# Official Journal C 179/10 J

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 179 |
| | |
| English edition | Information and Notices | Volume 4710 July 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 179

English edition

Information and Notices

Volume 4710 July 2004

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 179/1 | Judgment of the Court (First Chamber) of 27 May 2004 in Case C-285/02 (reference for a preliminary ruling from the Verwaltungsgericht Minden (Germany)): Edeltraud Elsner-Lakeberg v Land Nordrhein-Westfalen (Article 141 EC — Directive 75/117/EEC — National measure providing that full-time and part-time teachers are obliged to work the same number of additional hours before being entitled to remuneration — Indirect discrimination against women teachers employed part-time) | 1 |
| 2004/C 179/2 | Judgment of the Court (Fourth Chamber) of 27 May 2004 in Case C-398/02: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 75/442/EEC — Environment — Management of waste) | 1 |
| 2004/C 179/3 | Judgment of the Court (First Chamber) 27 May 2004 in Case C-68/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v D. Lipjes (Sixth VAT Directive — Article 28b(E)(3) — Services by intermediaries — Place of supply) | 2 |
| 2004/C 179/4 | Case C-185/04: Reference for a preliminary ruling by the Länsrätten i Stockholms län by order of that court of 20 April 2004 in the proceedings between Ulf Öberg and Stockholms läns allmänna försäkringskassa | 2 |
| 2004/C 179/5 | Case C-187/04: Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic | 3 |
| 2004/C 179/6 | Case C-189/04: Action brought on 22 April 2004 by the Hellenic Republic against the Commission of the European Communities | 3 |
| 2004/C 179/7 | Case C-194/04: Reference for a preliminary ruling by the Rechtbank 's-Gravenhage by order of 22 April 2004 in the case of Nederlandse Vereniging Diervoederindustrie Nevedi v Produktschap Diervoeder | 4 |
| 2004/C 179/8 | Case C-195/04: Action brought on 29 April 2004 by the Commission of the European Communities against the Republic of Finland | 4 |
| 2004/C 179/9 | Case C-199/04: Action brought on 4 May 2004 by the Commission of the European Communities against the United Kingdom | 4 |
| 2004/C 179/0 | Case C-201/04: Reference for a preliminary ruling by the Hof van Beroep te Antwerpen by order of 27 April 2004 in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie | 5 |
| 2004/C 179/1 | Case C-202/04: Reference for a preliminary ruling by the Tribunale di Roma (District Court, Rome) by order of that court of 7 April 2004 in the case of Stefano Macrino and Claudia Capodarte against Roberto Meloni | 6 |
| 2004/C 179/2 | Case C-206/04 P: Appeal brought on 10 May 2004 by Mülhens GmbH & Co. KG against the judgment delivered on 3 March 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-355/02 between Mülhens GmbH & Co. KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Zirh International Corp. | 6 |
| 2004/C 179/3 | Case C-207/04: Reference for a preliminary ruling by the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), by order of that court of 26 April 2004, in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office) | 6 |
| 2004/C 179/4 | Case C-208/04: Reference for a preliminary ruling by the Conseil d'Etat (Belgium), XIIIth Chamber, by judgment of that court of 29 April 2004 in the case Inter-Environnement Wallonnie against Région wallonne | 7 |
| 2004/C 179/5 | Case C-209/04: Action brought on 12 May 2004 by the Commission of the European Communities against the Republic of Austria | 7 |
| 2004/C 179/6 | Case C-211/04: Action brought on 12 May 2004 by the Italian Republic against the Commission of the European Communities | 8 |
| 2004/C 179/7 | Case C-212/04: Reference for a preliminary ruling by the Monomeles Protodikio Thessalonikis (Greece) by order of that court of 8 April 2004 in the case of Konstantinos Adeler and Others against Ellinikos Organismos Galaktos | 8 |
| 2004/C 179/8 | Case C-218/04: Action brought on 26 May 2004 by the Hellenic Republic against the Commission of the European Communities | 9 |
| 2004/C 179/9 | Case C-221/04: Action brought on 27 May 2004 by Commission of the European Communities against Kingdom of Spain | 9 |
| | COURT OF FIRST INSTANCE |
| 2004/C 179/0 | Case T-145/04: Action brought on 16 April 2004 by Elisabetta Righini against the Commission of the European Communities | 10 |
| 2004/C 179/1 | Case T-148/04: Action brought on 26 April 2004 by TQ3 Travel Solutions against the Commission of the European Communities | 10 |
| 2004/C 179/2 | Case T-152/04: Action brought on 26 April 2004 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities | 11 |
| 2004/C 179/3 | Case T-155/04: Action brought on 23 April 2004 by ALENIA MARCONI SYSTEMS SpA against Commission of the European Communities | 11 |
| 2004/C 179/4 | Case T-156/04: Action brought on 27 April 2004 by Electricité de France (EDF) against Commission of the European Communities | 12 |
| 2004/C 179/5 | Case T-159/04: Action brought on 24 April 2004 by Davide Rovetta against Commission of the European Communities | 13 |
| 2004/C 179/6 | Case T-165/04: Action brought on 3 May 2004 by Hippocrate Vounakis against Commission of the European Communities | 13 |
| 2004/C 179/7 | Case T-166/04: Action brought on 13 May 2004 by Carmelo Morello against the Commission of the European Communities | 14 |
| 2004/C 179/8 | Case T-169/04: Action brought on 12 May 2004 by Calliope S.A. against the Office for Harmonisation in the Internal Market | 14 |
| 2004/C 179/9 | Case T-170/04: Action brought on 18 May 2004 by FederDOC and Others against the Commission of the European Communities | 15 |
| 2004/C 179/0 | Case T-172/04: Action brought on 17 May 2004 by Telefónica S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 15 |
| 2004/C 179/1 | Case T-173/04: Action brought on 14 May 2004 by Jürgen Carius against Commission of the European Communities | 16 |
| 2004/C 179/2 | Case T-174/04: Action brought on 6 May 2004 by Petrotub S.A., against the Council of the European Union | 16 |
| 2004/C 179/3 | Case T-175/04: Action brought on 7 May 2004 by Mr Donal Gordon against the Commission of the European Communities | 17 |
| 2004/C 179/4 | Case T-176/04: Action brought on 13 May 2004 by Luigi Marcuccio against Commission of the European Communities | 17 |
| 2004/C 179/5 | Case T-182/04: Action brought on 17 May 2004 by Daniel Van der Spree against Commission of the European Communities | 18 |
| 2004/C 179/6 | Case T-201/04: Action brought on 7 June 2004 by Microsoft Corporation against the Commission of the European Communities | 18 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 179/1

Judgment of the Court (First Chamber) of 27 May 2004 in Case C-285/02 (reference for a preliminary ruling from the Verwaltungsgericht Minden (Germany)): Edeltraud Elsner-Lakeberg v Land Nordrhein-Westfalen (Article 141 EC — Directive 75/117/EEC — National measure providing that full-time and part-time teachers are obliged to work the same number of additional hours before being entitled to remuneration — Indirect discrimination against women teachers employed part-time)

1

2004/C 179/2

Judgment of the Court (Fourth Chamber) of 27 May 2004 in Case C-398/02: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 75/442/EEC — Environment — Management of waste)

1

2004/C 179/3

Judgment of the Court (First Chamber) 27 May 2004 in Case C-68/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v D. Lipjes (Sixth VAT Directive — Article 28b(E)(3) — Services by intermediaries — Place of supply)

2

2004/C 179/4

Case C-185/04: Reference for a preliminary ruling by the Länsrätten i Stockholms län by order of that court of 20 April 2004 in the proceedings between Ulf Öberg and Stockholms läns allmänna försäkringskassa

2

2004/C 179/5

Case C-187/04: Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic

3

2004/C 179/6

Case C-189/04: Action brought on 22 April 2004 by the Hellenic Republic against the Commission of the European Communities

3

2004/C 179/7

Case C-194/04: Reference for a preliminary ruling by the Rechtbank 's-Gravenhage by order of 22 April 2004 in the case of Nederlandse Vereniging Diervoederindustrie Nevedi v Produktschap Diervoeder

4

2004/C 179/8

Case C-195/04: Action brought on 29 April 2004 by the Commission of the European Communities against the Republic of Finland

4

2004/C 179/9

Case C-199/04: Action brought on 4 May 2004 by the Commission of the European Communities against the United Kingdom

4

2004/C 179/0

Case C-201/04: Reference for a preliminary ruling by the Hof van Beroep te Antwerpen by order of 27 April 2004 in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie

5

2004/C 179/1

Case C-202/04: Reference for a preliminary ruling by the Tribunale di Roma (District Court, Rome) by order of that court of 7 April 2004 in the case of Stefano Macrino and Claudia Capodarte against Roberto Meloni

6

2004/C 179/2

Case C-206/04 P: Appeal brought on 10 May 2004 by Mülhens GmbH & Co. KG against the judgment delivered on 3 March 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-355/02 between Mülhens GmbH & Co. KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Zirh International Corp.

6

2004/C 179/3

Case C-207/04: Reference for a preliminary ruling by the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), by order of that court of 26 April 2004, in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office)

6

2004/C 179/4

Case C-208/04: Reference for a preliminary ruling by the Conseil d'Etat (Belgium), XIIIth Chamber, by judgment of that court of 29 April 2004 in the case Inter-Environnement Wallonnie against Région wallonne

th

7

2004/C 179/5

Case C-209/04: Action brought on 12 May 2004 by the Commission of the European Communities against the Republic of Austria

7

2004/C 179/6

Case C-211/04: Action brought on 12 May 2004 by the Italian Republic against the Commission of the European Communities

8

2004/C 179/7

Case C-212/04: Reference for a preliminary ruling by the Monomeles Protodikio Thessalonikis (Greece) by order of that court of 8 April 2004 in the case of Konstantinos Adeler and Others against Ellinikos Organismos Galaktos

8

2004/C 179/8

Case C-218/04: Action brought on 26 May 2004 by the Hellenic Republic against the Commission of the European Communities

9

2004/C 179/9

Case C-221/04: Action brought on 27 May 2004 by Commission of the European Communities against Kingdom of Spain

9

COURT OF FIRST INSTANCE

2004/C 179/0

Case T-145/04: Action brought on 16 April 2004 by Elisabetta Righini against the Commission of the European Communities

10

2004/C 179/1

Case T-148/04: Action brought on 26 April 2004 by TQ3 Travel Solutions against the Commission of the European Communities

10

2004/C 179/2

Case T-152/04: Action brought on 26 April 2004 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities

11

2004/C 179/3

Case T-155/04: Action brought on 23 April 2004 by ALENIA MARCONI SYSTEMS SpA against Commission of the European Communities

11

2004/C 179/4

Case T-156/04: Action brought on 27 April 2004 by Electricité de France (EDF) against Commission of the European Communities

12

2004/C 179/5

Case T-159/04: Action brought on 24 April 2004 by Davide Rovetta against Commission of the European Communities

13

2004/C 179/6

Case T-165/04: Action brought on 3 May 2004 by Hippocrate Vounakis against Commission of the European Communities

13

2004/C 179/7

Case T-166/04: Action brought on 13 May 2004 by Carmelo Morello against the Commission of the European Communities

14

2004/C 179/8

Case T-169/04: Action brought on 12 May 2004 by Calliope S.A. against the Office for Harmonisation in the Internal Market

