corp. Ltd, established in Taipei, (Taiwan), Hanjin Shipping Co. Ltd, established in Taipei, Hapag-Lloyd Container Linie GmbH, established in Seoul (South Korea), Kawasaki Kisen Kaisha Ltd, established in Tokyo (Japan), Malaysia International Shipping Corporation Berhad, established in Kuala Lumpur (Malaysia), Mitsui OSK Lines Ltd, established in Tokyo, Neptune Orient Lines Ltd, established in Singapore, Nippon Yusen Kaisha, established in Tokyo, Orient Overseas Container Line Ltd, established in Wanchai (China), P & O Nedlloyd Container Liner Ltd, established in London, Yangming Marine Transport Corp., established in Taipei, (lawyers: J. Pheasant and M. Levitt), Senator Lines GmbH, formerly DSR-Senator Lines GmbH, established in Bremen (Germany), (lawyers: J. Pheasant and M. Levitt, and D. Waelbroeck and U. Zinsmeister), and Cho Yang Shipping Co. Ltd, established in Seoul, in liquidation — the Court (Second Chamber), composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, R. Schintgen, G. Arestis and J. Klučka, Judges; J. Kokott, Advocate General; R. Grass, Registrar, made an order on 28 October 2004, the operative part of which is as follows:

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

1.

The appeal is dismissed;

| 2. | The Commission of the European Communities shall pay the costs. |
| --- | --- |

2.

The Commission of the European Communities shall pay the costs.

---

(1)  OJ C 184 of 02.08.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/11 |
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30.4.2005

EN

Official Journal of the European Union

C 106/11

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ORDER OF THE COURT

(Fourth Chamber)

of 18 January 2005

in Case C-325/03 P: José Luis Zuazaga Meabe v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Appeal - Community trade mark - Action for annulment - Inadmissibility because out of time - Appeal manifestly unfounded)

(2005/C 106/20)

Language of the case: Spanish

In Case C-325/03 P: appeal under Article 56 of the Statute of the Court of Justice lodged at the Court on 21 July 2003 by José Luis Zuazaga Meabe, residing in Bilbao (Spain), (lawyers: J.A. Calderón Chavero and N. Moya Fernández), the other parties to the proceedings being the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto and I. de Medrano Caballero) — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, J.N. Cunha Rodrigues and M. Ilešič (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, made an order on 18 January 2005, the operative part of which is as follows

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | Mr Zuazaga Meabe shall bear his own costs and pay those incurred by Banco Bilbao Vizcaya Argentaria SA. |
| --- | --- |

2.

Mr Zuazaga Meabe shall bear his own costs and pay those incurred by Banco Bilbao Vizcaya Argentaria SA.

| 3. | The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) shall bear its own costs. |
| --- | --- |

3.

The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) shall bear its own costs.

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(1)  OJ C 239 of 04.10.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/11 |
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30.4.2005

EN

Official Journal of the European Union

C 106/11

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ORDER OF THE COURT

(Fourth Chamber)

of 7 December 2004

in Case C-521/03 P: Internationaler Hilfsfonds eV v Commission of the European Communities (1)

(Appeal - Admissibility of the action - Whether the action is out of time - Fifth paragraph of Article 230 EC - Merely confirmatory decision - Categorisation)

(2005/C 106/21)

Language of the case: English

In Case C-521/03 P: appeal under Article 56 of the Statute of the Court of Justice, lodged on 15 December 2003 by Internationaler Hilfsfonds eV (lawyer: H. Kaltenecker), the other party to the proceedings being the Commission of the European Communities (Agents: M. Wilderspin and S. Fries) — the Court (Fourth Chamber), composed of J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges; L.A. Geelhoed, Advocate General: R. Grass, Registrar, made an order on 7 December 2004, the operative part of which is as follows:

| 1. | The appeal is dismissed. |
| --- | --- |

1.

The appeal is dismissed.

| 2. | The appellant shall bear the costs. |
| --- | --- |

2.

The appellant shall bear the costs.

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(1)  OJ C 59 of 06.03.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/12 |
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30.4.2005

EN

Official Journal of the European Union

C 106/12

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ORDER OF THE COURT

(Fifth Chamber)

of 21 January 2005

in Case C-75/04 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Ministerie van Financiën v Hendrik Hanssens and Others (1)

(Reference for a preliminary ruling - Inadmissibility)

(2005/C 106/22)

Language of the case: Dutch

In Case C-75/04: reference for a preliminary ruling under Article 234 EC from the Hof van Beroep te Antwerpen (Court of Appeal, Antwerp) (Belgium), by decision of 11 February 2004, received at the Court on 17 February 2004, in the proceedings pending before that court between Ministerie van Financiën and Hendrik Hanssens, Rudi Verhoeven and World Wide Shipping and Forwarding NV (WWSF) — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen (Rapporteur) and J. Makarczyk, Judges; P. Léger, Advocate General; R. Grass, Registrar, has made an order on 21 January 2005, the operative part of which is as follows:

| | The reference for a preliminary ruling submitted by the Hof van Beroep te Antwerpen by decision of 11 February 2004 is inadmissible. |
| --- | --- |

The reference for a preliminary ruling submitted by the Hof van Beroep te Antwerpen by decision of 11 February 2004 is inadmissible.

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(1)  OJ C 94 of 17.04.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/12 |
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30.4.2005

EN

Official Journal of the European Union

C 106/12

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ORDER OF THE COURT

(Fifth Chamber)

of 26 January 2005

in Case C-153/04 P: Euroagri Srl v Commission of the European Communities (1)

(Appeal - EAGGF - Financial participation - Pilot and demonstration project for the use of a new technique called ‘Endovena’ on fruit trees)

(2005/C 106/23)

Language of the case: Italian

In Case C-153/04 P, appeal under Article 56 of the Statute of the Court of Justice, brought on 23 March 2004 by Euroagri Srl, established in Monte Vidon Combatte (Italy) (Lawyer: W. Massucci), the other party to the proceedings being the Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio) — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and P. Kūris (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has made an order on 26 January 2005, the operative part of which is as follows:

| 1. | The appeal is dimissed. |
| --- | --- |

1.

The appeal is dimissed.

| 2. | Euroagri Srl shall pay the costs. |
| --- | --- |

2.

Euroagri Srl shall pay the costs.

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(1)  OJ C 106 of 30.04.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/12 |
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30.4.2005

EN

Official Journal of the European Union

C 106/12

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ORDER OF THE COURT

(Fifth Chamber)

of 28 January 2005

in Case C-208/04: Reference for a preliminary ruling from the Conseil d'État in Inter-Environnement Wallonie ASBL v Région wallonne (1)

(Article 104(3) of the Rules of Procedure - Directives 75/442/EEC and 91/156/EEC - Concept of waste - List of materials that are equatable with products)

(2005/C 106/24)

Language of the case: French

In Case C-208/04: reference for a preliminary ruling under Article 234 EC from the Conseil d'État (Council of State, Belgium), made by decision of 29 April 2004, received at the Court on 11 May 2004, in the proceedings between Inter-Environnement Wallonie ASBL and Région wallonne — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, P. Kūris (Rapporteur) and J. Klučka, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 28 January 2005, the operative part of which is as follows:

| | Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, precludes the introduction by States of a new category of materials which do not come under either the category of waste or that of products even though that new category of materials may contain substances or objects liable to meet the definition of ‘waste’ within the meaning of that provision. |
| --- | --- |

Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, precludes the introduction by States of a new category of materials which do not come under either the category of waste or that of products even though that new category of materials may contain substances or objects liable to meet the definition of ‘waste’ within the meaning of that provision.

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(1)  OJ C 179 of 10.7.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/13 |
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30.4.2005

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Official Journal of the European Union

C 106/13

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Application for authorisation to serve a garnishee order brought on 9 March 2005 by ALT Ylmy — Ömümcilik Paydarlar Jemgyyeti against the Commission of the European Communities

(Case C-4/05 SA)

(2005/C 106/25)

An application for authorisation to serve a garnishee order on the Commission of the European Communities was brought before the Court of Justice of the European Communities on 9 March 2005 by ALT Ylmy — Ömümcilik Paydarlar Jemgyyeti, represented by R. Nathan, avocat.

The applicant claims that the Court should:

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

—

lift the Commission's immunity so that the funds which it holds in favour of the judgment debtor, in this case CESD — Communautaire a.s.b.l., may be garnisheed, there being no argument either in law or in fact that the Commission, as garnishee, should not validly pay the funds which it holds provisionally to the judgment creditor;

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

—

order the Commission to pay all the costs.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/13 |
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30.4.2005

EN

Official Journal of the European Union

C 106/13

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Application brought on 11 March 2005 by Maria Fernanda Gil do Nascimento and Others for authorisation to serve a garnishee order on the Commission of the European Communities

(Case C-5/05 SA)

(2005/C 106/26)

Language of the case: Portuguese

An application for authorisation to serve a garnishee order on the Commission of the European Communities was brought before the Court of Justice of the European Communities on 11 March 2005 by Maria Fernanda Gil do Nascimento and Others, represented by João Carlos Grilo Simões, lawyer.

The applicants claim that the Court should lift the immunity enjoyed by the Commission and authorise the attachment of the funds of ISD — Informações, Sistemas e Desenvolvimentos SA held by the Commission of the European Communities and intended for the judgment creditors for the payment of wages and salaries and debts owed in respect thereof.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/13 |
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30.4.2005

EN

Official Journal of the European Union

C 106/13

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Appeal brought on 2 February 2005 by Kingdom of Sweden against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

(Case C-39/05 P)

(2005/C 106/27)

Language of the case: English

An appeal against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 (1) between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities, was brought before the Court of Justice of the European Communities on 2 February 2005 by Kingdom of Sweden, represented by K. Wistrand, acting as Agent.

The Appellant claims that the Court should:

| 1. | Set aside paragraph 1 of the operative part of the judgment of the Court of First Instance of 23 November 2004 in Case T-84/03 Maurizio Turco v Council of the European Union; |
| --- | --- |

1.

Set aside paragraph 1 of the operative part of the judgment of the Court of First Instance of 23 November 2004 in Case T-84/03 Maurizio Turco v Council of the European Union;

| 2. | Annul the Council's decision of 19 December 2002 in so far as it concerns access to the legal opinion from the Council's legal service and |
| --- | --- |

2.

Annul the Council's decision of 19 December 2002 in so far as it concerns access to the legal opinion from the Council's legal service and

| 3. | Order the Council to pay the costs incurred by the Kingdom of Sweden in the proceedings before the Court of Justice. |
| --- | --- |

3.

Order the Council to pay the costs incurred by the Kingdom of Sweden in the proceedings before the Court of Justice.

Pleas in law and main arguments:

The Swedish Government submits that the Court of First Instance has infringed Community law in the judgment under appeal.

The Court of First Instance pointed out, on the one hand, that it is for the institutions to assess in each individual case whether the documents whose disclosure is sought actually fall within the exceptions set out in Regulation No 1049/2001 (2) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (‘openness regulation’).

On the other hand, the Court of First Instance upheld the Council's assertion that there was a general need for confidentiality for legal opinions in legislative matters. That was so, first, because the disclosure of documents of that type could give rise to doubt as to the lawfulness of the legislation in question, and, second, because the maintenance of the independence of opinions from the Council's legal service can constitute an interest worthy of protection. On that basis, the Court of First Instance found that the Council did not make an error of judgment in refusing access to the legal opinion on the basis of the exception in the second indent of Article 4(2) of the openness regulation.

In the view of the Swedish Government, that conclusion is incompatible with the obligation to assess the question of disclosure in the light of the content of the specific document. That finding of the Court of First Instance thus infringed Community law.

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(1)  OJ C 112, 10/05/2003, p. 38.

(2)  OJ L 145, 31/05/2001, p. 43.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/14 |
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30.4.2005

EN

Official Journal of the European Union

C 106/14

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Appeal brought on 9 February 2005 by Maurizio Turco against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

(Case C-52/05 P)

(2005/C 106/28)

Language of procedure: English

An appeal against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 (1) between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities, was brought before the Court of Justice of the European Communities on 9 February 2005 by Maurizio Turco, residing in Pulsano (Italy), represented by O. W. Brouwer and C. E. Schillemanns, lawyers,

The Appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of 23 November 2004 by which it:






  a) | dismissed the action brought by the Appellant in so far as it concerns the refusal of access to Document No 9077/02, containing an opinion of the Council legal service concerning a proposal for a Council Directive laying down minimum standards for the reception of Appellants for asylum in Member States; |
| --- | --- | --- |

—

set aside the judgment of the Court of First Instance of 23 November 2004 by which it:

a)

dismissed the action brought by the Appellant in so far as it concerns the refusal of access to Document No 9077/02, containing an opinion of the Council legal service concerning a proposal for a Council Directive laying down minimum standards for the reception of Appellants for asylum in Member States;

| b) | ordered the Appellant and the Council each to bear half of the costs of the proceedings |
| --- | --- |

b)

ordered the Appellant and the Council each to bear half of the costs of the proceedings

| — | when necessary, refer the case back to the Court of First Instance for judgment; |
| --- | --- |

—

when necessary, refer the case back to the Court of First Instance for judgment;

| — | order the Council to pay the costs, including the costs incurred by eventual intervening parties. |
| --- | --- |

—

order the Council to pay the costs, including the costs incurred by eventual intervening parties.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First Instance contains errors of law in its interpretation and application of Article 4(2) of Regulation (EC) No 1049/2001 (2) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (the Regulation).

