# Official Journal C 140/2007

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 140 |
| | |
| English edition | Information and Notices | Volume 5023 June 2007 |

ISSN 1725-2423

Official Journal

of the European Union

C 140

English edition

Information and Notices

Volume 5023 June 2007

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2007/C 140/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 129, 9.6.2007 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2007/C 140/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 129, 9.6.2007

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2007/C 140/02 | Case C-391/04: Judgment of the Court (Third Chamber) of 10 May 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ipourgos Ikonomikon, Proistamenos DOI Amfissas v Charilaos Georgakis (Directive 89/592/EEC — Insider dealing — Meaning of inside information and taking advantage of inside information — Stock-market transactions agreed on in advance and carried out within a group of persons capable of being insider dealers — Artificial increase in the price of transferable securities disposed of) | 2 |
| 2007/C 140/03 | Case C-508/04: Judgment of the Court (Fourth Chamber) of 10 May 2007 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Measures transposing the directive) | 2 |
| 2007/C 140/04 | Case C-252/05: Judgment of the Court (Second Chamber) of 10 May 2007 (reference for a preliminary ruling from the High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court) United Kingdom — Thames Water Utilities Ltd, The Queen v South East London Division, Bromley Magistrates' Court (Waste — Directives 75/442/EEC, 91/156/EEC and 91/271/EEC — Waste water which escapes from a sewerage network — Classification — Scope of Directives 75/442/EEC and 91/271/EEC) | 3 |
| 2007/C 140/05 | Case C-303/05: Judgment of the Court (Grand Chamber) of 3 May 2007 (reference for a preliminary ruling from the Arbitragehof, Belgium) — Advocaten voor de Wereld VZW v Leden van de Ministerraad (Police and judicial cooperation in criminal matters — Articles 6(2) EU and 34(2)(b) EU — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — Approximation of national laws — Removal of verification of double criminality — Validity) | 3 |
| 2007/C 140/06 | Case C-328/05 P: Judgment of the Court (Fourth Chamber) of 10 May 2007 — SGL Carbon AG v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Guidelines on the method of setting fines — Leniency Notice — Principle non bis in idem) | 4 |
| 2007/C 140/07 | Case C-386/05: Judgment of the Court (Fourth Chamber) of 3 May 2007 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Color Drack GmbH v Lexx International Vertriebs GmbH (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 — Special jurisdiction — First indent of Article 5(1)(b) — Court for the place of performance of the contractual obligation in question — Sale of goods — Goods delivered in different places within a single Member State) | 4 |
| 2007/C 140/08 | Case C-391/06: Judgment of the Court (Seventh Chamber) of 3 May 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 2003/4/EC — Freedom of access to information — Environmental information — Failure to transpose within the prescribed period) | 5 |
| 2007/C 140/09 | Case C-407/06: Judgment of the Court (Seventh Chamber) of 10 May 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Protection of workers — Major accident hazards involving dangerous substances — Failure to transpose within the prescribed period) | 5 |
| 2007/C 140/10 | Case C-33/07: Reference for a preliminary ruling from the Tribunalul Dâmboviţa (Romania) lodged on 24 January 2007 — Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa | 6 |
| 2007/C 140/11 | Case C-139/07P: Appeal brought on 8 March 2007 by Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau GmbH v Commission of the European Communities | 6 |
| 2007/C 140/12 | Case C-152/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Arcor AG & Co. KG v Bundesrepublik Deutschland | 7 |
| 2007/C 140/13 | Case C-153/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Communication Services TELE2 GmbH v Bundesrepublik Deutschland | 8 |
| 2007/C 140/14 | Case C-154/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — 01051 Telekom GmbH v Bundesrepublik Deutschland (Federal Republic of Germany) | 8 |
| 2007/C 140/15 | Case C-156/07: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 21 March 2007 — Salvatore Aiello and Others v Comune di Milano, Sindaco di Milano, Comitato tecnico — scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri, Euromilano SpA, Metropolitana milanese SpA | 9 |
| 2007/C 140/16 | Case C-161/07: Action brought on 23 March 2007 — Commission of the European Communities v Republic of Austria | 9 |
| 2007/C 140/17 | Case C-162/07: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 26 March 2007 — Ampliscientifica Srl, Amplifin SpA v Ministero dell'Economia e delle Finanze, Agenzia delle Entrate | 10 |
| 2007/C 140/18 | Case C-171/07: Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Apothekerkammer des Saarlandes, Marion Schneider, Michael Holzapfel, Dr Fritz Trennheuser and Deutscher Apothekerverband e.V. v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V. | 11 |
| 2007/C 140/19 | Case C-172/07: Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Helga Neumann-Seiwert v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V. | 11 |
| 2007/C 140/20 | Case C-174/07: Action brought on 30 March 2007 — Commission of the European Communities v Italian Republic | 12 |
| 2007/C 140/21 | Case C-194/07: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 4 April 2007 — SAVA e C. S.r.l., SIEME S.r.l. and GRADED S.p.A. v Mostra d'Oltremare S.p.A. and Others | 13 |
| 2007/C 140/22 | Case C-204/07 P: Appeal brought on 16 April 2007 by C.A.S. SpA against the judgment delivered on 6 February 2007 in Case T-23/03 C.A.S. SpA v Commission of the European Communities | 13 |
| 2007/C 140/23 | Case C-205/07: Reference for a preliminary ruling from the Hof van Beroep, Ghent lodged on 19 April 2007 — Criminal proceedings against Lodewijk Gysbrechts and Santurel Inter BVBA | 14 |
| 2007/C 140/24 | Case C-207/07: Action brought on 19 April 2007 — Commission of the European Communities v Kingdom of Spain | 15 |
| 2007/C 140/25 | Case C-209/07: Reference for a preliminary ruling from Supreme Court (Ireland) made on 20 April 2007 — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd | 15 |
| 2007/C 140/26 | Case C-213/07: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) (Greece) lodged on 23 April 2007 — Mikhaniki A.E. v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou | 16 |
| 2007/C 140/27 | Case C-223/07: Action brought on 3 May 2007 — Commission of the European Communities v Kingdom of Sweden | 17 |
| 2007/C 140/28 | Case C-235/07: Action brought on 10 May 2007 — Commission of the European Communities v Federal Republic of Germany | 17 |
| | Court of First Instance |
| 2007/C 140/29 | Case T-357/02: Judgment of the Court of First Instance of 3 May 2007 — Freistaat Sachsen v Commission (State aid — Aid granted by the authorities of the Free State of Saxony — Aid scheme for small and medium-sized enterprises — Accelerated clearance procedure — Application ratione temporis of the Community guidelines and of the exempting regulation concerning aid to small and medium-sized enterprises — Aid scheme notified before the entry into force of the exempting regulation — Legitimate expectations — Legal certainty — Complete notification) | 19 |
| 2007/C 140/30 | Case T-219/04: Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Kingdom of Spain v Commission of the European Communities (Fisheries — Adjustment of the capacity of Member States' fishing fleets — Entry/exit scheme — Committee for fisheries and aquaculture — Rules on the use of languages) | 19 |
| 2007/C 140/31 | Case T-255/04: Judgment of the Court of First Instance of 10 May 2007 — Negenman v Commission (Civil service — Officials — Maternity leave — Sickness leave — Probable date of confinement — Date of beginning of maternity leave) | 19 |
| 2007/C 140/32 | Case T-261/04: Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Crespinet v Commission (Officials — Promotion — Promotion year 2003 — Award of promotion points) | 20 |
| 2007/C 140/33 | Case T-271/04: Judgment of the Court of First Instance of 8 May 2007 — Citymo v Commission (Contractual liability — Arbitration clause — Lease contract — Inadmissibility — Non-contractual liability — Pre-contract negotiations — Plea of illegality — Legitimate expectation — Good faith — Abuse of rights — Material loss — Lost opportunity) | 20 |
| 2007/C 140/34 | Case T-343/04: Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Tsarnavas v Commission (Officials — Staff report — Invalidity — Action for annulment — Interest to bring proceedings — Action for damages — Inadmissibility) | 21 |
| 2007/C 140/35 | Case T-99/05: Judgment of the Court of First Instance of 10 May 2007 — Spain v Commission (Fisheries — Regulation (EC) No 494/2002 — Conservation of the resources of the sea — Legal basis — Principle of non-discrimination — Obligation to state reasons) | 21 |
| 2007/C 140/36 | Joined Cases T-239/05, T-240/05, T-245/05 to T-247/05, T-255/05, T-274/05 to T-280/05: Judgment of the Court of First Instance of 15 May 2007 — Black & Decker v OHIM — Atlas Copco (Three-dimensional representations of two yellow and black electric power tools) (Community trade mark — Opposition proceedings — Opposition period — Transmission by telecopier — Admissibility — Clear indentification of the earlier trade mark — Rule 18(1) of Regulation (EC) No 2868/95) | 21 |
| 2007/C 140/37 | Case T-47/06: Judgment of the Court of First Instance of 10 May 2007 — Antartica v OHIM — Nasdaq Stock Market (nasdaq) (Community trade mark — Opposition proceedings — Application for Community figurative mark nasdaq — Earlier Community word mark NASDAQ — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 40/94) | 22 |
| 2007/C 140/38 | Case T-30/03: Order of the Court of First Instance of 23 April 2007 — SID v Commission (State aid — Decision not to raise objections — Action for annulment — Admissibility — Concept of party concerned — Trade union) | 22 |
| 2007/C 140/39 | Case T-387/04: Order of the Court of First Instance of 30 April 2007 — EnBW Energie Baden-Württemberg v Commission (Annulment — Directive 2003/87/EC — Greenhouse gas emission allowance trading — National plan for allocation of emission quotas for Germany — State aid — Legal interest in bringing proceedings — Inadmissibility) | 23 |
| 2007/C 140/40 | Case T-415/04: Order of the Court of First Instance of 26 April 2007 — Tebaldi and Others v Commission (Civil Service — Officials — Promotion — Promotions procedure 2003 — Refusal of promotion — Award of promotion points — Manifestly inadmissible) | 23 |
| 2007/C 140/41 | Case T-297/05 R: Order of the President of the Court of First Instance of 2 May 2007 — IPK International World Tourism Marketing Consultants v Commission (Interim measures — Article 256 EC — Subject-matter of the application — Admissibility — Lack of urgency) | 24 |
| 2007/C 140/42 | Case T-12/07 R: Order of the President of the Court of First Instance of 3 May 2007 — Polimeri Europa v Commission (Application for interim measures — Competition — Application for further interim measures — Order addressed to third parties — Inadmissibility) | 24 |
| 2007/C 140/43 | Case T-71/07 R: Order of the President of the Court of First Instance of 4 May 2007 — Icuna.Com v Parliament (Public procurement — Community tendering procedure — Procedure for interim relief — No urgency) | 24 |
| 2007/C 140/44 | Case T-103/07: Action brought on 2 April 2007 — Fratex Indústria e Comércio v OHIM — USA Track & Field (TRACK & FIELD USA) | 25 |
| 2007/C 140/45 | Case T-109/07: Action brought on 11 April 2007 — L'Oréal v OHIM — Spa Monopole (SPA THERAPY) | 25 |
| 2007/C 140/46 | Case T-110/07: Action brought on 16 April 2007 — Siemens v Commission | 26 |
| 2007/C 140/47 | Case T-113/07: Action brought on 18 April 2007 — Toshiba v Commission | 26 |
| 2007/C 140/48 | Case T-116/07: Action brought on 17 April 2007 — France v Commission | 27 |
| 2007/C 140/49 | Case T-117/07: Action brought on 18 April 2007 — Areva & Others v Commission | 28 |
| 2007/C 140/50 | Case T-120/07: Action brought on 16 April 2007 — MB Immobilien and MB System v Commission | 29 |
| 2007/C 140/51 | Case T-121/07: Action brought on 18 April 2007 — Alstom v Commission | 30 |
| 2007/C 140/52 | Case T-122/07: Action brought on 17 April 2007 — Siemens and VA TECH Transmission & Distribution v Commission | 31 |
| 2007/C 140/53 | Case T-123/07: Action brought on 17 April 2007 — Siemens Transmission & Distribution v Commission | 31 |
| 2007/C 140/54 | Case T-124/07: Action brought on 17 April 2007 — Siemens Transmission & Distribution and Nuova Magrini Galileo v Commission | 32 |
| 2007/C 140/55 | Case T-125/07: Action brought on 16 May 2007 — Scientific and Technological Committee and Others v Potocnik and Others, Members of the Commission | 33 |
| 2007/C 140/56 | Case T-126/07: Action brought on 20 April 2007 — Allos Walter Lang v OHIM — Kokoriko (Coco Rico) | 33 |
| 2007/C 140/57 | Case T-127/07 P: Appeal brought on 20 April 2007 by Bligny against the order of the Civil Service Tribunal made on 15 February 2007 in Case F-142/06, Bligny v Commission | 34 |
| 2007/C 140/58 | Case T-128/07: Action brought on 23 April 2007 — Suez v OHIM (Delivering the essentials of life) | 34 |
| 2007/C 140/59 | Case T-129/07: Action brought on 17 April 2007 — Ireland v Commission | 35 |
| 2007/C 140/60 | Case T-130/07: Action brought on 19 April 2007 — Aughinish Alumina v Commission | 35 |
| 2007/C 140/61 | Case T-132/07: Action brought on 19 April 2007 — Fuji Electric Holdings and Fuji Electric Systems v Commission | 36 |
| 2007/C 140/62 | Case T-133/07: Action brought on 18 April 2007 — Mitsubishi Electric v Commission | 37 |
| 2007/C 140/63 | Case T-135/07: Action brought on 19 April 2007 — Italy v Commission | 38 |
| 2007/C 140/64 | Case T-136/07: Action brought on 30 April 2007 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE) | 39 |
| 2007/C 140/65 | Case T-141/07: Action brought on 4 May 2007 — General Technic-Otis v Commission | 39 |
| 2007/C 140/66 | Case T-142/07: Action brought on 4 May 2007 — General Technic v Commission | 40 |
| 2007/C 140/67 | Case T-143/07: Action brought on 30 April 2007 — UMG Recordings/OHMI — Osman (MOTOWN) | 41 |
| 2007/C 140/68 | Case T-155/07: Action brought on 4 May 2007 — Européenne de traitement de l'Information (Euro-Information) v OHIM | 42 |
| 2007/C 140/69 | Case T-156/07: Action brought on 9 May 2007 — Spain v Commission | 42 |
| 2007/C 140/70 | Case T-157/07: Action brought on 9 May 2007 — People's Mojahedin Organization of Iran v Council | 43 |
| 2007/C 140/71 | Case T-160/07: Action brought on 7 May 2007 — Lancôme Parfums et Beauté & Cie v OHIM | 43 |
| | European Union Civil Service Tribunal |
| 2007/C 140/72 | Case F-35/07: Action brought on 16 April 2007 — Klug v European Medicines Agency | 45 |
| 2007/C 140/73 | Case F-38/07: Action brought on 20 April 2007 — Francesco Caleprico v Commission | 45 |
| 2007/C 140/74 | Case F-41/07: Action brought on 2 May 2007 — Fernandez García and García Rato v Court of Justice | 46 |
| 2007/C 140/75 | Case F-42/07: Action brought on 10 May 2007 — Prieto v Parliament | 47 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2007/C 140/02

Case C-391/04: Judgment of the Court (Third Chamber) of 10 May 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ipourgos Ikonomikon, Proistamenos DOI Amfissas v Charilaos Georgakis (Directive 89/592/EEC — Insider dealing — Meaning of inside information and taking advantage of inside information — Stock-market transactions agreed on in advance and carried out within a group of persons capable of being insider dealers — Artificial increase in the price of transferable securities disposed of)

2

2007/C 140/03

Case C-508/04: Judgment of the Court (Fourth Chamber) of 10 May 2007 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Measures transposing the directive)

2

2007/C 140/04

Case C-252/05: Judgment of the Court (Second Chamber) of 10 May 2007 (reference for a preliminary ruling from the High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court) United Kingdom — Thames Water Utilities Ltd, The Queen v South East London Division, Bromley Magistrates' Court (Waste — Directives 75/442/EEC, 91/156/EEC and 91/271/EEC — Waste water which escapes from a sewerage network — Classification — Scope of Directives 75/442/EEC and 91/271/EEC)

3

2007/C 140/05

Case C-303/05: Judgment of the Court (Grand Chamber) of 3 May 2007 (reference for a preliminary ruling from the Arbitragehof, Belgium) — Advocaten voor de Wereld VZW v Leden van de Ministerraad (Police and judicial cooperation in criminal matters — Articles 6(2) EU and 34(2)(b) EU — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — Approximation of national laws — Removal of verification of double criminality — Validity)

3

2007/C 140/06

Case C-328/05 P: Judgment of the Court (Fourth Chamber) of 10 May 2007 — SGL Carbon AG v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Guidelines on the method of setting fines — Leniency Notice — Principle non bis in idem)

Appeals

Competition

Agreements, decisions and concerted practices

Guidelines on the method of setting fines

Leniency Notice

Principle non bis in idem

4

2007/C 140/07

Case C-386/05: Judgment of the Court (Fourth Chamber) of 3 May 2007 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Color Drack GmbH v Lexx International Vertriebs GmbH (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 — Special jurisdiction — First indent of Article 5(1)(b) — Court for the place of performance of the contractual obligation in question — Sale of goods — Goods delivered in different places within a single Member State)

4

2007/C 140/08

Case C-391/06: Judgment of the Court (Seventh Chamber) of 3 May 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 2003/4/EC — Freedom of access to information — Environmental information — Failure to transpose within the prescribed period)

5

2007/C 140/09

Case C-407/06: Judgment of the Court (Seventh Chamber) of 10 May 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Protection of workers — Major accident hazards involving dangerous substances — Failure to transpose within the prescribed period)

5

2007/C 140/10

Case C-33/07: Reference for a preliminary ruling from the Tribunalul Dâmboviţa (Romania) lodged on 24 January 2007 — Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa

6

2007/C 140/11

Case C-139/07P: Appeal brought on 8 March 2007 by Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau GmbH v Commission of the European Communities

6

2007/C 140/12

Case C-152/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Arcor AG & Co. KG v Bundesrepublik Deutschland

7

2007/C 140/13

Case C-153/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Communication Services TELE2 GmbH v Bundesrepublik Deutschland

8

2007/C 140/14

Case C-154/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — 01051 Telekom GmbH v Bundesrepublik Deutschland (Federal Republic of Germany)

8

2007/C 140/15

Case C-156/07: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 21 March 2007 — Salvatore Aiello and Others v Comune di Milano, Sindaco di Milano, Comitato tecnico — scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri, Euromilano SpA, Metropolitana milanese SpA

9

2007/C 140/16

Case C-161/07: Action brought on 23 March 2007 — Commission of the European Communities v Republic of Austria

9

2007/C 140/17

Case C-162/07: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 26 March 2007 — Ampliscientifica Srl, Amplifin SpA v Ministero dell'Economia e delle Finanze, Agenzia delle Entrate

10

2007/C 140/18

Case C-171/07: Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Apothekerkammer des Saarlandes, Marion Schneider, Michael Holzapfel, Dr Fritz Trennheuser and Deutscher Apothekerverband e.V. v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.

11

2007/C 140/19

Case C-172/07: Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Helga Neumann-Seiwert v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.