14

2004/C 179/9

Case T-170/04: Action brought on 18 May 2004 by FederDOC and Others against the Commission of the European Communities

15

2004/C 179/0

Case T-172/04: Action brought on 17 May 2004 by Telefónica S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

15

2004/C 179/1

Case T-173/04: Action brought on 14 May 2004 by Jürgen Carius against Commission of the European Communities

16

2004/C 179/2

Case T-174/04: Action brought on 6 May 2004 by Petrotub S.A., against the Council of the European Union

16

2004/C 179/3

Case T-175/04: Action brought on 7 May 2004 by Mr Donal Gordon against the Commission of the European Communities

17

2004/C 179/4

Case T-176/04: Action brought on 13 May 2004 by Luigi Marcuccio against Commission of the European Communities

17

2004/C 179/5

Case T-182/04: Action brought on 17 May 2004 by Daniel Van der Spree against Commission of the European Communities

18

2004/C 179/6

Case T-201/04: Action brought on 7 June 2004 by Microsoft Corporation against the Commission of the European Communities

18

| | III   Notices |
| --- | --- |
| 2004/C 179/7 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 168, 26.6.2004 | 20 |

III   Notices

2004/C 179/7

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 168, 26.6.2004

Official Journal of the European Union

20

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 10.7.2004 | EN | Official Journal of the European Union | C 179/1 |
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10.7.2004

EN

Official Journal of the European Union

C 179/1

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JUDGMENT OF THE COURT

(First Chamber)

of 27 May 2004

in Case C-285/02 (reference for a preliminary ruling from the Verwaltungsgericht Minden (Germany)): Edeltraud Elsner-Lakeberg v Land Nordrhein-Westfalen (1)

(Article 141 EC - Directive 75/117/EEC - National measure providing that full-time and part-time teachers are obliged to work the same number of additional hours before being entitled to remuneration - Indirect discrimination against women teachers employed part-time)

(2004/C 179/01)

Language of the case: German

In Case C-285/02: reference to the Court under Article 234 EC from the Verwaltungsgericht Minden (Germany) for a preliminary ruling in the proceedings pending before that court between Edeltraud Elsner-Lakeberg and Land Nordrhein-Westfalen — on the interpretation of Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) — the Court (First Chamber) composed of: P. Jann (Rapporteur), President of the Chamber, A. La Pergola, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on, the operative part of which is as follows:

Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, must be interpreted as precluding national legislation which provides that teachers, part-time as well as full-time, do not receive any remuneration for additional hours worked when the additional work does not exceed three hours per calendar month, if that different treatment affects considerably more women than men and if there is no objective unrelated to sex which justifies that different treatment or it is not necessary to achieve the objective pursued.

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(1)  OJ C 247, 12.10.2002.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/1 |
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10.7.2004

EN

Official Journal of the European Union

C 179/1

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 27 May 2004

in Case C-398/02: Commission of the European Communities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations - Directive 75/442/EEC - Environment - Management of waste)

(2004/C 179/02)

Language of the case: Spanish

In Case C-398/02: Commission of the European Communities (Agents: G. Valero Jordana and M. Konstantinidis) v Kingdom of Spain (Agent: L. Fraguas Gadea) — application for a declaration that, by failing to adopt the measures necessary to ensure, as regards the landfill located at La Baneza (Spain), the implementation of Articles 4, 9 and 13 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), the Kingdom of Spain has failed to fulfil its obligations under that directive — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues (Rapporteur), President of the Chamber, J.-P. Puissochet and  F. Macken, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 27 May 2004, in which it:

| 1. | Declares that, by failing to adopt the measures necessary to ensure, as regards the landfill located at La Bañeza (Spain), the implementation of Articles 4, 9 and 13 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the measures necessary to ensure, as regards the landfill located at La Bañeza (Spain), the implementation of Articles 4, 9 and 13 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 323, 21.12.2002.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/2 |
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10.7.2004

EN

Official Journal of the European Union

C 179/2

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JUDGMENT OF THE COURT

(First Chamber)

27 May 2004

in Case C-68/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v D. Lipjes (1)

(Sixth VAT Directive - Article 28b(E)(3) - Services by intermediaries - Place of supply)

(2004/C 179/03)

Language of the case: Dutch

In Case C-:68/03, reference to the Court under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between Staatssecretaris van Financiën and D. Lipjes — on the interpretation of Article 28b of 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 1977 L 145, p. 1), as amended by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1) — the Court, composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, A. La Pergola, R. Silva de Lapuerta and K. Lenaerts, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has given a judgment on 27 May 2004, the operative part of which is as follows:

| 1. | Article 28b(E)(3) of 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, as amended by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers, is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of value added tax. |
| --- | --- |

1.

Article 28b(E)(3) of 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, as amended by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers, is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of value added tax.

| 2. | When an intermediary transaction falls within the scope of Article 28b(E)(3) of Sixth Directive 77/388, as amended, it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the provisions of Article 28b(A) and (B) of that directive. |
| --- | --- |

2.

When an intermediary transaction falls within the scope of Article 28b(E)(3) of Sixth Directive 77/388, as amended, it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the provisions of Article 28b(A) and (B) of that directive.

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(1)  OJ C 83, 5.4.2003.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/2 |
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10.7.2004

EN

Official Journal of the European Union

C 179/2

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Reference for a preliminary ruling by the Länsrätten i Stockholms län by order of that court of 20 April 2004 in the proceedings between Ulf Öberg and Stockholms läns allmänna försäkringskassa

(Case C-185/04)

(2004/C 179/04)

Reference has been made to the Court of Justice of the European Communities by order of the Länsrätten i Stockholms län of 20 April 2004, received at the Court Registry on 22 April 2004, for a preliminary ruling in the proceedings between Ulf Öberg and Stockholms läns allmänna försäkringskassa on the following questions:

| (i) | Is a requirement in national legislation that a parent have been resident and be covered by health insurance in the Member State in question for at least 240 days prior to the child's birth in order to be entitled to parental benefit in accordance with the parent's sickness benefit compatible with Articles 12, 17(2), 18 and 39 EC, Article 7(1) and 7(2) of Regulation No 1612/68 (1) and Directive No 96/34 (2) on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC? |
| --- | --- |

(i)

Is a requirement in national legislation that a parent have been resident and be covered by health insurance in the Member State in question for at least 240 days prior to the child's birth in order to be entitled to parental benefit in accordance with the parent's sickness benefit compatible with Articles 12, 17(2), 18 and 39 EC, Article 7(1) and 7(2) of Regulation No 1612/68 (1) and Directive No 96/34 (2) on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC?

| (ii) | If question (i) is answered in the affirmative: does Community law require that, in the determination of whether the worker fulfils the qualification period for insurance under national law, cumulation shall take place with a period during which the worker was covered by the Joint Sickness insurance scheme pursuant to the Staff Regulations of Officials of the European Communities? |
| --- | --- |

(ii)

If question (i) is answered in the affirmative: does Community law require that, in the determination of whether the worker fulfils the qualification period for insurance under national law, cumulation shall take place with a period during which the worker was covered by the Joint Sickness insurance scheme pursuant to the Staff Regulations of Officials of the European Communities?

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(1)  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (English special edition: Series I Chapter 1968(II), p. 475).

(2)  Council Directive 96/34/EC of 3 June 1996 (OJ 1996 L 145, p. 4).

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/3 |
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10.7.2004

EN

Official Journal of the European Union

C 179/3

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Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic

(Case C-187/04)

(2004/C 179/05)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 22 April 2004 by the Commission of the European Communities, represented by K. Wiedner and G. Bambara, acting as Agents.

The applicant claims that the Court should:

| — | Declare that, since ANAS S.p.A. awarded the concession for the construction and management of the Valtrompia motorway to the Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a., by direct concession by means of a contract signed on 7 December 1999 without prior publication of a contract notice, and where the requirements for such a concession were not met, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC (1) of 14 June 1993 coordinating the procedures for the award of public works contracts and in particular Articles 3(1) and 11(3), (6) and (7) thereof; |
| --- | --- |

—

Declare that, since ANAS S.p.A. awarded the concession for the construction and management of the Valtrompia motorway to the Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a., by direct concession by means of a contract signed on 7 December 1999 without prior publication of a contract notice, and where the requirements for such a concession were not met, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC (1) of 14 June 1993 coordinating the procedures for the award of public works contracts and in particular Articles 3(1) and 11(3), (6) and (7) thereof;

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

—

Order the Italian Republic to pay to the costs.

Pleas in law and main arguments:

According to the Commission, ANAS's concession relating to the construction and management of the Valtrompia motorway without prior publication of a contract notice does not comply with Directive 93/37/EEC and in particular with Articles 3(1) and 11(3), (6) and (7) thereof.

Article 3 of the Directive provides for the application of certain advertising rules at Community level where the contracting authorities conclude a public works concession contract if the value of that contract exceeds EUR 5 million. In particular, under Article 11(3) of the directive, contracting authorities wishing to award a works concession contract must make known that intention by means of a contract notice to be sent, pursuant to Article 11(7) of the directive, to the Office for Official Publications of the European Communities.

Since the contract for the construction and management of the Valtrompia motorway is worth approximately EUR 640 million, it clearly should have been the subject of publication in the Official Journal of the European Communities.

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(1)  OJ L 199 of 9.8.1993, p. 54.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/3 |
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10.7.2004

EN

Official Journal of the European Union

C 179/3

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Action brought on 22 April 2004 by the Hellenic Republic against the Commission of the European Communities

(Case C-189/04)

(2004/C 179/06)

An action against the Commission of the European Communities was brought on 22 April 2004 before the Court of Justice of the European Communities by the Hellenic Republic, represented by Panayiotis Milonopoulos, legal adviser of the Community law section of the special legal service of the Ministry of Foreign Affairs and by Vasilios Kiriazopoulos, of the State legal service, with an address for service in Luxembourg at the Greek Embassy, 27 Rue Marie-Adelaide.

The applicant claims that the Court should:

| — | Declare void the offsetting by the Commission of the European Communities of the amount of EUR 565,656.80 (participation by the Ministry of Foreign Affairs in the construction of a common European Union diplomatic representation in Abouja, Nigeria) included in the total amount of offset of EUR 1,653,298.54 from the amount made available to Greece in the context of the relevant support programme. |
| --- | --- |

—

Declare void the offsetting by the Commission of the European Communities of the amount of EUR 565,656.80 (participation by the Ministry of Foreign Affairs in the construction of a common European Union diplomatic representation in Abouja, Nigeria) included in the total amount of offset of EUR 1,653,298.54 from the amount made available to Greece in the context of the relevant support programme.

| — | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

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

Pleas and main arguments

The Hellenic Republic maintains that the Commission did not pay due heed to the fact that the Additional memorandum of understanding was not ratified by Hellenic Republic and applies without the participation of the Hellenic Republic in the Abouja II project.

Nor was sufficient credence paid by the defendant to the substantive acknowledgement by the Hellenic Republic of its debts arising out of its participation in the Abouja I project.

In that connection the Hellenic Republic maintains that the Commission of the European Communities infringed the principles governing collection of amounts and the provision, clearance and confirmation of liabilities, as well as the principles governing collection by means of offsetting.