The grounds of appeal and legal arguments on which the Appellant relies are that the Court of First Instance in the present case:

| (i) | did not give the correct interpretation and application of the term ‘legal advice’ in Article 4(2) of the Regulation; |
| --- | --- |

(i)

did not give the correct interpretation and application of the term ‘legal advice’ in Article 4(2) of the Regulation;

| (ii) | wrongly qualified the legal opinion as ‘legal advice’ within the meaning of Article 4(2) of the Regulation and contravened the scope and content of Articles 4(2) and 4(3) and the inherent set up and structure of the Regulation; |
| --- | --- |

(ii)

wrongly qualified the legal opinion as ‘legal advice’ within the meaning of Article 4(2) of the Regulation and contravened the scope and content of Articles 4(2) and 4(3) and the inherent set up and structure of the Regulation;

| (iii) | wrongly interpreted and applied (the Community case-law establishing) the principle that widest possible access should be granted to documents held by the Community institutions and that derogations from this principle should be construed as restrictively as possible; |
| --- | --- |

(iii)

wrongly interpreted and applied (the Community case-law establishing) the principle that widest possible access should be granted to documents held by the Community institutions and that derogations from this principle should be construed as restrictively as possible;

| (iv) | misinterpreted and misapplied (the Community case-law establishing) the principle that requests for access to documents should be assessed on a case-by-case basis; |
| --- | --- |

(iv)

misinterpreted and misapplied (the Community case-law establishing) the principle that requests for access to documents should be assessed on a case-by-case basis;

| (v) | misinterpreted and misapplied the concept of ‘overriding public interests’ and committed an error in law by placing the burden of proof in this respect on the Appellant; |
| --- | --- |

(v)

misinterpreted and misapplied the concept of ‘overriding public interests’ and committed an error in law by placing the burden of proof in this respect on the Appellant;

| (vi) | violated the Community law principle that the Community's legal order is based on the rule of law; and |
| --- | --- |

(vi)

violated the Community law principle that the Community's legal order is based on the rule of law; and

| (vii) | did not provide sufficient reasoning and omitted to respond to specific arguments put forward by the Appellant. |
| --- | --- |

(vii)

did not provide sufficient reasoning and omitted to respond to specific arguments put forward by the Appellant.

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(1)  OJ C 112, 10/05/2003, p. 38.

(2)  OJ L 145, 31/05/2001, p. 43.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/15 |
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30.4.2005

EN

Official Journal of the European Union

C 106/15

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Action brought on 11 February 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-69/05)

(2005/C 106/29)

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 11 February 2005 by the Commission of the European Communities, represented by Florence Clotuche-Duvieusart and Agnieszka Stobiecka-Kuik, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to communicate, before 1 July 2001 and no later than 30 June 2002, annual reports on all existing State aid schemes during 2000 and 2001 in the agricultural sector, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 88(1) of the EC Treaty and Article 21 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) (now Article 88 of the EC Treaty), as implemented by the Guidelines for State aid in the agriculture sector (2000/C/28/02); |
| --- | --- |

1.

declare that, by failing to communicate, before 1 July 2001 and no later than 30 June 2002, annual reports on all existing State aid schemes during 2000 and 2001 in the agricultural sector, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 88(1) of the EC Treaty and Article 21 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) (now Article 88 of the EC Treaty), as implemented by the Guidelines for State aid in the agriculture sector (2000/C/28/02);

| 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

Article 21(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (now Article 88 of the EC Treaty) provides that ‘Member States shall submit to the Commission annual reports on all existing aid schemes with regard to which no specific reporting obligations have been imposed in a conditional decision’. The submission of those reports in the agricultural sector is governed by the ‘Guidelines for State aid in the agriculture sector’ (2000/C/28/02), which state that ‘a single report should be presented to the Commission, for the first time before 1 July 2001, and thereafter no later than 30 June each year, covering all aid schemes for the agricultural sector in the Member State concerned’. The binding nature of guidelines in the field of State aid which have been accepted as appropriate measures by a Member State has been confirmed by the case-law of the Court of Justice. The guidelines for State aid in the agricultural sector were accepted by the Grand Duchy of Luxembourg, since it never stated in writing that it contested the appropriate measures in those guidelines. Consequently, by failing to communicate the reports in question for the years 2000 and 2001, the Grand Duchy of Luxembourg has failed to fulfil its obligations.

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(1)  OJ L 83 of 27.3.1999, p. 1.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/15 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/15

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Appeal brought on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH

(Case C-75/05 P)

(2005/C 106/30)

Language of the case: German

An appeal against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH, was brought before the Court of Justice of the European Communities on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany, represented by W.-D. Plessing and C. Schulze-Bahr, of the Federal Ministry of Finance, Berlin, Germany, acting as Agents, as well as by Dr. M. Núñez Müller, Rechtsanwalt, Hamburg, Germany.

The appellant claims that the Court of Justice should:

| 1. | set aside in its entirety the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (1); |
| --- | --- |

1.

set aside in its entirety the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (1);

| 2. | give a final decision in the case and dismiss the application as inadmissible, but in any event as unfounded; |
| --- | --- |

2.

give a final decision in the case and dismiss the application as inadmissible, but in any event as unfounded;

| 3. | join these proceedings, for the purposes of the procedure and the judgment, with the parallel appeal brought by Glunz AG; |
| --- | --- |

3.

join these proceedings, for the purposes of the procedure and the judgment, with the parallel appeal brought by Glunz AG;

| 4. | order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-27/02. |
| --- | --- |

4.

order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-27/02.

Pleas in law and main arguments

The contested judgment infringes, in particular, the fourth paragraph of Article 230 EC, Article 87(3)(c) EC and Article 64 of the Rules of Procedure of the Court of First Instance.

First, the applicant lacked locus standi. Individual concern for the purposes of the fourth paragraph of Article 230 EC does not flow directly from the status of ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999. Rather, it depends only on the substance of the disputed act and the applicant's competitive situation. A competitor who objects to a grant of aid in preliminary proceedings must make out a case for and, if necessary, prove that he has been ‘appreciably’ affected by the aid granted. Even if being only ‘simply’ affected is considered sufficient, a detailed case to that effect must be made out. The application at first instance should, therefore, have been dismissed as inadmissible, as the applicant had not made out a case for being simply, let alone appreciably, affected.

Furthermore, the contested judgment infringes points 3.3, 3.4, 3.10 and 3.10.1 of the 1998 multisectoral framework, in that the Court requires the Commission to analyse consumption and any possible decline in the relevant market, even where sufficient data on relevant capacity utilisation is available. In doing so, the Court is also in breach of Article 87(3)(c) EC, having substituted its own assessments for those which only the Commission is entitled to make.

Finally, the contested judgment also infringes Article 64 of the Rules of Procedure of the Court of First Instance in that the Court failed to investigate of its own motion facts which were relevant to its decision and which would have enabled it to determine the issue of locus standi. This applies, in particular, to the degree of competition between the applicant and the recipient of the aid.

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(1)  OJ C 31 of 5.2.2005.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/16 |
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30.4.2005

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Official Journal of the European Union

C 106/16

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Appeal brought on 18 February 2005 (by fax/email on 16 February 2005) by Glunz AG and OSB Deutschland GmbH against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 Kronofrance S.A. v Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH

(Case C-80/05 P)

(2005/C 106/31)

Language of the case: German

An appeal against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 Kronofrance S.A. v Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH, was brought before the Court of Justice of the European Communities on 18 February 2005 (by fax/email 16 February 2005) by Glunz AG and OSB Deutschland GmbH, represented by Dr Hans-Jörg Niemeyer, Rechtsanwalt, Hengeler Mueller, with an address for service in Luxembourg.

The appellants claim that the Court should:

| 1. | set aside the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (1) and dismiss the application; |
| --- | --- |

1.

set aside the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (1) and dismiss the application;

| 2. | in the alternative, set aside the contested judgment and refer the case back to the Court of First Instance; |
| --- | --- |

2.

in the alternative, set aside the contested judgment and refer the case back to the Court of First Instance;

| 3. | order the applicant at first instance to pay the costs. |
| --- | --- |

3.

order the applicant at first instance to pay the costs.

Pleas in law and main arguments

The contested judgment of the Court of First Instance should be set aside on the following grounds:

| — | The Court of First Instance infringed Article 87(3) EC, since it interpreted incorrectly the multisectoral regional aid framework for large investment projects, and thereby disregarded the discretion enjoyed by the Commission in drawing up and applying that Community framework. Moreover, the Court of First Instance's economic assessment, namely that aid in a shrinking market is known to create substantial risks of distortions of competition even if there is no overcapacity in the sector concerned, is wrong. |
| --- | --- |

—

The Court of First Instance infringed Article 87(3) EC, since it interpreted incorrectly the multisectoral regional aid framework for large investment projects, and thereby disregarded the discretion enjoyed by the Commission in drawing up and applying that Community framework. Moreover, the Court of First Instance's economic assessment, namely that aid in a shrinking market is known to create substantial risks of distortions of competition even if there is no overcapacity in the sector concerned, is wrong.

| — | The Court of First Instance found, as a result of an incorrect interpretation of the fourth paragraph of Article 230 EC, that the applicant at first instance had locus standi and the application was therefore admissible. The applicant is not directly and individually concerned by the contested aid, since there is no relationship of competition between it and the appellants. |
| --- | --- |

—

The Court of First Instance found, as a result of an incorrect interpretation of the fourth paragraph of Article 230 EC, that the applicant at first instance had locus standi and the application was therefore admissible. The applicant is not directly and individually concerned by the contested aid, since there is no relationship of competition between it and the appellants.

| — | The Court of First Instance infringed Article 64 of the Rules of Procedure. It should have clarified the facts further by means of measure of organisation of procedure, in order to ascertain the facts which were said to justify the applicant's locus standi. |
| --- | --- |

—

The Court of First Instance infringed Article 64 of the Rules of Procedure. It should have clarified the facts further by means of measure of organisation of procedure, in order to ascertain the facts which were said to justify the applicant's locus standi.

| — | The Court of First Instance infringed the second paragraph of Article 230 EC, since in its judgment it went beyond the complaints raised in the application. |
| --- | --- |

—

The Court of First Instance infringed the second paragraph of Article 230 EC, since in its judgment it went beyond the complaints raised in the application.

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(1)  OJ No C 31 of 5.2.2005.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/17 |
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Official Journal of the European Union

C 106/17

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Reference for a preliminary ruling from the the House of Lords by order of that court of 3 November 2004 in United Utilities plc v Commissioners of Customs and Excise

(Case C-89/05)

(2005/C 106/32)

Language of the case: English

Reference has been made to the Court of Justice of the European Communities by order of the the House of Lords (United Kingdom) of 3 November 2004, received at the Court Registry on 18 February 2005, for a preliminary ruling in the proceedings between United Utilities plc and Commissioners of Customs and Excise on the following question:

| 1. | Does the exemption for betting laid down in Article 13B(f) of the EC Sixth Council Directive of 17th May 1977 (Directive 77/388/EEC) (1) apply where a person (‘the Agent’) provides services on behalf of another person (‘the Principal’) of accepting bets from customers and communicating their acceptance by the Principal to customers where: (a) the actions of the Agent perform a necessary step in creating the legal relationship of a bet between the Principal and its customer and thereby consummate the betting transaction; but (b) the Agent makes no decisions as to the setting of odds, the odds being set by the Principal or in some cases determined by third parties under the rules of the sport in question; and (c) the Agent decides whether or not to accept bets on behalf of the Principal in accordance with criteria laid down by the Principal so that the Agent has no discretion? |
| --- | --- |

1.

Does the exemption for betting laid down in Article 13B(f) of the EC Sixth Council Directive of 17th May 1977 (Directive 77/388/EEC) (1) apply where a person (‘the Agent’) provides services on behalf of another person (‘the Principal’) of accepting bets from customers and communicating their acceptance by the Principal to customers where: (a) the actions of the Agent perform a necessary step in creating the legal relationship of a bet between the Principal and its customer and thereby consummate the betting transaction; but (b) the Agent makes no decisions as to the setting of odds, the odds being set by the Principal or in some cases determined by third parties under the rules of the sport in question; and (c) the Agent decides whether or not to accept bets on behalf of the Principal in accordance with criteria laid down by the Principal so that the Agent has no discretion?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ L 145, 13.06.1977, p. 1).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/17 |
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C 106/17

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Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 25 January 2005 in the proceedings between Mohamed Gattoussi and the Municipality of Rüsselsheim

(Case C-97/05)

(2005/C 106/33)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Darmstadt (Darmstadt Administrative Court) (Germany) of 25 January 2005, received at the Court Registry on 23 February 2005, for a preliminary ruling in the proceedings between Mohamed Gattoussi and the Municipality of Rüsselsheim on the following questions:

| 1. | Does Article 64 of the Euro-Mediterranean Agreement with Tunisia (OJ 1998 L 97, p. 2) have any effect on entitlement to remain?
  If Question 1 is answered in the affirmative: |
| --- | --- |

1.

Does Article 64 of the Euro-Mediterranean Agreement with Tunisia (OJ 1998 L 97, p. 2) have any effect on entitlement to remain?

If Question 1 is answered in the affirmative:

| 2. | Can it be inferred from the prohibition of discrimination in Article 64 of the Euro-Mediterranean Agreement with Tunisia that the position in respect of entitlement to remain precludes any time limitation on entitlement to remain where a Tunisian citizen holds a work permit of indefinite duration, is actually in employment and at the time of the decision under the law concerning aliens has temporary entitlement to remain?
  If Question 2 is answered in the affirmative: |
| --- | --- |

2.

Can it be inferred from the prohibition of discrimination in Article 64 of the Euro-Mediterranean Agreement with Tunisia that the position in respect of entitlement to remain precludes any time limitation on entitlement to remain where a Tunisian citizen holds a work permit of indefinite duration, is actually in employment and at the time of the decision under the law concerning aliens has temporary entitlement to remain?

If Question 2 is answered in the affirmative:

| 3. | For the purposes of determining the position in respect of entitlement to remain in the light of the prohibition on discrimination in Article 64 of the Euro-Mediterranean Agreement with Tunisia, can account be taken of the position subsequent to the issue of a decision under the law on aliens setting a time-limit on entitlement to remain?
  If Question 3 is answered in the affirmative: |
| --- | --- |

3.

For the purposes of determining the position in respect of entitlement to remain in the light of the prohibition on discrimination in Article 64 of the Euro-Mediterranean Agreement with Tunisia, can account be taken of the position subsequent to the issue of a decision under the law on aliens setting a time-limit on entitlement to remain?

If Question 3 is answered in the affirmative:

| 4. | Is it necessary to follow the principles developed as regards Article 39(3) EC when applying the proviso in respect of grounds relating to the protection of a legitimate national interest? |
| --- | --- |

4.

Is it necessary to follow the principles developed as regards Article 39(3) EC when applying the proviso in respect of grounds relating to the protection of a legitimate national interest?