11

2007/C 140/20

Case C-174/07: Action brought on 30 March 2007 — Commission of the European Communities v Italian Republic

12

2007/C 140/21

Case C-194/07: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 4 April 2007 — SAVA e C. S.r.l., SIEME S.r.l. and GRADED S.p.A. v Mostra d'Oltremare S.p.A. and Others

13

2007/C 140/22

Case C-204/07 P: Appeal brought on 16 April 2007 by C.A.S. SpA against the judgment delivered on 6 February 2007 in Case T-23/03 C.A.S. SpA v Commission of the European Communities

13

2007/C 140/23

Case C-205/07: Reference for a preliminary ruling from the Hof van Beroep, Ghent lodged on 19 April 2007 — Criminal proceedings against Lodewijk Gysbrechts and Santurel Inter BVBA

14

2007/C 140/24

Case C-207/07: Action brought on 19 April 2007 — Commission of the European Communities v Kingdom of Spain

15

2007/C 140/25

Case C-209/07: Reference for a preliminary ruling from Supreme Court (Ireland) made on 20 April 2007 — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd

15

2007/C 140/26

Case C-213/07: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) (Greece) lodged on 23 April 2007 — Mikhaniki A.E. v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou

16

2007/C 140/27

Case C-223/07: Action brought on 3 May 2007 — Commission of the European Communities v Kingdom of Sweden

17

2007/C 140/28

Case C-235/07: Action brought on 10 May 2007 — Commission of the European Communities v Federal Republic of Germany

17

Court of First Instance

2007/C 140/29

Case T-357/02: Judgment of the Court of First Instance of 3 May 2007 — Freistaat Sachsen v Commission (State aid — Aid granted by the authorities of the Free State of Saxony — Aid scheme for small and medium-sized enterprises — Accelerated clearance procedure — Application ratione temporis of the Community guidelines and of the exempting regulation concerning aid to small and medium-sized enterprises — Aid scheme notified before the entry into force of the exempting regulation — Legitimate expectations — Legal certainty — Complete notification)

19

2007/C 140/30

Case T-219/04: Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Kingdom of Spain v Commission of the European Communities (Fisheries — Adjustment of the capacity of Member States' fishing fleets — Entry/exit scheme — Committee for fisheries and aquaculture — Rules on the use of languages)

19

2007/C 140/31

Case T-255/04: Judgment of the Court of First Instance of 10 May 2007 — Negenman v Commission (Civil service — Officials — Maternity leave — Sickness leave — Probable date of confinement — Date of beginning of maternity leave)

19

2007/C 140/32

Case T-261/04: Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Crespinet v Commission (Officials — Promotion — Promotion year 2003 — Award of promotion points)

20

2007/C 140/33

Case T-271/04: Judgment of the Court of First Instance of 8 May 2007 — Citymo v Commission (Contractual liability — Arbitration clause — Lease contract — Inadmissibility — Non-contractual liability — Pre-contract negotiations — Plea of illegality — Legitimate expectation — Good faith — Abuse of rights — Material loss — Lost opportunity)

20

2007/C 140/34

Case T-343/04: Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Tsarnavas v Commission (Officials — Staff report — Invalidity — Action for annulment — Interest to bring proceedings — Action for damages — Inadmissibility)

21

2007/C 140/35

Case T-99/05: Judgment of the Court of First Instance of 10 May 2007 — Spain v Commission (Fisheries — Regulation (EC) No 494/2002 — Conservation of the resources of the sea — Legal basis — Principle of non-discrimination — Obligation to state reasons)

21

2007/C 140/36

Joined Cases T-239/05, T-240/05, T-245/05 to T-247/05, T-255/05, T-274/05 to T-280/05: Judgment of the Court of First Instance of 15 May 2007 — Black & Decker v OHIM — Atlas Copco (Three-dimensional representations of two yellow and black electric power tools) (Community trade mark — Opposition proceedings — Opposition period — Transmission by telecopier — Admissibility — Clear indentification of the earlier trade mark — Rule 18(1) of Regulation (EC) No 2868/95)

21

2007/C 140/37

Case T-47/06: Judgment of the Court of First Instance of 10 May 2007 — Antartica v OHIM — Nasdaq Stock Market (nasdaq) (Community trade mark — Opposition proceedings — Application for Community figurative mark nasdaq — Earlier Community word mark NASDAQ — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 40/94)

22

2007/C 140/38

Case T-30/03: Order of the Court of First Instance of 23 April 2007 — SID v Commission (State aid — Decision not to raise objections — Action for annulment — Admissibility — Concept of party concerned — Trade union)

22

2007/C 140/39

Case T-387/04: Order of the Court of First Instance of 30 April 2007 — EnBW Energie Baden-Württemberg v Commission (Annulment — Directive 2003/87/EC — Greenhouse gas emission allowance trading — National plan for allocation of emission quotas for Germany — State aid — Legal interest in bringing proceedings — Inadmissibility)

23

2007/C 140/40

Case T-415/04: Order of the Court of First Instance of 26 April 2007 — Tebaldi and Others v Commission (Civil Service — Officials — Promotion — Promotions procedure 2003 — Refusal of promotion — Award of promotion points — Manifestly inadmissible)

23

2007/C 140/41

Case T-297/05 R: Order of the President of the Court of First Instance of 2 May 2007 — IPK International World Tourism Marketing Consultants v Commission (Interim measures — Article 256 EC — Subject-matter of the application — Admissibility — Lack of urgency)

24

2007/C 140/42

Case T-12/07 R: Order of the President of the Court of First Instance of 3 May 2007 — Polimeri Europa v Commission (Application for interim measures — Competition — Application for further interim measures — Order addressed to third parties — Inadmissibility)

24

2007/C 140/43

Case T-71/07 R: Order of the President of the Court of First Instance of 4 May 2007 — Icuna.Com v Parliament (Public procurement — Community tendering procedure — Procedure for interim relief — No urgency)

24

2007/C 140/44

Case T-103/07: Action brought on 2 April 2007 — Fratex Indústria e Comércio v OHIM — USA Track & Field (TRACK & FIELD USA)

25

2007/C 140/45

Case T-109/07: Action brought on 11 April 2007 — L'Oréal v OHIM — Spa Monopole (SPA THERAPY)

25

2007/C 140/46

Case T-110/07: Action brought on 16 April 2007 — Siemens v Commission

26

2007/C 140/47

Case T-113/07: Action brought on 18 April 2007 — Toshiba v Commission

26

2007/C 140/48

Case T-116/07: Action brought on 17 April 2007 — France v Commission

27

2007/C 140/49

Case T-117/07: Action brought on 18 April 2007 — Areva & Others v Commission

28

2007/C 140/50

Case T-120/07: Action brought on 16 April 2007 — MB Immobilien and MB System v Commission

29

2007/C 140/51

Case T-121/07: Action brought on 18 April 2007 — Alstom v Commission

30

2007/C 140/52

Case T-122/07: Action brought on 17 April 2007 — Siemens and VA TECH Transmission & Distribution v Commission

31

2007/C 140/53

Case T-123/07: Action brought on 17 April 2007 — Siemens Transmission & Distribution v Commission

31

2007/C 140/54

Case T-124/07: Action brought on 17 April 2007 — Siemens Transmission & Distribution and Nuova Magrini Galileo v Commission

32

2007/C 140/55

Case T-125/07: Action brought on 16 May 2007 — Scientific and Technological Committee and Others v Potocnik and Others, Members of the Commission

33

2007/C 140/56

Case T-126/07: Action brought on 20 April 2007 — Allos Walter Lang v OHIM — Kokoriko (Coco Rico)

33

2007/C 140/57

Case T-127/07 P: Appeal brought on 20 April 2007 by Bligny against the order of the Civil Service Tribunal made on 15 February 2007 in Case F-142/06, Bligny v Commission

34

2007/C 140/58

Case T-128/07: Action brought on 23 April 2007 — Suez v OHIM (Delivering the essentials of life)

34

2007/C 140/59

Case T-129/07: Action brought on 17 April 2007 — Ireland v Commission

35

2007/C 140/60

Case T-130/07: Action brought on 19 April 2007 — Aughinish Alumina v Commission

35

2007/C 140/61

Case T-132/07: Action brought on 19 April 2007 — Fuji Electric Holdings and Fuji Electric Systems v Commission

36

2007/C 140/62

Case T-133/07: Action brought on 18 April 2007 — Mitsubishi Electric v Commission

37

2007/C 140/63

Case T-135/07: Action brought on 19 April 2007 — Italy v Commission

38

2007/C 140/64

Case T-136/07: Action brought on 30 April 2007 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE)

39

2007/C 140/65

Case T-141/07: Action brought on 4 May 2007 — General Technic-Otis v Commission

39

2007/C 140/66

Case T-142/07: Action brought on 4 May 2007 — General Technic v Commission

40

2007/C 140/67

Case T-143/07: Action brought on 30 April 2007 — UMG Recordings/OHMI — Osman (MOTOWN)

41

2007/C 140/68

Case T-155/07: Action brought on 4 May 2007 — Européenne de traitement de l'Information (Euro-Information) v OHIM

42

2007/C 140/69

Case T-156/07: Action brought on 9 May 2007 — Spain v Commission

42

2007/C 140/70

Case T-157/07: Action brought on 9 May 2007 — People's Mojahedin Organization of Iran v Council

43

2007/C 140/71

Case T-160/07: Action brought on 7 May 2007 — Lancôme Parfums et Beauté & Cie v OHIM

43

European Union Civil Service Tribunal

2007/C 140/72

Case F-35/07: Action brought on 16 April 2007 — Klug v European Medicines Agency

45

2007/C 140/73

Case F-38/07: Action brought on 20 April 2007 — Francesco Caleprico v Commission

45

2007/C 140/74

Case F-41/07: Action brought on 2 May 2007 — Fernandez García and García Rato v Court of Justice

46

2007/C 140/75

Case F-42/07: Action brought on 10 May 2007 — Prieto v Parliament

47

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 23.6.2007 | EN | Official Journal of the European Union | C 140/1 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/1

---

(2007/C 140/01)

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

OJ C 129, 9.6.2007

Past publications

OJ C 117, 26.5.2007

OJ C 96, 28.4.2007

OJ C 95, 28.4.2007

OJ C 82, 14.4.2007

OJ C 69, 24.3.2007

OJ C 56, 10.3.2007

These texts are available on:

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

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 23.6.2007 | EN | Official Journal of the European Union | C 140/2 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/2

---

Judgment of the Court (Third Chamber) of 10 May 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ipourgos Ikonomikon, Proistamenos DOI Amfissas v Charilaos Georgakis

(Case C-391/04) (1)

(Directive 89/592/EEC - Insider dealing - Meaning of ‘inside information’ and ‘taking advantage of inside information’ - Stock-market transactions agreed on in advance and carried out within a group of persons capable of being insider dealers - Artificial increase in the price of transferable securities disposed of)

(2007/C 140/02)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias (Council of State) (Greece)

Parties to the main proceedings

Applicant: Ipourgos Ikonomikon (Greek Minister for Economic Affairs), Proistamenos DOI Amfissas (Tax authority of Amphissa)

Defendant: Charilaos Georgakis

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Articles 1 to 4 of Council Directive 89/592/EEC of 13 November 1989 coordinating regulations on insider dealing (OJ 1989 L 334, p. 30) — Concept of possessing and making use of inside information

Operative part of the judgment

Articles 1 and 2 of Council Directive 89/592/EEC of 13 November 1989 coordinating regulations on insider dealing must be interpreted as meaning that, when the main shareholders and members of the board of directors of a company agree to effect between themselves stock-market transactions in the transferable securities of that company in order to support artificially the price of those securities, they are in possession of inside information of which they do not take advantage with full knowledge of the facts when they carry out those transactions.

---

(1)  OJ C 273, 06.11.2004.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/2 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/2

---

Judgment of the Court (Fourth Chamber) of 10 May 2007 — Commission of the European Communities v Republic of Austria

(Case C-508/04) (1)

(Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Measures transposing the directive)

(2007/C 140/03)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: M. van Beek and B. Schima, acting as Agents, and by M. Lang, avocat)

Defendant: Republic of Austria (represented by E. Riedl and H. Dossi, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Incomplete and incorrect transposition of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7)

Operative part of the judgment

The Court:

| 1. | Declares that the Republic of Austria has failed to fulfil its obligations under Article 1(e), (g) and (i), Article 6(1) and (2), Articles 12 and 13, Article 16(1) and Article 22(b) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; |
| --- | --- |

1.

Declares that the Republic of Austria has failed to fulfil its obligations under Article 1(e), (g) and (i), Article 6(1) and (2), Articles 12 and 13, Article 16(1) and Article 22(b) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the Republic of Austria to pay the costs. |
| --- | --- |

3.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 45, 19.02.2005.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/3 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/3

---

Judgment of the Court (Second Chamber) of 10 May 2007 (reference for a preliminary ruling from the High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court) United Kingdom — Thames Water Utilities Ltd, The Queen v South East London Division, Bromley Magistrates' Court

(Case C-252/05) (1)

(Waste - Directives 75/442/EEC, 91/156/EEC and 91/271/EEC - Waste water which escapes from a sewerage network - Classification - Scope of Directives 75/442/EEC and 91/271/EEC)

(2007/C 140/04)

Language of the case: English

Referring court

High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Thames Water Utilities Ltd, The Queen

Defendant: South East London Division, Bromley Magistrates' Court

Intervener in support of the applicant: Environment Agency

Re:

Reference for a preliminary ruling — High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) — Interpretation of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) and 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) — Concept of waste — Effluent from leaks in sewage pipes

Operative part of the judgment

| 1) | Waste water which escapes from a sewerage network maintained by a statutory sewerage undertaker pursuant to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment and the legislation enacted to transpose that directive constitutes waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991; |
| --- | --- |

1)

Waste water which escapes from a sewerage network maintained by a statutory sewerage undertaker pursuant to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment and the legislation enacted to transpose that directive constitutes waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991;

| 2) | Directive 91/271 is not ‘other legislation’ within the meaning of Article 2(1)(b) of Directive 75/442, as amended by Directive 91/156. It falls to the national court to ascertain whether, in accordance with the criteria set out in the present judgment, the national rules may be regarded as being ‘other legislation’ within the meaning of that provision. Such is the case if those national rules contain precise provisions organising the management of the waste in question and if they are such as to ensure a level of protection of the environment equivalent to that guaranteed by Directive 75/442, as amended by Directive 91/156, and, more particularly, by Articles 4, 8 and 15. |
| --- | --- |

2)

Directive 91/271 is not ‘other legislation’ within the meaning of Article 2(1)(b) of Directive 75/442, as amended by Directive 91/156. It falls to the national court to ascertain whether, in accordance with the criteria set out in the present judgment, the national rules may be regarded as being ‘other legislation’ within the meaning of that provision. Such is the case if those national rules contain precise provisions organising the management of the waste in question and if they are such as to ensure a level of protection of the environment equivalent to that guaranteed by Directive 75/442, as amended by Directive 91/156, and, more particularly, by Articles 4, 8 and 15.

| 3) | Directive 91/271 cannot be considered, as regards the management of waste water which escapes from a sewerage network, to be special legislation (a lex specialis) vis-à-vis Directive 75/442, as amended by Directive 91/156, and cannot therefore be applied pursuant to Article 2(2) of Directive 75/442. |
| --- | --- |

3)

Directive 91/271 cannot be considered, as regards the management of waste water which escapes from a sewerage network, to be special legislation (a lex specialis) vis-à-vis Directive 75/442, as amended by Directive 91/156, and cannot therefore be applied pursuant to Article 2(2) of Directive 75/442.

---

(1)  OJ C 205, 20.08.2005.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/3 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/3

---

Judgment of the Court (Grand Chamber) of 3 May 2007 (reference for a preliminary ruling from the Arbitragehof, Belgium) — Advocaten voor de Wereld VZW v Leden van de Ministerraad

(Case C-303/05) (1)

(Police and judicial cooperation in criminal matters - Articles 6(2) EU and 34(2)(b) EU - Framework Decision 2002/584/JHA - European arrest warrant and surrender procedures between Member States - Approximation of national laws - Removal of verification of double criminality - Validity)

(2007/C 140/05)

Language of the case: Dutch

Referring court

Arbitragehof

Parties to the main proceedings

Applicant: Advocaten voor de Wereld VZW

Defendant: Leden van de Ministerraad

Re:

Preliminary ruling — Arbitragehof — Interpretation of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) — Whether compatible with Article 34(2)(b) EU — Removal of the requirement of double criminality in respect of the offences listed in Article 2(2) of the Decision — Whether compatible with Article 6(2) EU

Operative part of the judgment

Examination of the questions submitted has revealed no factor capable of affecting the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

---

(1)  OJ C 271, 29.10.2005.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/4 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/4

---

Judgment of the Court (Fourth Chamber) of 10 May 2007 — SGL Carbon AG v Commission of the European Communities

(Case C-328/05 P) (1)

(Appeals - Competition - Agreements, decisions and concerted practices - Guidelines on the method of setting fines - Leniency Notice - Principle non bis in idem)

(2007/C 140/06)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by M. Klusmann and F. Wiemer, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities (represented by: F. Castillo de la Torre, M. Schneider, W. Mölls and H. Gading, Agents,)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 15 June 2005 in SGL Carbon v Commission (Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03), in which the Court of First Instance partially dismissed the action seeking annulment of Commission Decision C(2002) 5083 final of 17 December 2002 relating to a proceeding under Article 81 EC — Cartel in the specialty graphite market

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders SGL Carbon AG to pay the costs |
| --- | --- |

2.

Orders SGL Carbon AG to pay the costs

---

(1)  OJ C 281, 12.11.2005.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/4 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/4

---

Judgment of the Court (Fourth Chamber) of 3 May 2007 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Color Drack GmbH v Lexx International Vertriebs GmbH

(Case C-386/05) (1)

(Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Regulation (EC) No 44/2001 - Special jurisdiction - First indent of Article 5(1)(b) - Court for the place of performance of the contractual obligation in question - Sale of goods - Goods delivered in different places within a single Member State)

(2007/C 140/07)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Color Drack GmbH

Defendant: Lexx International Vertriebs GmbH

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Special jurisdiction — Place to which goods were delivered under a contract of sale — Multiple places of delivery

Operative part of the judgment

The first indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as applying where there are several places of delivery within a single Member State. In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of its choice.

---

(1)  OJ C 10, 14.1.2006.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/5 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/5

---

Judgment of the Court (Seventh Chamber) of 3 May 2007 — Commission of the European Communities v Ireland

(Case C-391/06) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/4/EC - Freedom of access to information - Environmental information - Failure to transpose within the prescribed period)

(2007/C 140/08)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: D. Lawunmi and U. Wölker, Agents),

Defendant: Ireland (represented by: D. O'Hagan, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, Ireland has failed to fulfil its obligations under the directive; |
| --- | --- |

1.

Declares that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, Ireland has failed to fulfil its obligations under the directive;

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

2.

Orders Ireland to pay the costs

---

(1)  OJ C 249, 02.12.2006.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/5 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/5

---

Judgment of the Court (Seventh Chamber) of 10 May 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-407/06) (1)

(Failure of a Member State to fulfil obligations - Protection of workers - Major accident hazards involving dangerous substances - Failure to transpose within the prescribed period)

(2007/C 140/09)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and J. Hottiaux, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances (OJ 2003 L 345, p. 97).