In light of the foregoing the Hellenic Republic maintains that by issuing the offsetting notice the Commission infringed substantive provisions of law, that is to say, on the one hand, the provisions of Regulation No 3342/02 and, on the other, the provisions of Article 15 of the initial memorandum of understanding.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/4 |
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Official Journal of the European Union

C 179/4

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Reference for a preliminary ruling by the Rechtbank 's-Gravenhage by order of 22 April 2004 in the case of Nederlandse Vereniging Diervoederindustrie Nevedi v Produktschap Diervoeder

(Case C-194/04)

(2004/C 179/07)

Reference has been made to the Court of Justice of the European Communities by order of 22 April 2004 of the Rechtbank 's-Gravenhage (Local Court, The Hague), which was received at the Court Registry on 27 April 2004, for a preliminary ruling in the case of Nederlandse Vereniging Diervoederindustrie Nevedi v Produktschap Diervoeder on the following questions:

| 1. | Are Article 1(1)(b) of Directive 2002/2 (1) and/or Article 1(4) of Directive 2002/2, to the extent to which it amends Article 5c(2)(a) of Directive 79/373 by requiring percentages to be listed, invalid by reason of:






  (a) | the absence of a legal basis in Article 152(4)(b) EC; |
| --- | --- | --- |

1.

Are Article 1(1)(b) of Directive 2002/2 (1) and/or Article 1(4) of Directive 2002/2, to the extent to which it amends Article 5c(2)(a) of Directive 79/373 by requiring percentages to be listed, invalid by reason of:

(a)

the absence of a legal basis in Article 152(4)(b) EC;

| (b) | infringement of fundamental rights, such as the right to property and the right freely to exercise a trade or profession; |
| --- | --- |

(b)

infringement of fundamental rights, such as the right to property and the right freely to exercise a trade or profession;

| (c) | infringement of the principle of proportionality? |
| --- | --- |

(c)

infringement of the principle of proportionality?

| 2. | If the conditions are satisfied under which a national court of a Member State is entitled to suspend implementation of a contested measure of the Community institutions, in particular also the condition that the question concerning the validity of the contested measure has already been referred by a national court of that Member State to the Court of Justice, are the competent public authorities of the other Member States themselves also entitled, without judicial intervention, to suspend the contested measure until such time as the Court of Justice has given a ruling on the validity of that measure? |
| --- | --- |

2.

If the conditions are satisfied under which a national court of a Member State is entitled to suspend implementation of a contested measure of the Community institutions, in particular also the condition that the question concerning the validity of the contested measure has already been referred by a national court of that Member State to the Court of Justice, are the competent public authorities of the other Member States themselves also entitled, without judicial intervention, to suspend the contested measure until such time as the Court of Justice has given a ruling on the validity of that measure?

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(1)  OJ L 63 of 6 March 2002, pp. 23 to 25.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/4 |
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Action brought on 29 April 2004 by the Commission of the European Communities against the Republic of Finland

(Case C-195/04)

(2004/C 179/08)

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 29 April 2004 by the Commission of the European Communities, represented by K. Wiedner and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | Declare that the Republic of Finland has failed to fulfil its obligations under Article 28 EC, since Senaatti-kiinteistöt, when procuring institutional kitchen equipment, infringed fundamental provisions of the EC Treaty, in particular the principle of non-discrimination, which includes the obligation of publicity, and |
| --- | --- |

1.

Declare that the Republic of Finland has failed to fulfil its obligations under Article 28 EC, since Senaatti-kiinteistöt, when procuring institutional kitchen equipment, infringed fundamental provisions of the EC Treaty, in particular the principle of non-discrimination, which includes the obligation of publicity, and

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

2.

Order the Republic of Finland to pay the costs.

Pleas in law and main arguments

Although the Community directives concerning public procurement do not apply to contracts whose value is less than their threshold of application, fundamental provisions of the EC Treaty must be complied with, in particular the principle of non-discrimination, which includes the obligation of publicity.

The Court of Justice has held that, even though certain contracts concerning public procurement are outside the scope of the procurement directives, the procurement authorities which conclude them must nevertheless comply with the fundamental provisions of the Treaty. Even though the Community legislature considered that the detailed procedures laid down in the directives concerning public procurement are not regarded as applicable to public contracts below the threshold values in accordance with those provisions, that alone does not mean, however, that such procurement contracts do not fall within the scope of Community law.

The case-law clearly shows that a procurement must be made public to a reasonable extent and that that obligation of publicity must be complied with even in the case of contracts whose estimated values are below the threshold of application of the EC procurement directives.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/4 |
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Action brought on 4 May 2004 by the Commission of the European Communities against the United Kingdom

(Case C-199/04)

(2004/C 179/09)

An action against the United Kingdom was brought before the Court of Justice of the European Communities on 4 May 2004 by the Commission of the European Communities, represented by Ms Claire-Françoise Durand and Ms Florence Simonetti, acting as agents, assisted by Miss Anneli Howard, Barrister, with an address for service in Luxembourg.

The Applicant claims that the Court should declare that:

| 1) | the United Kingdom of Great Britain and Northern Ireland has failed to take all the measures necessary to ensure the complete and correct implementation of Articles 2, 3, 4, 5, 6, 8 and 9 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1) as amended by Council Directive 97/11/EC of 3 March 1997 (2). |
| --- | --- |

1)

the United Kingdom of Great Britain and Northern Ireland has failed to take all the measures necessary to ensure the complete and correct implementation of Articles 2, 3, 4, 5, 6, 8 and 9 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1) as amended by Council Directive 97/11/EC of 3 March 1997 (2).

| 2) | the United Kingdom of Great Britain and Northern Ireland are liable to pay the costs. |
| --- | --- |

2)

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

Pleas in law and main arguments:

It is not disputed that the UK has adopted the necessary legislation to implement Directive 85/337 as well as the amendments introduced by Directive 97/11. This application concerns the manner in which the UK authorities have interpreted and applied the relevant provisions which, the Commission asserts, fails to ensure the correct and complete implementation into national law of the Directive, both in its unamended and amended form.

In this application the Commission puts forward two main heads of infringement, namely:

| a) | that the use by the UK authorities of the domestic ‘material change of use’ test in relation to the approval of the planning application, coupled with the narrow interpretation of ‘project’, operates to exclude certain projects and modifications of existing projects from the legitimate scope of the Directive with the result that the Environmental Impact |Assessment procedures are not applied to such projects; and |
| --- | --- |

a)

that the use by the UK authorities of the domestic ‘material change of use’ test in relation to the approval of the planning application, coupled with the narrow interpretation of ‘project’, operates to exclude certain projects and modifications of existing projects from the legitimate scope of the Directive with the result that the Environmental Impact |Assessment procedures are not applied to such projects; and

| b) | that the UK government has failed to integrate its planning and pollution controls adequately so as to ensure compliance with all of the obligations in Article 3 and 8 of the Directive. |
| --- | --- |

b)

that the UK government has failed to integrate its planning and pollution controls adequately so as to ensure compliance with all of the obligations in Article 3 and 8 of the Directive.

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(1)  OJ L 175, 5.7.1985, p. 40.

(2)  OJ L 73, 14.3.1997, p. 5.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/5 |
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Reference for a preliminary ruling by the Hof van Beroep te Antwerpen by order of 27 April 2004 in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie

(Case C-201/04)

(2004/C 179/10)

Reference has been made to the Court of Justice of the European Communities by order of 27 April 2004 of the Hof van Beroep te Antwerpen (Appeal Court, Antwerp), which was received at the Court Registry on 5 May 2004, for a preliminary ruling in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie on the following questions:

| 1. | Do Articles 217 to 232 of the Community Customs Code (Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code – these being the provisions of Chapter 3 (‘Recovery of the amount of the customs debt’) of Title VII (‘Customs debt’), the said Chapter 3 consisting of a Section 1 (‘Entry in the accounts and communication of the amount of duty to the debtor’ – Arts 217 to 221) and a Section 2 (‘Time limit and procedures for payment of the amount of duty’ – Arts 222 to 232) – apply to the recovery of a customs debt which was incurred prior to 1 January 1994 but recovery of which was not undertaken or initiated prior to 1 January 1994? |
| --- | --- |

1.

Do Articles 217 to 232 of the Community Customs Code (Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code – these being the provisions of Chapter 3 (‘Recovery of the amount of the customs debt’) of Title VII (‘Customs debt’), the said Chapter 3 consisting of a Section 1 (‘Entry in the accounts and communication of the amount of duty to the debtor’ – Arts 217 to 221) and a Section 2 (‘Time limit and procedures for payment of the amount of duty’ – Arts 222 to 232) – apply to the recovery of a customs debt which was incurred prior to 1 January 1994 but recovery of which was not undertaken or initiated prior to 1 January 1994?

| 2. | If the first question is answered in the affirmative: must the notification prescribed in Article 221 of the Community Customs Code always take place after the amount of the duties has been entered in the accounts, or, in other words, must the notification prescribed in Article 221 of the Community Customs Code always be preceded by entry of the duties in the accounts? |
| --- | --- |

2.

If the first question is answered in the affirmative: must the notification prescribed in Article 221 of the Community Customs Code always take place after the amount of the duties has been entered in the accounts, or, in other words, must the notification prescribed in Article 221 of the Community Customs Code always be preceded by entry of the duties in the accounts?

| 3. | Does late notification of the amount of duties to the debtor – that is to say, notification made after expiry of the three-year period laid down in the original version of Article 221(3) of the Community Customs Code (in force prior to its replacement [effective from 19 December 2000] by Article 1.17 of Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000), even though the customs authorities were in fact in a position to determine, within that three-year period, the precise amount of the duties legally due – make it impossible to pursue recovery of the customs debt in question, lead to the cancellation of the customs debt in question, or have some other consequence in law? |
| --- | --- |

3.

Does late notification of the amount of duties to the debtor – that is to say, notification made after expiry of the three-year period laid down in the original version of Article 221(3) of the Community Customs Code (in force prior to its replacement [effective from 19 December 2000] by Article 1.17 of Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000), even though the customs authorities were in fact in a position to determine, within that three-year period, the precise amount of the duties legally due – make it impossible to pursue recovery of the customs debt in question, lead to the cancellation of the customs debt in question, or have some other consequence in law?

| 4. | Must Member States determine the manner in which notification of the amount of duties, as laid down in Article 221 of the Community Customs Code, must be made to the debtor?
  If the previous question is answered in the affirmative, can the Member State which has failed to specify how notification of the amount of duties as laid down in Article 221 of the Community Customs Code should be made to the debtor argue that any document in which the amount of the duties is set out and which (following entry in the accounts) was notified to the debtor may constitute notification to the debtor of the amount of duties, as prescribed in Article 221 of the Community Customs Code, even though that document does not in any way refer to Article 221 of the Community Customs Code or indicate that it relates to notification to the debtor of the amount of duties owed? |
| --- | --- |

4.

Must Member States determine the manner in which notification of the amount of duties, as laid down in Article 221 of the Community Customs Code, must be made to the debtor?

If the previous question is answered in the affirmative, can the Member State which has failed to specify how notification of the amount of duties as laid down in Article 221 of the Community Customs Code should be made to the debtor argue that any document in which the amount of the duties is set out and which (following entry in the accounts) was notified to the debtor may constitute notification to the debtor of the amount of duties, as prescribed in Article 221 of the Community Customs Code, even though that document does not in any way refer to Article 221 of the Community Customs Code or indicate that it relates to notification to the debtor of the amount of duties owed?