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/18 |
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30.4.2005

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Official Journal of the European Union

C 106/18

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Reference for a preliminary ruling from the Østre Landsret by order of that court of 11 February 2005 in De Danske Bilimportører v Skatteministeriet

(Case C-98/05)

(2005/C 106/34)

Language of the case: Danish

Reference has been made to the Court of Justice of the European Communities by order of the Østre Landsret (Denmark) of 11 February 2005, received at the Court Registry on 24 February 2005, for a preliminary ruling in the proceedings between De Danske Bilimportører and Skatteministeriet on the following questions:

| 1. | Is Article 11(A)(2)(a) in conjunction with Article 11(A)(3)(c) of the Sixth VAT Directive (1) to be interpreted as meaning that a registration duty for motor vehicles (cars) must be included in the taxable amount for VAT, where a purchase agreement is entered into for the supply of a new motor vehicle for use for carrying passengers, where the motor vehicle is supplied, in accordance with the purchase agreement and the purchaser's intended use, by the dealer to the consumer in the registered state and for an overall price which includes both the price paid to the dealer and also the duty? |
| --- | --- |

1.

Is Article 11(A)(2)(a) in conjunction with Article 11(A)(3)(c) of the Sixth VAT Directive (1) to be interpreted as meaning that a registration duty for motor vehicles (cars) must be included in the taxable amount for VAT, where a purchase agreement is entered into for the supply of a new motor vehicle for use for carrying passengers, where the motor vehicle is supplied, in accordance with the purchase agreement and the purchaser's intended use, by the dealer to the consumer in the registered state and for an overall price which includes both the price paid to the dealer and also the duty?

| 2. | May a Member State arrange its tax system in such a way that the registration duty is regarded as an expense which the dealer pays on behalf of the final purchaser, so that it is the final purchaser who is immediately liable to pay the duty? |
| --- | --- |

2.

May a Member State arrange its tax system in such a way that the registration duty is regarded as an expense which the dealer pays on behalf of the final purchaser, so that it is the final purchaser who is immediately liable to pay the duty?

| 3. | Is it of significance with respect to Questions 1 and 2 that a car may be purchased and supplied without payment of registration duty, which will be possible if the purchaser does not intend to use the car for ordinary carriage of passengers or goods within the area in which the Traffic Law applies? |
| --- | --- |

3.

Is it of significance with respect to Questions 1 and 2 that a car may be purchased and supplied without payment of registration duty, which will be possible if the purchaser does not intend to use the car for ordinary carriage of passengers or goods within the area in which the Traffic Law applies?

| 4. | Is it of significance that used motor vehicles are to a not insubstantial extent imported or brought inter alia as goods in connection with a transfer of residence by the final consumer, who pays the registration duty himself without the intervention of a dealer? |
| --- | --- |

4.

Is it of significance that used motor vehicles are to a not insubstantial extent imported or brought inter alia as goods in connection with a transfer of residence by the final consumer, who pays the registration duty himself without the intervention of a dealer?

| 5. | Is it of significance that the liability to registration duty arises or falls due — possibly as an expense — before the liability to VAT arises or falls due? |
| --- | --- |

5.

Is it of significance that the liability to registration duty arises or falls due — possibly as an expense — before the liability to VAT arises or falls due?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, OJ L 145 of 13.6.1977, p. 1.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/19 |
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Official Journal of the European Union

C 106/19

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Reference for a preliminary ruling from the Gerechtshof te Amsterdam by judgment of that court of 18 February 2005 in the proceedings between ASM Lithography B.V. and Inspecteur van de Belastingdienst/Douane Zuid/kantoor Roermond

(Case C-100/05)

(2005/C 106/35)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal) (Netherlands) of 18 February 2005, received at the Court Registry on 28 February 2005, for a preliminary ruling in the proceedings between ASM Lithography B.V. and Inspecteur van de Belastingdienst/Douane Zuid/kantoor Roermond (Tax Inspectorate/Customs South, Roermond office) on the following question:

| 1. | With regard to compensating products such as those here in issue [point 2.1. of the reference for a preliminary ruling], which are considered to have been released for free circulation, must the customs debt be determined on the basis of the rules of assessment referred to in Article 122(c) of the Community Customs Code (CCC) (1) even where the person concerned has made no prior and express request in that regard? |
| --- | --- |

1.

With regard to compensating products such as those here in issue [point 2.1. of the reference for a preliminary ruling], which are considered to have been released for free circulation, must the customs debt be determined on the basis of the rules of assessment referred to in Article 122(c) of the Community Customs Code (CCC) (1) even where the person concerned has made no prior and express request in that regard?

| 2. | If the answer to Question 1 is in the negative, is it necessary to grant a subsequent application — after notification of the amount by way of duty arising from the customs debt which is determined on the basis of the rules of assessment referred to in Article 121(1) of the CCC — for (re)calculation of the amount of customs debt on the basis of the rules of assessment referred to in Article 122(c) of the CCC which is made in connection with an application for repayment pursuant to Article 236 of the CCC? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, is it necessary to grant a subsequent application — after notification of the amount by way of duty arising from the customs debt which is determined on the basis of the rules of assessment referred to in Article 121(1) of the CCC — for (re)calculation of the amount of customs debt on the basis of the rules of assessment referred to in Article 122(c) of the CCC which is made in connection with an application for repayment pursuant to Article 236 of the CCC?

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(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302 of 19 October 1992, p. 1).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/19 |
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C 106/19

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Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in the proceedings Skatteverket v A

(Case C-101/05)

(2005/C 106/36)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Regeringsrätten (Supreme Administrative Court) (Sweden) of 15 October 2004, received at the Court Registry on 28 February 2005, for a preliminary ruling in the proceedings between Skatteverket (Tax Board) and A on the following question:

| 1. | In a situation like the present case, is it contrary to the provisions on free movement of capital between Member States and third countries to tax A in respect of the distribution from X because X is not established in a State within the EEA or in a State with which Sweden has a taxation convention that contains a provision on exchange of information? |
| --- | --- |

1.

In a situation like the present case, is it contrary to the provisions on free movement of capital between Member States and third countries to tax A in respect of the distribution from X because X is not established in a State within the EEA or in a State with which Sweden has a taxation convention that contains a provision on exchange of information?

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/19 |
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EN

Official Journal of the European Union

C 106/19

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Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in Skatteverket v A and B

(Case C-102/05)

(2005/C 106/37)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Regeringsrätten (Supreme Administrative Court) (Sweden) of 15 October 2004, received at the Court Registry on 28 February 2005, for a preliminary ruling in the proceedings between Skatteverket (Tax Board) and A and B on the following questions:

| 1. | Is it contrary to the provisions on free movement of capital between the Member States and third countries, in a situation like the present case, for A and B to be taxed less favourably in respect of dividends from X because X's subsidiary Y conducts business in Russia rather than in Sweden? |
| --- | --- |

1.

Is it contrary to the provisions on free movement of capital between the Member States and third countries, in a situation like the present case, for A and B to be taxed less favourably in respect of dividends from X because X's subsidiary Y conducts business in Russia rather than in Sweden?

| 2. | Does it have any relevance whether A and B acquired shares in X before or after business in Russia was commenced or modified? |
| --- | --- |

2.

Does it have any relevance whether A and B acquired shares in X before or after business in Russia was commenced or modified?

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/19 |
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Official Journal of the European Union

C 106/19

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Reference for a preliminary ruling from the Regeringsrätten by order of that court of 24 February 2005 in Aktiebolaget NN v Skatteverket

(Case C-111/05)

(2005/C 106/38)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Regeringsrätten (Sweden) of 24 February 2005, received at the Court Registry on 4 March 2005, for a preliminary ruling in the proceedings between Aktiebolaget NN and Skatteverket on the following question:

| 1. | Is a taxable transaction for the supply and installation of a cable, which is run between the territories of two Member States and also outside Community territory and to which the clearly greater part of the total cost is attributable, to be considered a supply of goods for the purposes of the provisions of the directive (1) regarding the place of taxable transactions? |
| --- | --- |

1.

Is a taxable transaction for the supply and installation of a cable, which is run between the territories of two Member States and also outside Community territory and to which the clearly greater part of the total cost is attributable, to be considered a supply of goods for the purposes of the provisions of the directive (1) regarding the place of taxable transactions?

| 2. | If such a transaction is instead to be considered the supply of a service, is that service to be regarded as having such a connection with immovable property that the place of the service is to be determined in accordance with Article 9(2)(a)? |
| --- | --- |

2.

If such a transaction is instead to be considered the supply of a service, is that service to be regarded as having such a connection with immovable property that the place of the service is to be determined in accordance with Article 9(2)(a)?

| 3. | If the answer to either the first or second question is in the affirmative, is Article 8(1)(a), or alternatively Article 9(2)(a), to be interpreted as meaning that the transaction is to be split on the basis of the territorial positioning of the cable? |
| --- | --- |

3.

If the answer to either the first or second question is in the affirmative, is Article 8(1)(a), or alternatively Article 9(2)(a), to be interpreted as meaning that the transaction is to be split on the basis of the territorial positioning of the cable?

| 4. | If the answer to the third question is in the affirmative, are Article 8(1)(a), or alternatively Article 9(2)(a), and Articles 2(1) and 3(1) to be understood as meaning that value added tax is not payable on that part of the supply of goods or services relating to the area outside the territory of the Community? |
| --- | --- |

4.

If the answer to the third question is in the affirmative, are Article 8(1)(a), or alternatively Article 9(2)(a), and Articles 2(1) and 3(1) to be understood as meaning that value added tax is not payable on that part of the supply of goods or services relating to the area outside the territory of the Community?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ L 145, 13.6.1977, p. 1).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/20 |
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C 106/20

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Action brought on 8 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-115/05)

(2005/C 106/39)

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 8 March 2005 by the Commission of the European Communities, represented by G. Braun, acting as Agent, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/65/EC of the European Parliament and of the Council of 27 September 2001 amending Directives 78/660/EEC, 83/349/EEC and 86/635/EEC as regards the valuation rules for the annual and consolidated accounts of certain types of companies as well as of banks and other financial institutions (1) and, in any event, by having failed to communicate them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/65/EC of the European Parliament and of the Council of 27 September 2001 amending Directives 78/660/EEC, 83/349/EEC and 86/635/EEC as regards the valuation rules for the annual and consolidated accounts of certain types of companies as well as of banks and other financial institutions (1) and, in any event, by having failed to communicate them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

2.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

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

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(1)  OJ L 283, 27.10.2001, p. 28.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/20 |
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Action brought on 10 March 2005 by the Commission of the European Communities against the Portuguese Republic

(Case C-118/05)

(2005/C 106/40)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 10 March 2005 by the Commission of the European Communities, represented by António Caeiros and Sara Pardo, acting as Agents, with an address for service in Luxembourg.

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

| — | principally, declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Portuguese Republic has failed to fulfil its obligations under Article 24(1) of that directive; |
| --- | --- |

—

principally, declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Portuguese Republic has failed to fulfil its obligations under Article 24(1) of that directive;

| — | in the alternative, declare that, by failing to inform the Commission immediately of any such provisions, the Portuguese Republic has failed to fulfil its obligations under Article 24(1) of Directive 2000/60/EC; |
| --- | --- |

—

in the alternative, declare that, by failing to inform the Commission immediately of any such provisions, the Portuguese Republic has failed to fulfil its obligations under Article 24(1) of Directive 2000/60/EC;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2000/60/EC into national law expired on 22 December 2003.

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

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/21 |
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C 106/21

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Removal from the register of Case C-38/04 (1)

(2005/C 106/41)

(Language of the case: Dutch)

By order of 4 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-38/04: Commission of the European Communities v Kingdom of the Netherlands.

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(1)  OJ C 71 of 20.03.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/21 |
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Removal from the register of Case C-58/03 (1)

(2005/C 106/42)

(Language of the case: Dutch)

By order of 24 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-58/03 (Reference for a preliminary ruling from the Raad van State): Y.G. Encheva v Staatssecretaris van Justitie.

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(1)  OJ C 83 of 05.04.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/21 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/21

---

Removal from the register of Case C-69/04 (1)

(2005/C 106/43)

(Language of the case: Italian)

By order of 4 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-69/04 (Reference for a preliminary ruling from the Tribunale di Civitavecchia (Italy)): Ligabue Gate Gourmet Roma SpA, in liquidation v LSG Sky Chefs SpA. and European Avia Service SpA v Abela Italia SpA.

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(1)  OJ C 94 of 17.04.2004.

---

| 30.4.2005 | EN | Official Journal of the European Union | C 106/21 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/21

---

Removal from the register of Case C-83/04 (1)

(2005/C 106/44)

(Language of the case: Portuguese)

By order of 4 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-83/04: Commission of the European Communities v Portuguese Republic.

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(1)  OJ C 85 of 03.04.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/21 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/21

---

Removal from the register of Case C-246/03 (1)

(2005/C 106/45)

(Language of the case: Greek)

By order of 19 November 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-246/03: Commission of the European Communities v Hellenic Republic.

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(1)  OJ C 184 of 02.08.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/21 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/21

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Removal from the register of Case C-247/03 (1)

(2005/C 106/46)

(Language of the case: Greek)

By order of 19 November 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-247/03: Commission of the European Communities v Hellenic Republic.

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(1)  OJ C 184 of 02.08.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/22 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/22

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Removal from the register of Case C-314/04 (1)

(2005/C 106/47)

(Language of the case: Spanish)

By order of 28 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-314/04 (Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)): Ricardo Manuel Torres Aucejo v Fondo de Garantía Salarial.

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(1)  OJ C 228 of 11.09.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/22 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/22

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Removal from the register of Case C-401/04 (1)

(2005/C 106/48)

(Language of the case: Swedish)

By order of 28 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-401/04: Commission of the European Communities v Kingdom of Sweden.

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(1)  OJ C 273 of 06.11.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/22 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/22

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Removal from the register of Case C-476/03 (1)

(2005/C 106/49)

(Language of the case: German)

By order of 20 January 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-476/03: Commission of the European Communities v Republic of Austria.

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(1)  OJ C 21 of 24.01.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/22 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/22

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Removal from the register of Case C-548/03 (1)

(2005/C 106/50)

(Language of the case: French)

By order of 16 December 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-548/03: European Parliament v Council of the European Union supported by the United Kingdom of Great Britain and Northern Ireland and Ireland.

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(1)  OJ C 47 of 21.02.2004.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/22 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/22

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Removal from the register of Case C-549/03 (1)

(2005/C 106/51)

(Language of the case: French)

By order of 16 December 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-549/03: European Parliament v Council of the European Union supported by the United Kingdom of Great Britain and Northern Ireland and Ireland.

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(1)  OJ C 47 of 21.02.2004.