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 281 of 18.11.2006.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/6 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/6

---

Reference for a preliminary ruling from the Tribunalul Dâmboviţa (Romania) lodged on 24 January 2007 — Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa

(Case C-33/07)

(2007/C 140/10)

Language of the case: Romanian

Referring court

Tribunalul Dâmboviţa

Parties to the main proceedings

Applicant: Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti

Defendant: Gheorghe Jipa

Questions referred

| (1) | Must Article 18 EC (consolidated version published in OJ 2002 C 325 of 24.12.2002) be interpreted as meaning that the legislation in force in Romania (Articles 38 and 39 of Law 248/2005 on the conditions for the free movement of Romanian citizens abroad) places obstacles in the way of the free movement of persons? |
| --- | --- |

(1)

Must Article 18 EC (consolidated version published in OJ 2002 C 325 of 24.12.2002) be interpreted as meaning that the legislation in force in Romania (Articles 38 and 39 of Law 248/2005 on the conditions for the free movement of Romanian citizens abroad) places obstacles in the way of the free movement of persons?

| 2 | (a) | Do Articles 38 and 39 of Law 248/2005 (national legislation), which prevent a person (who is a Romanian citizen and, now, a citizen of the Union) from moving freely in another State (in this case, a Member State of the European Union), constitute an obstacle to the free movement of persons upheld by Article 18 EC? |
| --- | --- | --- |

2

(a)

Do Articles 38 and 39 of Law 248/2005 (national legislation), which prevent a person (who is a Romanian citizen and, now, a citizen of the Union) from moving freely in another State (in this case, a Member State of the European Union), constitute an obstacle to the free movement of persons upheld by Article 18 EC?

| (b) | May a Member State of the European Union (in this case Romania) place a limitation on the exercise of the right of freedom of movement of citizens within the territory of another Member State? |
| --- | --- |

(b)

May a Member State of the European Union (in this case Romania) place a limitation on the exercise of the right of freedom of movement of citizens within the territory of another Member State?

| 3 | (a) | Does the concept of ‘illegal residence’ used in the national provisions of Government Decree 825/2005 approving the Agreement between the Government of Romania, of the first part, and the Governments of the Kingdom of Belgium, of the Grand Duchy of Luxembourg and of the Kingdom of the Netherlands, of the other part, on the readmission of persons who are in an illegal situation (the provision on the basis of which the readmission of the defendant was ordered, his situation being that of ‘illegal residence’) fall within the grounds of ‘public policy’ or ‘public security’ provided for in Article 27 of Directive 2004/38/EEC, (1) so that a restriction on the freedom of movement of such a person may be imposed? |
| --- | --- | --- |

3

(a)

Does the concept of ‘illegal residence’ used in the national provisions of Government Decree 825/2005 approving the Agreement between the Government of Romania, of the first part, and the Governments of the Kingdom of Belgium, of the Grand Duchy of Luxembourg and of the Kingdom of the Netherlands, of the other part, on the readmission of persons who are in an illegal situation (the provision on the basis of which the readmission of the defendant was ordered, his situation being that of ‘illegal residence’) fall within the grounds of ‘public policy’ or ‘public security’ provided for in Article 27 of Directive 2004/38/EEC, (1) so that a restriction on the freedom of movement of such a person may be imposed?

| (b) | If the foregoing question is answered in the affirmative, must Article 27 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States be interpreted as meaning that the Member States may impose restrictions on the freedom of movement and residence of a citizen of the Union on grounds of ‘public policy’ and ‘public security’ automatically, without that person's ‘personal conduct’ being examined? |
| --- | --- |

(b)

If the foregoing question is answered in the affirmative, must Article 27 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States be interpreted as meaning that the Member States may impose restrictions on the freedom of movement and residence of a citizen of the Union on grounds of ‘public policy’ and ‘public security’ automatically, without that person's ‘personal conduct’ being examined?

---

(1)  OJ L 158, p. 77.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/6 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/6

---

Appeal brought on 8 March 2007 by Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau GmbH v Commission of the European Communities

(Case C-139/07P)

(2007/C 140/11)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by V. Kreuschitz and P. Aalto, acting as Agents)

Other parties to the proceedings: Technische Glaswerke Ilmenau GmbH, Schott Glas, Kingdom of Sweden and Republic of Finland

Form of order sought

| — | set aside the judgment of the Court of First Instance of 14 December 2006 (1) in Case T-237/02 Technische Glaswerke Ilmenau v Commission which annuls the decision of the Commission of 28 May 2002 in so far as it refuses access to documents relating to the investigation procedures in respect of aid granted to Technische Glaswerke Ilmenau GmbH, and |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 14 December 2006 (1) in Case T-237/02 Technische Glaswerke Ilmenau v Commission which annuls the decision of the Commission of 28 May 2002 in so far as it refuses access to documents relating to the investigation procedures in respect of aid granted to Technische Glaswerke Ilmenau GmbH, and

| — | order Technische Glaswerke Ilmenau GmbH to pay the costs. |
| --- | --- |

—

order Technische Glaswerke Ilmenau GmbH to pay the costs.

Pleas in law and main arguments

The Commission of the European Communities request the Court to set aside the judgment of the Court of First Instance of 14 December 2006 in Case T-237/02, which annuls the decision of the Commission of 28 May 2002 in so far as it refuses access to documents relating to the investigation of aid granted to Technische Glaswerke Ilmenau GmbH.

According to the settled case-law of the Court of First Instance and the Court of Justice, the parties, and accordingly the recipient of aid, have no right of access to documents in cases of investigation of aid. It follows that the decision of the Court of First Instance erred in law in paragraphs 87 to 89 of the judgment under appeal by stating that there were no special circumstances making it manifestly clear that the access to documents requested should be refused. In fact, it is clear from the case-law that the documents concerned are fully covered by an exception to the right of access to documents and accordingly that each document should not be individually examined.

Furthermore, cases of investigation of aid are proceedings against the State granting the aid, particularly where the recipient of the aid has no entitlement to aid. Accordingly, what is relevant to the question of access to documents is what the Court of Justice itself has ruled in relation to actions for infringement under Article 226 EC, namely that there is no public no right of access to documents in such proceedings.

The judgment under appeal also leads to the absurd result that the general public enjoys, on the basis of the legislation promoting transparency, namely Regulation No 1049/2001 (2), more extensive rights of access to documents than a recipient of aid who is directly subject to proceedings against him, who is also — precisely because he is directly and individually concerned for the purposes of Article 230(4) EC — entitled to raise proceedings against the decision ending the procedure. It is even harder to understand why the further consequence, namely that an application of a recipient of aid under reference to the applicable case-law may be rejected where such a response cannot be given to an application of a recipient of aid or an independent third party who relies on the transparency regulation.

With the third ground of appeal, the Commission criticises the judgment under appeal for giving the same expression, namely the word ‘document’, in the singular, in Article 4(2) of Regulation No 1049/2001 and in Article 6 of the regulation is given a different meaning. While, in Article 4(2), that word means that each document must be considered for a refusal to be given, the Court of First Instance interpreted Article 6 in such a way that access may also be requested to a bundle of documents that has been designated as an administrative file.

With the fourth ground of appeal, the Commission claims that the Court of First Instance infringed Article 255 EC, inasmuch as its decision was not arrived at on the basis of the language of the legislation, but on the basis of assumptions reached without reference to that wording.

Lastly, the Commission claims that the Court of First Instance wrongly held that both the procedures relating to the investigation of the aid granted to Technische Glaswerke Ilmenau GmbH had already been completed at the time of the decision concerning access to the administrative file, so that the authorities had no interest in maintaining the confidentiality of the documents. That is partly incorrect because of the proceedings pending before the Court of First Instance. The Court of First Instance also appears to have wrongly concluded that Regulation No 1049/2001 made the earlier case-law and the relevant procedural provisions relating to the monitoring of aid obsolete.

---

(1)  OJ 2006 C 331, p. 29

(2)  OJ 2001 L 145, p. 43

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/7 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/7

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Arcor AG & Co. KG v Bundesrepublik Deutschland

(Case C-152/07)

(2007/C 140/12)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Arcor AG & Co. KG

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Questions referred

Are Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (Competition Directive) (1) and Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (Interconnection Directive) (2) to be interpreted as meaning that the national regulatory authority is precluded from requiring, in 2003, the operator of a network which is interconnected with a public local telecommunications network to pay a contribution to the market-dominant operator of the local network in order to compensate him for the deficit incurred as a result of providing the local loop?

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

Is the incompatibility with Community law of such a requirement, which is a provision of domestic law, to be taken into account by the national court in proceedings concerning the approval of a contribution by the interconnected network operator?

---

(1)  OJ 1990 L 192, p. 10.

(2)  OJ 1997 L 199, p. 32.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/8 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/8

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Communication Services TELE2 GmbH v Bundesrepublik Deutschland

(Case C-153/07)

(2007/C 140/13)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Communication Services TELE2 GmbH

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Questions referred

Are Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (Competition Directive) (1) and Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (Interconnection Directive) (2) to be interpreted as meaning that the national regulatory authority is precluded from requiring, in 2003, the operator of a network which is interconnected with a public local telecommunications network to pay a contribution to the market-dominant operator of the local network in order to compensate him for the deficit incurred as a result of providing the local loop?

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

Is the incompatibility with Community law of such a requirement, which is a provision of domestic law, to be taken into account by the national court in proceedings concerning the approval of a contribution by the interconnected network operator?

---

(1)  OJ 1990 L 192, p. 10.

(2)  OJ 1997 L 199, p. 32.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/8 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/8

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — 01051 Telekom GmbH v Bundesrepublik Deutschland (Federal Republic of Germany)

(Case C-154/07)

(2007/C 140/14)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: 01051 Telekom GmbH

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Questions referred

Are Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (Competition Directive) (1) and Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (Interconnection Directive) (2) to be interpreted as meaning that the national regulatory authority is precluded from requiring, in 2003, the operator of a network which is interconnected with a public local telecommunications network to pay a contribution to the market-dominant operator of the local network in order to compensate him for the deficit incurred as a result of providing the local loop?

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

Is the incompatibility with Community law of such a requirement, which is a provision of domestic law, to be taken into account by the national court in proceedings concerning the approval of a contribution by the interconnected network operator?

---

(1)  OJ 1990 L 192, p. 10.

(2)  OJ 1997 L 199, p. 32.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/9 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/9

---

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 21 March 2007 — Salvatore Aiello and Others v Comune di Milano, Sindaco di Milano, Comitato tecnico — scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri, Euromilano SpA, Metropolitana milanese SpA

(Case C-156/07)

(2007/C 140/15)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Salvatore Aiello and Others

Defendants: Comune di Milano, Sindaco di Milano, Comitato tecnico — scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri, Euromilano SpA, Metropolitana milanese SpA

Questions referred

| 1. | Must Article 2 of Council Directive 85/337/EEC (1), in so far as it states that projects likely to have significant effects on the environment are to be made subject to an environmental impact assessment, and that such projects are defined in Article 4, be interpreted as meaning:






  — | that any project with a significant effect on the environment must, even if it is not listed in Annexes I or II to the Directive, be made subject to an environmental impact assessment; |
| --- | --- | --- |

1.

Must Article 2 of Council Directive 85/337/EEC (1), in so far as it states that projects likely to have significant effects on the environment are to be made subject to an environmental impact assessment, and that such projects are defined in Article 4, be interpreted as meaning:

—

that any project with a significant effect on the environment must, even if it is not listed in Annexes I or II to the Directive, be made subject to an environmental impact assessment;

| — | or, conversely, that only projects of a kind listed in Annexes I and II to the Directive must be made subject to an environmental impact assessment? |
| --- | --- |

—

or, conversely, that only projects of a kind listed in Annexes I and II to the Directive must be made subject to an environmental impact assessment?

| 2. | Does Article 4 of Council Directive 85/337/EEC, in so far as it gives Member States the possibility of providing for environmental impact assessments to be carried out for projects in the classes listed in Annex II on the basis of case-by-case assessments or predetermined criteria — account also being taken of the criteria set out in Annex III — create a specific obligation or merely an option for the Member States to take account of all the criteria listed in Annex III? |
| --- | --- |

2.

Does Article 4 of Council Directive 85/337/EEC, in so far as it gives Member States the possibility of providing for environmental impact assessments to be carried out for projects in the classes listed in Annex II on the basis of case-by-case assessments or predetermined criteria — account also being taken of the criteria set out in Annex III — create a specific obligation or merely an option for the Member States to take account of all the criteria listed in Annex III?

| 3. | Does Article 1 of the Presidential Decree of 12 April 1996 constitute due transposition into national law of Article 4 of Directive 85/337/EEC and Annex III thereto by the Italian legislature, given that it does not provide, as a criterion for making projects in the classes listed in Annex II to the Directive subject to an environmental impact assessment, for the criterion of cumulation with other projects, as referred to in Annex III to the Directive? |
| --- | --- |

3.

Does Article 1 of the Presidential Decree of 12 April 1996 constitute due transposition into national law of Article 4 of Directive 85/337/EEC and Annex III thereto by the Italian legislature, given that it does not provide, as a criterion for making projects in the classes listed in Annex II to the Directive subject to an environmental impact assessment, for the criterion of cumulation with other projects, as referred to in Annex III to the Directive?

---

(1)  OJ 1985 L 175, p. 40.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/9 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/9

---

Action brought on 23 March 2007 — Commission of the European Communities v Republic of Austria

(Case C-161/07)

(2007/C 140/16)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by E. Traversa and G. Braun, acting as Agents)

Defendant: Republic of Austria

Form of order sought

| — | declare that, by requiring, for the registration of companies in the register of commerce on application by nationals of the new Member States of the EU other than Malta and Cyprus, a determination of their self-employed status by the employment market service or the production of a certificate of exemption, in which connection, for determining the self-employed status of members of a partnership or minority shareholders in a limited liability company who perform work for the company that is typically performed in an employment relationship, a determination procedure is to be carried out during which, for a maximum of three months, the self-employed activity may not be pursued, the Republic of Austria has infringed Article 43 EC; |
| --- | --- |

—

declare that, by requiring, for the registration of companies in the register of commerce on application by nationals of the new Member States of the EU other than Malta and Cyprus, a determination of their self-employed status by the employment market service or the production of a certificate of exemption, in which connection, for determining the self-employed status of members of a partnership or minority shareholders in a limited liability company who perform work for the company that is typically performed in an employment relationship, a determination procedure is to be carried out during which, for a maximum of three months, the self-employed activity may not be pursued, the Republic of Austria has infringed Article 43 EC;

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

—

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The first paragraph of Article 43 guarantees all nationals of a Member State the right of establishment in another Member State in order to take up and pursue activities there as self-employed persons, and to set up companies and manage undertakings in another Member State. As an expression of the general prohibition of discrimination in Article 12 EC, Article 43 EC prohibits discrimination on grounds of nationality in the field of self-employed persons. The requirement of equal treatment with the nationals of the host State is expressed in the second paragraph of Article 43. Under that provision, freedom of establishment covers the right to take up and pursue activities of any kind as self-employed persons and to set up and manage undertakings, particularly companies, in the territory of any other Member State in accordance with the provisions laid down by the host State for its own nationals.

For the registration of a company established under Austrian law on application by a citizen of one of the Member States of the European Union which acceded on 1 May 2004 — with the exception of Malta and Cyprus — the courts keeping the registers of companies in Austria require a determination of his self-employed status. The distinction between self-employed and non-self-employed workers depends on the ‘true economic content of the activity’. Under the Austrian legislation, in particular, members of a partnership and members of a limited liability company with a share of less than 25 % of the business who perform work which is typically performed in an employment relationship are regarded as non-self-employed workers. That presumption applies until the regional office of the employment market service determines, on application by the member, that he exercises a significant influence on the management of the business. Proof of self-employed status is to be provided by the applicant. Until the determination of self-employed status by decision, but for a maximum of three months, the persons concerned cannot take up their activities.

This rule is not compatible with freedom of establishment under Article 43 EC. It impedes self-employed persons from eight new Member States in their freedom to become established in Austria, by making it considerably difficult for them to set up a company, without there being any justification for that. Even if it is the case that the provision in question is only of limited application, the rule does not thereby lose its discriminatory character. Even though nationals of the eight Member States concerned do not always without exception have to make an application, the decisive point is that Austrian citizens and nationals of the other Member States never have to make such an application. Moreover, the transitional provisions in the accession treaties provide for restrictions exclusively in respect of the freedom of movement of workers. For freedom of establishment there are no such possible restrictions. That the ratio legis of the relevant provision is to prevent the transitional provisions for the freedom of movement of workers from being circumvented, rather than to restrict freedom of establishment, does not alter the fact that it amounts to a restriction of freedom of establishment.

Restrictions of freedom of establishment can, under Article 46 EC, be justified only on grounds of public policy, public security or public health or, in the case of measures that are not overtly discriminatory, on other mandatory grounds in the public interest. As restrictions of a fundamental freedom, such measures must in any event be suitable for achieving the aim pursued and not go beyond what is necessary for that purpose. The Austrian rule in question does not satisfy those requirements for justification.

There is nothing to indicate that the evasion of the transitional provisions by nationals of the eight Member States concerned feared by the Austrian Government may reach such proportions that the functioning of the Austrian labour market will in fact be fundamentally threatened. In addition, the two criteria of assessment of the type of employment — the kind of work done and influence on the management of the company — are not appropriate for distinguishing between employment and self-employed activities. As regards the need for the restriction, it is not apparent from the Austrian Government's explanation why a subsequent check after registration of the company could not, as a less severe means, also achieve the intended purpose.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/10 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/10

---

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 26 March 2007 — Ampliscientifica Srl, Amplifin SpA v Ministero dell'Economia e delle Finanze, Agenzia delle Entrate

(Case C-162/07)

(2007/C 140/17)

Language of the case: Italian

Referring court

La Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ampliscientifica Srl, Amplifin SpA

Defendants: Ministero dell'Economia e delle Finanze, Agenzia delle Entrate

Questions referred

| 1. | Must the last paragraph of Article 4(4) of Council Directive 77/388/EEC (1) of 17 May 1977 be construed as a rule that is insufficiently precise, with the effect that the Member States are permitted to apply the VAT scheme set out in that rule to specific situations involving economic, financial or legal links among different persons, or as a rule that is sufficiently precise and which, therefore, once a Member State has decided to adopt that scheme, requires provision to be made for it to be applied in all cases involving the links set out in that rule? |
| --- | --- |

1.

Must the last paragraph of Article 4(4) of Council Directive 77/388/EEC (1) of 17 May 1977 be construed as a rule that is insufficiently precise, with the effect that the Member States are permitted to apply the VAT scheme set out in that rule to specific situations involving economic, financial or legal links among different persons, or as a rule that is sufficiently precise and which, therefore, once a Member State has decided to adopt that scheme, requires provision to be made for it to be applied in all cases involving the links set out in that rule?

| 2. | (i) Regardless of the reply to be given to question (1), is the imposition of a temporal restriction — in the sense that the link must have existed for a significant period of time — as a precondition for the application of the scheme, where the persons concerned are not permitted to demonstrate that there is a valid economic reason for the link being forged, disproportionate in relation to the objectives of the directive and to the need for compliance with the principle prohibiting the abuse of rights? (ii) Is that legislation to be regarded in any event as contrary to the principle of the neutrality of VAT? |
| --- | --- |

2.

(i) Regardless of the reply to be given to question (1), is the imposition of a temporal restriction — in the sense that the link must have existed for a significant period of time — as a precondition for the application of the scheme, where the persons concerned are not permitted to demonstrate that there is a valid economic reason for the link being forged, disproportionate in relation to the objectives of the directive and to the need for compliance with the principle prohibiting the abuse of rights? (ii) Is that legislation to be regarded in any event as contrary to the principle of the neutrality of VAT?

---

(1)  OJ 1977 L 145, p. 1

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/11 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/11

---

Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Apothekerkammer des Saarlandes, Marion Schneider, Michael Holzapfel, Dr Fritz Trennheuser and Deutscher Apothekerverband e.V. v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.

(Case C-171/07)

(2007/C 140/18)

Language of the case: German

Referring court

Verwaltungsgericht des Saarlandes

Parties to the main proceedings

Claimants: Apothekerkammer des Saarlandes, Marion Schneider, Michael Holzapfel, Dr Fritz Trennheuser and Deutscher Apothekerverband e.V.

Defendants: Saarland and Ministerium für Justiz, Gesundheit und Soziales

Joined party: DocMorris N.V.

Questions referred

| 1. | Are the provisions concerning freedom of establishment for capital companies (Articles 43 and 48 EC) to be interpreted as precluding a prohibition on foreign ownership of pharmacies, as provided for by Paragraph 2(1)(1) to (4) and (7), the first sentence of Paragraph 7 and the first sentence of Paragraph 8 of the Gesetz über das Apothekenwesen — ApoG — (Law on Pharmacies) of 15 October 1980 (BGBl. I, p. 1993), as amended most recently by Article 34 of the Regulations of 31 October 2006 (BGBl. I, p. 2407)? |
| --- | --- |

1.