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(1)  OJ L 302 of 19 October 1992, pp. 1-50.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/6 |
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Reference for a preliminary ruling by the Tribunale di Roma (District Court, Rome) by order of that court of 7 April 2004 in the case of Stefano Macrino and Claudia Capodarte against Roberto Meloni

(Case C-202/04)

(2004/C 179/11)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Roma (District Court, Rome) (Italy) of 7 April 2004, received at the Court Registry on 6 May 2004, for a preliminary ruling in the case of Stefano Macrino and Claudia Capodarte against Roberto Meloni on the following question:

Do Articles 5 and 85 of the EC Treaty (now Articles 10 and 81 EC) preclude a Member State from adopting a law or regulation which approves, on the basis of a draft produced by a professional body of members of the Bar, a tariff fixing minimum and maximum fees for members of the profession in respect of services rendered in connection with activities (so-called non-court work) that are not reserved to members of the Bar but may be performed by anyone?

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/6 |
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Appeal brought on 10 May 2004 by Mülhens GmbH & Co. KG against the judgment delivered on 3 March 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-355/02 between Mülhens GmbH & Co. KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Zirh International Corp.

(Case C-206/04 P)

(2004/C 179/12)

An appeal against the judgment delivered on 3 March 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-355/02 (1) between Mülhens GmbH & Co. KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Zirh International Corp., was brought before the Court of Justice of the European Communities on 10 May 2004 by Mülhens GmbH & Co. KG, established in Cologne (Germany), represented by T. Schulte-Beckhausen, lawyer.

The Appellant claims that the Court should:

| 1. | annul the decision of the Court of First Instance of the European Communities of 3 March 2004 (Case T-355/02) and also the decision of the Second Board of Appeal of the defendant and appellee of 1 October 2002 (Case No. R-657/2001-2); |
| --- | --- |

1.

annul the decision of the Court of First Instance of the European Communities of 3 March 2004 (Case T-355/02) and also the decision of the Second Board of Appeal of the defendant and appellee of 1 October 2002 (Case No. R-657/2001-2);

| 2. | order the defendant and appellee to pay the costs in total. |
| --- | --- |

2.

order the defendant and appellee to pay the costs in total.

Pleas in law and main arguments:

The appellant submits that, given the similarity of the goods and services in question and the similarity in sound of the opposed marks, the Court of First Instance should have come to the conclusion that there is a likelihood of confusion between the opposed marks, pursuant to Article 8(1)(b) of Regulation No 40/94 (2).

The appellant therefore maintains that the Court of First Instance has misconstrued the requirements of Article 8(1)(b) and that the contested judgment should be annulled.

---

(1)  OJ C 70, 22.03.2003, p. 23.

(2)  Of 20 December 1993 on the Community trade mark (OJ L 11, 14.01.1994, p. 1), as amended.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/6 |
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Reference for a preliminary ruling by the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), by order of that court of 26 April 2004, in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office)

(Case C-207/04)

(2004/C 179/13)

Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), of 26 April 2004, received at the Court Registry on 10 May 2004, for a preliminary ruling in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office) on the following question:

Does Article 17(4a) of Decree No 917/86 of the President of the Republic infringe, conflict with or in any event create conditions of unequal treatment as between men and women prohibited by Article 141 of the European Union Treaty (previously Article 119) in so far as, in like circumstances, it grants the advantage of taxation of voluntary redundancy incentives and of sums paid in connection with termination of employment relationships at a rate reduced to one-half (50 %) for workers who have passed the age of 50 years in the case of women and the age of 55 years in the case of men (1)?

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(1)  OJ L 39, 14 February 1976, p. 40.

1

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/7 |
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Reference for a preliminary ruling by the Conseil d'Etat (Belgium), XIIIth Chamber, by judgment of that court of 29 April 2004 in the case Inter-Environnement Wallonnie against Région wallonne

(Case C-208/04)

(2004/C 179/14)

A reference has been made to the Court of Justice of the European Communities by judgment of the Conseil d'Etat (Belgium), XIIIth Chamber, of 29 April 2004, received at the Court Registry on 11 May 2004, for a preliminary ruling in the case Inter-Environnement Wallonnie against Région wallonne on the following question:

‘Is Article 1(a) of Directive 75/442/EEC of 15 July 1975 (1), as amended by Directive 91/156/EEC of 18 March 1991 (2), to be construed as allowing Member States to create, by means of a legal rule, a category of materials which do not come either under the category of waste or that of products but may none the less either meet the definition of waste set out in Article 1(a) or contain substances or objects which meet that definition of waste?’

---

(1)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194 of 25.07.1975, p. 39).

(2)  Council Directive 91/156/EEC of 18 March 1991, amending Directive 75/442/EEC on waste (OJ L 78 of 26.03.1991, p. 32).

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/7 |
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Action brought on 12 May 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-209/04)

(2004/C 179/15)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 12 May 2004 by the Commission of the European Communities, represented by M. Van Beek and B. Schima, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing to include in the designated special area of conservation ‘Lauteracher Ried’ the sites ‘Soren’ and ‘Gleggen-Köblern’, which, together with that special protection area, are, according to scientific criteria, among the most suitable territories in number and size within the meaning of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (1) (‘the Birds Directive’), and






  — | by failing, when authorising the planned construction of the S 18 Lake Constance dual carriageway, to comply properly and fully with the requirements applicable by virtue of Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (2) (‘the Habitats Directive’) in the case of execution of a project where there has been a negative assessment of the implications for the site, |
| --- | --- | --- |

1.

declare that, by failing to include in the designated special area of conservation ‘Lauteracher Ried’ the sites ‘Soren’ and ‘Gleggen-Köblern’, which, together with that special protection area, are, according to scientific criteria, among the most suitable territories in number and size within the meaning of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (1) (‘the Birds Directive’), and

—

by failing, when authorising the planned construction of the S 18 Lake Constance dual carriageway, to comply properly and fully with the requirements applicable by virtue of Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (2) (‘the Habitats Directive’) in the case of execution of a project where there has been a negative assessment of the implications for the site,

| — | the Republic of Austria has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive and Article 6(4) in conjunction with Article 7 of the Habitats Directive |
| --- | --- |

—

the Republic of Austria has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive and Article 6(4) in conjunction with Article 7 of the Habitats Directive

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

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

The Republic of Austria informed the Commission of the designation of the area ‘Lauteracher Ried’ in Vorarlberg as a special protection area (SPA). That area is an important breeding ground for the bird species corncrake (Crex crex) mentioned in Annex I to the Birds Directive and an important breeding ground, habitat and/or stopping point for a variety of other species of migratory birds in Vorarlberg.

The Commission takes the view that, from an ornithological point of view, there is no logical explanation for the present boundaries of the SPA Lauteracher Ried and that, as far as specialists are concerned, if the ‘Soren’ and ‘Gleggen-Köblern’ sites are not encompassed, the area is not suitable to guarantee the long-term conservation of the population of the endangered species of birds. The Republic of Austria has therefore failed to comply with the requirements laid down in Article 4(1) and (2) of the Birds Directive.

Moreover, in connection with the planned construction of the S 18 Lake Constance dual carriageway, there has been a failure to comply with the obligations arising from Article 6(4) in conjunction with Article 7 of the Birds Directive as regards the requirements for protection of the Lauteracher Ried area. Whilst the conservation assessment — which reached a negative conclusion as to the impact of the planned road construction on the aims of protection and conservation of the bird species in the Lauteracher Ried area — seems, essentially, to have satisfied the requirements of an assessment of the implications for the site under Article 6(3), there has been a failure to comply with the further procedure to be followed under Article 6(4) in the event of a negative outcome of the assessment, that is to say, alternative solutions were not properly examined and compensatory measures were not properly implemented.

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(1)  OJ 1979 L 103, p. 3.

(2)  OJ 1992 L 206, p. 7.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/8 |
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Action brought on 12 May 2004 by the Italian Republic against the Commission of the European Communities

(Case C-211/04)

(2004/C 179/16)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 12 May 2004 by the Italian Republic, represented by Ivo Maria Braguglia, acting as Agent, assisted by Maurizio Fiorelli, Avvocato dello Stato.

The applicant claims that the Court should:

| — | annul Commission Regulation (EC) No 316/2004 (1) amending Regulation (EC) No 753/2002 (2) laying down certain rules for applying Council Regulation (EC) No 1493/1999 (3) as regards the description, designation, presentation and protection of certain wine sector products, in particular as regards the amendment of Articles 24, 36 and 37 of Regulation No 753/2002 concerning the protection of traditional terms. |
| --- | --- |

—

annul Commission Regulation (EC) No 316/2004 (1) amending Regulation (EC) No 753/2002 (2) laying down certain rules for applying Council Regulation (EC) No 1493/1999 (3) as regards the description, designation, presentation and protection of certain wine sector products, in particular as regards the amendment of Articles 24, 36 and 37 of Regulation No 753/2002 concerning the protection of traditional terms.

Pleas in law and main arguments

The applicant claims that the regulation amending Regulation No 753/2002 is vitiated by reason of:

| — | unlawful procedure for the adoption of the regulation on the grounds of infringement of procedural rules and failure to ensure the right to be heard effectively; |
| --- | --- |

—

unlawful procedure for the adoption of the regulation on the grounds of infringement of procedural rules and failure to ensure the right to be heard effectively;

| — | failure to compare the interests of Community producers with those of producers outside the Community; |
| --- | --- |

—

failure to compare the interests of Community producers with those of producers outside the Community;

| — | lack of power and infringement of the rules of the Council; |
| --- | --- |

—

lack of power and infringement of the rules of the Council;

| — | infringement of Article 24(3) of the TRIPS agreement. |
| --- | --- |

—

infringement of Article 24(3) of the TRIPS agreement.

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(1)  OJ L 55 of 24.02.2004, p. 16.

(2)  OJ L 118 of 04.05.2004, p. 1.

(3)  OJ L 179 of 14.07.1999, p. 1.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/8 |
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Reference for a preliminary ruling by the Monomeles Protodikio Thessalonikis (Greece) by order of that court of 8 April 2004 in the case of Konstantinos Adeler and Others against Ellinikos Organismos Galaktos

(Case C-212/04)

(2004/C 179/17)

Reference has been made to the Court of Justice of the European Communities by order of the Monomeles Protodikio Thessalonikis of 8 April 2004, received at the Court Registry on 17 May 2004, for a preliminary ruling in the case of Konstantinos Adeler and Others against Ellinikos Organismos Galaktos on the following questions:

| 1. | Must a national court – as far as possible – interpret its domestic law in accordance with a directive which was transposed belatedly into its national legal system from (a) the time when the directive entered into force, or (b) the time when the time-limit for transposing it into national law passed without transposition being effected, or (c) the time when the national measure implementing it entered into force? |
| --- | --- |

1.

Must a national court – as far as possible – interpret its domestic law in accordance with a directive which was transposed belatedly into its national legal system from (a) the time when the directive entered into force, or (b) the time when the time-limit for transposing it into national law passed without transposition being effected, or (c) the time when the national measure implementing it entered into force?

| 2. | Does Clause 5(1) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which constitutes an integral part of Council Directive 1999/70/EC (OJ 1999 L 175, p. 43), mean that, in addition to reasons connected with the nature, type or characteristics of the work performed or other similar reasons, the fact solely and simply that the conclusion of a fixed-term contract is required by a provision of law or secondary legislation constitutes an objective reason for continually renewing or concluding successive fixed-term employment contracts? |
| --- | --- |

2.