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COURT OF FIRST INSTANCE

| 30.4.2005 | EN | Official Journal of the European Union | C 106/23 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/23

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 March 2005

in Case T-143/03 Elisabeth Saskia Smit v European Police Office (Europol) (1)

(Temporary staff - Europol staff - Non-extension of employment contract)

(2005/C 106/52)

Language of the case: Dutch

In Case T-143/03: Elisabeth Saskia Smit, a former member of the staff of Europol, residing in Scheveningen (Netherlands), represented by F. Baltussen, P. de Casparis and D.C. Coppens, lawyers, against the European Police Office (Europol), the seat of which is at The Hague (Netherlands) (Agents: D. Heimans and K. Hennessy-Massaro, and, at the hearing, N. Urban) — application for annulment of Europol's decision not to extend the term of the applicant's contract of employment and for compensation for the loss allegedly suffered — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and I. Pelikánova, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 1 March 2005, in which it:

| 1. | Annuls the decision of 30 September 2002 by which Europol refused to renew the applicant's contract of employment and the decision of 27 February 2003 rejecting her complaint against the earlier decision; |
| --- | --- |

1.

Annuls the decision of 30 September 2002 by which Europol refused to renew the applicant's contract of employment and the decision of 27 February 2003 rejecting her complaint against the earlier decision;

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

2.

Dismisses the remainder of the action;

| 3. | Orders Europol to pay the costs of the proceedings, including the costs of the interlocutory proceedings. |
| --- | --- |

3.

Orders Europol to pay the costs of the proceedings, including the costs of the interlocutory proceedings.

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(1)  OJ C 213 of 6.9.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/23 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/23

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 March 2005

in Case T-169/03 Sergio Rossi SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - National and international word marks MISS ROSSI - Application for a Community word mark SISSI ROSSI - Similarity of the goods - Similarity of the marks - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 106/53)

Language of the case: Italian

In Case T-169/03: Sergio Rossi SpA, established in San Mauro Pascoli, Forlì-Cesena (Italy), represented by A. Ruo, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: P. Bullock and O. Montalto), the other party to the proceedings before the Board of Appeal, intervening before the Court, being Sissi Rossi Srl, established in Castenaso di Villanova, Bologna (Italy), represented by S. Verea, M. Bosshard and K. Muraro, lawyers — action brought against the decision of the First Board of Appeal of OHIM of 28 February 2003 (Case R 569/2002-1) relating to the opposition proceedings between Calzaturificio Rossi SpA and Sissi Rossi Srl, — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and S. Papasavvas, Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 1 March 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 171 of 19.7.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/24 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/24

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 March 2005

in Case T-185/03 Vincenzo Fusco v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ENZO FUSCO - Earlier Community word mark ANTONIO FUSCO - Likelihood of confusion - Similarity between signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 106/54)

Language of the case: Italian

In Case T-185/03: Vincenzo Fusco, residing in Sarmeola di Rubano (Italy), represented by B. Saguatti, lawyer, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto and P. Bullock), the other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance, being Antonio Fusco International SA Lussemburgo, Lugano subsidiary, established in Lugano (Switzerland), represented by M. Bosshard, S. Verea and K. Muraro — action brought against the decision of the Fourth Board of Appeal of OHIM of 17 March 2003 in Case R 1023/2001-4, — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; B. Pastor, Deputy Registrar, for the Registrar, gave a judgment on 1 March 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 184 of 2.8.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/24 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/24

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 March 2005

in Case T-258/03 Andreas Mausolf v European Police Office (Europol) (1)

(Temporary staff - Europol staff - Non-extension of employment contract)

(2005/C 106/55)

Language of the case: Dutch

In Case T-258/03: Andreas Mausolf, a former member of the staff of Europol, residing in Leiden (Netherlands), represented by F. Baltussen, P. de Casparis and D.C. Coppens, lawyers, against the European Police Office (Europol), the seat of which is at the Hague (Netherlands) (Agents: D. Heimans and K. Hennessy-Massaro, and, at the hearing, N. Urban) — application for annulment of Europol's decision not to extend the term of the applicant's contract of employment and for compensation for the loss allegedly suffered — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and I. Pelikánova, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 1 March 2005, in which it:

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

1.

Dismisses the application;

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

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 213 of 6.9.2003.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/24 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/24

---

Action brought on 12 January 2005 by Hoya Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-9/05)

(2005/C 106/56)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 12 January 2005 by Hoya Corporation, established in Tokyo, (Japan) represented by A. Nordemann, lawyer.

Indo Internacional S.A.established in Barcelona (Spain) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the Decision of the First Board of Appeal of the OHIM of 3 November 2004 in case R 433/2004-1; |
| --- | --- |

—

annul the Decision of the First Board of Appeal of the OHIM of 3 November 2004 in case R 433/2004-1;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark sought: | Word mark ‘AMPLITUDE’ for products in class 9 (eyeglasses etc.), Community trade mark application No. 1 723 931 |
| Proprietor of mark or sign cited in the opposition proceedings: | Indo Internacional S.A. |
| Mark or sign cited in opposition: | National figurative mark ‘AMPLY’ for products in class 9 (eyeglasses etc.) |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Annuls contested decision; registration refused |
| Pleas in law: | Violation of Article 8 paragraph 1(b) of Regulation 40/94 (1) |

Applicant for Community trade mark:

The applicant

Community trade mark sought:

Word mark ‘AMPLITUDE’ for products in class 9 (eyeglasses etc.), Community trade mark application No. 1 723 931

Proprietor of mark or sign cited in the opposition proceedings:

Indo Internacional S.A.

Mark or sign cited in opposition:

National figurative mark ‘AMPLY’ for products in class 9 (eyeglasses etc.)

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Annuls contested decision; registration refused

Pleas in law:

Violation of Article 8 paragraph 1(b) of Regulation 40/94 (1)

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

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/25 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/25

---

Action brought on 28 January 2005 by William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG against the Commission of the European Communities

(Case T-30/05)

(2005/C 106/57)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 January 2005 by William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG, Stolberg (Germany), represented by H.J. Meyer-Lindemann, lawyer, with an address for service in Luxembourg.

The applicants claim that the Court should:

| — | annul the Commission's Decision C(2004) 4221 final of 26 October 2004 in Case COMP/F-1/38.338-PO/Nadeln, in so far as it relates to the applicants; |
| --- | --- |

—

annul the Commission's Decision C(2004) 4221 final of 26 October 2004 in Case COMP/F-1/38.338-PO/Nadeln, in so far as it relates to the applicants;

| — | in the alternative, cancel the fine of EUR 30 000 000 jointly and severally imposed on the applicants or (further in the alternative) reduce it; |
| --- | --- |

—

in the alternative, cancel the fine of EUR 30 000 000 jointly and severally imposed on the applicants or (further in the alternative) reduce it;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In the contested decision, the Commission found that during the period from 10 September 1994 to 31 December 1999, the applicants and other undertakings had infringed Article 81(1) EC by particpating in concerted practices and entering into a series of formal bilateral agreements which were to be regarded as a tripartite agreement, the effect and object of which were, first, to share the European hard haberdashery market — in other words, functional market sharing between the hand sewing and special needles market, the wider markets for needles and other hard haberdashery markets — and secondly, sharing the European market for needles; in other words, geographic market sharing in the needles market.

The application is based on three pleas in law. In the first plea the applicants allege breach of the right to a fair hearing and of the obligation to state reasons. According to the applicants, the defendant failed adequately to address various arguments which the applicants put forward, and it was not clear why the defendant had proceeded on the basis of a particularly serious infringement. Also, the reasons for the amount of the fine were simply in a standard form, so that the applicants could not establish whether factors favourable to them had been taken into account. Finally, the applicants argue that the defendant's reasons were subsequently corrected.

In the second plea, the applicants refer to several allegedly material errors in the application of Article 81(1) EC. No fine could have been imposed on the first applicant because it could not be held responsible for the second applicant's conduct. Furthermore, the defendant had failed to take into account the fact that the second applicant had made a loss on the goods concerned, and that the agreement on geographic market sharing was a condition of entry of another associated undertaking into the market for suture needles, and that this agreement therefore restricted competition which would otherwise not have existed at all. Further, the defendant had misjudged the size and economic power of that other undertaking.

The third plea concerns assessment of the fine. In the applicants' view, such a large fine amounts to a penalty akin to those that might be imposed under criminal law, for which there is insufficient authority under the provisions of Article 23(3) of the Regulation (1), since the legislature itself is required to specify in sufficient detail the particular basis on which the fine is to be assessed. In any event, the fine infringes Article 23(2) of Regulation 1/2003, as it amounts to more than 10 % of the total turnover of each of the two applicants and is completely disproportionate to the economic effects of the offence, as well as to the fine imposed on another associated undertaking. In addition, the applicants have been prejudiced by the arbitrary separation of the ‘hard haberdashery: needles’ case from the ‘hard haberdashery: fasteners’ case. Finally, the defendant failed to take into account various mitigating factors in the applicants' favour and to grant them a reduction in the fine for not disputing the facts.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 001, p. 1).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/26 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/26

---

Action brought on 31 January 2005 by Camper, S.L., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-43/05)

(2005/C 106/58)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 January 2005 by Camper, S.L., established in Inca, Mallorca (Spain), represented by I. Temiñ o Ceniceros.

JC AB established in Mölnlycke, (Sweden) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | accept the appeal against the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in the case R 170/2004-1, which rejected the appeal filed against the refusal of the Community trademark 1.954.601 in class 25; |
| --- | --- |

—

accept the appeal against the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in the case R 170/2004-1, which rejected the appeal filed against the refusal of the Community trademark 1.954.601 in class 25;

| — | declare the registration of the Community trademark no. 1.954.601 ‘BROTHERS BY CAMPER’ possible for all the products in class 25; |
| --- | --- |

—

declare the registration of the Community trademark no. 1.954.601 ‘BROTHERS BY CAMPER’ possible for all the products in class 25;

| — | order that each party will bear his own costs, and the common expenses in half. |
| --- | --- |

—

order that each party will bear his own costs, and the common expenses in half.

Pleas in law and main arguments

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark concerned: | The figurative mark ‘BROTHERS by CAMPER’ for goods and services in classes 18, 25 and 39 (leather, clothing, footwear, headgear, transport ...) — application No 1 954 601 |
| Proprietor of mark or sign cited in the opposition proceedings: | JC AB |
| Trade mark or sign cited in opposition: | The Swedish, Finnish and Danish figurative mark ‘Brothers’ for goods in class 25 (clothing, footwear and headgear) |
| Decision of the Opposition Division: | Rejection of the opposition insofar as it was based on the earlier Swedish registration. Opposition upheld for part of the contested goods, namely ‘clothing, footwear, headgear’ in class 25, insofar as it was based on the Danish and Finish earlier registrations. |
| Decision of the Board of Appeal: | Dismissal of the applicant's appeal |
| Pleas in law: | The conflicting trademarks are not similar to such an extent that there exists a likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation No 40/94. |

Applicant for Community trade mark:

The applicant

Community trade mark concerned:

The figurative mark ‘BROTHERS by CAMPER’ for goods and services in classes 18, 25 and 39 (leather, clothing, footwear, headgear, transport ...) — application No 1 954 601

Proprietor of mark or sign cited in the opposition proceedings:

JC AB

Trade mark or sign cited in opposition:

The Swedish, Finnish and Danish figurative mark ‘Brothers’ for goods in class 25 (clothing, footwear and headgear)

Decision of the Opposition Division:

Rejection of the opposition insofar as it was based on the earlier Swedish registration. Opposition upheld for part of the contested goods, namely ‘clothing, footwear, headgear’ in class 25, insofar as it was based on the Danish and Finish earlier registrations.

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

The conflicting trademarks are not similar to such an extent that there exists a likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation No 40/94.

---

| 30.4.2005 | EN | Official Journal of the European Union | C 106/27 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/27

---

Action brought on 31 January 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-49/05)

(2005/C 106/59)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 January 2005 by Reckitt Benckiser N.V., established in Hoofddorp (the Netherlands) represented by G.S.P. Vos, lawyer.

The applicant claims that the Court should:

| — | annul the decision adopted on 11 November 2004 by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs); |
| --- | --- |

—

annul the decision adopted on 11 November 2004 by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

| — | allow registration of the Community trade mark 2 792 554; |
| --- | --- |

—

allow registration of the Community trade mark 2 792 554;

| — | order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

| Community trade mark concerned: | A three-dimensional mark consisting of the shape of the product being a rectangular tablet consisting of a blue top layer with red speckles and in it a sunken shining mother of pearl ball and a lower white layer with green speckles, for goods in class 1 (water softeners etc.) and 3 (laundry preparations etc.) |
| --- | --- |
| Decision of the examiner: | Refusal of registration |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Misapplication of Article 7(1)(b) of Regulation (EC) No 40/94 (1)

  Misapplication of Article 7(1)(c) of Regulation (EC) No 40/94 |

Community trade mark concerned:

A three-dimensional mark consisting of the shape of the product being a rectangular tablet consisting of a blue top layer with red speckles and in it a sunken shining mother of pearl ball and a lower white layer with green speckles, for goods in class 1 (water softeners etc.) and 3 (laundry preparations etc.)

Decision of the examiner:

Refusal of registration

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Misapplication of Article 7(1)(b) of Regulation (EC) No 40/94 (1)

Misapplication of Article 7(1)(c) of Regulation (EC) No 40/94

---

(1)  Council Regulation (EC) No 40/94 of 20.12.1993 on the Community trade mark (OJ L 11, p. 1).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/27 |
| --- | --- | --- | --- |

30.4.2005

EN

Official Journal of the European Union

C 106/27

---

Action brought on 28 January 2005 by European Dynamics SA against the Commission of the European Communities

(Case T-50/05)

(2005/C 106/60)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 January 2005 by European Dynamics SA, established in Athens (Greece), represented by N. Korogiannakis, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Commission (DG TAXUD), to evaluate the applicant's bid as not successful and award the contract to the successful contractor; |
| --- | --- |

—

annul the decision of the Commission (DG TAXUD), to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

| — | order the Commission to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected. |
| --- | --- |

—

order the Commission to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to the Commission's call for tenders TAXUD/2004/AO-004 for the specification, development, maintenance and support of telematic systems to control the movements of products subject to excise duty within the European Community. By the contested decision this bid was rejected and the contract awarded to another bidder.