Are the provisions concerning freedom of establishment for capital companies (Articles 43 and 48 EC) to be interpreted as precluding a prohibition on foreign ownership of pharmacies, as provided for by Paragraph 2(1)(1) to (4) and (7), the first sentence of Paragraph 7 and the first sentence of Paragraph 8 of the Gesetz über das Apothekenwesen — ApoG — (Law on Pharmacies) of 15 October 1980 (BGBl. I, p. 1993), as amended most recently by Article 34 of the Regulations of 31 October 2006 (BGBl. I, p. 2407)?

| 2. | If the first question is answered in the affirmative:
  Having regard in particular to Article 10 EC and to the principle of effectiveness of Community law, is a national authority entitled and obliged to disapply national provisions it regards as contrary to Community law even if there is no clear breach of Community law and it has not been established by the Court of Justice of the European Communities that the relevant provisions are incompatible with Community law? |
| --- | --- |

2.

If the first question is answered in the affirmative:

Having regard in particular to Article 10 EC and to the principle of effectiveness of Community law, is a national authority entitled and obliged to disapply national provisions it regards as contrary to Community law even if there is no clear breach of Community law and it has not been established by the Court of Justice of the European Communities that the relevant provisions are incompatible with Community law?

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/11 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/11

---

Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Helga Neumann-Seiwert v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.

(Case C-172/07)

(2007/C 140/19)

Language of the case: German

Referring court

Verwaltungsgericht des Saarlandes

Parties to the main proceedings

Claimant: Helga Neumann-Seiwert

Defendants: Saarland and Ministerium für Justiz, Gesundheit und Soziales

Joined party: DocMorris N.V

Questions referred

| 1. | Are the provisions concerning freedom of establishment for capital companies (Articles 43 and 48 EC) to be interpreted as precluding a prohibition on foreign ownership of pharmacies, as provided for by Paragraph 2(1)(1) to (4) and (7), the first sentence of Paragraph 7 and the first sentence of Paragraph 8 of the Gesetz über das Apothekenwesen — ApoG — (Law on Pharmacies) of 15 October 1980 (BGBl. I, p. 1993), as amended most recently by Article 34 of the Regulations of 31 October 2006 (BGBl. I, p. 2407)? |
| --- | --- |

1.

Are the provisions concerning freedom of establishment for capital companies (Articles 43 and 48 EC) to be interpreted as precluding a prohibition on foreign ownership of pharmacies, as provided for by Paragraph 2(1)(1) to (4) and (7), the first sentence of Paragraph 7 and the first sentence of Paragraph 8 of the Gesetz über das Apothekenwesen — ApoG — (Law on Pharmacies) of 15 October 1980 (BGBl. I, p. 1993), as amended most recently by Article 34 of the Regulations of 31 October 2006 (BGBl. I, p. 2407)?

| 2. | If the first question is answered in the affirmative:
  Having regard in particular to Article 10 EC and to the principle of effectiveness of Community law, is a national authority entitled and obliged to disapply national provisions it regards as contrary to Community law even if there is no clear breach of Community law and it has not been established by the Court of Justice of the European Communities that the relevant provisions are incompatible with Community law? |
| --- | --- |

2.

If the first question is answered in the affirmative:

Having regard in particular to Article 10 EC and to the principle of effectiveness of Community law, is a national authority entitled and obliged to disapply national provisions it regards as contrary to Community law even if there is no clear breach of Community law and it has not been established by the Court of Justice of the European Communities that the relevant provisions are incompatible with Community law?

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/12 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/12

---

Action brought on 30 March 2007 — Commission of the European Communities v Italian Republic

(Case C-174/07)

(2007/C 140/20)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and M. Afonso, acting as Agents)

Defendant: Italian Republic

Form of order sought

| — | declare that, by extending by Article 2(44) of Law No 350 of 24 December 2003 (2004 Finance Law) to 2002 the tax amnesty provided for in Articles 8 and 9 of Law No 289 of 27 December 2002 (2003 Finance Law), and providing expressly and in a general manner that assessment of taxable transactions effected in the 2002 tax period is to be abandoned, the Italian Republic has failed to fulfil its obligations under Article 2(1)(a)(c) and (d) and Articles 193 to 273 of Title XI of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, which from 1 January 2007 repealed and replaced Articles 2 and 22 of Sixth Council Directive 77/388/EEC (2) 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; |
| --- | --- |

—

declare that, by extending by Article 2(44) of Law No 350 of 24 December 2003 (2004 Finance Law) to 2002 the tax amnesty provided for in Articles 8 and 9 of Law No 289 of 27 December 2002 (2003 Finance Law), and providing expressly and in a general manner that assessment of taxable transactions effected in the 2002 tax period is to be abandoned, the Italian Republic has failed to fulfil its obligations under Article 2(1)(a)(c) and (d) and Articles 193 to 273 of Title XI of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, which from 1 January 2007 repealed and replaced Articles 2 and 22 of Sixth Council Directive 77/388/EEC (2) 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;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

| 1. | The Commission points out that the Community legislature imposed a twofold obligation on Member States consisting not only in adopting all legislative measures required under national law to implement the Sixth VAT Directive but also in adopting all administrative measures necessary to ensure that taxable persons liable to VAT comply with the obligations arising under the Sixth Directive, primarily the obligation to pay the tax due as a result of effecting taxable transactions spanning a certain period of time. It would not have made any sense for the Community legislature to have provided for the harmonisation of VAT, nor would it have served any practical purpose, if national fiscal authorities were not required to implement a system of assessment and monitoring intended to ensure ‘the collection of taxes in a uniform manner in all Member States’, as stated in the fourteenth recital in the preamble to the Sixth Directive. |
| --- | --- |

1.

The Commission points out that the Community legislature imposed a twofold obligation on Member States consisting not only in adopting all legislative measures required under national law to implement the Sixth VAT Directive but also in adopting all administrative measures necessary to ensure that taxable persons liable to VAT comply with the obligations arising under the Sixth Directive, primarily the obligation to pay the tax due as a result of effecting taxable transactions spanning a certain period of time. It would not have made any sense for the Community legislature to have provided for the harmonisation of VAT, nor would it have served any practical purpose, if national fiscal authorities were not required to implement a system of assessment and monitoring intended to ensure ‘the collection of taxes in a uniform manner in all Member States’, as stated in the fourteenth recital in the preamble to the Sixth Directive.

| 2. | The rules introduced by Articles 8 and 9 of Italian Law No 289/2002 went far beyond the bounds of administrative discretion conferred on the Member States by the Community legislature. In fact, instead of using that discretion to achieve more effective fiscal monitoring, by the above-mentioned law, the Italian State truly abandoned in a general, indiscriminate and preventive manner all forms of VAT assessment and verification, and is thus in direct breach of the requirements under Article 22 of the Sixth Directive and, as a consequence, of the general obligation under Article 2 to subject all taxable transactions to VAT. The Italian legislature has given all taxable persons liable to VAT and subject to its fiscal competence the possibility of bypassing entirely any form of fiscal control in relation to a series of tax years. A taxable person may acquire such a significant benefit by the payment of an amount calculated according to a standard method which no longer has any connection with the amount of VAT that would have been payable in respect of the cost of supplies of goods or services effected by the taxable person in the relevant tax year. |
| --- | --- |

2.

The rules introduced by Articles 8 and 9 of Italian Law No 289/2002 went far beyond the bounds of administrative discretion conferred on the Member States by the Community legislature. In fact, instead of using that discretion to achieve more effective fiscal monitoring, by the above-mentioned law, the Italian State truly abandoned in a general, indiscriminate and preventive manner all forms of VAT assessment and verification, and is thus in direct breach of the requirements under Article 22 of the Sixth Directive and, as a consequence, of the general obligation under Article 2 to subject all taxable transactions to VAT. The Italian legislature has given all taxable persons liable to VAT and subject to its fiscal competence the possibility of bypassing entirely any form of fiscal control in relation to a series of tax years. A taxable person may acquire such a significant benefit by the payment of an amount calculated according to a standard method which no longer has any connection with the amount of VAT that would have been payable in respect of the cost of supplies of goods or services effected by the taxable person in the relevant tax year.

| 3. | A particularly striking example of this radical ‘separation’ between the tax liability that is calculated as being payable in accordance with normal VAT rules and the ‘quantum’ payable to qualify for the ‘graveyard amnesty’ is to be found in the case of a taxable person who has failed to file any tax return at all. The taxable person can regularise his position in respect of each tax year by a payment of Euro 1 500 in the case of a natural person or Euro 3 000 in the case of a company. A further example of the total absence of any link with the basis of assessment of transactions effected (but not declared) is to be found in the rules governing the ‘graveyard’ amnesty, which may be procured by submitting a supplementary statement. The amount payable by a taxpayer wishing to take advantage of the amnesty is calculated as a percentage (2 %) to be applied to the VAT that would have been payable in respect of the supply of goods or services effected in each tax year (or the VAT improperly deducted in respect of purchases in the same tax year). |
| --- | --- |

3.

A particularly striking example of this radical ‘separation’ between the tax liability that is calculated as being payable in accordance with normal VAT rules and the ‘quantum’ payable to qualify for the ‘graveyard amnesty’ is to be found in the case of a taxable person who has failed to file any tax return at all. The taxable person can regularise his position in respect of each tax year by a payment of Euro 1 500 in the case of a natural person or Euro 3 000 in the case of a company. A further example of the total absence of any link with the basis of assessment of transactions effected (but not declared) is to be found in the rules governing the ‘graveyard’ amnesty, which may be procured by submitting a supplementary statement. The amount payable by a taxpayer wishing to take advantage of the amnesty is calculated as a percentage (2 %) to be applied to the VAT that would have been payable in respect of the supply of goods or services effected in each tax year (or the VAT improperly deducted in respect of purchases in the same tax year).

| 4. | Such a general and preventive abandonment of any means of VAT verification is likely seriously to distort the proper functioning of the common VAT system. In particular, it would undermine the principle of fiscal neutrality, which precludes the different VAT treatment of traders effecting the same transactions. Any exception to the rule that VAT should be levied and collected effectively would result, on the one hand, in inflicting serious damage to the detriment of both Italian undertakings and those in other Member States which are subject to ordinary value added tax rules and, on the other hand, in seriously undermining the principle of ‘fair competition’ within the common market, set out in the fourth recital in the Sixth Directive. |
| --- | --- |

4.

Such a general and preventive abandonment of any means of VAT verification is likely seriously to distort the proper functioning of the common VAT system. In particular, it would undermine the principle of fiscal neutrality, which precludes the different VAT treatment of traders effecting the same transactions. Any exception to the rule that VAT should be levied and collected effectively would result, on the one hand, in inflicting serious damage to the detriment of both Italian undertakings and those in other Member States which are subject to ordinary value added tax rules and, on the other hand, in seriously undermining the principle of ‘fair competition’ within the common market, set out in the fourth recital in the Sixth Directive.

---

(1)  OJ L 347 of 13.6.1977, p. 1.

(2)  OJ L 145 of 11.12.2006, p. 1.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/13 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/13

---

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 4 April 2007 — SAVA e C. S.r.l., SIEME S.r.l. and GRADED S.p.A. v Mostra d'Oltremare S.p.A. and Others

(Case C-194/07)

(2007/C 140/21)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Sava e C. s.r.l., Sieme s.r.l. and Graded S.p.A.

Defendants: Mostra d'Oltremare S.p.A. and Others

Question referred

Where a consortium without legal personality has participated as such in a procedure for the award of a public contract and has not been awarded that contract, is Article 1 of Council Directive 89/665/EEC (1) of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC (2) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, to be interpreted as precluding the possibility under national law for an individual member of that consortium to bring an action against the decision awarding the contract?

---

(1)  OJ L 395, p. 33.

(2)  OJ L 209, p. 1.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/13 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/13

---

Appeal brought on 16 April 2007 by C.A.S. SpA against the judgment delivered on 6 February 2007 in Case T-23/03 C.A.S. SpA v Commission of the European Communities

(Case C-204/07 P)

(2007/C 140/22)

Language of the case: German

Parties

Appellant: C.A.S. SpA (represented by D. Ehle, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | set aside the judgment of the Court of First Instance of 6 February 2007 (1) in Case T-23/03; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 6 February 2007 (1) in Case T-23/03;

| — | grant the form of order sought at first instance; in the alternative, refer the case back to the Court of First Instance for a decision on the substance; |
| --- | --- |

—

grant the form of order sought at first instance; in the alternative, refer the case back to the Court of First Instance for a decision on the substance;

| — | allow the applications for measures of organisation of procedure made by the appellant by documents of 28 January 2003, 4 August 2003 and 11 August 2003; |
| --- | --- |

—

allow the applications for measures of organisation of procedure made by the appellant by documents of 28 January 2003, 4 August 2003 and 11 August 2003;

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

—

order the defendant to pay the costs of the proceedings at first instance.

Pleas in law and main arguments

The appellant supports its appeal on the following nine grounds, on the basis of which it regards the contested judgment as erroneous:

The first ground of appeal relates to the exclusive competence which the Court of First Instance considered the Turkish authorities to have to determine whether the A.TR.1 movement of goods certificates issued by them and produced on import clearance were ‘authentic’ or ‘false’, or ‘correct’ or ‘incorrect’. The appellant takes the view that in cases in which there are sufficient and conclusive objective indications that the competent customs authorities of a country of export were involved in irregularities in the issue (delivery of forms, stamps and signatures) of movement certificates and the export clearance of the goods on the basis of those certificates, the exclusive jurisdiction of the customs authorities of the country of export ends. Later explanations provided by the Turkish authorities concerning the movement certificates could not be regarded as credible and solely determinative.

By the second ground of appeal the appellant criticises the view taken in the contested judgment of the extent of the right of access to documents and the rights of defence of an applicant. The right of access to documents cannot relate only to documents on which the Commission, according to its internal decision and its statements, based its contested decision. The right of access to documents covers also all further confidential and non-confidential documents which could be of importance to the applicant's factual and legal submissions with respect to the assessment of the facts.

The appellant's third ground of appeal is that the Court of First Instance imposed on it the entire burden of proof for the factual circumstances which justified a ‘special situation’ within the meaning of Article 239 of the Customs Code and Article 905 of the implementation regulation. The appellant considers that in certain cases the burden of proof is reversed or at least the obligation to provide proof is reduced. In no case is the burden on the applicant to prove certain facts, adduced by it, in third countries (in this case Turkey) which can best be ascertained, and must be ascertained, by the Commission/OLAF within the framework of the possibilities available to those authorities. The same applies to facts which are within the sphere of action and influence of the Commission.

As its fourth ground of appeal the appellant submits that the Court of First Instance wrongly — also in view of the full burden of proof imposed on it in the judgment — failed to order the measures of organisation of procedure it applied for, in particular the taking of evidence. Instead the offers to produce evidence were dismissed as immaterial.

As fifth ground of appeal the appellant submits that the Court of First Instance interpreted and classified wrongly in law all the documentation produced and facts and evidence adduced by it which pointed to the involvement of the Turkish authorities in (allegedly) ‘false’ (but really ‘incorrect’) A.TR.1 movement certificates. As a result it reached incorrect legal conclusions. The Court also completely ignored essential facts as clearly submitted by the appellant.

As the sixth ground of appeal it is submitted that the Court of First Instance failed to classify the Commission's failure to call on the Customs Committee/Association Council as a fault on the part of the Commission.

The seventh ground of appeal is that the Court of First Instance did not recognise the appellant's legitimate interest in the annulment of the Commission's partly contested decision with respect to a particular A.TR.1 movement certificate.

The eighth ground of appeal complains that the Court of First Instance erred in law by omitting to carry out a balancing of fairness and risk related to the specific case. The Court thereby failed to recognise that, even on the assumption that there were false A.TR.1 movement certificates, in view of the gross misconduct of the Turkish authorities and the Commission it was unfair, given the relationship between economic operators and the administration, to leave the appellant as an economic operator to bear a loss it would not have incurred if things had been done correctly.

As the ninth ground of appeal the appellant criticises the contested judgment for finding pursuant to Article 220(2)(b) of the Customs Code, on the basis of the facts submitted and ascertained, that there was no active involvement of the Turkish customs authorities in the issue and use of the 32 A.TR.1 certificates in question in this case.

---

(1)  OJ C 82, 14.4.2007, p. 30.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/14 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/14

---

Reference for a preliminary ruling from the Hof van Beroep, Ghent lodged on 19 April 2007 — Criminal proceedings against Lodewijk Gysbrechts and Santurel Inter BVBA

(Case C-205/07)

(2007/C 140/23)

Language of the case: Dutch

Referring court

Hof van Beroep, Ghent

Party to the main proceedings

Lodewijk Gysbrechts and Santurel Inter BVBA

Question referred

Does the Belgian Law of 14 July 1991 on commercial practices and the provision of information to and the protection of consumers constitute a measure having equivalent effect, as prohibited in Articles 28 to 30 of the Treaty establishing the European Community, inasmuch as Article 80(3) of that national law prohibits demands for an advance or for payment from the consumer during the compulsory period for withdrawal, as a result of which the actual effect of the Law of 14 July 1991 on the trading of goods in the trader's own country differs from its effect on trading with nationals of another Member State and does this give rise in fact to an obstacle to the free movement of goods, which is protected by Article 23 of the Treaty establishing the European Community?

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/15 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/15

---

Action brought on 19 April 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-207/07)

(2007/C 140/24)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by adopting the first indent of the second paragraph of the single article of Royal Decree-Law 4/2006 of 24 February 2006, amending the fourteenth function of the National Energy Commission provided for in Supplementary Provision No 11, part 3, point 1 of Law 34/1998 of 7 October 1998 on the hydrocarbon sector, in order to make the acquisition of certain shareholdings in undertakings which carry on certain regulated activities in the energy sector and the acquisition of the assets necessary to carry on such activities subject to the prior approval of the National Energy Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC and 43 EC; |
| --- | --- |

—

declare that, by adopting the first indent of the second paragraph of the single article of Royal Decree-Law 4/2006 of 24 February 2006, amending the fourteenth function of the National Energy Commission provided for in Supplementary Provision No 11, part 3, point 1 of Law 34/1998 of 7 October 1998 on the hydrocarbon sector, in order to make the acquisition of certain shareholdings in undertakings which carry on certain regulated activities in the energy sector and the acquisition of the assets necessary to carry on such activities subject to the prior approval of the National Energy Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC and 43 EC;

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

| 1. | The Spanish legislation which is the subject of these proceedings makes the following transactions subject to the prior approval of the National Energy Commission (‘the NEC’):






  — | the acquisition of a shareholding in an undertaking which carries on itself or through other undertakings belonging to the same group certain activities in the energy sector, where that shareholding exceeds 10 %, or any other percentage giving a significant influence over that undertaking; |
| --- | --- | --- |

1.

The Spanish legislation which is the subject of these proceedings makes the following transactions subject to the prior approval of the National Energy Commission (‘the NEC’):

—

the acquisition of a shareholding in an undertaking which carries on itself or through other undertakings belonging to the same group certain activities in the energy sector, where that shareholding exceeds 10 %, or any other percentage giving a significant influence over that undertaking;

| — | the acquisition of the assets necessary to carry on such activities. |
| --- | --- |

—

the acquisition of the assets necessary to carry on such activities.

| 2. | The Commission takes the view that the provision in question is incompatible with Article 56 of the EC Treaty for the following reasons:






  — | the acquisition of shares in undertakings which carry on activities in the energy sector or the assets necessary to carry on such activities are ‘movements of capital’ within the meaning of Article 56 EC; |
| --- | --- | --- |

2.