Does Clause 5(1) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which constitutes an integral part of Council Directive 1999/70/EC (OJ 1999 L 175, p. 43), mean that, in addition to reasons connected with the nature, type or characteristics of the work performed or other similar reasons, the fact solely and simply that the conclusion of a fixed-term contract is required by a provision of law or secondary legislation constitutes an objective reason for continually renewing or concluding successive fixed-term employment contracts?

| 3. | May Clause 5(1) and (2) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which constitutes an integral part of Council Directive 1999/70/EC (OJ 1999) L175, p. 43), be interpreted to the effect that national provisions which lay down that fixed-term employment contracts or relationships are to be regarded as successive only if a period of at most 20 working days separates them [must be disapplied] and, further, that the presumption introduced in favour of the worker that successive fixed-term employment contracts or relationships should be recognised as of unlimited duration must be applied in the above circumstances? |
| --- | --- |

3.

May Clause 5(1) and (2) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which constitutes an integral part of Council Directive 1999/70/EC (OJ 1999) L175, p. 43), be interpreted to the effect that national provisions which lay down that fixed-term employment contracts or relationships are to be regarded as successive only if a period of at most 20 working days separates them [must be disapplied] and, further, that the presumption introduced in favour of the worker that successive fixed-term employment contracts or relationships should be recognised as of unlimited duration must be applied in the above circumstances?

| 4. | Is the prohibition, in Article 21 of Greek Law 2190/1994, of the conversion of successive fixed-term employment contracts into contracts of unlimited duration, when those contracts are said to have been concluded for a fixed term to cover the exceptional or seasonal needs of the employer but are aimed at covering its fixed and permanent needs, compatible with the principle of effectiveness of Community law and the purpose of Clause 5(1) and (2) in conjunction with Clause 1 of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which constitutes an integral part of Council Directive 1999/70/EC (OJ 1999 L 175, p. 43)? |
| --- | --- |

4.

Is the prohibition, in Article 21 of Greek Law 2190/1994, of the conversion of successive fixed-term employment contracts into contracts of unlimited duration, when those contracts are said to have been concluded for a fixed term to cover the exceptional or seasonal needs of the employer but are aimed at covering its fixed and permanent needs, compatible with the principle of effectiveness of Community law and the purpose of Clause 5(1) and (2) in conjunction with Clause 1 of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which constitutes an integral part of Council Directive 1999/70/EC (OJ 1999 L 175, p. 43)?

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/9 |
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Action brought on 26 May 2004 by the Hellenic Republic against the Commission of the European Communities

(Case C-218/04)

(2004/C 179/18)

An action against the Commission of the European Communities was brought on 26 May 2004 before the Court of Justice of the European Communities by the Hellenic Republic, represented by Vasilios Kontolaimos, legal adviser, and Joannis Kalkias, of the special office for Community law of the State Legal Service of the Ministry of Agriculture and by Sofia Callas, substitute legal adviser of the Special Legal Service of the Community law section of the Ministry for Foreign Affairs, with an address for service at the Greek Embassy, 27 rue Marie-Adelaide.

The applicant claims that Court should:

| — | Annul Commission Decision C (2002) 1070 fin of 30 March 2004 in which it sought reimbursement of the amount of EUR 710 341 paid by the Commission by way of co-financed expenditure for the setting up of the common vineyard register. |
| --- | --- |

—

Annul Commission Decision C (2002) 1070 fin of 30 March 2004 in which it sought reimbursement of the amount of EUR 710 341 paid by the Commission by way of co-financed expenditure for the setting up of the common vineyard register.

Pleas in law and main arguments

| 1. | Infringement of the law. |
| --- | --- |

1.

Infringement of the law.

| 2. | Misuse of powers. |
| --- | --- |

2.

Misuse of powers.

| 3. | The Commission Decision claiming recovery of the amount granted does not accord with the principle of proportionality and the principle of cooperation by the Commission with the Member States. |
| --- | --- |

3.

The Commission Decision claiming recovery of the amount granted does not accord with the principle of proportionality and the principle of cooperation by the Commission with the Member States.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/9 |
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Action brought on 27 May 2004 by Commission of the European Communities against Kingdom of Spain

(Case C-221/04)

(2004/C 179/19)

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 27 May 2004 by the Commission of the European Communities, represented by M. van Beek and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court of Justice should:

| — | declare that, in so far as the authorities in Castilla y Leon authorise the setting of snares in several private hunting areas, the Kingdom of Spain has failed to fulfil its obligations under Article 12(1) and Annex VI of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; |
| --- | --- |

—

declare that, in so far as the authorities in Castilla y Leon authorise the setting of snares in several private hunting areas, the Kingdom of Spain has failed to fulfil its obligations under Article 12(1) and Annex VI of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The permits for fox hunting with snares granted by the authorities of Castilla y León are contrary to Article 12(1) and Annex VI of Directive 92/43/EEC for two reasons.

First, the use of snares has been authorised in the regions of Aldeanueva de la Sierra and Mediana de Voltoya, which involves the hunting or deliberate disturbance of an animal species, Lutra lutra (Otter), included in Annex IV of the Directive, which is a species of Community interest that requires special protection. The authorities of Castilla y León have recognised the presence of otters in those regions.

Second, the snare is a non-selective method of hunting, since any animal may be trapped, regardless of whether or not its capture is desired (in this case the fox). The Spanish authorities' argument that the permits contain a clause requiring other species to be freed does not mean the traps are selective, since the animals captured usually suffer injury, including the loss of limbs, by attempting to free themselves from the snares.

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(1)  OJ L 206 of 22. 7. 1992, p. 7.

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COURT OF FIRST INSTANCE

| 10.7.2004 | EN | Official Journal of the European Union | C 179/10 |
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Action brought on 16 April 2004 by Elisabetta Righini against the Commission of the European Communities

(Case T-145/04)

(2004/C 179/20)

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 16 April 2004 by Elisabetta Righini, living in Brussels, represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

| — | Annul the Commission's decisions classifying the applicant at Grade A7-3 on her entry into service, whether as a member of the temporary staff or as a probationary official, such decisions having been notified to her on 27 May 2003 and 30 June 2003; |
| --- | --- |

—

Annul the Commission's decisions classifying the applicant at Grade A7-3 on her entry into service, whether as a member of the temporary staff or as a probationary official, such decisions having been notified to her on 27 May 2003 and 30 June 2003;

| — | Order the Commission to pay the costs, pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

Order the Commission to pay the costs, pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

The applicant challenges her classification in Grade A7, Step 3, on her appointment as a probationary official on 21 May 2003.

In support of her claims, she alleges:

| — | infringement of Article 31(2) of the Staff Regulations; |
| --- | --- |

—

infringement of Article 31(2) of the Staff Regulations;

| — | infringement of the Commission's decision of 1 September 1983, as amended on 7 February 1996, specifying the criteria to be applied when classifying members of the temporary staff and officials in their grade and step upon recruitment; |
| --- | --- |

—

infringement of the Commission's decision of 1 September 1983, as amended on 7 February 1996, specifying the criteria to be applied when classifying members of the temporary staff and officials in their grade and step upon recruitment;

| — | infringement of certain general principles of law, such as the principle of equal treatment, the protection of legitimate expectations and the duty to have due regard to the welfare of officials, and also of the principles requiring the appointing authority to make a decision only on the basis of relevant grounds, not vitiated by an obvious error of assessment. |
| --- | --- |

—

infringement of certain general principles of law, such as the principle of equal treatment, the protection of legitimate expectations and the duty to have due regard to the welfare of officials, and also of the principles requiring the appointing authority to make a decision only on the basis of relevant grounds, not vitiated by an obvious error of assessment.

The applicant argues that both her exceptional qualifications and the profile of the post in question, which required that a particularly qualified person be appointed, justified her classification in Grade A6.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/10 |
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Action brought on 26 April 2004 by TQ3 Travel Solutions against the Commission of the European Communities

(Case T-148/04)

(2004/C 179/21)

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 26 April 2004 by TQ3 Travel Solutions, established in Mechelen (Belgium), represented by Rusen Ergec and Kim Möric, lawyers.

The applicant claims that the Court should:

| — | Annul the Commission's decision of 24 February 2004, informing the applicant of the rejection of its tender for Lot 1 (Brussels) of Contract No ADMIN/D1/PR/2003/131; |
| --- | --- |

—

Annul the Commission's decision of 24 February 2004, informing the applicant of the rejection of its tender for Lot 1 (Brussels) of Contract No ADMIN/D1/PR/2003/131;

| — | Annul the Commission's decision awarding Lot 1 to Carlson Wagonlit Travel, notified to the applicant by a letter from the Commission of 16 March 2004; |
| --- | --- |

—

Annul the Commission's decision awarding Lot 1 to Carlson Wagonlit Travel, notified to the applicant by a letter from the Commission of 16 March 2004;

| — | Hold that the unlawful action by the Commission constitutes a fault capable of rendering it liable to the appliant; |
| --- | --- |

—

Hold that the unlawful action by the Commission constitutes a fault capable of rendering it liable to the appliant;

| — | Send the applicant back to the Commission for the loss suffered to be assessed; |
| --- | --- |

—

Send the applicant back to the Commission for the loss suffered to be assessed;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

Following a restricted invitation to tender for ‘travel agency services’ (1) issued on 20 October 2003 and the tendering procedure, the Commission took the decision not to award the contract to the applicant and to award it to Carlson Wagonlit Travel.

The applicant makes two identical pleas in law challenging those decisions, alleging obvious error by the Commission in assessing the tenders.

In its first plea, the applicant claims that the Commission made an obvious error of assessment by holding that the tender of Carlson Wagonlit Travel was not abnormally low; it also claims that the Commission acted unlawfully by failing to comply with the obligation under Article 146(4) of Commission Regulation (EC) No 2342/2002 of 23 December 2002 (2), requiring it to ask for appropriate clarifications as to the composition of the tender.

The second plea alleges obvious error by the Commission in assessing the quality of the tenders, giving the tender by Carlson Wagonlit Travel the highest mark for the quality of the services offered, whereas that tender was unable to allow sufficient quality for the services concerned to be guaranteed.

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(1)  Contract No ADMIN/D1/PR/2003/131 (OJ S 143).

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/11 |
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Action brought on 26 April 2004 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities

(Case T-152/04)

(2004/C 179/22)

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 26 April 2004 by GRAFTECH INTERNATIONAL LTD., Wilmington, Delaware, USA, represented by K.P.E. Lasok QC and Brian Hartnett Barristers with an address for service in Luxembourg.

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | alternatively, amend the contested decision, in exercise of the Court's unlimited jurisdiction, so as to cause interest at 8.04 % to run only as from 30 September 2003, or as to reduce the rate of interest; |
| --- | --- |

—

alternatively, amend the contested decision, in exercise of the Court's unlimited jurisdiction, so as to cause interest at 8.04 % to run only as from 30 September 2003, or as to reduce the rate of interest;

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

—

order the Commission to pay the applicant's costs.

Pleas in law and main arguments:

The subject matter of this action is a decision of the Commission, contained in a letter of 17 February 2004, by which the Commission required the applicant to pay interest on a fine imposed by a Commission Decision of 18 July 2001 (1) at the rate of 8.04 % instead of 6.04 %.