In support of its application for annulment of that decision the applicant claims first of all that the Commission violated the principle of non-discrimination and of free competition. The unavailability of exact specifications for the EMCS system prevented tenderers from presenting their expertise in a targeted manner in the specific areas that were important for the project. The access to privileged information by the previous and current contractors constituted a major and exclusive advantage for them. The applicant claims that its timely request for equal access rights to such applications and documentation should have been accepted. According to the applicant, even though the Commission had the opportunity to remedy this situation it did not take appropriate measures to do so.

The applicant further submits that the Commission violated Article 97(1) of the Financial Regulation (1) as well as Article 17(1) of Directive 92/50 (2) by using evaluation criteria that were extremely vague and were not accompanied by clear quantifiable parameters.

The applicant further considers that the Commission committed manifest errors of appreciation in its evaluation of the applicant's tender. In this respect the applicant contends that any deficiencies of its bid were due to the Commission's failure to communicate critical elements required by the applicant in order to prepare its bid. The applicant further contests each of the statements contained in the report of the Evaluation Committee.

The applicant also invokes a violation, by the Commission, of its obligation, under Article 253 EC, to state reasons and a failure to provide pertinent information requested by the applicant on the grounds for the rejection of its bid. The applicant also submits that the Commission violated the principle of good administration and diligence by acting with significant delay and by not offering adequate answers to the applicant's requests for information prior to the submission of the bids.

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(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002 p. 1.

(2)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992 p. 1.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/28 |
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Action brought on 8 February 2005 by Ireland against the Commission of the European Communities

(Case T-56/05)

(2005/C 106/61)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 February 2005 by Ireland represented by D.J. -O'Hagan, agent, assisted by P. Gallagher and P. McGarry, Barristers, and with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul (in whole or in part) Commission Decision C (2004) 4447 of 29 November 2004 reducing the assistance from the cohesion fund to project 96/07/61/007 (Dublin Region Water Supply Scheme — Stage 3), granted by the Commission Decision C(97) 4090 of 15 December 1997 and reducing the assistance from the cohesion fund to Project No. 95/07/65/007, (N1 Dunleer — Dundalk Road Stage 2) granted by the Commission Decision C (96) 2113 of 29 July 1996 in respect of such period or amounts as the Court should determine; |
| --- | --- |

—

annul (in whole or in part) Commission Decision C (2004) 4447 of 29 November 2004 reducing the assistance from the cohesion fund to project 96/07/61/007 (Dublin Region Water Supply Scheme — Stage 3), granted by the Commission Decision C(97) 4090 of 15 December 1997 and reducing the assistance from the cohesion fund to Project No. 95/07/65/007, (N1 Dunleer — Dundalk Road Stage 2) granted by the Commission Decision C (96) 2113 of 29 July 1996 in respect of such period or amounts as the Court should determine;

| — | order the Commission to bear the costs of these proceedings. |
| --- | --- |

—

order the Commission to bear the costs of these proceedings.

Pleas in law and main arguments

By virtue of Commission Decision C(97) 4090 of 15 December 1997, assistance was granted from the Cohesion Fund to Project 96/07/61/007 (Dublin Region Water Supply Scheme — Stage III) in Ireland. By Commission Decision C (96) 2113 of 29 July 1996 assistance was granted from the Cohesion Fund to Project No. 95/07/65/007, (N1 Dunleer — Dundalk Road Stage II), also in Ireland. By the contested decision the Commission reduced the amounts of total assistance granted under the two previous decisions, invoking various irregularities found during the examination of the projects concerned. The Commission also decided that a total amount of EUR 797 886 had been unduly received and should be recovered by reimbursement.

In support of its application to annul the contested decision the applicant submits first of all that the contested decision is invalid, having been adopted more than three months after the date of the oral hearing, in violation of Article 18(3) Regulation 1386/2002 (1) and Article H(2) of Annex II to Regulation 1164/94 (2). According to the applicant this constitutes a breach of an essential procedural requirement as well as an infringement of the principle of legal certainty.

The applicant also argues that the Commission committed a further breach of the principle of legal certainty by retrospectively applying new guidelines of eligibility of expenditure in such a way as to change its interpretation of who constituted the ‘final beneficiary’ and thus render expenses ineligible as having been made outside the relevant period. According to the applicant this also violated its legitimate expectations.

A further breach of the principle of legal certainty was, in the applicant's view, the retrospective application of flat rate financial correction. This concept was, the applicant claims, first developed and enunciated in guidelines adopted by the Commission in 2002.

The applicant finally submits that the retrospective application of the Commission's new approach to the practice of substitution of eligible for ineligible expenditure constitutes a further breach of the principle of legal certainty. According to the applicant it was only in the 2002 Guidelines that the Commission decided that such substitution was no longer permissible. However, the applicant argues, this approach could not be applied to projects dating from 1996 and 1997.

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(1)  Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections, OJ L 201 p. 5.

(2)  Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, Official Journal L 130 p. 1.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/29 |
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Action brought on 8 February 2005 by Jeremy Henry Moore Newsum, Mark Anthony Loveday and Robin Shedden Broadhurst against the Commission of the European Communities

(Case T-57/05)

(2005/C 106/62)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 February 2005 by Jeremy Henry Moore Newsum, Mark Anthony Loveday and Robin Shedden Broadhurst, residing in London (United Kingdom), represented by M. Kingston QC, D. Park, Barrister and J. Withinshaw, Solicitor.

The applicants claim that the Court should:

| — | annul the following parts of the Commission's Decision of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region (1) (notified under document number C(2004) 4032);






  (i) | Article 1 and that item in Annex 1 of the contested decision provided with the SCI code UK0030163 Halkyn Mountain/Mynydd Helygain; |
| --- | --- | --- |

—

annul the following parts of the Commission's Decision of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region (1) (notified under document number C(2004) 4032);

(i)

Article 1 and that item in Annex 1 of the contested decision provided with the SCI code UK0030163 Halkyn Mountain/Mynydd Helygain;

| (ii) | or in the alternative, Article 1 and that item in Annex 1 of the contested decision provided with the SCI code UK0030163 Halkyn Mountain/Mynydd Helygain which is shown coloured red in the plan annexed to the application; |
| --- | --- |

(ii)

or in the alternative, Article 1 and that item in Annex 1 of the contested decision provided with the SCI code UK0030163 Halkyn Mountain/Mynydd Helygain which is shown coloured red in the plan annexed to the application;

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

—

order the defendant to pay the costs of the applicants.

Pleas in law and main arguments

The applicants are the owners of tracts of land which is partly used for agriculture and mineral extraction purposes which now, under the contested decision, has been declared a site of Community importance (SCI) for the Atlantic biogeographical region.

The applicants submit that the contested decision infringes their fundamental rights guaranteed by the general principles of the Community legal order. That infringement of fundamental rights is formally unlawful because upon adoption of the Commission Decision (and upon implementation of Directive 92/43/EEC (2)) no form of right of participation is bestowed upon the property owners concerned. The applicants also allege that the Commission encouraged or acquiesced in a public participation exercise undertaken by the Member State in question which was flawed and inadequate in its nature and duration.

The applicants further submit that no consideration was given to economic and social requirements, which includes the applicant's private property rights. The contested decision is also contrary to the provisions of Directive 92/43/EEC itself because the question of the compensation to be paid remains entirely open and unresolved.

According to the applicants, the contested decision does not specify the species and habitats for which the sites listed are of Community importance and is based on erroneous technical information. It would appear that the areas in question were listed on the basis of the presence of the great crested newt and of calaminarian grasslands. The applicants argue that the former is not an priority species and the latter is not a priority habitat and that, therefore, they do not know to which priority natural habitat type or species the contested decision refers.

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(1)  OJ L 387 p. 1

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

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/30 |
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Official Journal of the European Union

C 106/30

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Action brought on 2 February 2005 by European Dynamics S.A. against the Commission of the European Communities

(Case T-59/05)

(2005/C 106/63)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 February 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Korogiannakis, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the Commission (DG Agriculture), to evaluate the applicant's bid as not successful and award the contract to the successful contractor; |
| --- | --- |

—

annul the decision of the Commission (DG Agriculture), to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

| — | order the Commission to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected. |
| --- | --- |

—

order the Commission to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to the Commission's call for tenders AGRI-2004-S4FA-I3-01 for the provision of information system development, maintenance and support services for the DG Agriculture Financial Information Systems (1). By the contested decision this bid was rejected and the contract awarded to another bidder.

In support of its application for annulment of that decision the applicant claims first of all the Commission violated the Financial Regulation (2) as well as Article 17(1) of Directive 92/50 (3) by using evaluation criteria that were extremely vague. The applicant further contends that the Commission failed, in response to the applicant's questions, to explain in a clear and objective manner what precisely was requested of the tenderers.

The applicant further considers that the Commission committed manifest errors of appreciation in its evaluation of the applicant's tender. In this respect the applicant contends that the Evaluation Committee did not correctly evaluate the offers, failing to take into account that contrary to the applicant both members of the successful consortium had extremely limited experience. The applicant also maintains that its own bid was more advantageous.

The applicant also invokes a violation, by the Commission, of its obligation, under Article 253 EC, to state reasons and a failure to provide pertinent information requested by the applicant on the grounds for the rejection of its bid. The applicant also submits that the Commission violated the principle of good administration and diligence by acting with significant delay and by not offering adequate answers to the applicant's requests for information prior to the submission of the bids.

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(1)  OJ 2004 S 59-050031.

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002, p. 1.

(3)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992, p. 1.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/30 |
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Action brought on 10 February 2005 by Cornelius Rozemeijer and others against the Council of the European Union

(Case T-61/05)

(2005/C 106/64)

Language of the case: French

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 10 February 2005 by Cornelius Rozemeijer, residing in Alkmaar (Netherlands), Gaston Vaesken, residing in Sanary-sur-Mer (France) and Pierrette Vaesken, residing in Sanary-sur-Mer (France), represented by G. Vandersanden, L. Levi and A. Finchelstein, lawyers.

The applicants claim that the Court should:

| 1. | annul the applicants' May 2004 pension slips, with the effect of applying a weighting coefficient at the level of the capital of their country of residence, or at least a weighting coefficient adequately reflecting differences in the cost of living in the places where the applicants are deemed to incur expenses. |
| --- | --- |

1.

annul the applicants' May 2004 pension slips, with the effect of applying a weighting coefficient at the level of the capital of their country of residence, or at least a weighting coefficient adequately reflecting differences in the cost of living in the places where the applicants are deemed to incur expenses.

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

2.

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are identical with those in Case T-35/05 Elisabeth Agne-Dapper and others v Commission.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/31 |
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Official Journal of the European Union

C 106/31

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Action brought on 15 February 2005 by Lotto Sport Italia S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-62/05)

(2005/C 106/65)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 15 February 2005 by Lotto Sport Italia S.p.A., established in Treviso (Italy), represented by S. Feltrinelli and G. Brogi, lawyers.

Lotos Brillen Vertriebs-GmbH, established in Eisingen (Germany) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of 7 October 2004, ruling case R 572/2003-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of 7 October 2004, ruling case R 572/2003-4;

| — | declare that the mark applied for, in so far as it concerns goods falling in class 9, namely ‘sports spectacles not made of precious material’, is not capable of being confused with the opponent's CTM Mark No 610 642 and the International mark No 447 179; |
| --- | --- |

—

declare that the mark applied for, in so far as it concerns goods falling in class 9, namely ‘sports spectacles not made of precious material’, is not capable of being confused with the opponent's CTM Mark No 610 642 and the International mark No 447 179;

| — | order the reimbursement of the costs of these proceedings. |
| --- | --- |

—

order the reimbursement of the costs of these proceedings.

Pleas in law and main arguments

| Applicant for Community trade mark: | Lotto Sport Italia S.p.A. |
| --- | --- |
| Community trade mark concerned: | The figurative mark ‘Lotto’ for goods in classes 3, 9 and 16 (Spectacles, spectacle frames, spectacle cases, spectacle chains, spectacle cords, spectacle lenses, binoculars (optics, ...) — application No 1 443 183 |
| Proprietor of mark or sign cited in the opposition proceedings: | Lotos Brillen Vertriebs GmbH |
| Trade mark or sign cited in opposition: | The Community and international word mark ‘Lotos’ for goods in classes 9, 14 and 18 (Optical apparatus and instruments; spectacles; spectacle frames, in particular of metal; precious metals and their alloys; leather and imitations of leather; ...) — CTM registration No 610 642 |
| Decision of the Opposition Division: | Rejection of the trade mark application for the opposed goods, ie. the goods in class 9 |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Violation of Article 8(1)(b) of Council Regulation No 40/94 |

Applicant for Community trade mark:

Lotto Sport Italia S.p.A.

Community trade mark concerned:

The figurative mark ‘Lotto’ for goods in classes 3, 9 and 16 (Spectacles, spectacle frames, spectacle cases, spectacle chains, spectacle cords, spectacle lenses, binoculars (optics, ...) — application No 1 443 183

Proprietor of mark or sign cited in the opposition proceedings:

Lotos Brillen Vertriebs GmbH

Trade mark or sign cited in opposition:

The Community and international word mark ‘Lotos’ for goods in classes 9, 14 and 18 (Optical apparatus and instruments; spectacles; spectacle frames, in particular of metal; precious metals and their alloys; leather and imitations of leather; ...) — CTM registration No 610 642

Decision of the Opposition Division:

Rejection of the trade mark application for the opposed goods, ie. the goods in class 9

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Violation of Article 8(1)(b) of Council Regulation No 40/94

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/31 |
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Action brought on 7 February 2005 by Thomas Seldis against Commission of the European Communities

(Case T-65/05)

(2005/C 106/66)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 February 2005 by Thomas Seldis, residing in Amsterdam (Netherlands), represented by Sébastien Orlandi, Xavier Martin M., Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.

The applicant claims that the Court should:

| 1. | annul the Commission's decision of 5 April 2004 to appoint the applicant a probationary official in so far as it does not grade him on recruitment at grade A6 and was adopted without considering the possibility of allowing him additional seniority in grade in accordance with Article 32 of the Staff Regulations and Article 4 of the internal directives of 11 October 1984; |
| --- | --- |

1.

annul the Commission's decision of 5 April 2004 to appoint the applicant a probationary official in so far as it does not grade him on recruitment at grade A6 and was adopted without considering the possibility of allowing him additional seniority in grade in accordance with Article 32 of the Staff Regulations and Article 4 of the internal directives of 11 October 1984;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to his grading as a probationary official in the JRC Directiorate General at grade A7 at the time of his appointment.