The Commission takes the view that the provision in question is incompatible with Article 56 of the EC Treaty for the following reasons:

—

the acquisition of shares in undertakings which carry on activities in the energy sector or the assets necessary to carry on such activities are ‘movements of capital’ within the meaning of Article 56 EC;

| — | the requirement of prior approval by the NEC constitutes a ‘restriction’ on the free movement of capital prohibited in principle by Article 56 EC; and |
| --- | --- |

—

the requirement of prior approval by the NEC constitutes a ‘restriction’ on the free movement of capital prohibited in principle by Article 56 EC; and

| — | that restriction is not justified under the EC Treaty. |
| --- | --- |

—

that restriction is not justified under the EC Treaty.

| 3. | In particular, the Commission takes the view that the legislation at issue is not justified by the objective of safeguarding the energy supply for the following reasons:






  — | the contested measure is not an appropriate means of safeguarding the energy supply, there being other more suitable means of doing so; |
| --- | --- | --- |

3.

In particular, the Commission takes the view that the legislation at issue is not justified by the objective of safeguarding the energy supply for the following reasons:

—

the contested measure is not an appropriate means of safeguarding the energy supply, there being other more suitable means of doing so;

| — | in any event, the contested measure is disproportionate, since prior approval is not limited to either certain specific aspects of the management of the undertaking in which a shareholding has been acquired or the management of the assets; |
| --- | --- |

—

in any event, the contested measure is disproportionate, since prior approval is not limited to either certain specific aspects of the management of the undertaking in which a shareholding has been acquired or the management of the assets;

| — | the power of the NEC to withhold the approval or to make it subject to conditions is not governed by criteria which are objective and sufficiently precise, so as to be amenable to effective review by the courts. |
| --- | --- |

—

the power of the NEC to withhold the approval or to make it subject to conditions is not governed by criteria which are objective and sufficiently precise, so as to be amenable to effective review by the courts.

The Commission considers that the legislation at issue also constitutes a restriction on the right to establishment contrary to Article 43 EC which, for the reasons already mentioned in relation to Article 56 EC, are not justified by the objective of safeguarding energy resources.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/15 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/15

---

Reference for a preliminary ruling from Supreme Court (Ireland) made on 20 April 2007 — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd

(Case C-209/07)

(2007/C 140/25)

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: The Competition Authority

Defendants: Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd

Questions referred

‘Where it is established to the satisfaction of the court that:

| a) | there is overcapacity in the industry for the processing of beef, which calculated at peak throughput, would be approximately 32 %; |
| --- | --- |

a)

there is overcapacity in the industry for the processing of beef, which calculated at peak throughput, would be approximately 32 %;

| b) | the effect of this excess capacity will have very serious consequences for the profitability of the industry as a whole over the medium term, |
| --- | --- |

b)

the effect of this excess capacity will have very serious consequences for the profitability of the industry as a whole over the medium term,

| c) | while, as reported, the effects of surplus requirements have not been felt to any significant degree as yet, independent consultants have advised that, in the near term, the overcapacity is unlikely to be eliminated by normal market measures, but over time the overcapacity will lead to very significant losses and ultimately to processors and plants leaving the industry; |
| --- | --- |

c)

while, as reported, the effects of surplus requirements have not been felt to any significant degree as yet, independent consultants have advised that, in the near term, the overcapacity is unlikely to be eliminated by normal market measures, but over time the overcapacity will lead to very significant losses and ultimately to processors and plants leaving the industry;

| d) | processors of beef representing approximately 93 % of the market for the supply of beef of that industry have agreed to take steps to eliminate the overcapacity and are willing to pay a levy in order to fund payments to processors willing to cease production, and |
| --- | --- |

d)

processors of beef representing approximately 93 % of the market for the supply of beef of that industry have agreed to take steps to eliminate the overcapacity and are willing to pay a levy in order to fund payments to processors willing to cease production, and

the said processors, comprising ten companies, form a corporate body, (“the society”) for the purpose of implementing an arrangement with the following features:

| 1. | plants (called “goers” ) killing and processing 420,000 animals per annum, representing approximately 25 % of active capacity would enter into an agreement with the remaining companies (called “stayers” ) to leave the industry and to abide by the following terms; |
| --- | --- |

1.

plants (called “goers” ) killing and processing 420,000 animals per annum, representing approximately 25 % of active capacity would enter into an agreement with the remaining companies (called “stayers” ) to leave the industry and to abide by the following terms;

| 2. | goers would sign a two year non-compete clause in relation to the processing of cattle on the entire island of Ireland; |
| --- | --- |

2.

goers would sign a two year non-compete clause in relation to the processing of cattle on the entire island of Ireland;

| 3. | the plants of goers would be decommissioned; |
| --- | --- |

3.

the plants of goers would be decommissioned;

| 4. | land associated with the decommissioned plants would not be used for the purposes of beef processing for a period of five years; |
| --- | --- |

4.

land associated with the decommissioned plants would not be used for the purposes of beef processing for a period of five years;

| 5. | compensation would be paid to goers in staged payments by means of loans made by the stayers to the society; |
| --- | --- |

5.

compensation would be paid to goers in staged payments by means of loans made by the stayers to the society;

| 6. | a voluntary levy would be paid to the society by all stayers at the rate of EUR 2 per head of the traditional percentage kill and EUR 11 per head on cattle kill above that figure; |
| --- | --- |

6.

a voluntary levy would be paid to the society by all stayers at the rate of EUR 2 per head of the traditional percentage kill and EUR 11 per head on cattle kill above that figure;

| 7. | the levy would be used to repay the stayers' loans; levies would cease on repayment of the loans; |
| --- | --- |

7.

the levy would be used to repay the stayers' loans; levies would cease on repayment of the loans;

| 8. | the equipment of goers used for primary beef processing would be sold only to stayers for use as back-up equipment or spare parts or sold outside the island of Ireland; |
| --- | --- |

8.

the equipment of goers used for primary beef processing would be sold only to stayers for use as back-up equipment or spare parts or sold outside the island of Ireland;

| 9. | the freedom of the stayers in matters of production, pricing, conditions of sale, imports and exports, increase in capacity and otherwise would not be affected, |
| --- | --- |

9.

the freedom of the stayers in matters of production, pricing, conditions of sale, imports and exports, increase in capacity and otherwise would not be affected,

and that it is agreed that such an agreement is liable, for the purpose of application of Article 81(1)EC, to have an appreciable effect on trade between Member States, is such arrangement to be regarded as having as its object, as distinct from effect, the prevention, restriction or distortion of competition within the common market and therefore, incompatible with Article 81(1) of the Treaty establishing the European Community?’

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/16 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/16

---

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) (Greece) lodged on 23 April 2007 — Mikhaniki A.E. v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou

(Case C-213/07)

(2007/C 140/26)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Mikhaniki A.E.

Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou

Questions referred

| 1. | Is the list of grounds for excluding public works contractors contained in Article 24 of Council Directive 93/37/ΕEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199) exhaustive? |
| --- | --- |

1.

Is the list of grounds for excluding public works contractors contained in Article 24 of Council Directive 93/37/ΕEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199) exhaustive?

| 2. | If that list is not exhaustive, does a provision which lays down (in order to protect transparency in the economic functioning of the State) that the status of owner, partner, main shareholder or management executive of a media undertaking is incompatible with the status of owner, partner, main shareholder or management executive of an undertaking contracting to perform a works, supply or services contract for the State, or for a legal person in the public sector in the broad sense, serve purposes which are compatible with the general principles of Community law and is that total prohibition on the award of public contracts to such undertakings compatible with the Community principle of proportionality? |
| --- | --- |

2.

If that list is not exhaustive, does a provision which lays down (in order to protect transparency in the economic functioning of the State) that the status of owner, partner, main shareholder or management executive of a media undertaking is incompatible with the status of owner, partner, main shareholder or management executive of an undertaking contracting to perform a works, supply or services contract for the State, or for a legal person in the public sector in the broad sense, serve purposes which are compatible with the general principles of Community law and is that total prohibition on the award of public contracts to such undertakings compatible with the Community principle of proportionality?

| 3. | If, within the meaning of Article 24 of Directive 93/37/ΕEC, the list of grounds for excluding contractors contained therein is an exhaustive list or if the national provision at issue cannot be construed as serving purposes which are compatible with the general principles of Community law or if, finally, the prohibition introduced in it is not compatible with the Community principle of proportionality, does the above directive, in preventing the inclusion, as grounds for excluding contractors from public works procurement procedures, of cases where the contractor, its executives (such as the owner of the undertaking or its main shareholder, partner or management executive), or intermediaries acting for the said executives, work in media undertakings which are able to exercise an undue influence on the public works procurement procedure, because of the influence which they are able to exert in general, infringe the general principles of the protection of competition and transparency and Article 5(2) of the Treaty establishing the European Community which enacts the principle of subsidiarity? |
| --- | --- |

3.

If, within the meaning of Article 24 of Directive 93/37/ΕEC, the list of grounds for excluding contractors contained therein is an exhaustive list or if the national provision at issue cannot be construed as serving purposes which are compatible with the general principles of Community law or if, finally, the prohibition introduced in it is not compatible with the Community principle of proportionality, does the above directive, in preventing the inclusion, as grounds for excluding contractors from public works procurement procedures, of cases where the contractor, its executives (such as the owner of the undertaking or its main shareholder, partner or management executive), or intermediaries acting for the said executives, work in media undertakings which are able to exercise an undue influence on the public works procurement procedure, because of the influence which they are able to exert in general, infringe the general principles of the protection of competition and transparency and Article 5(2) of the Treaty establishing the European Community which enacts the principle of subsidiarity?

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/17 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/17

---

Action brought on 3 May 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-223/07)

(2007/C 140/27)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell and P. Dejmek, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | A declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (1) and Directive 2004/50/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system (2) or, in any event, by failing to communicate them to the Commission, the Kingdom of Sweden has failed to fulfil its obligations under that directive |
| --- | --- |

—

A declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (1) and Directive 2004/50/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system (2) or, in any event, by failing to communicate them to the Commission, the Kingdom of Sweden has failed to fulfil its obligations under that directive

| — | An order that the Kingdom of Sweden should pay the costs. |
| --- | --- |

—

An order that the Kingdom of Sweden should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the Directive expired on 30 April 2006.

---

(1)  OJ 2004 L 164, p. 44.

(2)  OJ 2004 L 164, p. 114.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/17 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/17

---

Action brought on 10 May 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-235/07)

(2007/C 140/28)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by G. Braun and P. Dejmek, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

| — | declare that, by not bringing into force the laws, regulations and administrative provisions necessary to implement Directive 2004/49/EC (1) of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC (2) on the licensing of railway undertakings and Directive 2001/14/EC (3) on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) into national law, or by not informing the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and that directive; |
| --- | --- |

—

declare that, by not bringing into force the laws, regulations and administrative provisions necessary to implement Directive 2004/49/EC (1) of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC (2) on the licensing of railway undertakings and Directive 2001/14/EC (3) on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) into national law, or by not informing the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and that directive;

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

—

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period laid down for implementing the directive expired on 30 April 2006.

---

(1)  OJ 2004 L 164, p. 44

(2)  OJ 1995 L 143, p. 70

(3)  OJ 2001 L 75, p. 29

---

Court of First Instance

| 23.6.2007 | EN | Official Journal of the European Union | C 140/19 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/19

---

Judgment of the Court of First Instance of 3 May 2007 — Freistaat Sachsen v Commission

(Case T-357/02) (1)

(State aid - Aid granted by the authorities of the Free State of Saxony - Aid scheme for small and medium-sized enterprises - Accelerated clearance procedure - Application ratione temporis of the Community guidelines and of the exempting regulation concerning aid to small and medium-sized enterprises - Aid scheme notified before the entry into force of the exempting regulation - Legitimate expectations - Legal certainty - Complete notification)

(2007/C 140/29)

Language of the case: German

Parties

Applicant: Freistaat Sachsen (Germany) (represented by: T. Lübbig, lawyer)

Defendant: Commission of the European Communities (represented by: V. Kreuschitz and J. Flett, Agents)

Re:

Action for annulment of the second paragraph of Article 2 and of Articles 3 and 4 of Commission Decision 2003/226/EC of 24 September 2002 on an aid scheme which the Federal Republic of Germany is planning to implement — ‘Guidelines on assistance for SMEs — Improving business efficiency in Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs), 5 (Cooperation) and 7 (Design promotion) (OJ 2003 L 91, p. 13),

Operative part of the judgment

The Court:

| 1. | Annuls the second paragraph of Article 2 and Articles 3 and 4 of Commission Decision 2003/226/EC of 24 September 2002 on an aid scheme which the Federal Republic of Germany is planning to implement — ‘Guidelines on assistance for SMEs — Improving business efficiency in Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs), 5 (Cooperation) and 7 (Design promotion); |
| --- | --- |

1.

Annuls the second paragraph of Article 2 and Articles 3 and 4 of Commission Decision 2003/226/EC of 24 September 2002 on an aid scheme which the Federal Republic of Germany is planning to implement — ‘Guidelines on assistance for SMEs — Improving business efficiency in Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs), 5 (Cooperation) and 7 (Design promotion);

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

2.

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

---

(1)  OJ C 31, 8.2.2003.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/19 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/19

---

Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Kingdom of Spain v Commission of the European Communities

(Case T-219/04) (1)

(Fisheries - Adjustment of the capacity of Member States' fishing fleets - Entry/exit scheme - Committee for fisheries and aquaculture - Rules on the use of languages)

(2007/C 140/30)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, acting as Agent)

Defendant: Commission of the European Communities (represented by: T. van Rijn and S. Pardo Quintillán, Agents)

Re:

Application for annulment of Commission Regulation (EC) No. 1439/2003 of 12 August 2003 laying down implementing rules on the Community Fleet Policy as defined in Chapter III of Council Regulation No. 2371/2002

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 10.01.2004, (formerly Case C-464/03)

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/19 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/19

---

Judgment of the Court of First Instance of 10 May 2007 — Negenman v Commission

(Case T-255/04) (1)

(Civil service - Officials - Maternity leave - Sickness leave - Probable date of confinement - Date of beginning of maternity leave)

(2007/C 140/31)

Language of the case: French

Parties

Applicant: Monique Negenman (Roosendaal, The Netherlands) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities (represented by: initially D. Waelbrock, then H. Tserepa-Lacombe, Agents, the latter assisted by N. Rampal, lawyer)

Re:

Application for, first, annulment of the Commission's decision fixing the dates of the beginning and end of the applicant's maternity leave in accordance with Article 58 of the Staff Regulations of Officials of the European Communities and, second, damages.

Operative part of the judgment

The Court:

| 1. | Annuls the Commission's decision of 23 October 2003 fixing the dates of the beginning and end of the applicant's maternity leave; |
| --- | --- |

1.

Annuls the Commission's decision of 23 October 2003 fixing the dates of the beginning and end of the applicant's maternity leave;

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

2.

Dismisses the remainder of the application;

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

3.

Orders the Commission to pay the costs.

---

(1)  OJ C 228 of 11.9.2004.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/20 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/20

---

Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Crespinet v Commission

(Case T-261/04) (1)

(Officials - Promotion - Promotion year 2003 - Award of promotion points)

(2007/C 140/32)

Language of the case: French

Parties

Applicant: Alain Crespinet (Rosières, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe and C. Berardis-Kayser, acting as Agents)

Re:

Application for the annulment of the decision of the Commission by which promotion points were awarded to the applicant for the promotion year 2003 and the decision not to enter the applicant's name on the list of officials promoted to grade A5 for that promotion year.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders that each party is to bear its own costs.

---

(1)  OJ C 273, 6.11.2004

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/20 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/20

---

Judgment of the Court of First Instance of 8 May 2007 — Citymo v Commission

(Case T-271/04) (1)

(Contractual liability - Arbitration clause - Lease contract - Inadmissibility - Non-contractual liability - Pre-contract negotiations - Plea of illegality - Legitimate expectation - Good faith - Abuse of rights - Material loss - Lost opportunity)

(2007/C 140/33)

Language of the case: French

Parties

Applicant: Citymo SA (Brussels, Belgium) (represented by: P. Van Ommeslaghe, I. Heenen and P.-M. Louis, lawyers)

Defendant: Commission of the European Communities (represented by: L. Parpala and E. Manhaeve, acting as Agents, and D. Philippe and M. Gouden, lawyers)

Re:

Principally, an action in contractual liability based on an arbitration clause seeking an order that the Commission pay to the applicant company damages for its repudiation of a lease contract allegedly concluded between it and the European Community, represented by the Commission, and, in the alternative, an action in non-contractual liability seeking compensation for the loss allegedly suffered by the applicant following the Commission's decision to halt pre-contractual negotiations relating to conclusion of that lease contract.

Operative part of the judgment

The Court:

| 1. | The Commission shall be ordered to pay to the applicant the sum of EUR 20 000 together with late payment interest thereon to run from the date of delivery of this judgment to the date of actual payment at an annual rate equal to the rate fixed by the European Central Bank for main refinancing operations, increased by 2 points, provided that it does not exceed a rate of 6 %; |
| --- | --- |

1.

The Commission shall be ordered to pay to the applicant the sum of EUR 20 000 together with late payment interest thereon to run from the date of delivery of this judgment to the date of actual payment at an annual rate equal to the rate fixed by the European Central Bank for main refinancing operations, increased by 2 points, provided that it does not exceed a rate of 6 %;

| 2. | The remainder of the action is dismissed; |
| --- | --- |

2.

The remainder of the action is dismissed;

| 3. | Each party shall bear its own costs. |
| --- | --- |

3.

Each party shall bear its own costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/21 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/21

---

Judgment of the Court of First Instance (Fifth Chamber) of 3 May 2007 — Tsarnavas v Commission

(Case T-343/04) (1)

(Officials - Staff report - Invalidity - Action for annulment - Interest to bring proceedings - Action for damages - Inadmissibility)

(2007/C 140/34)

Language of the case: French

Parties

Applicant: Vassilios Tsarnavas (Volos, Greece) (represented by N. Lhoëst and B. d'Orléans, lawyers)

Defendant: Commission of the European Communities (represented by C. Berardis-Kayser and D. Martin, acting as Agents)

Re:

First, application for the annulment of the decision of the appeal assessor of 4 August 2003 establishing the definitive staff report in relation to the applicant for the period from 1 July 1997 to 30 June 1999 and, secondly, action for damages in respect of the non-pecuniary damage suffered by the applicant by reason of the late drawing up of his staff report and the moral harassment of which he was the victim.

Operative part of the judgment

The Court:

| 1. | Declares that the decision of the appeal assessor of 4 August 2003 establishing the definitive staff report in relation to the applicant for the period from 1 July 1997 to 30 June 1999 is annulled; |
| --- | --- |

1.

Declares that the decision of the appeal assessor of 4 August 2003 establishing the definitive staff report in relation to the applicant for the period from 1 July 1997 to 30 June 1999 is annulled;

| 2. | Dismisses the action as to the remainder; |
| --- | --- |

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission to pay its own costs and one-half of the costs incurred by the applicant. |
| --- | --- |

3.

Orders the Commission to pay its own costs and one-half of the costs incurred by the applicant.

---

(1)  OJ C 262, 23.10.2004

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/21 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/21

---

Judgment of the Court of First Instance of 10 May 2007 — Spain v Commission

(Case T-99/05) (1)

(Fisheries - Regulation (EC) No 494/2002 - Conservation of the resources of the sea - Legal basis - Principle of non-discrimination - Obligation to state reasons)

(2007/C 140/35)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Defendant: Commission of the European Communities (represented by: T. van Rijn, F. Jimeno Fernández and S. Pardo Quintillán, Agents)

Re:

Action for annulment of Commission Regulation (EC) No 494/2002 of 19 March 2002 establishing additional technical measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e (OJ 2002 L 77, p. 8)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

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

---

(1)  OJ C 144, 15.6.2002 (formerly Case C-165/02).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/21 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/21

---

Judgment of the Court of First Instance of 15 May 2007 — Black & Decker v OHIM — Atlas Copco (Three-dimensional representations of two yellow and black electric power tools)

(Joined Cases T-239/05, T-240/05, T-245/05 to T-247/05, T-255/05, T-274/05 to T-280/05) (1)

(Community trade mark - Opposition proceedings - Opposition period - Transmission by telecopier - Admissibility - Clear indentification of the earlier trade mark - Rule 18(1) of Regulation (EC) No 2868/95)

(2007/C 140/36)

Language of the case: English

Parties

Applicant: Black & Decker (Towson, Maryland, United States) (represented by: H. Carr QC and P. Harris Solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Atlas Copco AB (Stockholm, Sweden) (represented by: R. Meade, Barrister, and M. Gilbert, Solicitor)

Re:

Thirteen actions brought against the decisions of the First Board of Appeal of OHIM of 19 April 2005 (R 727/2004-1, R 729/2004-1, R 723/2004-1, R 730/2004-1 and R 724/2004-1), of 27 April 2005 (R 722/2004-1) and of 3 May 2005 (R 788/2004-1, R 789/2004-1, R 790/2004-1, R 791/2004-1, R 792/2004-1, R 793/2004-1 and R 794/2004-1), relating to opposition proceedings between Atlas Copco AB and The Black & Decker Corporation.