In support of its application, the applicant claims that the Commission has acted unlawfully in seeking to impose the higher of the two possible interest rates. According to the applicant, the delay in the payment of the fine or the provision of a satisfactory financial guarantee for the fine was due to the recognition by the Commission that the applicant could not pay the fine and the efforts by both parties to reach an agreement on what would constitute a satisfactory financial guarantee. The applicant claims that it should not be treated as a party in default in the light of its decision to appeal against the decision imposing the fine and the nature and content of the negotiations undertaken in good faith.

The applicant furthermore claims that the Commission acted contrary to Article 86(5) of Regulation 2342/2002 (2).

The applicant also claims that the conduct of the Commission allowed the applicant to legitimately expect that an interest rate of 6.04 % would be imposed.

The applicant invokes a violation of the principle of good administration because the Commission failed to agree on an appropriate form of a financial guarantee. Also, the applicant claims that the Commission failed to give clear notice that the higher interest rate would be levied during the period of negotiation.

Finally, the applicant claims that the contested decision is disproportionate. According to the applicant, the justification for the default rate of interest is to deter dilatory behaviour and not to penalise bona fide negotiations that the Commission has willingly embarked upon and continued at its own pace.

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(1)  2002/271/EC: Commission Decision of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement - Case COMP/E-1/36.490 - Graphite electrodes (OJ 2002 L 100, p. 1).

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 357, p. 1).

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/11 |
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Action brought on 23 April 2004 by ALENIA MARCONI SYSTEMS SpA against Commission of the European Communities

(Case T-155/04)

(2004/C 179/23)

Language of the case: Italian

An action was brought before the Court of First Instance of the European Communities on 23 April 2004 against Commission of the European Communities by ALENIA MARCONI SYSTEMS SpA, represented by Francesco Sciaudone, Lawyer.

The applicant claims that the Court of First Instance should:

| — | Order the Commission to produce to the Court of First Instance all the records available to it concerning the complaint lodged by the applicant; |
| --- | --- |

—

Order the Commission to produce to the Court of First Instance all the records available to it concerning the complaint lodged by the applicant;

| — | Annul and/or amend the contested decision; |
| --- | --- |

—

Annul and/or amend the contested decision;

| — | Adopt any other measure which the Court of First Instance may consider appropriate to ensure that the Commission fulfils its obligations under Article 223 EC and, in particular, re-examines the complaint lodged on 27 October 1997; |
| --- | --- |

—

Adopt any other measure which the Court of First Instance may consider appropriate to ensure that the Commission fulfils its obligations under Article 223 EC and, in particular, re-examines the complaint lodged on 27 October 1997;

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

—

Order the Commission to pay the costs.

Pleas and principal arguments adduced in support

The contested decision rejected the complaint lodged on 27 October 1997 under Article 3 of Regulation No 17/62 by the company then named Alenia Difesa, the business arm of FINMECCANICA SpA, in connection with the supposed absence of the preconditions for the applicability to Eurocontrol of the Community competition provisions and the absence of sufficient evidence to prove the alleged abuses to which the complaint related. In particular, the applicant had complained of abuses of a dominant position engaged in by Eurocontrol and the distorting effects on competition of the management methods used in respect of the contracts, for the development of prototypes and of intellectual property rights, with reference to the contracts for the supply of air-traffic management equipment, and in the provision of assistance to national administrations.

In the first place, the decision is challenged on the ground of infringement of Article 82 of the EC Treaty, particularly to the extent to which, although recognising in principle the applicability of Article 82 to Eurocontrol, with respect to the present case it held it not to be relevant, in so far as it denies the economic nature of the activities of standardisation and assistance to national administrations carried out by that body.

In addition to the infringement mentioned above, the decision is allegedly vitiated by the fact that the Commission:

| (a) | failed to examine from the substantive point of view the abusive nature of the conduct complained of in relation to the activity of standardisation, regulation and validation, or the activity of providing assistance to national administrations; |
| --- | --- |

(a)

failed to examine from the substantive point of view the abusive nature of the conduct complained of in relation to the activity of standardisation, regulation and validation, or the activity of providing assistance to national administrations;

| (b) | decided, when considering from the substantive point of view, albeit briefly, the conduct of Eurocontrol relating to the purchasing of prototypes and the management of related intellectual property rights, that there was no abuse within the meaning of Article 82 of the EC Treaty. |
| --- | --- |

(b)

decided, when considering from the substantive point of view, albeit briefly, the conduct of Eurocontrol relating to the purchasing of prototypes and the management of related intellectual property rights, that there was no abuse within the meaning of Article 82 of the EC Treaty.

Finally, the contested decision is, it is alleged, vitiated by the total lack of any adequate statement of reasons such as to prove the non-economic nature of certain activities of Eurocontrol and the lack of any abuse on the part of Eurocontrol within the meaning of Article 82 of the EC Treaty.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/12 |
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Action brought on 27 April 2004 by Electricité de France (EDF) against Commission of the European Communities

(Case T-156/04)

(2004/C 179/24)

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 27 April 2004 by Electricité de France (EDF), established in Paris, represented by Michel Debroux, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Articles 3 and 4 of Commission Decision C(2003)4637 Final of 16 December 2003 on State aid granted by France to the applicant and to the gas and electricity industry sectors in the form of accounting and fiscal measures adopted in 1997 when EDF's balance sheet was restructured; |
| --- | --- |

—

annul Articles 3 and 4 of Commission Decision C(2003)4637 Final of 16 December 2003 on State aid granted by France to the applicant and to the gas and electricity industry sectors in the form of accounting and fiscal measures adopted in 1997 when EDF's balance sheet was restructured;

| — | alternatively, annul Articles 3 and 4 of the contested decision inasmuch as the repayment required of EDF was very considerably overestimated; |
| --- | --- |

—

alternatively, annul Articles 3 and 4 of the contested decision inasmuch as the repayment required of EDF was very considerably overestimated;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission took the view that the non-payment by the applicant of corporation tax when tax-free provisions created by it for the renewal of its general supply network were reclassified as the provision of capital constituted State aid incompatible with the common market.

In support of its application, the applicant relies first on a plea in law based on the alleged infringement of essential procedural requirements. It argues that in altering its assessment between the decision to initiate the procedure and the adoption of the contested decision without allowing the applicant to submit its observations, the Commission failed to have regard to the rights of the defence.

The applicant next alleges that the measures at issue must be analysed as a lawful recapitalisation on the applicant's part. In failing to respond to that argument, the Commission failed in its duty to state reasons and committed an error of law in its assessment of the concept of State aid. The applicant also alleges under the same plea that the measures at issue did not affect trade between Member States and accordingly could not be considered to be State aid.

Lastly, in support of the form of order sought in the alternative, the applicant alleges that the contested decision required repayment of a greater sum than that which could possibly be considered to be due.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/13 |
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Action brought on 24 April 2004 by Davide Rovetta against Commission of the European Communities

(Case T-159/04)

(2004/C 179/25)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 April 2004 by Davide Rovetta, represented by Maurizio Gambardella, lawyer.

The applicant claims that the Court should:

| — | annul the definitive decision classifying the applicant in Grade B 5/3 of 14 May 2003 and rejecting the applicant's request No D/77/03 that he be classified in Grade B 4; |
| --- | --- |

—

annul the definitive decision classifying the applicant in Grade B 5/3 of 14 May 2003 and rejecting the applicant's request No D/77/03 that he be classified in Grade B 4;

| — | annul the decision, contained in the reply to complaint No R/563/03, refusing him access to the documents of the joint classification committee; |
| --- | --- |

—

annul the decision, contained in the reply to complaint No R/563/03, refusing him access to the documents of the joint classification committee;

| — | award damages in the nominal amount of EUR 1 for non-material damage suffered by the applicant as a result of the contested decision; |
| --- | --- |

—

award damages in the nominal amount of EUR 1 for non-material damage suffered by the applicant as a result of the contested decision;

| — | order the Commission to pay to the applicant with retrospective effect dating from his taking up of duties as if he had been classified in Grade B 4 in terms to be determined by the appointing authority; |
| --- | --- |

—

order the Commission to pay to the applicant with retrospective effect dating from his taking up of duties as if he had been classified in Grade B 4 in terms to be determined by the appointing authority;

| — | 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

Davide Rovetta, an official in Directorate General for taxation and customs union, upon completing his period of probation, applied to the appointing authority, in accordance with Article 31 of the Staff Regulations, to be classified in the higher grade in his category, that is B 4. In his request he pointed out that he had been engaged in order to carry out additional duties as a lawyer in Directorate General for taxation and customs union, Unit A3 ‘Legal affairs and enforcement of Community provisions’.

On receiving a reply in the negative from the appointing authority and being appointed to Grade B 5/3, he brought a complaint under Article 90(2) of the Staff Regulations against that decision, which was expressly rejected.

The applicant now seeks before the Court of First Instance the annulment of that decision on the complaint and of the preceding decision regarding grading as well as of the refusal to grant the access requested by him to the documents of the joint grading committee.

In the view of the applicant, those decisions were vitiated by an infringement of Articles 25 and 31 of the Staff Regulations, breach of the case-law of the Court of Justice and of the Court of First Instance on the matter and by a breach of essential procedural requirements, inadequate statement of reasons and manifest error of assessment. The applicant points out, moreover, in that connection, that the basic decision on grading of 1983, as amended by the decision of 7 February 1996, was misapplied.

Finally, the applicant alleges unlawfulness of the system of delegation of powers of the appointing authority by the College, in the context of grading, inasmuch as it is in breach of the principles of proportionality, transparency and sound administration.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/13 |
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Action brought on 3 May 2004 by Hippocrate Vounakis against Commission of the European Communities

(Case T-165/04)

(2004/C 179/26)

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 3 May 2004 by Hippocrate Vounakis, residing at Wezembeek-Oppem (Belgium), represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision establishing his career development review for the period from 1 July 2001 to 31 December 2002; |
| --- | --- |

—

Annul the decision establishing his career development review for the period from 1 July 2001 to 31 December 2002;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant contests, on formal and substantive grounds, his career development review for the period from 1 July 2001 to 31 December 2002.

In support of his claims, he asserts:

| — | infringement of Article 2 of the General Provisions implementing Article 43 of the Staff Regulations. The applicant states in that regard that the review in question was established by a person lacking the power to do so; |
| --- | --- |

—

infringement of Article 2 of the General Provisions implementing Article 43 of the Staff Regulations. The applicant states in that regard that the review in question was established by a person lacking the power to do so;

| — | the existence, in this case, of a manifest error of assessment, and inconsistency between the comments and the marks awarded; |
| --- | --- |

—

the existence, in this case, of a manifest error of assessment, and inconsistency between the comments and the marks awarded;

| — | infringement of the duty to state reasons. The applicant asserts on that point that the overall mark awarded him places him below the average, despite the fact that his previous reviews were good, without any explanation for the deterioration. |
| --- | --- |

—

infringement of the duty to state reasons. The applicant asserts on that point that the overall mark awarded him places him below the average, despite the fact that his previous reviews were good, without any explanation for the deterioration.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/14 |
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Action brought on 13 May 2004 by Carmelo Morello against the Commission of the European Communities

(Case T-166/04)

(2004/C 179/27)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 May 2004 by Carmelo Morello, living in Brussels, represented by Jacques Sambon and Pierre Paul Van Gehuchten, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | Annul the implied rejection of his application of 28 March 2003 and so far as necessary annul the rejection of his complaint; |
| --- | --- |

1.