In that regard, he alleges infringement both of Articles 31 and 32 of the Staff Regulations and of the internal directives of 11 October 1984 on the fixing of the grade and step of staff, and more specifically that of officials in the scientific and technical services who occupy posts paid from appropriations in the research budget.

Having regard to his claims, the applicant maintains inter alia that, at the time of his recruitment as an official, he already had proof of more than eight years of professional experience qualifying for additional seniority.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/32 |
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C 106/32

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Action brought on 17 February 2005 by Jörn Sack against the Commission of the European Communities

(Case T-66/05)

(2005/C 106/67)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17.02.2005 by Jörn Sack, Tervuren (Belgium), represented by U. Lehmann-Brauns and D. Mahlo, lawyers.

The applicant claims that the Court should:

| — | set aside the decisions on the assessment of his remuneration from May 2004 to February 2005 due to a breach of the principle of equal treatment and reassess his remuneration for those months with due regard to that principle; |
| --- | --- |

—

set aside the decisions on the assessment of his remuneration from May 2004 to February 2005 due to a breach of the principle of equal treatment and reassess his remuneration for those months with due regard to that principle;

| — | set aside the negative decision of the Director-General of the Directorate General for Administration of 26.11.2004 concerning the applicant's complaint of 21.6.2004; |
| --- | --- |

—

set aside the negative decision of the Director-General of the Directorate General for Administration of 26.11.2004 concerning the applicant's complaint of 21.6.2004;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant was an official in the Legal Service of the Commission in grade A*14. Due to his special function within the Legal Service he applied for recognition as a middle manager with consequent entitlement to the increments prescribed in Articles 44(2) and 46 of the Staff Regulations and in Article 7(4) of Annex XIII thereto.

In support of his claim, the applicant argues that the decision rejecting his complaint was formally deficient in that it was drawn up exclusively in English, although the applicant's first complaint was written in German and that it infringed Article 253 EC by not addressing the wholly individual nature of his complaint.

The applicant further complains of an infringement of the general principle of equal treatment in the assessment and grading of his job. The applicant argues that his duties and responsibilities were on a par with those entrusted to the Head of Unit. The fact that his successor was granted higher-grade pay constituted a further infringement of the principle of equal treatment.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/32 |
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C 106/32

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Action brought on 15 February 2005 by Aytan's Manufacturing Company (UK) Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-67/05)

(2005/C 106/68)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 15 February 2005 by Aytan's Manufacturing Company (UK) Limited, established in London (United Kingdom) represented by S. Malynicz, Barrister and M. J. Gilbert, Solicitor.

Criminal Clothing Limited, established in Poole (United Kingdom) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal dated 8 December 2004 in case R 309/2004-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal dated 8 December 2004 in case R 309/2004-1;

| — | Order that the Office and other parties shall bear their own costs and pay those of the applicant. |
| --- | --- |

—

Order that the Office and other parties shall bear their own costs and pay those of the applicant.

Pleas in law and main arguments

| Applicant for Community trade mark: | Criminal Clothing Limited |
| --- | --- |
| Community trade mark concerned: | Word mark CRIMINAL for goods in classes 3, 9 and 25 (articles of clothing etc.) — application No 1676 220 |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Trade mark or sign cited in opposition: | National mark CRIMINAL DAMAGE for goods in class 25 (articles of clothing etc.) |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 (1) |

Applicant for Community trade mark:

Criminal Clothing Limited

Community trade mark concerned:

Word mark CRIMINAL for goods in classes 3, 9 and 25 (articles of clothing etc.) — application No 1676 220

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Trade mark or sign cited in opposition:

National mark CRIMINAL DAMAGE for goods in class 25 (articles of clothing etc.)

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

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

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(1)  Council Regulation (EC) No 40/94 of 20.12.1993 on the Community trade mark (OJ L 11, p. 1).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/33 |
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Action brought on 16 February 2005 by Aker Warnow Werft GmbH and Kværner ASA against the Commission of the European Communities

(Case T-68/05)

(2005/C 106/69)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 February 2005 by Aker Warnow Werft GmbH, established in Rostock-Warnemünde (Germany) and Kværner ASA, established in Oslo (Norway), represented by B. Immenkamp, Solicitor and M. Schütte, lawyer.

The applicants claim that the Court should:

| — | annul the Decision of the Commission C 6/2000 of 20 October 2004, in its entirety; |
| --- | --- |

—

annul the Decision of the Commission C 6/2000 of 20 October 2004, in its entirety;

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

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In October 1992, the German privatisation agency (Treuhandanstalt) privatised and sold the East German shipyard Warnow Werft to the Norwegian Kværner group. In the framework of the privatisation, a lump sum contribution to the restructuring of the shipyard, made available in different installments, was offered. The state aid was notified to and approved by the European Commission in separate approval decisions.

In the contested decision, the Commission concluded that the applicants received more aid than was required to cover the actual contract losses incurred by the shipyard, and that the excess of aid should be recovered.

In support of their application, the applicants submit that the Commission committed an error of law and a manifest error of appreciation. According to the applicants, the amount to be recovered as state aid incompatible with the EC Treaty was approved by the Commission in its approval decisions and constitutes existing aid. The applicants submit that the Commission had no right to initiate the formal procedure, to re-assess the compatibility of the aid and to order the recovery of parts of the aid. They submit also that all conditions in the approval decisions of the Commission have been complied with, in particular the obligation to provide Spill-Over Reports and to observe capacity limitations. The applicants claim that the approval decisions did not contain any reservation by the Commission concerning the amount of aid and that all operating aid was approved in a lump sum, following a thorough verification of the necessity of the aid ex ante. Finally, the applicants state that the approval decisions are still in force.

The applicants furthermore submit that the Commission committed a manifest error of appraisal in concluding that the amount of state aid received exceeded the level of contract losses incurred. According to the applicants, the amount of the aid indicated in the contested decision is not mentioned at all in the Commission's approval decisions. Also, the amounts approved by the Commission for contract losses would be lower than the actual contract losses incurred. The applicants claim as well that the Commission included in its assessment of the aid received assets that should be considered not as aid, including assets for which Kværner had paid a purchase price. Furthermore, the applicants claim that the Commission ignored that the amount of aid approved, was only partially received.

The applicants also submit a violation of the principle of legal certainty. According to the applicants, the Commission did not act in a timely manner while it had all relevant information at its disposal. The applicants submit that the Commission only started its inquiries in 1999, even though it was, according to the applicants, fully informed of all relevant facts in early 1996. The procedure opened in February 2000 would also have been extended to new elements that were never investigated before, and for which the approval decisions did not provide a legal basis.

Finally, as a subsidiary ground, the applicants submit that the Commission failed to take all restructuring costs into account when determining the amount to be recovered. According to the applicants, much more was spent on the restructuring than the amount of aid received for that purpose.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/34 |
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Action brought on 11 February 2005 by European Dynamics S.A. against the European Food Safety Authority

(Case T-69/05)

(2005/C 106/70)

Language of the case: English

An action against the European Food Safety Authority was brought before the Court of First Instance of the European Communities on 11 February 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Korogiannakis, lawyer.

The applicant claims that the Court should:

| — | annul the decision of EFSA, to evaluate the applicant's bid as not successful and award the contract to the successful contractor as well as all other later decisions of EFSA related to the above; |
| --- | --- |

—

annul the decision of EFSA, to evaluate the applicant's bid as not successful and award the contract to the successful contractor as well as all other later decisions of EFSA related to the above;

| — | order the EFSA to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

order the EFSA to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to EFSA's call for tenders EFSA/IT/00012 (1) for the software and services for establishing an Extranet between the Members States' national agencies, EFSA and the European Commission. By the contested decision the applicant's bid was rejected and the contract awarded to another bidder.

In support of its application to annul the contested decisions the applicant contends that the defendant violated the Financial Regulation (2) as well as Article 17(1) of Directive 92/50 (3) by using evaluation criteria, that were not well specified in the call for tenders. According to the applicant, by accepting without any further processing and cross-checking the opinion of officers of the tenderer's clients, EFSA attributed part of its evaluation rights to third parties. The applicant further argues that under Directive 92/50 the satisfaction of a bidder's clients cannot be taken into account in order to exclude the bidder but can only be used as an ‘award criterion’.

The applicant also claims that the defendant committed manifest errors of appreciation in the evaluation of the bid it had submitted. The applicant contests certain statements contained in the report of the Evaluation Committee, regarding the fact that one of the applicant's clients had neither purchased nor used the product offered by the applicant and the fact that another Community institution was not satisfied with the applicant's product. The applicant also considers, in the same context, that the method used by EFSA during the evaluation procedure, consisting in simple telephone calls without any official requests nor cross-checks of the information received, was inadequate and in itself suffices in order to establish a manifest error of assessment.

The applicant finally submits that the defendant failed to provide adequate reasons for its decision, in violation of Article 253 EC.

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(1)  OJ 2004/S 153-132262.

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002, p. 1.

(3)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992, p. 1.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/35 |
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Action brought on 14 February 2005 by European Dynamics S.A. against the European Maritime Safety Agency

(Case T-70/05)

(2005/C 106/71)

Language of the case: English

An action against the European Maritime Safety Agency was brought before the Court of First Instance of the European Communities on 14 February 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Korogiannakis, lawyer.

The applicant claims that the Court should:

| — | annul the decision of EMSA, to evaluate the applicant's bid as not successful and award the contract to the successful contractor; |
| --- | --- |

—

annul the decision of EMSA, to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

| — | annul all subsequent decisions of EMSA related to the Tenders under examination in the current application; |
| --- | --- |

—

annul all subsequent decisions of EMSA related to the Tenders under examination in the current application;

| — | order EMSA to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected. |
| --- | --- |

—

order EMSA to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed bids in response to EMSA's calls for tenders EMSA C-1/0104-2004 (1) and EMSA C.2/06/04 (2) for the SafeSeaNet Validation and further development and for the marine casualty database, network and management system. By the contested decisions the applicant's bids were rejected and the contracts awarded to another bidder.

In support of its application to annul the contested decisions the applicant claims first of all that the defendant agency violated the principles of good faith and good administration by acting with significant delay and failing to offer adequate answers to the tenderers' requests before the submission of the bids. The defendant refused to answer the applicant's questions, on the grounds that they had not been submitted in time, even though it had accepted indirectly that technical problems under its own control prevented the questions from being received. The applicant considers that had the defendant answered its questions timely and with diligence, it would have been able to submit a more competitive offer.

The applicant further contends that the defendant violated the Financial Regulation (3) as well as Article 17(1) of Directive 92/50 (4) by using evaluation criteria, especially the tenderers' prior experience, that were neither specified nor included in the call for tenders.

The applicant also claims that the defendant committed a manifest error of appreciation in considering that the successful bidder's offer was superior to that of the applicant. In this respect, the applicant contends that no predetermined objective methodology was used to evaluate its offer, that on the contrary the criteria used left room for subjective evaluation and that, finally, there were no clear and objective metrics.

The applicant finally submits that the defendant failed to provide pertinent information and state adequate reasons for its acts by not replying to the applicant's legitimate and timely questions.

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(1)  OJ 2004/S 126-106254.

(2)  OJ 2004/S 128-108027.

(3)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002 p. 1.

(4)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992 p. 1.

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Action brought on 14 February 2005 by Jacques Wunenburger against the Commission of the European Communities

(Case T-71/05)

(2005/C 106/72)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 14 February 2005 by Jacques Wunenburger, residing in Zagreb (Croatia), represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

| 1. | annul the draft staff report for the period from 1 July 1997 to 30 June 1999, transmitted to the applicant on 22 March 2002; |
| --- | --- |

1.

annul the draft staff report for the period from 1 July 1997 to 30 June 1999, transmitted to the applicant on 22 March 2002;

| 2. | annul the draft staff report for the period from 1 July 1999 to 30 June 2001, transmitted to the applicant on 22 March 2002; |
| --- | --- |

2.

annul the draft staff report for the period from 1 July 1999 to 30 June 2001, transmitted to the applicant on 22 March 2002;

| 3. | award compensation for non-pecuniary damage resulting from the absence of staff reports in the applicant's personal file for the reporting periods 1997-1999 and 1999-2001 and the effect on his career, that damage being assessed on an equitable basis at EUR 9 996, subject to any increase during the proceedings; |
| --- | --- |

3.

award compensation for non-pecuniary damage resulting from the absence of staff reports in the applicant's personal file for the reporting periods 1997-1999 and 1999-2001 and the effect on his career, that damage being assessed on an equitable basis at EUR 9 996, subject to any increase during the proceedings;

| 4. | order the Commission to pay the costs. |
| --- | --- |

4.

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant asserts that since the reporting period 1997-1999 he has been unable to obtain final staff reports.

He observes in this respect that it is settled case-law that a staff report may not be annulled solely on the ground that it has been drawn up late, unless exceptional circumstances are present; such circumstances could be constituted by a delay in drawing up the reports that is so great that the reporters can no longer remember the work done. That is the case with the draft staff reports at issue.

In support of his application, the applicant submits:

| — | Infringement of the second paragraph of Article 225 and Articles 26 and 43 of the Staff Regulations, and of the general implementing provisions relating to the application of Article 43 of those regulations, concerning the procedure for drawing up staff reports; |
| --- | --- |

—

Infringement of the second paragraph of Article 225 and Articles 26 and 43 of the Staff Regulations, and of the general implementing provisions relating to the application of Article 43 of those regulations, concerning the procedure for drawing up staff reports;

| — | Abuse of powers in the present case; |
| --- | --- |

—

Abuse of powers in the present case;

| — | Disregard of certain general principles of law, such as respect for the rights of the defence, the principle of sound administration, the protection of legitimate expectations, compliance with the duty to have care, the principle of equal treatment, and the principles which require the appointing authority to take decisions only on the basis of legally admissible grounds, that is, grounds which are relevant and not vitiated by manifest errors of assessment of the facts or the law. |
| --- | --- |

—

Disregard of certain general principles of law, such as respect for the rights of the defence, the principle of sound administration, the protection of legitimate expectations, compliance with the duty to have care, the principle of equal treatment, and the principles which require the appointing authority to take decisions only on the basis of legally admissible grounds, that is, grounds which are relevant and not vitiated by manifest errors of assessment of the facts or the law.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/36 |
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Action brought on 14 February 2005 by Alejandro Martín Magone against Commission of the European Communities

(Case T-73/05)

(2005/C 106/73)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance on 14 February 2005 by Alejandro Martín Magone, residing in Brussels, represented by Eric Boigelot, lawyer.