Operative part of the judgment

The Court:

| 1. | Dismisses the actions; |
| --- | --- |

1.

Dismisses the actions;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 205, 20.8.2005.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/22 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/22

---

Judgment of the Court of First Instance of 10 May 2007 — Antartica v OHIM — Nasdaq Stock Market (nasdaq)

(Case T-47/06) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark nasdaq - Earlier Community word mark NASDAQ - Relative ground for refusal - Reputation - Article 8(5) of Regulation (EC) No 40/94)

(2007/C 140/37)

Language of the case: English

Parties

Applicant: Antartica Srl (Rome, Italy) (represented by: E. Racca, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: The Nasdaq Stock Market, Inc. (Washington DC, United States) (represented by: J. van Manen and J. Hofhuis, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of OHIM of 7 December 2005 (Case R 752/2004-2), relating to opposition proceedings between The Nasdaq Stock Market, Inc. and Antartica Srl.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 74, 25.3.2006.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/22 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/22

---

Order of the Court of First Instance of 23 April 2007 — SID v Commission

(Case T-30/03) (1)

(State aid - Decision not to raise objections - Action for annulment - Admissibility - Concept of party concerned - Trade union)

(2007/C 140/38)

Language of the case: English

Parties

Applicant: Specialarbejderforbundet i Danmark (SID) (Copenhagen, Denmark) (represented by: P. Bentley QC, A. Worsøe and F. Ragolle, Lawyers)

Defendant: Commission of the European Communities (represented by: initially H. van Vliet, then N. Khan, Agents)

supported by: Kingdom of Denmark (represented by: J. Molde, Agent) and Kingdom of Norway (represented by: I. Høyland, Agent)

Re:

Annulment of Commission Decision C (2002) 4370 final of 13 November 2002 not to raise objections to the Danish tax measures applicable to seafarers on board vessels registered in the Danish international register

Operative part of the order

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

1.

The application is dismissed as inadmissible.

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

2.

The applicant is ordered to bear its own costs and to pay those of the Commission.

| 3. | All the parties are ordered to bear their own costs relating to the interventions. |
| --- | --- |

3.

All the parties are ordered to bear their own costs relating to the interventions.

---

(1)  OJ C 70, 22.3.2003.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/23 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/23

---

Order of the Court of First Instance of 30 April 2007 — EnBW Energie Baden-Württemberg v Commission

(Case T-387/04) (1)

(Annulment - Directive 2003/87/EC - Greenhouse gas emission allowance trading - National plan for allocation of emission quotas for Germany - State aid - Legal interest in bringing proceedings - Inadmissibility)

(2007/C 140/39)

Language of the case: German

Parties

Applicant: EnBW Energie Baden-Württemberg (Karlsruhe, Germany) (represented by: C.-D. Ehlermann, M. Seyfarth, A. Gutermuth and M. Wissmann, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker, M. Niejahr and T. Scharf, acting as Agents)

Intervener in support of the form of order sought by the defendant: Federal Republic of Germany (represented by: W.-D. Plessing and U. Forsthoff, Agents, and D. Sellner and U. Karpenstein, lawyers)

Re:

Application for annulment of Commission Decision C (2004) 2515/2 final of 7 July 2004 on the national plan for the allocation of greenhouse gas emission allowances, communicated by Germany in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

Operative part of the order

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

1.

The application is dismissed as inadmissible;

| 2. | The applicant shall bear its own costs and pay those of the defendant; |
| --- | --- |

2.

The applicant shall bear its own costs and pay those of the defendant;

| 3. | The intervener shall bear its own costs. |
| --- | --- |

3.

The intervener shall bear its own costs.

---

(1)  OJ C 6, 8.1.2005.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/23 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/23

---

Order of the Court of First Instance of 26 April 2007 — Tebaldi and Others v Commission

(Case T-415/04) (1)

(Civil Service - Officials - Promotion - Promotions procedure 2003 - Refusal of promotion - Award of promotion points - Manifestly inadmissible)

(2007/C 140/40)

Language of the case: French

Parties

Applicants: Vittoria Tebaldi (Brussels, Belgium); Vicente Tejero Gazo (Tervuren, Belgium); Victor Gonzalez Martinez (Brussels); and Alessandro Giovannetti (Ernster, Luxembourg) (represented initially by: G. Bounéou and F. Frabetti, lawyers; subsequently by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities (represented by: G. Berscheid and H. Kramer, acting as Agents)

Re:

Application for annulment, principally, of the list of officials promoted to a higher grade in the 2003 promotions procedure, insofar as that list does not include the names of the applicants, and of the preparatory measures for that decision and, by way of an ancillary measure, annulment of the decision awarding promotion points in the 2003 promotions procedure.

Operative part of the order

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

1.

The application is dismissed as manifestly inadmissible;

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 300, 4.12.2004.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/24 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/24

---

Order of the President of the Court of First Instance of 2 May 2007 — IPK International World Tourism Marketing Consultants v Commission

(Case T-297/05 R)

(Interim measures - Article 256 EC - Subject-matter of the application - Admissibility - Lack of urgency)

(2007/C 140/41)

Language of the case: German

Parties

Applicant: IPK International — World Tourism Marketing Consultants GmbH (Munich, Germany) (represented by: C. Pitschas, lawyer)

Defendant: Commission of the European Communities (represented by: B. Schima, acting as Agent, and C. Arhold, lawyer)

Re:

Application for a stay of execution of Commission Decision C (2006) 6452 of 4 December 2006 relating to recovery of the sum of EUR 318 000 received by the applicant as an advance in respect of the Ecodata project.

Operative part of the order

| 1. | The application for interim measures is dismissed; |
| --- | --- |

1.

The application for interim measures is dismissed;

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/24 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/24

---

Order of the President of the Court of First Instance of 3 May 2007 — Polimeri Europa v Commission

(Case T-12/07 R)

(Application for interim measures - Competition - Application for further interim measures - Order addressed to third parties - Inadmissibility)

(2007/C 140/42)

Language of the case: Italian

Parties

Applicant: Polimeri Europa SpA (Brindisi, Italy) (represented by: M. Siragusa, F. Moretti and L. Nascimbene, lawyers)

Defendant: Commission of the European Communities (represented by: V. Di Bucci, F. Amato and V. Bottka, Agents)

Re:

Application for interim measures requesting, first, an order requiring the Commission to prohibit Manufacture Française des Pneumatiques Michelin, on pain of a penalty, from using in any way or for any purpose whatsoever the information contained in the non-confidential version of the statement of objections of 6 April 2006 adopted in proceedings under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber (BR) and Emulsion Styrene Butadiene Rubber (ESBR)) which was forwarded to that company as a result of the Commission's decision COMP/F2/D (2006) 1095 of 6 November 2006 and, secondly, an order that the Commission forward to Manufacture Française des Pneumatiques Michelin a copy of the order to be given and, lastly, such other or further measures as the President of the Court may deem necessary.

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/24 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/24

---

Order of the President of the Court of First Instance of 4 May 2007 — Icuna.Com v Parliament

(Case T-71/07 R)

(Public procurement - Community tendering procedure - Procedure for interim relief - No urgency)

(2007/C 140/43)

Language of the case: French

Parties

Applicant: Icuna.Com SCRL (Braine-le-Château, Belgium) (represented by: J. Windey and P. de Bandt, lawyers)

Defendant: European Parliament (represented by: O. Caisou-Rousseau and M. Ecker, Agents)

Re:

Application for suspension of the operation of the decision of the European Parliament of 31 January 2007 annulling invitation to tender EP/DGINFO/WEBTV/2006/0003, in so far as concerns lot No 2, pending the decision of the Court of First Instance in the main action.

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/25 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/25

---

Action brought on 2 April 2007 — Fratex Indústria e Comércio v OHIM — USA Track & Field (TRACK & FIELD USA)

(Case T-103/07)

(2007/C 140/44)

Language in which the application was lodged: Portuguese

Parties

Applicant: Fratex Indústria e Comércio (São Paulo, Brazil) (represented by: B. Braga da Cruz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: USA Track & Field, Inc.

Form of order sought

| — | Annulment of the decision of 18 January 2007 of the Fourth Board of Appeal of OHIM (Case No R. 1061/2005-4); |
| --- | --- |

—

Annulment of the decision of 18 January 2007 of the Fourth Board of Appeal of OHIM (Case No R. 1061/2005-4);

| — | an order that OHIM should, in consequence, refuse to register Community trade mark No 168088 in respect of goods in Class 25; |
| --- | --- |

—

an order that OHIM should, in consequence, refuse to register Community trade mark No 168088 in respect of goods in Class 25;

| — | an order that OHIM should pay the costs. |
| --- | --- |

—

an order that OHIM should pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: USA Track & Field, Inc.

Community trade mark concerned: Mixed mark USA TRACK & FIELD

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: TRACK & FIELD

Decision of the Opposition Division: Upheld the opposition.

Decision of the Board of Appeal: Allowed the appeal brought by USA Track & Field, Inc.

Pleas in law: The applicant takes the view that the contested decision is contrary to Article 8(1)(b) of Regulation No 40/94 (1), since there exists the likelihood of confusion on the part of consumers faced with the possible coexistence on the market of the two signs at issue, on account of the coincidence of the term TRACK & FIELD. As a matter of fact, the goods covered by the marks at issue are identical and, even if there is no likelihood of confusion in the strict sense, there is still the likelihood of risk of confusion in the form of association with the earlier trade mark, which is included in the former [likelihood of confusion] in accordance with Article 8(1)(b) in fine of that regulation.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/25 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/25

---

Action brought on 11 April 2007 — L'Oréal v OHIM — Spa Monopole (SPA THERAPY)

(Case T-109/07)

(2007/C 140/45)

Language in which the application was lodged: French

Parties

Applicant: L'Oréal SA (Paris, France) (represented by: E. Baud, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: SA Spa Monopole, Compagnie fermière de Spa, en abrégé SA Spa Monople NV (Spa, Belgium)

Form of order sought

| — | Annulment of the decision of the Fourth Board of Appeal of OHIM given on 24 January 2007 (Case R 468/2005-4); |
| --- | --- |

—

Annulment of the decision of the Fourth Board of Appeal of OHIM given on 24 January 2007 (Case R 468/2005-4);

| — | The defendant and, where appropriate the intervener, to pay the costs. |
| --- | --- |

—

The defendant and, where appropriate the intervener, to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SPA THERAPY’ for goods in Class 3 — application No 1 975 283

Proprietor of the mark or sign cited in the opposition proceedings: SA Spa Monopole, Compagnie fermière de Spa, en abrégé SA Spa Monopole NV

Mark or sign cited in opposition: The Benelux word mark ‘SPA’ for goods in Class 3

Decision of the Opposition Division: Opposition upheld in respect of all the disputed goods

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) in so far as the Board of Appeal erred in finding that the signs at issue are similar and in that, according to the applicant, there is no likelihood of confusion in the present case

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/26 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/26

---

Action brought on 16 April 2007 — Siemens v Commission

(Case T-110/07)

(2007/C 140/46)

Language of the case: German

Parties

Applicant: Siemens AG (Berlin and Munich, Germany) (represented by I. Brinker, T. Loest and C. Steinle, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | in accordance with the first paragraph of Article 231 EC, annul the Commission's decision of 24 January 2007 (Case COMP/F/38.899 — Gas-isolated switchgear) in so far as it affects the applicant; |
| --- | --- |

—

in accordance with the first paragraph of Article 231 EC, annul the Commission's decision of 24 January 2007 (Case COMP/F/38.899 — Gas-isolated switchgear) in so far as it affects the applicant;

| — | in the alternative, reduce the fine imposed in Article 2(m) of the decision; |
| --- | --- |

—

in the alternative, reduce the fine imposed in Article 2(m) of the decision;

| — | in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance, order the Commission to pay the costs. |
| --- | --- |

—

in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance, order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicant and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicant took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.

The applicant puts forward three pleas in law in support of its application.

First, the Commission is criticised for failing to demonstrate and prove the alleged infringements specifically and in detail. In particular, the Commission did not demonstrate and prove the effects of the alleged infringement on the common market and the EEA during the first phase of the alleged infringement up to 1999.

Second, the applicant submits that the Commission wrongly assumed that there was a single continuous infringement and wrongly determined the duration of the infringement. According to the applicant, the Commission was unable to prove that the applicant had been involved in the alleged infringement after 22 April 1999. Furthermore, there was a breach of Article 25 of Regulation (EC) No 1/2003 (1), since, in the applicant's view, the limitation period had expired with respect to its participation in the alleged infringement during the first phase up to 1999.

Finally, the applicant complains of serious errors of law of the Commission in assessing the fine. It is submitted, for instance, in this respect that the Commission misassessed the seriousness and duration of the infringement and manifestly applied an excessive ‘deterrent multiplier’ to the applicant. In addition, the Commission wrongly found that the applicant had played a leading part and wrongly failed to take into account the applicant's cooperation with the Commission.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/26 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/26

---

Action brought on 18 April 2007 — Toshiba v Commission

(Case T-113/07)

(2007/C 140/47)

Language of the case: English

Parties

Applicant: Toshiba Corp. (Tokyo, Japan) (represented by: J. MacLennan, Solicitor, A. Schulz and J. Borum, laywers)

Defendant: Commission of the European Communities

Form of order sought

The applicant requests the Court to:

| — | annul Commission's decision of 24 January 2007 — Case COMP/F/38.899 — Gas Insulated Switchgear; or |
| --- | --- |

—

annul Commission's decision of 24 January 2007 — Case COMP/F/38.899 — Gas Insulated Switchgear; or

| — | annul the Commission's decision as far as it relates to Toshiba; or |
| --- | --- |

—

annul the Commission's decision as far as it relates to Toshiba; or

| — | amend Articles 1 and 2 of the decision to annul or substantially reduce the fine imposed on Toshiba; and |
| --- | --- |

—

amend Articles 1 and 2 of the decision to annul or substantially reduce the fine imposed on Toshiba; and

| — | order the Commission to pay the costs of the proceedings, including the costs incurred in connection with the bank guarantee. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings, including the costs incurred in connection with the bank guarantee.

Pleas in law and main arguments

The applicant lodged an action for annulment, under Article 230 EC against Commission decision of 24 January 2007 (Case COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762 final), on the basis of which the Commission found the applicant, among other undertakings, liable to have infringed Article 81(1) EC and from 1 January 1994 also Article 53 EEA in the gas insulated switchgear sector (hereinafter ‘GIS’), through a set of agreements and concerted practices consisting of (a) market sharing, (b) the allocation of quotas and maintenance of the respective market shares, (c) the allocation of individual GIS projects (bid-rigging) to designated producers and the manipulation of the bidding procedure for those projects, (d) price fixing, (e) agreements to cease licence agreements with non-cartel members and (f) exchanges of sensitive market information. In the alternative, the applicant applies for a cancellation or reduction of the fines imposed.

According to the applicant, the Commission appears to have based its findings on three arrangements concluding on the existence of a world-wide cartel. Even if that were the case, the applicant submits that the Commission has no jurisdiction over behaviour which might restrict competition outside the EEA.

The applicant claims that the Commission has failed to prove to the requisite legal standard that the applicant took part in any agreement or concerted practice not to sell in Europe, or that European GIS suppliers compensated the Japanese companies for not entering Europe by way of ‘loading’ European projects into the European ‘GQ’ (1) quota. The applicant further submits that the Commission has relied for corroboration on equally indirect, vague, unsubstantiated evidence consisting mainly of oral statements made by the leniency applicant and, in addition, has allegedly ignored evidence provided to contradict the incriminating statements.

Moreover, whereas the applicant does not deny that it was part of the ‘GQ agreement’ it contends that the agreement at stake was a world-wide agreement not covering Europe and over which the Commission lacked jurisdiction. The applicant claims that the Commission, in its attempt the bring the applicant under its jurisdiction, shifted the focus of its legal assessment entirely on whether there had been a ‘common understanding’ (that the Japanese would refrain form entering the European market that the European companies would equally refrain from competing in Japan) and whether certain European projects were systematically reported to the Japanese companies or ‘loaded’ into the European ‘GQ’ as part of this ‘common understanding’. Hence, it is claimed that the Commission has not established that the applicant should be held responsible for the series of infringements at European level and has allegedly committed a manifest error of appraisal.

It is further submitted that the contested decision is vitiated by procedural irregularities. To this extent, the applicant suggests that its rights of defence have been compromised through the Commission's failure to provide adequate reasoning, to grant access to evidence and distortion of evidence.

In the alternative, the applicant submits that the Commission's failure to properly apportion responsibility between the European and Japanese companies vitiated the method used for assessing the fines for the addressees of the decision. On this account, the applicant sustains that the Commission did not properly assess either the gravity or the duration of the infringement and thus, has unfairly discriminated against the applicant.

---

(1)  ‘G’ stands for ‘gear’ and ‘Q’ for ‘quota’.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/27 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/27

---

Action brought on 17 April 2007 — France v Commission

(Case T-116/07)

(2007/C 140/48)

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues and S. Ramet, Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the contested decision in its entirety; |
| --- | --- |

—

annul the contested decision in its entirety;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By decision of 30 June 1997, adopted following a proposal from the Commission and in accordance with the procedure laid down in Council Directive 92/81/EEC (1), the Council authorised the Member States to apply or to continue to apply the existing reduced rates of excise duty or exemptions from excise duty to certain mineral oils when used for specific purposes. By four subsequent decisions, the Council extended that authorisation, the final authorisation period expiring on 31 December 2006. France is authorised to apply these reduced rates or exemptions to heavy fuel oil used as fuel for the production of alumina in the Gardanne region.

In a letter of 30 December 2001, the Commission notified France of its decision to initiate proceedings under Article 88(2) of the EC Treaty relating to the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne regio (2). On 7 December 2005, in consequence of this procedure, the Commission adopted Decision 2006/323/EC finding that exemptions from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, implemented by France, Ireland and Italy respectively, constituted State aid within the meaning of Article 87(1) EC that is in part incompatible with the common market, and thus ordered the Member States concerned to recover all such aid (3). By action brought on 17 February 2006, France sought to have that decision annulled in part in so far as it affected the exemption granted by France to the Gardanne region (4).

The Commission decided to extend the formal investigation procedure regarding the exemption from excise duty on heavy mineral oils used for alumina production for the period commencing 1 January 2004. After giving the Member States and the third parties concerned the opportunity to submit their observations on that matter, the Commission adopted Decision C (2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, applied by France, Ireland and Italy respectively (State aid No C 78-79-80/2001). That is the decision which is contested in the present action.

In support of its action, the applicant relies on two pleas, the first alleging infringement of the concept of State aid within the meaning of Article 87(1) EC. It submits that the Commission committed an error of law in holding that State aid existed even though not all the conditions required to establish the existence of aid, as laid down in the Altmark case (5), had been fulfilled. The applicant also submits that the decisions authorising exemptions up to 31 December 2006 were adopted by the Council following a proposal from the Commission, which, according to the applicant, should have ensured before making such a proposal that the authorisation would not lead to a distortion of competition. The applicant therefore claims that the Commission could not, on the one hand, propose that the Council adopt a decision authorising an exemption from excise duty and not object to that authorisation being extended until 31 December 2006 and, on the other hand, find that that exemption constitutes State aid incompatible with the common market as of 1 January 2004.