Annul the implied rejection of his application of 28 March 2003 and so far as necessary annul the rejection of his complaint;

| 2. | Order the Commission to pay him EUR 1 000 000 in damages for non-material damage and EUR 1 000 000 in damages for material damage; |
| --- | --- |

2.

Order the Commission to pay him EUR 1 000 000 in damages for non-material damage and EUR 1 000 000 in damages for material damage;

| 3. | Order the Commission to pay the costs. |
| --- | --- |

3.

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official, had applied in the context of another case for the annulment of the nomination of another official to a post of head of unit for which he had himself applied. The Court of First Instance upheld his action by annulling the appointment in question.

At the time of the delivery of the judgment in the previous case, the official appointed to the post in question had already been promoted and moved to another post, while the post of head of unit thus vacated had been filled by the reinstatement of another official at the end of his leave on personal grounds.

After the delivery of the judgment in the previous case, the applicant applied to the Commission for implementation of the judgment in question, and then lodged a complaint against the implied rejection of his application. The Commission rejected that complaint, holding that, in the absence of an available post, it was unable to take measures implementing the previous judgment.

The present action is directed against the rejection of the applicant's application. In support of his claims, the applicant pleads infringement of Article 233 EC, infringement of Articles 4, 7, 24, 25 and 45 of the Staff Regulations, infringement of the principle of sound administration and misuse of powers or procedure. He also claims to have suffered material and non-material damage by losing a serious chance of reaching Grade A3 by the end of his career, and seeks compensation in that regard.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/14 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/14

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Action brought on 12 May 2004 by Calliope S.A. against the Office for Harmonisation in the Internal Market

(Case T-169/04)

(2004/C 179/28)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 12 May 2004 by Calliope S.A., established in Mourenx (France), represented by Stéphanie Legrand, lawyer.

BASF AG 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 4 March 2004 dismissing appeal No R 289/2003-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the OHIM of 4 March 2004 dismissing appeal No R 289/2003-1;

| — | order the OHIM to register the application for Community trade mark ‘CARPOVIRUSINE’ No 1 422 641 for the goods referred to in the application; |
| --- | --- |

—

order the OHIM to register the application for Community trade mark ‘CARPOVIRUSINE’ No 1 422 641 for the goods referred to in the application;

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

—

order the OHIM to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Applicant |
| --- | --- |
| Community trade mark sought: | Word mark ‘CARPOVIRUSINE’ – application No 1 422 641 in respect of goods in Class 5 (insecticides etc.) |
| Proprietor of mark or sign cited in the opposition proceedings: | BASF AG |
| Mark or sign cited in opposition: | National and international word mark ‘CARPO’ for goods in Class 5 |
| Decision of the Opposition Division: | Registration refused |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Wrongful application of Article 8(1)(b) of Regulation (EC) No 40/94 1 |

Applicant for Community trade mark:

Applicant

Community trade mark sought:

Word mark ‘CARPOVIRUSINE’ – application No 1 422 641 in respect of goods in Class 5 (insecticides etc.)

Proprietor of mark or sign cited in the opposition proceedings:

BASF AG

Mark or sign cited in opposition:

National and international word mark ‘CARPO’ for goods in Class 5

Decision of the Opposition Division:

Registration refused

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

Wrongful application 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 December 1993 on the Community trade mark (OJ 1994 L 11 of 14.01.94, pp. 1-36).

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/15 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/15

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Action brought on 18 May 2004 by FederDOC and Others against the Commission of the European Communities

(Case T-170/04)

(2004/C 179/29)

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 May 2004 by FederDOC – National Confederation of voluntary associations for the protection of designations of origin and typical geographical indications of Italian and other wines, represented by Luciano Spagnuolo Vigorita, Paolo Tanoni and Roberto Gandin, lawyers.

The applicants claim that the Court should:

| — | Annul Commission Regulation (EC) No 316/2004 of 20 February 2004 (OJ 2004 L 55, p. 16) amending Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products. |
| --- | --- |

—

Annul Commission Regulation (EC) No 316/2004 of 20 February 2004 (OJ 2004 L 55, p. 16) amending Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products.

| — | In the alternative, annul in whole or in part, Article 1(3), (8a), (9a), (9b), (10) and (18) of Regulation No 316/2004 and, consequently, Annex II thereto. |
| --- | --- |

—

In the alternative, annul in whole or in part, Article 1(3), (8a), (9a), (9b), (10) and (18) of Regulation No 316/2004 and, consequently, Annex II thereto.

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

—

Order the Commission to pay the costs.

Pleas and main arguments

The present action is directed against Commission Regulation (EC) No 316/2004 of 20 February 2004 amending Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (1).

Essentially, the applicants point to the real danger that implementation of the contested regulation could result in a degree of liberalisation, in favour of third-country producers, as regards the use of the following traditional indications which distinguish specific Italian wines known throughout the world: Amarone, Cannellino, Brunello, Est!Est!Est!, Falerno, Governo all'uso toscano, Gutturnio, Lacryma Christi, Lambiccato, Morellino, Recioto, Sciacchetrà, Sciac-trà, Sforzato (or Sfurzat), Torcolato, Vergine, Vino Nobile, Vin santo (or Vino Santo or Vinsanto). That would prejudice the position which has, by dint of their efforts, been achieved by the producers of the Member States in the wine market (producers bound by observance of strict parameters as to quantity and quality) and, above all, would result in unacceptable damage to consumer confidence. Third-country producers would not in fact be required to observe the relevant production parameters and could ultimately place in circulation within the Community products without the oenological and organoloptic qualities which the wines in question must possess.

Under national legislation all the applicants are legitimately entitled to secure the use of the abovementioned traditional indications or, at any rate, to use them.

In support of their claims the applicants consider, in particular, that the Commission has exceeded the competences conferred on it and adopted the contested regulation without an adequate statement of reasons and without first obtaining the opinion of the Management Committee for wine established under Regulation No 1493/1999 or seeking the views of the applicants themselves.

The applicants further consider that certain provisions of the contested regulation contravene important principles undermining the EC Treaty such as those in the sector of agriculture, of competition, consumer protection, equal treatment, proportionality, acquired rights and legal certainty. Specific provisions of Regulation No 1493/1999 (Articles 47, 48 and 49) are then also infringed by the contested regulation which also runs counter to Articles 23(3) and 24(4) of the Marrakesh Trips Agreement of 15 April 1994 (Trade Related Intellectual Property Rights) to which the Community is a party.

The applicants also claim that the contested regulation contravenes the obligation to provide a statement of the reasons on which it is based.

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(1)  OJ 2004 L 55, p. 16.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/15 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/15

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Action brought on 17 May 2004 by Telefónica S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-172/04)

(2004/C 179/30)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 17 May 2004 by Telefónica S.A. established in Madrid, represented by Mr Andrea Sirimarco, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of OHIM of 12 March 2004 in Case R 676/2002-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 12 March 2004 in Case R 676/2002-1;

| — | register the Community trade mark No 1.694.157 ‘emergia’ (figurative mark) to designate ‘telecommunications by networks of undersea cables for the electronic transmission of voice, data and video communications’ in class 38 of the International Classification; and |
| --- | --- |

—

register the Community trade mark No 1.694.157 ‘emergia’ (figurative mark) to designate ‘telecommunications by networks of undersea cables for the electronic transmission of voice, data and video communications’ in class 38 of the International Classification; and

| — | order the Office for Harmonisation in the Internal Market and any party entering an appearance as intervener to pay the costs. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market and any party entering an appearance as intervener to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant. |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘emergia’– application No 1.694.157 for products and services in Classes 9, 38 and 42. |
| Proprietor of mark or sign cited in the opposition proceedings: | D. Branch. |
| Mark or sign cited in opposition. | Community word mark ‘EMERGEA’ for products and services including, in class 38, ‘data transmission service by national and international networks and communications by computer terminals’. |
| Decision of the Opposition Division: | Opposition upheld in part in so far as the opposition concerned ‘tele-communications, communications by computer networks’ in class 38. |
| Decision of the Board of Appeal: | Appeal dismissed. |
| Pleas in law: | Article 8(1)(b) of Regulation No 40/94 (likelihood of confusion) wrongly applied. |

Applicant for Community trade mark:

The applicant.

Community trade mark sought:

Figurative mark ‘emergia’– application No 1.694.157 for products and services in Classes 9, 38 and 42.

Proprietor of mark or sign cited in the opposition proceedings:

D. Branch.

Mark or sign cited in opposition.

Community word mark ‘EMERGEA’ for products and services including, in class 38, ‘data transmission service by national and international networks and communications by computer terminals’.

Decision of the Opposition Division:

Opposition upheld in part in so far as the opposition concerned ‘tele-communications, communications by computer networks’ in class 38.

Decision of the Board of Appeal:

Appeal dismissed.

Pleas in law:

Article 8(1)(b) of Regulation No 40/94 (likelihood of confusion) wrongly applied.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/16 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/16

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Action brought on 14 May 2004 by Jürgen Carius against Commission of the European Communities

(Case T-173/04)

(2004/C 179/31)

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 May 2004 by Jürgen Carius, residing at Brussels, represented by N. Lhoëst, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision of the Director General of DG ADMIN of 21 May 2003 which confirms, without amendment, the applicant's career development review for the period from 1 July 2001 to 31 December 2002; |
| --- | --- |

—

Annul the decision of the Director General of DG ADMIN of 21 May 2003 which confirms, without amendment, the applicant's career development review for the period from 1 July 2001 to 31 December 2002;

| — | Annul, so far as necessary, the Commission's Decision of 23 December 2003, rejecting the applicant's complaint; |
| --- | --- |

—

Annul, so far as necessary, the Commission's Decision of 23 December 2003, rejecting the applicant's complaint;

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

—

Order the defendant to pay all the costs of the proceedings.

Pleas in law and main arguments:

In support of his action, the applicant pleads the illegality of the new appraisal system based on non-objective criteria which do not enable the subject to ascertain, in sufficient time, the contents of his appraisal report in order to be able, if appropriate, to submit observations to the appraiser.

The applicant also pleads infringement of the duty to state reasons, in that the significant decline in the appraisal of his merits was not properly explained, and a manifest error of assessment.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/16 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/16

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Action brought on 6 May 2004 by Petrotub S.A., against the Council of the European Union

(Case T-174/04)

(2004/C 179/32)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 6 May 2004 by Petrotub S.A., Roman, Romania, represented by Mr A.L. Merckx, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul Article 1 of Council Regulation (EC) No 235/2004 of 10 February 2004 amending Regulation (EC) No 2320/97 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in, inter alia, Romania in so far as it concerns imports into the European Community of products manufactured by Petrotub S.A. and Republica S.A (1). |
| --- | --- |

—

Annul Article 1 of Council Regulation (EC) No 235/2004 of 10 February 2004 amending Regulation (EC) No 2320/97 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in, inter alia, Romania in so far as it concerns imports into the European Community of products manufactured by Petrotub S.A. and Republica S.A (1).