The applicant claims that the Court of First Instance should:

| — | annul the career development report drawn up in respect of the applicant's performance (ref. 2700, ECHO) between 1 January 2003 and 31 December 2003, including the appeal procedures and other decisions relating thereto; |
| --- | --- |

—

annul the career development report drawn up in respect of the applicant's performance (ref. 2700, ECHO) between 1 January 2003 and 31 December 2003, including the appeal procedures and other decisions relating thereto;

| — | annul the decision of the appointing authority of 28 October 2004, received on 12 November 2004, rejecting the complaint lodged under Article 90(2) of the Staff Regulations of Officials on 26 July 2004; |
| --- | --- |

—

annul the decision of the appointing authority of 28 October 2004, received on 12 November 2004, rejecting the complaint lodged under Article 90(2) of the Staff Regulations of Officials on 26 July 2004;

| — | hold that the applicant has been the victim of mental and professional harassment; |
| --- | --- |

—

hold that the applicant has been the victim of mental and professional harassment;

| — | award the applicant compensation for material and non-material damage assessed on an ex aequo et bono basis as EUR 39 169,67, or such greater sum as may be awarded in the proceedings; |
| --- | --- |

—

award the applicant compensation for material and non-material damage assessed on an ex aequo et bono basis as EUR 39 169,67, or such greater sum as may be awarded in the proceedings;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant alleges, first, a manifest error of assessment, defective procedure and abuse of power, in that the very negative and damaging marks awarded to him were based on matters that did not concern him during the period concerned.

Next, the applicant alleges that no reasons were given for the contested measure and claims that for years he was subjected to mental harassment by his superiors. According to the applicant, that was apparent from the remarks contained in the contested report.

Finally, the applicant claims that his special situation exposed him to serious psychological problems, a fact which was not taken into account by the defendant when the duties assigned to him were changed. Therefore, the defendant failed in its duty of care and infringed the principle of sound administration.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/37 |
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Action brought on 16 February 2005 by The International Institute for the Urban Environment against the Commission of the European Communities

(Case T-74/05)

(2005/C 106/74)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 February 2005 by The International Institute for the Urban Environment, established in Delft (the Netherlands) represented by Ph. W. M. ter Burg, lawyer.

The applicant claims that the Court should:

| — | annul Decision INFSO-R2/RB/SOC/Isc D(2004) 541407 regarding the financial audit of IIUE-NL 02-BA14-032 of the Commission; |
| --- | --- |

—

annul Decision INFSO-R2/RB/SOC/Isc D(2004) 541407 regarding the financial audit of IIUE-NL 02-BA14-032 of the Commission;

| — | declare it for law that the sum claimed by the applicant is justified and according to the contracts; |
| --- | --- |

—

declare it for law that the sum claimed by the applicant is justified and according to the contracts;

| — | allow IIEU to claim the hours it spent on the Contracts and to order the Commission to make a well justified decision in accordance with the applicable communal rules of sound administration; |
| --- | --- |

—

allow IIEU to claim the hours it spent on the Contracts and to order the Commission to make a well justified decision in accordance with the applicable communal rules of sound administration;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The International Institute for the Urban Environment is a one-man business fully owned by the applicant. In 1999 it entered into contract No. IPS-1999-00016 with the Commission, under the terms of which the Institute would receive financial assistance in the context of the technological development programme ‘Promotion of innovation and encouragement of SME participation’. The Commission proceeded to an audit regarding the reimbursements claimed by the contractors and the applicant challenges the findings of that audit concerning personnel costs.

The applicant first contends that the method used by the Institute to calculate personnel costs was allowed under the conditions of the contract and that, further, the Commission's attention was explicitly drawn to the use of this particular method. The Commission never rejected that method which, according to the applicant, had also been used in the context of other programmes submitted by the applicant for which the Commission had also provided financial assistance. The applicant thus argues that he was justified in considering that this method was acceptable by the Commission.

The applicant further alleges that the contested decision does not contain a sufficient statement of reasons and is disproportional with regard to the aim pursued, since the total sum claimed by the applicant is, in his view, reasonable and in accordance with the contracts.

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Action brought on 17 February 2005 by NetScout Systems, Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-75/05)

(2005/C 106/75)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 17 February 2005 by NetScout Systems, Inc., established in Westford, Massachusetts (USA), represented by M. Holah, Solicitor.

Kye Systems Corporation, established in Taipei Hsien (Taiwan) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | order that the defendant pays the applicant's costs of this appeal; |
| --- | --- |

—

order that the defendant pays the applicant's costs of this appeal;

| — | in the alternative, alter the contested decision, reject the opposition filed by Kye, allow the CTM application to go forward and order that the defendant pays the applicant's costs of this appeal. |
| --- | --- |

—

in the alternative, alter the contested decision, reject the opposition filed by Kye, allow the CTM application to go forward and order that the defendant pays the applicant's costs of this appeal.

Pleas in law and main arguments

| Applicant for Community trade mark: | Netscout Systems, Inc. |
| --- | --- |
| Community trade mark concerned: | The word mark ‘NGENIUS’ for goods and services in classes 9, 16 and 42 (Computers, computer hardware and computer software; printed matter; computer programming; ...) — application No 1 830 900 |
| Proprietor of mark or sign cited in the opposition proceedings: | KYE Systems Corporation |
| Trade mark or sign cited in opposition: | The national figurative mark ‘GENIUS’ for goods in class 9 (computers, disk units, printers, fax machines, ...) |
| Decision of the Opposition Division: | Rejection of the trade mark application for all goods covered by it in class 9 |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 8(1)(b) of Council Regulation No 40/94 |

Applicant for Community trade mark:

Netscout Systems, Inc.

Community trade mark concerned:

The word mark ‘NGENIUS’ for goods and services in classes 9, 16 and 42 (Computers, computer hardware and computer software; printed matter; computer programming; ...) — application No 1 830 900

Proprietor of mark or sign cited in the opposition proceedings:

KYE Systems Corporation

Trade mark or sign cited in opposition:

The national figurative mark ‘GENIUS’ for goods in class 9 (computers, disk units, printers, fax machines, ...)

Decision of the Opposition Division:

Rejection of the trade mark application for all goods covered by it in class 9

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

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

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/38 |
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Action brought on 18 February 2005 by the Italian Republic against the Commission of the European Communities

(Case T-83/05)

(2005/C 106/76)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 February 2005 by the Italian Republic, represented by Antonio Cingolo, Avvocato dello Stato.

The applicant claims that the Court should:

| 1. | annul the Commission's decisions of: 16 December 2004 (P.E.P. Sicily 2000-2006), 13 January 2005 (P.E.P. Calabria Ob. 1 2000-2006), 13 January 2005 (P.E.P. Apulia Ob. 1 2000-2006), 17 January 2005 (Docup Lombardy Ob. 2 2000-2006), 17 January 2005 (P.E.P. Calabria Ob. 1 2000-2006) and 26 January 2005 (P.E.P. Sardinia Ob. 1 2000-2006), all intended to make implementation of the payment of certain advances in the sphere of aid schemes conditional upon fulfilment of obligations not required by the legislation in force, for the purpose of improperly limiting the expenditure which is eligible for the use of the Structural Funds concerned; |
| --- | --- |

1.

annul the Commission's decisions of: 16 December 2004 (P.E.P. Sicily 2000-2006), 13 January 2005 (P.E.P. Calabria Ob. 1 2000-2006), 13 January 2005 (P.E.P. Apulia Ob. 1 2000-2006), 17 January 2005 (Docup Lombardy Ob. 2 2000-2006), 17 January 2005 (P.E.P. Calabria Ob. 1 2000-2006) and 26 January 2005 (P.E.P. Sardinia Ob. 1 2000-2006), all intended to make implementation of the payment of certain advances in the sphere of aid schemes conditional upon fulfilment of obligations not required by the legislation in force, for the purpose of improperly limiting the expenditure which is eligible for the use of the Structural Funds concerned;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

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

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(1)  O.J.E.U. C 262 of 23 October 2004, p. 55.

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Action brought on 17 February 2005 by Nicole Schmit against the Commission of the European Communities

(Case T-84/05)

(2005/C 106/77)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2005 by Nicole Schmit, residing in Ispra (Italy), represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

| — | order the production of all files concerning the applicant and sealed by OLAF; |
| --- | --- |

—

order the production of all files concerning the applicant and sealed by OLAF;

| — | order the production of the report which concludes the internal investigation into the applicant; |
| --- | --- |

—

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

| — | annul the investigation into the applicant; |
| --- | --- |

—

annul the investigation into the applicant;

| — | annul the Note from OLAF containing ‘notification of the investigation and the information of the Italian judicial authorities’; |
| --- | --- |

—

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

| — | annul the investigation report sent to the Italian judicial authorities; |
| --- | --- |

—

annul the investigation report sent to the Italian judicial authorities;

| — | annul any measure arising from and/or relating to those decisions which may be taken subsequently to the bringing of this action; |
| --- | --- |

—

annul any measure arising from and/or relating to those decisions which may be taken subsequently to the bringing of this action;

| — | order OLAF and the Commission to pay damages, assessed on an equitable basis at EUR 30 000, subject to increase and/or decrease in the course of the proceedings; |
| --- | --- |

—

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

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

—

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

Pleas in law and main arguments

In support of her action, the applicant puts forward pleas identical to those put forward by the applicants in Case T-22/05.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/39 |
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Action brought on 16 February 2005 by Dimos Ano Liosia, a self-administering local entity against the Commission of the European Communities

(Case T-85/05)

(2005/C 106/78)

Language of the Case: Greek

An action was brought on 16 February 2005 against the Commission of the European Communities by Dimos Ano Liosion, established in Ano Liosia, Attica, and by Theodora Goula, Argiris Argiropoulos, Ioannis Manis, Eleni Dalipi, Vasilis Papagrigoriou and Yiorgos Frankalexis, residents of Ano Liosia, represented by Y-E. Kalvros, lawyer.

The applicants claim that the Court of First Instance should:

| — | annul in its entirety Commission Decision No 5522 of 21 December 2004 concerning the grant of assistance by the Cohesion Fund for Phase 2 of construction works for a hygienic infill site for domestic waste in Skalistiri in the Deme of Phylis in the Western Attica region of the Hellenic Republic (No CCI:2004 GR 16 C PE 001) and |
| --- | --- |

—

annul in its entirety Commission Decision No 5522 of 21 December 2004 concerning the grant of assistance by the Cohesion Fund for Phase 2 of construction works for a hygienic infill site for domestic waste in Skalistiri in the Deme of Phylis in the Western Attica region of the Hellenic Republic (No CCI:2004 GR 16 C PE 001) and

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

—

order the Commission to pay the costs.

Pleas and main arguments

In support of their action the applicants claim that the contested decision is contrary to the objectives of the maintenance, protection and development of the quality of the environment, the protection of human health and prudent and rational use of natural resources, as provided for in Articles 2, 4(1) and 174 EC. That is owing to the fact that under that decision the district of Ano Liosia, which is regarded by the applicants as polluted and degraded, is obliged to accept much greater quantities of waste than the two other proposed areas for waste management in Attica. In the same context the applicants raise various problems concerning the siting chosen for construction of the facility, such as the fact that essentially it constitutes an extension of an existing establishment, the relevant area has been designated as an area of absolute protection of the natural environment and is in part wooded and in part to be reafforested, is not secured from private view and, according to the environmental impact study, is not the most appropriate area.

The applicants further claim that the contested decision is contrary to the obligations incumbent on the Hellenic Republic to:

| — | take appropriate measures to encourage the prevention or reduction of waste production and its harmfulness, in particular by the development of clean technologies which are more sparing in their use of natural resources, and to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, as provided for in Articles 3 and 4 of Directive 91/156; (1) |
| --- | --- |

—

take appropriate measures to encourage the prevention or reduction of waste production and its harmfulness, in particular by the development of clean technologies which are more sparing in their use of natural resources, and to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, as provided for in Articles 3 and 4 of Directive 91/156; (1)

| — | adhere to the plans for restricting, recycling and processing of waste, as provided for in Articles 3, 4 and 6 of Directive 75/442; (2) |
| --- | --- |

—

adhere to the plans for restricting, recycling and processing of waste, as provided for in Articles 3, 4 and 6 of Directive 75/442; (2)

| — | verify in advance that the new installation will be operated in such a way that appropriate preventive measures are taken against pollution in order to ensure that no significant pollution is caused, as provided for in Article 3 of Directive 96/61. (3) |
| --- | --- |

—

verify in advance that the new installation will be operated in such a way that appropriate preventive measures are taken against pollution in order to ensure that no significant pollution is caused, as provided for in Article 3 of Directive 96/61. (3)

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(1)  Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

(2)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

(3)  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ L 257, p. 26).

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/40 |
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Action brought on 21 February 2005 by GAEC SALAT against the Commission of the European Communities

(Case T-89/05)

(2005/C 106/79)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 February 2005 by GAEC SALAT, with its registered office in Cussac (France), represented by F. Delpeuch, lawyer.

The applicant claims that the Court should:

| 1. | Hold that the refusal of the European Commission to rule on the complaint lodged by GAEC SALAT on 15 October 2004 and registered on 26 October 2004 under No 0411325 was unlawful. |
| --- | --- |

1.

Hold that the refusal of the European Commission to rule on the complaint lodged by GAEC SALAT on 15 October 2004 and registered on 26 October 2004 under No 0411325 was unlawful.

| 2. | draw the legal consequences following therefrom. |
| --- | --- |

2.

draw the legal consequences following therefrom.

Pleas in law and main arguments

In this case, the applicant lodged a complaint with the Commission concerning the amendment of the specification of the designation of origin ‘SALERS’ by Commission Regulation (EC) No 828/2003 of 14 May 2003 amending the specification of 16 names appearing in the Annex to Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92. That designation of origin had already been registered as such by virtue of Regulation (EC) No 1107/96.

The applicant argues that such amendment of the specification constitutes an infringement of general legal principles, and in particular of the principle of equal treatment and non-discrimination in relation to the designations of origin Salers cheese and Laguiole cheese.