The second plea raised by the applicant alleges a failure to state reasons in that the contested decision does not set out arguments concerning the market in question or the position of the various undertakings in that market or relating to nature of the harm to competition or the effect on the trade in question.

---

(1)  Council Directive of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils

(2)  Published in OJ 2002 C 30

(3)  Decision C (2005) 4436 final, State aid Nos C 78-79-80/2001, OJ 2006 L 119, p. 12

(4)  Case T-56/06 France v Commission, OJ 2006 C 96, p. 21

(5)  Case C-280/00 Altmark Trans [2004] ECR I-7747

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/28 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/28

---

Action brought on 18 April 2007 — Areva & Others v Commission

(Case T-117/07)

(2007/C 140/49)

Language of the case: French

Parties

Applicants: AREVA SA, AREVA T&D HOLDING SA, AREVA T&D SA (Paris, France) and AREVA T&D AG (Oberentfelden, Switzerland) (represented by: A. Schild, and J.-M. Cot, lawyers

Defendant: Commission of the European Communities

Form of order sought

| — | annul Article 1 of the Commission Decision of 24 January 2007 in that, firstly, it holds AREVA T&D SA and ALSTOM SA jointly liable for the anti-competitive practices implemented between 7 December 1992 and 8 January 2004, and, secondly, it attributes to AREVA T&D SA, AREVA T&D AG, AREVA T&D HOLDING SA and AREVA SA joint and several liability for the anti-competitive practices implemented between 9 January 2004 and 11 May 2004; |
| --- | --- |

—

annul Article 1 of the Commission Decision of 24 January 2007 in that, firstly, it holds AREVA T&D SA and ALSTOM SA jointly liable for the anti-competitive practices implemented between 7 December 1992 and 8 January 2004, and, secondly, it attributes to AREVA T&D SA, AREVA T&D AG, AREVA T&D HOLDING SA and AREVA SA joint and several liability for the anti-competitive practices implemented between 9 January 2004 and 11 May 2004;

| — | in the alternative, annul or substantially reduce the amount of the fine imposed on AREVA T&D SA, AREVA T&D AG, AREVA T&D HOLDING SA and AREVA SA; |
| --- | --- |

—

in the alternative, annul or substantially reduce the amount of the fine imposed on AREVA T&D SA, AREVA T&D AG, AREVA T&D HOLDING SA and AREVA SA;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the present, action the applicants seek the partial annulment of Commission Decision C (2006) 6762 Final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 EEA (Case COMP/F/38.899 — Gas Insulating Switchgear), concerning a cartel in the gas insulated switchgear projects sector entailing manipulation of the bidding procedure for those projects, the fixing of minimum tender prices, the allocation of quotas and of projects, and exchanges of information. In the alternative the applicants seek the reduction of the amount of the fine which was imposed on them by the contested decision.

In support of their claims, the applicants raise seven pleas in law.

The first plea in law alleges infringement by the Commission of the obligation to state reasons set out in Article 253 EC, in that the reasoning is contradictory and insufficient as regards the aspects relating, in particular, to the imputation of the anti-competitive practices, the finding that the applicants and ALSTOM SA were jointly and severally liable, and the increase in the basic amount of the fine on account of AREVA T&D SA's role as ringleader of the infringement.

In their second plea in law, the applicants criticise the Commission for having infringed Article 81 EC and, in particular, the legal rules relating to the imputation of liability for an infringement, by holding AREVA T&D SA, and AREVA T&D AG liable for the anti-competitive practices preceding their transfer by ALSTOM SA, when it had held that those companies were not independent of ALSTOM before being transferred.

The applicants' third plea in law alleges infringement of Article 81 EC in that the Commission imputed to AREVA SA and AREVA T&D HOLDING SA liability for anti-competitive practices attributed to their direct or indirect subsidiaries AREVA T&D SA and AREVA T&D AG, when, in the applicants' submission, it had not shown that AREVA SA and AREVA T&D HOLDING SA effectively controlled those subsidiaries during the infringement period.

The fourth and fifth pleas in law allege infringement of Articles 7 EC and 81 EC and relate, in particular, to the rules concerning the joint and several liability for the infringement. The applicants claim out that the Commission could not find AREVA T&D SA and ALSTOM SA jointly liable to pay the fine since they do not form an economic unit and such a joint sanction constitutes an unlawful delegation of the Commission's power to impose sanctions and also an infringement of the general principles of equal treatment, legal certainty and effective judicial protection.

In the sixth plea in law, the applicants criticise the contested decision for having misapplied the concept of ringleader and thus infringed Article 81 EC and also the Guidelines on the method of setting fines (1) and several general principles of law.

In their last plea in law, the applicants claim that the Commission made an error of assessment as regards the extent of the cooperation provided by the applicants during the investigation, in breach of Article 81 EC and the guidelines regarding cooperation set out in the Notice on immunity from fines and reduction of fines in cartel cases (2).

---

(1)  OJ C 9 of 14.1.1998, p. 3

(2)  OJ C 45 of 19.2.2002, p. 3

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/29 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/29

---

Action brought on 16 April 2007 — MB Immobilien and MB System v Commission

(Case T-120/07)

(2007/C 140/50)

Language of the case: German

Parties

Applicant(s): MB Immobilien Verwaltungs GmbH (established in Neukirch/Lausitz, Germany) and MB System GmbH & Co. KG (established in Nordhausen, Germany), represented by: G. Brüggen, Rechtsanwalt.

Defendant(s): Commission of the European Communities

Form of order sought

| — | Annulment of the Commission's Decision K(2007) 130 endg. of 24 January 2007 on State Aid No C 38/2005 (ex NN 52/2004) of Germany to the Biria-Gruppe |
| --- | --- |

—

Annulment of the Commission's Decision K(2007) 130 endg. of 24 January 2007 on State Aid No C 38/2005 (ex NN 52/2004) of Germany to the Biria-Gruppe

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

—

the Commission to pay the costs.

Pleas in law and main arguments

The applicants challenge the Commission's Decision K(2007) 130 endg. of 24 January 2007, in which it decided that state aid by Germany, encompassing three measures in favour of Bike Systems GmbH & Co Thüringer Zweiradwerk KG, Sachsen Zweirad GmbH and Biria GmbH (subsequently Biria AG) was incompatible with the common market.

The first applicant is the legal successor of Biria AG, the second of Bike Systems GmbH & Co Thüringer Zweiradwerk DG. The applicants argue that they are directly and individually concerned by the contested decision.

In support of their action, the applicants argue first that Community law has been infringed through defective interpretation of an approved aid regulation. In that context, they argue that the Commission failed to use as the basis of its decision the definition of an undertaking in difficulties which is contained in the aid regulation which it approved.

The Commission further infringed Community law through misassessment of the evidence. The applicants argue that, contrary to what the Commission maintains, the undertakings concerned by the contested decision were not undertakings in difficulty at the time the aid was granted.

The applicants further argue that Community law has been infringed by serious errors in the statement of reasons.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/30 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/30

---

Action brought on 18 April 2007 — Alstom v Commission

(Case T-121/07)

(2007/C 140/51)

Language of the case: French

Parties

Applicant: Alstom (Levallois Perret, France) (represented by: J. Derenne, lawyer, W. Broere, Solicitor, and A. Müller-Rappard and C. Guirado, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Articles 1(b), 2(b) and 2(c) of the contested decision; |
| --- | --- |

—

annul Articles 1(b), 2(b) and 2(c) of the contested decision;

| — | in the alternative, substantially reduce the fines imposed on Alstom; |
| --- | --- |

—

in the alternative, substantially reduce the fines imposed on Alstom;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks partial annulment of Commission Decision C(2006) 6762 Final of 24 January 2007, relating to a proceeding under Article 81 of the EC Treaty and Article 53 EEA (Case COMP/F/38.899 — Gas Insulated Switchgear), concerning a cartel in the gas insulated switchgear projects sector entailing manipulation of the bidding procedure for those projects, price fixing, the allocation of quotas and of projects, and exchanges of information. In the alternative, the applicant seeks the annulment or reduction of the fine imposed on it by the contested decision.

In support of its claims, the applicant raises eight pleas in law.

The first alleges infringement of the rules relating to judicial protection and of the general principle of the ‘right to an effective remedy’, in that, by imposing a joint fine on two companies which are both legally and economically independent, the Commission has created a situation in which any possible benefit for the applicant of an action against the decision will depend exclusively on the outcome of the action of an independent third party.

The second plea alleges infringement of the legal rules applicable to joint and several liability, in that the Commission has made two companies, with no legal link between them, jointly and severally liable for the same infringement, in breach of the principle of legal certainty and the principle that penalties must fit the offence.

By its third plea the applicant criticises the Commission for having infringed Article 253 EC in that it did not explain how the evidence adduced by the applicant to show that it had no decisive influence over its wholly-owned subsidiaries were not sufficient to rebut the presumption on this issue.

The applicant's fourth plea alleges infringement of Article 81 EC and, in particular, of the rules relating to the imputability to parent companies of the infringements committed by their subsidiaries, and also of the rules relating to the transfer of liability for infringements.

By its fifth plea the applicant claims that the contested decision infringes the rules applicable to the recognition of aggravating conditions for activities of the ‘cartel ringleader’ together with the principle of equal treatment. The applicant alleges that the Commission was wrong to attribute the role of ringleader to the applicant and that its role as ‘European secretary’ of the cartel was purely administrative and was not such as to confer on it a more important role than the roles of other members of the cartel. Consequently, the applicant maintains that the Commission made an error of assessment, that it misapplied the applicable rules and that it did not give a sufficiently reasoned decision on that point.

The applicant also claims that the Commission infringed rules of law with regard to proof of the continuity of the infringement in that it did not provide evidence relating to facts which were sufficiently close in time to establish that the infringement was continuous.

The seventh plea relied upon by the applicant alleges infringement of the rights of the defence in that, according to the applicant, the contested decision is based on certain pieces of information which were not contained in the Commission's statement of objections, and with regard to which, the Commission did not inform the applicant of the consequences which it would draw from them in its decision.

Finally, by its eighth plea, the applicant alleges that the Commission infringed the rules relating to the calculation of the basic amount of the fines, in that the contested decision determined the amount of the fine, for the entire period of the infringement, on the basis of the turnover achieved within the European Economic Area, when the EEA Agreement has been in force only from 1 January 1994.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/31 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/31

---

Action brought on 17 April 2007 — Siemens and VA TECH Transmission & Distribution v Commission

(Case T-122/07)

(2007/C 140/52)

Language of the case: German

Parties

Applicants: Siemens Aktiengesellschaft Österreich (Vienna, Austria) and VA TECH Transmission & Distribution GmbH & Co. KEG (Vienna, Austria) (represented by H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 20 September 1998 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004; |
| --- | --- |

—

annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 20 September 1998 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004;

| — | annul Article 2 of the contested decision in so far as the applicants are affected; |
| --- | --- |

—

annul Article 2 of the contested decision in so far as the applicants are affected;

| — | in the alternative, reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 1 980 000; |
| --- | --- |

—

in the alternative, reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 1 980 000;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicants and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.

The applicants base their application primarily on breach of Article 81(1) EC and Article 23 of Regulation (EC) No 1/2003 (1). In this connection they complain that the fine imposed on VA TECH Transmission & Distribution GmbH & Co. KEG is disproportionately high in relation to the fines imposed on other undertakings. Furthermore, the way in which the Commission attempted to divide a total amount of fines up among various companies breached the ne bis in idem principle. In addition, the applicants assert that the Commission incorrectly assessed the duration of the infringement. Further, the Commission found without cogent proof that until 13 December 2000 the alleged infringement had as its purpose or effect a restriction of competition within the Community. Finally, it is submitted in connection with the first plea in law that when the fines were assessed mitigating circumstances and the leniency notice were wrongly left out of account.

Second, the applicants submit that the Commission breached essential procedural requirements. In this connection they complain of a breach of the right to be heard.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/31 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/31

---

Action brought on 17 April 2007 — Siemens Transmission & Distribution v Commission

(Case T-123/07)

(2007/C 140/53)

Language of the case: German

Parties

Applicant: Siemens Transmission & Distribution (Manchester, United Kingdom) (represented by H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Article 1 of the contested decision in so far as it finds that the applicant infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 15 April 1988 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004; |
| --- | --- |

—

annul Article 1 of the contested decision in so far as it finds that the applicant infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 15 April 1988 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004;

| — | annul Article 2 of the contested decision in so far as the applicant is affected; |
| --- | --- |

—

annul Article 2 of the contested decision in so far as the applicant is affected;

| — | in the alternative, reduce the fine imposed on the applicant in Article 2(l) of the decision to an amount not exceeding EUR 1 100 000; |
| --- | --- |

—

in the alternative, reduce the fine imposed on the applicant in Article 2(l) of the decision to an amount not exceeding EUR 1 100 000;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicant and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicant took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.

The applicant bases its application primarily on breach of Article 81(1) EC, Article 23(2) and (3) of Regulation (EC) No 1/2003 (1) and Article 25 of that regulation. In this connection it complains that the fine imposed on it exceeds 10 % of its turnover in the last trading year before the decision. Furthermore, the Commission did not take account of the individual circumstances of the applicant when setting the fine. In addition, the applicant asserts that the Commission incorrectly assessed the duration of the infringement by the applicant. For the period before 16 July 1998 the prosecution was moreover already out of time. Further, the Commission found without cogent proof that until 13 December 2000 the alleged infringement had as its purpose or effect a restriction of competition within the Community. Finally, it is submitted in connection with the first plea in law that the applicant was wrongly accused of having itself taken part in the agreements after 2002.

Second, the applicant submits that the Commission breached essential procedural requirements. In this connection it complains of a breach of the right to be heard.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/32 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/32

---

Action brought on 17 April 2007 — Siemens Transmission & Distribution and Nuova Magrini Galileo v Commission

(Case T-124/07)

(2007/C 140/54)

Language of the case: German

Parties

Applicants: Siemens Transmission & Distribution SA (Grenoble, France) and Nuova Magrini Galileo SpA (Bergamo, Italy) (represented by H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 15 April 1988 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004; |
| --- | --- |

—

annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 15 April 1988 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004;

| — | annul Article 2 of the contested decision in so far as the applicants are affected; |
| --- | --- |

—

annul Article 2 of the contested decision in so far as the applicants are affected;

| — | in the alternative, reduce the fines reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 2 750 000 for the first and EUR 1 100 000 for the second applicant; |
| --- | --- |

—

in the alternative, reduce the fines reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 2 750 000 for the first and EUR 1 100 000 for the second applicant;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicants and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.

The applicants base their application primarily on breach of Article 81(1) EC, Article 23(2) and (3) of Regulation (EC) No 1/2003 (1) and Article 25 of that regulation. In this connection they complain that the fines imposed on them exceed 10 % of their turnover in the last trading year before the decision. Furthermore, the Commission did not take account of the individual circumstances of the applicants when setting the fine. In addition, the applicants assert that the determination of the undertakings together with which they are to be jointly liable and the amounts of the fines imposed on the individual joint debtors are incomprehensible and incorrect. The Commission also exaggerated the duration of the alleged infringement and did not recognise that the limitation period had expired for the predominant part of it. Finally, it is submitted in connection with the first plea in law that the Commission found without cogent proof that until 13 December 2000 the alleged infringement had as its purpose or effect a restriction of competition within the Community.

Second, the applicants submit that the Commission breached essential procedural requirements. In this connection they complain of a breach of the right to be heard.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/33 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/33

---

Action brought on 16 May 2007 — Scientific and Technological Committee and Others v Potocnik and Others, Members of the Commission

(Case T-125/07)

(2007/C 140/55)

Language of the case: Polish

Parties

Applicants: Scientific and Technological Committee of AGH University of Science and Technology and Others (Cracow, Poland) (represented by A. Żuraniewski, lawyer)

Defendants: J. Potocnik, S. Dimas and A. Piebalgs, Members of the Commission of the European Communities

Form of order sought

| — | declare that J. Potocnik, S. Dimas and A. Piebalgs, Members of the Commission of the European Communities, by not taking immediate action in defence of the life of the population of the EU from the time of receipt of the three documents reporting the risks connected with the technique of storing CO2 in geological strata, committed the offence of failure to act, by which they caused an existing and continuing state of danger to the life of the population of the EU and danger of an ecological catastrophe; |
| --- | --- |

—

declare that J. Potocnik, S. Dimas and A. Piebalgs, Members of the Commission of the European Communities, by not taking immediate action in defence of the life of the population of the EU from the time of receipt of the three documents reporting the risks connected with the technique of storing CO2 in geological strata, committed the offence of failure to act, by which they caused an existing and continuing state of danger to the life of the population of the EU and danger of an ecological catastrophe;

| — | indicate the need for carrying out the proposed studies; |
| --- | --- |

—

indicate the need for carrying out the proposed studies;

| — | indicate the need for financing in full the studies which are not of a commercial nature but protect the safety of the life of the population of the EU; |
| --- | --- |

—

indicate the need for financing in full the studies which are not of a commercial nature but protect the safety of the life of the population of the EU;

| — | indicate the need for suspension in the EU of further procedures for injecting CO2 into geological strata until the completion of the proposed studies. |
| --- | --- |

—

indicate the need for suspension in the EU of further procedures for injecting CO2 into geological strata until the completion of the proposed studies.

Pleas in law and main arguments

The applicants seek a declaration of failure to act by members of the European Commission who were informed by the applicants of the dangers to human health and the natural environment deriving from the containerless depositing of carbon dioxide in geological strata but did not take the appropriate measures with the aim of preventing the negative effects of the application of such techniques. The applicants claim that after being called on to take action and to carry out the studies proposed by the applicants on the effects of the storage of carbon dioxide in surface layers of land the defendant members of the Commission did not take any position on the issue of the problems raised in the complaints addressed to them. The applicants submit that such inactivity infringes the legal order of the European Union and conflicts with the obligations of a member of the Commission.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/33 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/33

---

Action brought on 20 April 2007 — Allos Walter Lang v OHIM — Kokoriko (Coco Rico)

(Case T-126/07)

(2007/C 140/56)

Language of the case: German

Parties

Applicant: Allos Walter Lang (Mariendrebber, Germany) (represented by: H. Heldt, Rechtsanwalt)

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

Other party in the proceedings before the OHIM: KOKORIKO Ltda.

Form of order sought

| — | Suspension of proceedings until final determination on the actions for annulment pending before the OHIM in cases 2069 C and 2070 C; |
| --- | --- |

—

Suspension of proceedings until final determination on the actions for annulment pending before the OHIM in cases 2069 C and 2070 C;

| — | Annulment of the decision of the Opposition Division on 31 May 2006 reference number B 696684 and the decision of the Second Board of Appeal of 16 February 2007, reference number R 1047/2006-2 and reference of the matter back to the Opposition Division for reconsideration. |
| --- | --- |

—

Annulment of the decision of the Opposition Division on 31 May 2006 reference number B 696684 and the decision of the Second Board of Appeal of 16 February 2007, reference number R 1047/2006-2 and reference of the matter back to the Opposition Division for reconsideration.

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

—

OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark in question: The word mark ‘Coco Rico’ for goods in Class 30 (Application No 2 949 899).

Proprietor of the trade marks relied upon in opposition: KOKORIKO Ltda.

Trade marks relied upon in opposition: The work mark ‘KOKORIKO’ (Community Trade Mark No 101 386) for goods and services in Classes 29, 30 and 42, and the figurative mark ‘KOKORIKO’ (Community Trade Mark No 101 626) for goods and services in Classes 29, 30 and 42.