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

—

order the defendant to pay the costs

Pleas in law and main arguments:

The contested regulation was adopted by the Council in an effort to comply with the judgment of the Court of Justice of the European Communities of 9 January 2003 in case C-76/00 P. This judgment set aside the judgment of the Court of First Instance of 15 December 1999 in Joined Cases T-33/98 and T-34/98 Petrotub and Republica v. Council (2) and annulled Council Regulation (EC) No. 2320/1997 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel in so far as it concerned Petrotub S.A. and Republica S.A.

In support of its application the applicant submits that the Council has exceeded its discretionary power under Article 233 EC by implementing the judgment in a way that infringes Articles 6 paragraphs 1 and 9 and 2 paragraph 11 of Regulation (EC) No 384/96 (3). More particularly, the applicant contends that Article 6 paragraph 9 was infringed since the contested regulation was adopted on the basis of the initial investigation even though more than 15 months had elapsed since its initiation. Further, Article 6 paragraph 1 was infringed in that the anti-dumping measures adopted were no longer based on information relating to a period of at least six months immediately prior to the initiation of proceedings. The applicant also contends that the contested regulation does not contain adequate motivation as to why the first two methods of calculation of the dumping margin, provided for in Article 2 paragraph 11 of Regulation No 384/96, were rejected in favour of the third method. On this basis the applicant claims that the contested regulation also infringed Article 2 paragraph 11 of Regulation No 384/1996 as well as Article 253 EC.

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(1)  OJ L 40, 12.2.2004, p. 12.

(2)  [1999] ECR-II 3837.

(3)  OJ L 56 , 6.3.1996, p. 1.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/17 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/17

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Action brought on 7 May 2004 by Mr Donal Gordon against the Commission of the European Communities

(Case T-175/04)

(2004/C 179/33)

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 7 May 2004 by Mr Donal Gordon, Brussels, Belguim, represented by Mr M. Byrne, Solicitor.

The applicant claims that the Court should:

| — | annul the appointing authority's Decision in response to the applicant's complaint R/402/03; |
| --- | --- |

—

annul the appointing authority's Decision in response to the applicant's complaint R/402/03;

| — | declare the Commission Decision of 26 April 2002 on general provisions for implementing Article 43 of the Staff regulations or the relevant current measure invalid to the extent that reports are finalised before all appeals of the same grade in the same unit have been processed; |
| --- | --- |

—

declare the Commission Decision of 26 April 2002 on general provisions for implementing Article 43 of the Staff regulations or the relevant current measure invalid to the extent that reports are finalised before all appeals of the same grade in the same unit have been processed;

| — | declare Administrative Notice 99-2002 of 3 December 2002 or the relevant current measure invalid to the extent that it sets a target average mark; |
| --- | --- |

—

declare Administrative Notice 99-2002 of 3 December 2002 or the relevant current measure invalid to the extent that it sets a target average mark;

| — | award the applicant damages in compensation for the material damage to his career prospects, to his morale and to his health; |
| --- | --- |

—

award the applicant damages in compensation for the material damage to his career prospects, to his morale and to his health;

| — | order the Commission to pay all the costs of the present action. |
| --- | --- |

—

order the Commission to pay all the costs of the present action.

Pleas in law and main arguments:

In support of his conclusions, the applicant submits in the first place a breach of an essential procedural requirement and the rights of defence in that the countersigning officer failed to have a dialogue with the official within 5 working days as required by Article 7(5) of Commission Decision of 26 April 2002 on general provisions for implementing Article 43 of the Staff Regulations.

The applicant also invokes a manifest error of assessment by the countersigning officer in signing the applicant's career development report, having regard to the anomalous and contradictory data available to him. The applicant furthermore invokes a misuse of powers because of his failing to take any steps to correct such manifest error of assessment.

The applicant finally invokes a breach of an essential procedural requirement and the rights of defence in that the internal appeal system set in place by Commission Decision of 26 April 2002 was rendered inherently ineffective by the fact that by the time an appeal was launched, the other reports in the same unit, to which the appealed report was linked by an average mark, had been irrevocably validated, and by the limited number of points set aside to cover appeals.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/17 |
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10.7.2004

EN

Official Journal of the European Union

C 179/17

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Action brought on 13 May 2004 by Luigi Marcuccio against Commission of the European Communities

(Case T-176/04)

(2004/C 179/34)

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 13 May 2004 by Luigi Marcuccio, represented by Alessandro Distante, lawyer.

The applicant claims that the Court should:

| — | annul the decision of the appointing authority rejecting his request; |
| --- | --- |

—

annul the decision of the appointing authority rejecting his request;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

This action was brought by the applicant as a result of the fact that, on 1 April 2003, he submitted a request to the Commission in the following terms: (a) if a medical report drawn up by Dr M.P. Simonnet on the occasion of the medical check up which the Commission required him to undergo on 20 June 2002 exists, to have a certified copy thereof sent to him or to a doctor designated by him and, in the latter case, that he should be informed thereof in writing; (b) if the medical report does not exist, to be informed of that fact in writing; (c) if there is any reason to deny the requests at (a) and (b) above, to be informed thereof in writing.

Following the implied rejection of the request, the applicant brought the present action.

In support of his arguments, the applicant puts forward the following pleas in law:

Breach of the law inasmuch as the official is entitled to have access to all data relating to him drawn up by agents of the defendant in the course of their duties and in their possession, and thus including the medical report.

Breach of the applicant's right to health, in particular to his physical and mental health and of the institution's duty to have regard for his welfare.

Breach of the obligation to provide reasons for decisions, as provided for in Article 25 of the Staff Regulations.

Breach of the duty to have regard to the welfare of officials, inasmuch as the defendant had not the slightest regard for the interest of the applicant to have access to the medical report, or at least for such a report to be transmitted to a doctor of his choice, in particular in light of the fact that it is impossible to discern what interest of the service the defendant sought to protect, quod non, by its rejection of the request and of the complaint.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/18 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/18

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Action brought on 17 May 2004 by Daniel Van der Spree against Commission of the European Communities

(Case T-182/04)

(2004/C 179/35)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 May 2004 by Daniel Van der Spree, residing at Overijse (Belgium), represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Annul the decision establishing finally the applicant's career development review covering the period from 1 July 2001 to 31 December 2002; |
| --- | --- |

—

Annul the decision establishing finally the applicant's career development review covering the period from 1 July 2001 to 31 December 2002;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant pleads, first, breach of Articles 26 and 43 of the Staff Regulations and of the special measures applicable to the 2001-2002 transitional appraisal exercise. The applicant also pleads breach of the duty to state reasons, inconsistency between the comments and the marks awarded and manifest error of assessment. The applicant relies, further, on infringement of the rights of the defence in that the decision was based on an internal audit report of which the applicant was not given notice and on alleged appraisal criteria of which, the applicant submits, he was not informed.

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| 10.7.2004 | EN | Official Journal of the European Union | C 179/18 |
| --- | --- | --- | --- |

10.7.2004

EN

Official Journal of the European Union

C 179/18

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Action brought on 7 June 2004 by Microsoft Corporation against the Commission of the European Communities

(Case T-201/04)

(2004/C 179/36)

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 7 June 2004 by Microsoft Corporation, Washington (USA), represented by I. S. Forrester, QC, and J.-F. Bellis, lawyer.

The applicant claims that the Court should:

| — | annul the Commission Decision of 24 March 2004, or, in the alternative, annul or substantially reduce the fine imposed; |
| --- | --- |

—

annul the Commission Decision of 24 March 2004, or, in the alternative, annul or substantially reduce the fine imposed;

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

—

order the Commission to bear the costs.

Pleas in law and main arguments:

The applicant contests the decision of the Commission which found two abuses of a dominant position by the applicant and imposed a fine of EUR 497,196,304 on the applicant. In the decision, the Commission found that the applicant has refused to supply ‘Interoperability Information’ and allow its use for the purpose of developing and distributing work group server operating system products. Secondly, the Commission found that the applicant made the availability of the ‘Windows Client PC Operating System’ conditional on the simultaneous acquisition of Windows Media Player.

Firstly, the applicant claims in support of its application that the Commission erred in finding that the applicant infringed Article 82 EC by refusing to supply communications protocols to competitors and to allow the use of that proprietary technology in competing work group server operating systems.

According to the applicant, the conditions required by the European Courts before a dominant undertaking is obliged to license its intellectual property rights are not met in the present case. According to the applicant, the technology which it is ordered to license is not indispensable to achieve interoperability with Microsoft PC operating systems, the alleged refusal to supply the technology did not prevent the emergence of new products on a secondary market and, finally, did not have the effect of excluding all competition on a secondary market.

Furthermore, the applicant claims that the contested decision wrongly denied that the applicant could rely on its intellectual property rights as an objective justification for its alleged refusal to supply the technology and instead advanced a new and legally defective balancing test invoking public interest in disclosure.

The applicant also submits that no licence for the purpose of developing software in the EEA was ever requested and that the applicant was under no duty to regard Sun's request as giving rise to any special responsibility under Article 82 EC.

Additionally, the applicant claims that the Commission failed to take into account the obligations imposed on the European Communities by the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property (TRIPS) when applying Article 82 to the facts of this case.

Secondly, the applicant invokes that the Commission erred in determining that the applicant infringed Article 82 EC by making the availability of its PC operating systems conditional on the simultaneous acquisition of media functionality referred to as Windows Media Player.

According to the applicant, the contested decision is based on a speculative foreclosure theory according to which the widespread distribution of media functionality in Windows may, at some undetermined point in the future, lead to a situation in which content providers and software developers will encode almost exclusively in Windows Media formats. The applicant submits that this theory is inconsistent with the Commission Decision regarding the AOL/Time Warner concentration (1) as well as with the evidence on file showing that content providers continue to encode in multiple formats.

The applicant also submits that the contested decision ignores the benefits flowing from the applicant's business model, which entails the integration of new functionality into Windows in response to technological advances and changes in customer demand.

Also, according to the applicant, the contested decision fails to meet the conditions required to establish a violation of Article 82 EC, and in particular point (d) thereof. The applicant submits that Windows and its media functionality are not two separate products. The applicant claims furthermore that the contested decision fails to demonstrate that the alleged tying and tied products are not connected naturally or by commercial usage. In addition, the applicant submits that the contested decision fails to take into account the obligation imposed on the European Communities by TRIPS when applying Article 82 EC to the facts of the case and that the remedy imposed is disproportionate.

Thirdly, the applicant submits that the requirement that the applicant appoints and remunerate a trustee to monitor its compliance with the decision, and receive and investigate complaints, is unlawful as being ultra vires. The applicant states that the powers delegated to the trustee are investigatory and enforcement powers normally belonging to the Commission which cannot be delegated.

Finally, the applicant submits that there is no basis for imposing any fine on the applicant in light of the legal novelty of the finding of abuse. The applicant also claims that the amount of the fine is plainly excessive.

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(1)  2001/718/EC: Commission Decision of 11 October 2000 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.1845 - AOL/Time Warner) (OJ 2001 L 268, p. 28).

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III Notices

| 10.7.2004 | EN | Official Journal of the European Union | C 179/20 |
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10.7.2004

EN

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C 179/20

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(2004/C 179/37)

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

OJ C 168, 26.6.2004

Past publications

OJ C 156, 12.6.2004

OJ C 146, 29.5.2004

OJ C 106, 30.4.2004

OJ C 94, 17.4.2004

OJ C 85, 3.4.2004

OJ C 71, 20.3.2004

These texts are available on:

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

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

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