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Action brought on 18 February 2005 by Athinaiki Techniki SA against the Commission of the European Communities

(Case T-94/05)

(2005/C 106/80)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 February 2005 by Athinaiki Techniki SA, Neo Iraklio, Athens (Greece), represented by Spyros A. Pappas, lawyer.

The applicant claims that the Court should:

| 1. | annul the decision of the Directorate General for Competition to take no further action on the applicant's complaint relating to State aid granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the Casino Mont Parnes public contract, which the applicant learnt of by letter dated 2 December 2004; |
| --- | --- |

1.

annul the decision of the Directorate General for Competition to take no further action on the applicant's complaint relating to State aid granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the Casino Mont Parnes public contract, which the applicant learnt of by letter dated 2 December 2004;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

In support of its application the applicant relies first on an alleged infringement by the Commission of the obligation to initiate the formal examination procedure provided for by Article 88(2) EC and Article 4(4) of Regulation (EC) No 659/1999.

Second, the applicant complains that the Commission made several errors in the statement of reasons for the contested decision. In this connection, the applicant submits that the Commission states no reasoning to demonstrate that there were no serious difficulties of assessment, still less to explain why it disregarded certain key documents. Moreover, the contested decision is based solely on the analysis of the Directorate General for the Internal Market, although this was confined to finding that it was not possible to apply the Community legislation in this case. Finally, the applicant considers that the statement of reasons for the decision, namely the decision not to regard the measures concerned as State aid, is also inadequate, and submits, on the same basis, that there was an infringement of Article 87(1) EC.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/40 |
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Official Journal of the European Union

C 106/40

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Action brought on 14 February 2005 by Jean Dehon against European Parliament

(Case T-95/05)

(2005/C 106/81)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance on 14 February 2005 by Jean Dehon, residing at Hagen (Luxembourg), represented by Sébastien Orlandi, Xavier Martin M., Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

| — | annul the decision of the European Parliament of 29 April 2004 appointing another person as deputy head of the French translation division; |
| --- | --- |

—

annul the decision of the European Parliament of 29 April 2004 appointing another person as deputy head of the French translation division;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant takes exception to the appointing authority's refusal to uphold his application for the post of deputy head of the French translation division. The candidate chosen was appointed following the publication of internal competition notice LA/113 (vacancy notice No 9192).

In support of his claims, he alleges infringement of Article 233 of the EC treaty, infringement of Article 29(1) of the Staff Regulations, breach of the principle of the right to career development and failure to fulfil the obligation to state reasons.

Specifically, he contends that:

| — | the contested appointment was made without any examination of the applicant's application; |
| --- | --- |

—

the contested appointment was made without any examination of the applicant's application;

| — | the order of priority for the various procedures for filling posts, as provided for in Article 29 of the Staff Regulations, was not observed; |
| --- | --- |

—

the order of priority for the various procedures for filling posts, as provided for in Article 29 of the Staff Regulations, was not observed;

| — | the absence of a decision regarding the applicant's application under the procedure for promotion/transfer is particularly serious since the procedure for filling the post in question had already been the subject of an annulling judgment in Case T-261/99 Dehon v Parliament. Compliance with that judgment involved restoring the situation to the position as it stood before the circumstances criticised by the Court came into being. |
| --- | --- |

—

the absence of a decision regarding the applicant's application under the procedure for promotion/transfer is particularly serious since the procedure for filling the post in question had already been the subject of an annulling judgment in Case T-261/99 Dehon v Parliament. Compliance with that judgment involved restoring the situation to the position as it stood before the circumstances criticised by the Court came into being.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/41 |
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C 106/41

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Action brought on 21 February 2005 by the Compagnie d'entreprises C.F.E. against the Commission of the European Communities

(Case T-100/05)

(2005/C 106/82)

Language of the Case: French

An action was brought on 21 February 2005 against the Commission of the European Communities by the Compagnie d'entreprises C.F.E., whose registered office is in Brussels, represented by Bernard Louveaux and Joël van Ypersele, avocats.

The applicant claims that the Court of First Instance should:

| — | annul Commission Decision of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region (2004/813/EC) published in the Official Journal of the European Communities of 29 December 2004, in its entirety or at least to the extent to which it classified as a site of Community importance the applicant's property situate at Avenue de la Foresterie, Watermael-Boitsfort (Belgium) and registered in the land register under section F No 66/Y/2 and 66/S/2; |
| --- | --- |

—

annul Commission Decision of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region (2004/813/EC) published in the Official Journal of the European Communities of 29 December 2004, in its entirety or at least to the extent to which it classified as a site of Community importance the applicant's property situate at Avenue de la Foresterie, Watermael-Boitsfort (Belgium) and registered in the land register under section F No 66/Y/2 and 66/S/2;

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

—

order the defendant to pay the costs.

Pleas and main arguments

The applicant in the present case is the owner of a major share of building land situate in the region of Brussels-Capital. That land has been classified by the contested decision as a site of Community importance.

In support of its claims the applicant pleads:

| — | Infringement of Article 4(1) and (2) of Annex III to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, inasmuch as the Commission took the decision at issue even though no draft list of sites of Community importance had been duly proposed by Belgium; the author of the proposal in that regard, the Brussels Institute for the management of the environment is manifestly not competent to formulate such proposal. Consequently, the contested decision is vitiated by lack of competence. |
| --- | --- |

—

Infringement of Article 4(1) and (2) of Annex III to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, inasmuch as the Commission took the decision at issue even though no draft list of sites of Community importance had been duly proposed by Belgium; the author of the proposal in that regard, the Brussels Institute for the management of the environment is manifestly not competent to formulate such proposal. Consequently, the contested decision is vitiated by lack of competence.

| — | Infringement of Articles 4(2) and (3), 20 and 21 of Directive 92/43 aforesaid, Articles 5(2) and 7(1) of Council Decision 999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, Article 8 of the rules of procedure of the ‘habitats’ committee, Article 9 of the standard rules of procedure adopted in Decision 2001/C 38/03 under Article 7(1) aforesaid, as well as the general principles of sound administration and audi alteram partem. In that regard the applicant asserts that the opinion of the habitats committee was not sought in accordance with the ordinary procedure applicable in that regard but under the procedure for a written procedure, even though there was no apparent need for recourse to that procedure, recourse thereto did not form the subject-matter of a reasoned opinion and the habitats committee was not enabled to express its views on all the technical aspects of the file. |
| --- | --- |

—

Infringement of Articles 4(2) and (3), 20 and 21 of Directive 92/43 aforesaid, Articles 5(2) and 7(1) of Council Decision 999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, Article 8 of the rules of procedure of the ‘habitats’ committee, Article 9 of the standard rules of procedure adopted in Decision 2001/C 38/03 under Article 7(1) aforesaid, as well as the general principles of sound administration and audi alteram partem. In that regard the applicant asserts that the opinion of the habitats committee was not sought in accordance with the ordinary procedure applicable in that regard but under the procedure for a written procedure, even though there was no apparent need for recourse to that procedure, recourse thereto did not form the subject-matter of a reasoned opinion and the habitats committee was not enabled to express its views on all the technical aspects of the file.

| — | The Commission adopted its decision on the basis of a proposal for a list of sites founded on factual information which was inaccurate and/or irrelevant in light of the criteria laid down in Annex III to Directive 92/43/EEC. |
| --- | --- |

—

The Commission adopted its decision on the basis of a proposal for a list of sites founded on factual information which was inaccurate and/or irrelevant in light of the criteria laid down in Annex III to Directive 92/43/EEC.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/42 |
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Official Journal of the European Union

C 106/42

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Action brought on 28 February 2005 by CEGELEC SA against European Parliament

(Case T-104/05)

(2005/C 106/83)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 28 February 2005 by CEGELEC SA, whose registered office is in Brussels, represented by André Delvaux and Véronique Bertrand, lawyers.

The applicant claims that the Court of First Instance should:

| — | declare the action for annulment admissible; |
| --- | --- |

—

declare the action for annulment admissible;

| — | annul the decision of 15 December 2004, by which the European Parliament rejected the tender submitted by CEGELEC SA and awarded to GROUP 4 Technology SA the three components making up the contract for the supply and commissioning of video surveillance systems for the three main workplaces of the European Parliament, which was the subject of a contract notice published in
  Official Journal of the European Union S 61 of 26 March 2004, and for which the reasons were notified to CEGELEC SA by letter of 16 December 2004; |
| --- | --- |

—

annul the decision of 15 December 2004, by which the European Parliament rejected the tender submitted by CEGELEC SA and awarded to GROUP 4 Technology SA the three components making up the contract for the supply and commissioning of video surveillance systems for the three main workplaces of the European Parliament, which was the subject of a contract notice published in
  Official Journal of the European Union S 61 of 26 March 2004, and for which the reasons were notified to CEGELEC SA by letter of 16 December 2004;

| — | order the European Parliament to pay the costs. |
| --- | --- |

—

order the European Parliament to pay the costs.

Please in law and main arguments

The applicant seeks annulment of the Parliament's decision to reject the applicant's tender in the call-for-tenders procedure concerning the provision of video surveillance systems at the European Parliament's three main workplaces and to award the contract to another tenderer.

In support of its application, the applicant describes a number of alleged infringements of the tendering conditions and of Regulations Nos 1605/2002 (1) and 2432/2002 (2) and of Directives 92/50 (3), 93/36 (4) and 2004/18 (5), which consist more particularly of:

| — | inadequate statement of the reasons for the contested decision notified to the applicant; |
| --- | --- |

—

inadequate statement of the reasons for the contested decision notified to the applicant;

| — | failure to apply the rules for awards of contract and the weighting system provided for in the tendering specifications; |
| --- | --- |

—

failure to apply the rules for awards of contract and the weighting system provided for in the tendering specifications;

| — | the fact that, in the light of its size, the tender accepted was not in conformity with the obligation to submit a tender in writing in one of the official languages of the Union; |
| --- | --- |

—

the fact that, in the light of its size, the tender accepted was not in conformity with the obligation to submit a tender in writing in one of the official languages of the Union;

| — | the fact that the Parliament, in breach of the principle of equal treatment for tenderers, awarded the contract on the basis of cameras which had not been demonstrated at the ‘photos-tests’ session; |
| --- | --- |

—

the fact that the Parliament, in breach of the principle of equal treatment for tenderers, awarded the contract on the basis of cameras which had not been demonstrated at the ‘photos-tests’ session;

| — | the alleged belatedness of the tender that was accepted. |
| --- | --- |

—

the alleged belatedness of the tender that was accepted.

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(1)  OJ L 248, p. 1.

(2)  OJ L 357, p. 1.

(3)  OJ L 209, p. 1.

(4)  OJ L 199, p. 1.

(5)  OJ L 134, p. 114.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/43 |
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C 106/43

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Action brought on 8 March 2005 by SpA Navigazione Libera del Golfo against the Commission of the European Communities

(Case T-109/05)

(2005/C 106/84)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 March 2005 by SpA Navigazione Libera del Golfo (NLG), established in Naples, represented by S. Ravenna, lawyer, for annulment of the decision adopted on 3 February 2005, (1) under Article 8 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, (2) a decision which upholds the refusal to grant access to the information requested by the applicant.

The information requested by the applicant, of which the Commission refused disclosure, relates to the extra costs incurred by the passenger transport services between the Port of Naples Beverello and the island of Capri. Those services are operated by the public undertaking Caremar SpA, established in Naples, under a public service obligation, for which it receives annual payments (State aid) authorised by the Commission by decision of 16 March 2004, as provided for in Article 88(2) of the EC Treaty.

The applicant claims that the Court should:

| 1. | annul the Commission decision of 3 February 2005; |
| --- | --- |

1.

annul the Commission decision of 3 February 2005;

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

When it informed the applicant of the decision of 16 March 2004, allegedly on the grounds of protection of the commercial interests of Caremar the Commission did not, when giving the reasons for its decision, disclose information on the operating costs of Caremar's commercial activities, in particular the extra costs incurred by the connections to the island of Capri carried out under public service obligations and the annual payments made for that service by the Region of Campania.

The applicant has always operated similar passenger transport services on the same Naples Beverello-Capri route under public service obligations without, however, receiving any subsidy to offset the extra costs inherent in those obligations and, as a result, it regards that treatment as discriminatory.

In the light of the applicant's legal interest in bringing proceedings and the need to acquire full knowledge of the Caremar decision within the shortest time for the purposes of protecting its own interests and of any consequent challenge to the decision of 16 March 2004, the applicant asked for access to information concerning the extra costs of the public service obligations borne by Caremar for the connections to the island of Capri and the amount of the aid relating thereto.

By decision of 3 February 2005 the Commission refused access to the information requested by NLG, essentially pleading grounds of protection of the commercial interests of Caremar.

Challenging that decision, NLG submits that the Commission committed, inter alia, a serious error of law by failing to have regard to the provisions of its Communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions, (3) which expressly lays down in paragraph 17 the requirements of transparency and of disclosure of information regarding the costs of public services inasmuch as it is not considered confidential or protected as a business secret.

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(1)  Decision not published.

(2)  OJ L 145 of 31.05.2001, p. 43.

(3)  OJ C 297 of 09.12.2003, p. 6.

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| 30.4.2005 | EN | Official Journal of the European Union | C 106/43 |
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C 106/43

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Removal from the Register of Case T-205/03, T-206/03, T-207/03, T-208/03, T-209/03, and T-210/03 (1)

(2005/C 106/85)

(Language of the case: French)

By order of 25 January 2005, the President of the Fifth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-205/03, T-206/03,T-207/03, T-208/03, T-209/03, and T-210/03, Nicolas Georgiopoulos and Others, Panayotis Adamopoulos and Others, Athanassios Rammos, Stavroula Gogos-Skarpatzi and Others, Nikolaos Andrikakis and Others, Konstantinos Athanassopoulos and Others v Commission of the European Communities.

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(1)  OJ C 184 of 2.8.2003.

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III Notices

| 30.4.2005 | EN | Official Journal of the European Union | C 106/44 |
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(2005/C 106/86)

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

OJ C 93, 16.4.2005

Past publications

OJ C 82, 2.4.2005

OJ C 69, 19.3.2005

OJ C 57, 5.3.2005

OJ C 45, 19.2.2005

OJ C 31, 5.2.2005

OJ C 19, 22.1.2005

These texts are available on:

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

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

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

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