Decision of the Opposition Division: Opposition upheld and application for registration dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Grounds of appeal: In making its decision, the Opposition Division failed to take account of applicant's claim for annulment of the marks relied on in opposition. In the submission of the applícant, there is no further obstacle under Article 8(1)(b) of Regulation (EC) No 40/94 (1) to the registration being sought by the applicant in the event of the opposing marks being annulled.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (OJ 1994 L 11, p. 1)

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/34 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/34

---

Appeal brought on 20 April 2007 by Bligny against the order of the Civil Service Tribunal made on 15 February 2007 in Case F-142/06, Bligny v Commission

(Case T-127/07 P)

(2007/C 140/57)

Language of the case: French

Parties

Appellant: Francesco Bligny (Tassin-la-Demi-Lune, France) (represented by P. Lebel-Nourissat, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | declare that the Civil Service Tribunal (CST) erred in its assessment of the application form as regards the obligation on the candidate to attach documentary evidence of his citizenship; |
| --- | --- |

—

declare that the Civil Service Tribunal (CST) erred in its assessment of the application form as regards the obligation on the candidate to attach documentary evidence of his citizenship;

| — | declare that the CST did not deal with the applicant's pleas as to failure to take account of the principles of the protection of legitimate expectations and of proper administration incumbent upon the selection board of competition EPSO AD/26/05; |
| --- | --- |

—

declare that the CST did not deal with the applicant's pleas as to failure to take account of the principles of the protection of legitimate expectations and of proper administration incumbent upon the selection board of competition EPSO AD/26/05;

| — | accordingly, annul the order of the CST of 15 February 2007 in Case F-142/06; |
| --- | --- |

—

accordingly, annul the order of the CST of 15 February 2007 in Case F-142/06;

| — | making a new decision, annul the decision of the selection board of competition EPSO AD/26/05 of 7 December 2006, and that of 23 December 2006 refusing the applicant admission to the competition and thus to correction of his written test, and hold that the application form published on 15 May 2006 for candidates of the competition on the EPSO website was unlawful; |
| --- | --- |

—

making a new decision, annul the decision of the selection board of competition EPSO AD/26/05 of 7 December 2006, and that of 23 December 2006 refusing the applicant admission to the competition and thus to correction of his written test, and hold that the application form published on 15 May 2006 for candidates of the competition on the EPSO website was unlawful;

| — | in the alternative, refer the case back to the CST for the purposes of a decision on the case in question and order the Commission to pay the costs. |
| --- | --- |

—

in the alternative, refer the case back to the CST for the purposes of a decision on the case in question and order the Commission to pay the costs.

Pleas in law and main arguments

In its appeal, the applicant requests annulment of the order of the Civil Service Tribunal dismissing as manifestly unfounded his action by which he requested the annulment of the decision of the selection board of the competition refusing to correct his written test on the ground that his application did not include documentary evidence of his citizenship.

In support of his appeal, the applicant submits that the CST fundamentally misread the facts which had been submitted to it, thus misinterpreting the application form to be filled in by the candidate, leading to an error of assessment of the form. Further, he relies on a plea relating to inadequate statement of reasons in respect of the contested order, as the CST did not deal with all the pleas and forms of order sought put forward by the applicant at first instance.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/34 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/34

---

Action brought on 23 April 2007 — Suez v OHIM (Delivering the essentials of life)

(Case T-128/07)

(2007/C 140/58)

Language in which the application was lodged: French

Parties

Applicant: Suez SA (Paris, France) (represented by: P. Combeau, lawyer)

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

Form of order sought

| — | Annulment of the contested decision; |
| --- | --- |

—

Annulment of the contested decision;

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

—

OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Delivering the essentials of life’ for goods and services in Classes 1, 9, 11, 16, 35, 36, 37, 38, 39, 40, 41 and 42 (Application No 4 102 497)

Decision of the examiner: Refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 (1), in that, contrary to the finding of the Board of Appeal of OHIM in the contested decision, the mark for which registration is sought has no strictly laudatory connotation and does not describe a characteristic or quality of the goods or services which it serves to designate.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/35 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/35

---

Action brought on 17 April 2007 — Ireland v Commission

(Case T-129/07)

(2007/C 140/59)

Language of the case: English

Parties

Applicant: Ireland (represented by: D. O'Hagan, E. Alkin, Agents, and P. McGarry, Barrister)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul pursuant to Article 230 of the Treaty, in whole or in part, Commission Decision C(2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, implemented by France, Ireland and Italy respectively, insofar as it concerns the exemption from excise duty on mineral oils used as fuel for alumina production in the Shannon region implemented by Ireland; |
| --- | --- |

—

Annul pursuant to Article 230 of the Treaty, in whole or in part, Commission Decision C(2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, implemented by France, Ireland and Italy respectively, insofar as it concerns the exemption from excise duty on mineral oils used as fuel for alumina production in the Shannon region implemented by Ireland;

| — | 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

The applicant seeks the annulment of Commission Decision C(2007) 286 final of 7 February 2007 by which the Commission found that the exemptions from excise duty granted by France, Ireland and Italy in respect of heavy fuel oils used in the production of alumina as from 1 January 2004 constitute State aid within the meaning of Article 87(1) EC and that a certain part of this aid was incompatible with the common market.

In support of its application, the applicant invokes four pleas in law.

Firstly, the applicant submits that the Commission was wrong when it concluded that Ireland had not demonstrated that the exemptions fall within the nature and logic of the domestic taxation system.

Secondly, the applicant claims that the Commission failed to carry out a proper competition analysis in support of its conclusion that the Irish measure can be assumed to affect intra-community trade and to distort or threaten to distort competition.

Thirdly, the applicant alleges that the contested decision infringes the principle of legal certainty in circumstances where the Council had already authorised the specific derogation until the end of 2006.

Finally, the applicant contends that the Commission erred in law in concluding that the State aid concerned constitutes new aid, as opposed to existing aid.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/35 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/35

---

Action brought on 19 April 2007 — Aughinish Alumina v Commission

(Case T-130/07)

(2007/C 140/60)

Language of the case: English

Parties

Applicant: Aughinish Alumina Ltd (Askeaton, Ireland) (represented by: J. Handoll, C. Waterson, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

In the light of its submissions, AAL respectfully requests the Court:

| — | to annul the Commission decision of February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon Region and in Sardinia insofar as it relates to AAL; |
| --- | --- |

—

to annul the Commission decision of February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon Region and in Sardinia insofar as it relates to AAL;

| — | to order the Commission to pay the costs incurred by AAL in the current proceedings. |
| --- | --- |

—

to order the Commission to pay the costs incurred by AAL in the current proceedings.

Pleas in law and main arguments

By means of this application the applicant requests the partial annulment of Commission Decision C(2007)286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon Region and in Sardinia respectively implemented by France, Ireland and Italy, insofar as it relates to Aughinish Alumina Ltd (hereinafter ‘AAL’).

AAL submits that there are eight grounds for annulment in support of its pleas:

First, the Commission has failed, according to the applicant, to appreciate that the exemption falls within the nature and logic of the Irish tax regime and hence does not constitute aid.

Second, the applicant claims that the Commission has failed to analyse properly the relevant markets and their competitive structure. In circumstances where the Commission had itself earlier accepted that there was no distortion of competition, and in the light of the fact that the Council had authorised the exemptions until 31 December 2006, the applicant contends that it was incumbent on the Commission to demonstrate that it had carried out a thorough economic analysis which clearly demonstrated that there was an actual or threatened distortion of competition. The applicant therefore submits that the Commission failed to establish that the exemption constituted aid.

Third, the applicant advances that should the exemption nonetheless be considered to constitute aid, the Commission has failed to treat the aid in question as existing aid falling under Article 88(1) EC. The aid was the subject of a binding commitment given before Ireland's accession to the European Communities, notified in January 1983. As the Commission did not act until 17 July 2000, the ten-year limitation period was exceeded and recovery was, thus, precluded. The applicant claims thus that the aid cannot be characterised as an aid scheme.

Fourth, the applicant puts forward that the Commission should have had regard to the overall acquis on excise harmonisation, in order to determine whether and how to exercise its powers under the State aid provisions of the EC Treaty. The contested decision constitutes a serious breach of the principle of legal certainty since it allegedly undermines authorisations granted by the Council under Article 93 EC, on the basis of a Commission proposal. Moreover, the Commission has allegedly failed to appreciate that the Council measures taken on the basis of Article 93 EC constituted lex specialis that should have prevailed over any inconsistent application of the State aid rules. In addition, the Commission has failed, according to the applicant's contentions, to use the procedures available to it under Article 8 of Directive 92/81/EEC to resolve State aid or other concerns, or indeed to seek the annulment of relevant Council decisions and has, hence, undermined the effet utile of the Council measures.

Fifth, the applicant claims that in adopting the contested decision, the Commission has failed to take account of the fundamental requirements of Articles 3 and 157 EC, to strengthen competitiveness of Community industry and to ensure that the conditions necessary for the competitiveness of the Community's industry exist.

Sixth, in finding that 20 % of the exemption constituted aid, the Commission has allegedly failed to appreciate that the applicant was subject to a number of environmental obligations and to consider measures which would have had the same incentive effect as a requirement to pay a significant proportion of the national tax.

Seventh, the applicant sustains that the contested decision violates the principles of protection of legitimate expectations and of legal certainty.

Eighth, the excessive length of the procedure under Article 88(2) EC contravenes the principles of good administration and of legal certainty and is even more serious, according to the applicant, since the Commission had, before initiating the procedure, already failed to act in relation to the 1983 notification.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/36 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/36

---

Action brought on 19 April 2007 — Fuji Electric Holdings and Fuji Electric Systems v Commission

(Case T-132/07)

(2007/C 140/61)

Language of the case: English

Parties

Applicants: Fuji Electric Holdings Co., Ltd (Kawasaki, Japan) and Fuji Electric Systems Co., Ltd. (Tokyo, Japan) (represented by: P. Chapatte, P. Walter, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

The applicants respectfully request the Court to:

| — | annul Article 1(g) of the decision in so far as it finds that the infringement imputed to FEH by that provision existed after September 2000; |
| --- | --- |

—

annul Article 1(g) of the decision in so far as it finds that the infringement imputed to FEH by that provision existed after September 2000;

| — | annul Article 1(h) of the decision in its entirety; |
| --- | --- |

—

annul Article 1(h) of the decision in its entirety;

| — | annul Article 2(d) of the decision in so far as it imputes joint and several liability upon FES for the fine imposed pursuant to that provision; |
| --- | --- |

—

annul Article 2(d) of the decision in so far as it imputes joint and several liability upon FES for the fine imposed pursuant to that provision;

| — | annul Article 2(f) of the decision in so far as it imputes joint and several liability upon Fuji for the fine imposed pursuant to that provision; |
| --- | --- |

—

annul Article 2(f) of the decision in so far as it imputes joint and several liability upon Fuji for the fine imposed pursuant to that provision;

| — | reduce the fine imposed on Fuji; and |
| --- | --- |

—

reduce the fine imposed on Fuji; and

| — | order the Commission to bear its own costs and those incurred by Fuji. |
| --- | --- |

—

order the Commission to bear its own costs and those incurred by Fuji.

Pleas in law and main arguments

The applicants lodged an action for annulment, under Article 230 EC against Commission decision of 24 January 2007 (Case COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762 final), on the basis of which the Commission found the applicants, among other undertakings, liable to have infringed Article 81(1) EC and from 1 January 1994 also Article 53 EEA in the gas insulated switchgear sector (hereinafter ‘GIS’), through a set of agreements and concerted practices consisting of (a) market sharing, (b) the allocation of quotas and maintenance of the respective market shares, (c) the allocation of individual GIS projects (bid-rigging) to designated producers and the manipulation of the bidding procedure for those projects, (d) price fixing, (e) agreements to cease licence agreements with non-cartel members and (f) exchanges of sensitive market information. In the alternative, the applicants apply for a substantial reduction of the fines imposed.

The decision holds Fuji Electric Systems (hereinafter ‘FES’) liable for participating in the infringement from 15 April 1988 to 30 September 2002.

However, FES disputes that it participated in the GQ agreement and claims that it was not involved in the GIS sales up until 1 July 2001, around nine months after Fuji Electric Holdings (‘FEH’) had ceased participating in the cartel. In finding that FEH continued its participation in the GQ agreement after the Japanese members' meeting which took place around September 2000, it is submitted that the Commission committed a manifest error of assessment, an error of law with regards to the burden of proof as well as an error of law in relation to equal treatment.

Moreover, Fuji maintains that it should not be held jointly and severally liable for the involvement of Japan AE Power Systems Corporation (hereinafter ‘JAEPS’) in the cartel since it neither had the ability to exercise decisive influence over JAEPS nor did it have any knowledge of its alleged participation in the cartel. Hence, the applicant submits that the Commission committed a manifest error of assessment with regards to the infringement of FES.

Finally, Fuji sustains that the decision is vitiated by manifest errors of assessment with regards to the duration of the infringement as well as the liability for the alleged infringement of JAEPS. In addition, the Commission has incorrectly determined the value of the information provided by the applicants, in holding that it did not warrant a reduction of the fine imposed upon the applicants pursuant to the Leniency Notice. In this respect, Fuji claims that the fines imposed should be substantially reduced.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/37 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/37

---

Action brought on 18 April 2007 — Mitsubishi Electric v Commission

(Case T-133/07)

(2007/C 140/62)

Language of the case: English

Parties

Applicant: Mitsubishi Electric Corp. (Tokyo, Japan) (represented by: R. Denton, Solicitor and K. Haegeman, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant respectfully requests:

| — | the annulment of the decision, in particular Articles 1 to 4 thereof, to the extent that it applies to Melco and to TMT&D for the period which Melco shares joint and several liability with Toshiba for the activities of TMT&D; or |
| --- | --- |

—

the annulment of the decision, in particular Articles 1 to 4 thereof, to the extent that it applies to Melco and to TMT&D for the period which Melco shares joint and several liability with Toshiba for the activities of TMT&D; or

| — | the annulment of Article 2(g) of the decision and Article 2(h) insofar as it pertains to Melco; or |
| --- | --- |

—

the annulment of Article 2(g) of the decision and Article 2(h) insofar as it pertains to Melco; or

| — | the modification of Article 2 of the decision as it pertains to Melco, so as to annul or in the alternative substantially reduce the fine imposed on Melco therein; and, in any event; |
| --- | --- |

—

the modification of Article 2 of the decision as it pertains to Melco, so as to annul or in the alternative substantially reduce the fine imposed on Melco therein; and, in any event;

| — | an order that the Commission pay its own costs and Melco's costs in connection with these proceedings. |
| --- | --- |

—

an order that the Commission pay its own costs and Melco's costs in connection with these proceedings.

Pleas in law and main arguments

The applicant, Mitsubishi Electric Corporation (hereinafter ‘Melco’) lodged an action for annulment, under Articles 230 and 229 EC against Commission decision of 24 January 2007 (Case COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762 final), on the basis of which the Commission found the applicant, among other undertakings, liable to have infringed Article 81(1) EC and from 1 January 1994 also Article 53 EEA in the gas insulated switchgear sector (hereinafter ‘GIS’), through a set of agreements and concerted practices consisting of (a) market sharing, (b) the allocation of quotas and maintenance of the respective market shares, (c) the allocation of individual GIS projects (bid-rigging) to designated producers and the manipulation of the bidding procedure for those projects, (d) price fixing, (e) agreements to cease licence agreements with non-cartel members and (f) exchanges of sensitive market information. In the alternative, the applicant applies for a cancellation or reduction of the fine imposed.

The grounds relied upon by Melco in its application are the following:

The Commission has allegedly failed to prove to the requisite standard that the applicant has infringed Article 81 EC by participating in a cartel that had as its object or effect the restriction of competition in the EEA.

The applicant claims that the Commission has failed to establish the existence of an agreement to which Melco was a party which infringed Article 81 EC.

The applicant further submits that the Commission has committed an error of assessment in disregarding the technical and economic evidence explaining Melco's lack of presence on, and proving its difficulty entering, the European market.

The applicant contends that the Commission has infringed the rules of evidence in unjustifiably reversing the burden of proof and has violated the principle of the presumption of innocence.

Moreover, the Commission has breached, according to the applicant, the principles of equal treatment and proportionality on various accounts: in calculating the starting point of the fine imposed on Melco on the basis of its 2001, not 2003, turnover; in calculating the multiplier applicable to Melco and in erroneously defining the worldwide GIS market and Melco's share of it. Furthermore, the Commission has breached the principle of proportionality, according to the applicant, in assessing the fine on Melco for its involvement in the GQ (1) agreement in the same way as it did for the European producers involved in both GQ and EQ (2) agreements.

The applicant claims that the Commission has infringed the duty to state reasons in finding that Melco's fine should be calculated on the basis of its 2001 turnover and that Melco has 15-20 % of worldwide GIS turnover.

Moreover, the Commission has allegedly breached the principle of sound administration in estimating the global GIS market value.

The applicant claims that the Commission has erred in failing to take into account economic and technical evidence when assessing the impact of Melco's behaviour and in calculating Melco's fine. The Commission also erred, according to the applicant, in determining the duration of the alleged cartel.

Furthermore, the applicant sustains that the Commission has breached the applicant's rights of defence and right to a fair hearing in failing to provide Melco with crucial exculpatory and inculpatory evidence contained in its fine. Finally, the Commission allegedly failed to put to Melco during the administrative procedure its conclusions concerning the theory of compensation, thereby infringing the rights of defence.

---

(1)  ‘G’ stands for ‘gear’ and ‘Q’ stands for ‘quota’.

(2)  ‘E’ stands for ‘European’ and ‘Q’ for ‘quota’. The EQ Agreement is otherwise referred to in the contested decision as ‘E-Group Operation Agreement for GQ-Agreement’.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/38 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/38

---

Action brought on 19 April 2007 — Italy v Commission

(Case T-135/07)

(2007/C 140/63)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul, as provided for in Article 230 of the EC Treaty, the decision in the letter of 7 February 2007, prot. No. 3585, of the Director General of the Directorate-General for Agriculture of the Commission; |
| --- | --- |

—

annul, as provided for in Article 230 of the EC Treaty, the decision in the letter of 7 February 2007, prot. No. 3585, of the Director General of the Directorate-General for Agriculture of the Commission;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The Government of the Italian Republic has brought an action before the Court of First Instance of the European Communities to obtain the annulment, as provided for in Article 230 of the EC Treaty, of the decision in the letter of 7 February 2007, prot. 3585, of the Director General of the Directorate-General for Agriculture of the Commission, by which the request of the Italian authorities to adopt exceptional measures to support the Italian market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat (1) is rejected, so far as concerns the chicks destroyed in areas affected by avian influenza and subject to veterinary measures restricting circulation in the period from December 1999 to September 2003 inclusive.

In support of its action, the Italian Government pleads:

| — | infringement of the principle of non-discrimination between Community producers laid down in the second paragraph of Article 34(2) EC, in so far as the defendant granted exceptional market support measures only with regard to the egg-laying sector, refusing similar measures relating to poultrymeat by the contested measure; |
| --- | --- |

—

infringement of the principle of non-discrimination between Community producers laid down in the second paragraph of Article 34(2) EC, in so far as the defendant granted exceptional market support measures only with regard to the egg-laying sector, refusing similar measures relating to poultrymeat by the contested measure;

| — | misuse of powers and manifest error of assessment on the part of the Commission;
  It is noted in that respect that, for the purpose of attaining the objective pursued by Regulation No 2777/75, the Commission ought to have adopted exceptional measures to support the Italian market in poultrymeat, by far the most affected avicultural sector in Italy. By contrast, despite the repeated request put forward by the applicant, the Commission refused to do so, merely granting support measures in favour of the egg-laying sector, the least affected in Italy by restrictive measures and, essentially, the only one affected in the Netherlands. In so doing, the Commission clearly intended to allocate the majority of the available resources to Netherlands producers, reducing to a minimum the indemnity granted to Italian producers; |
| --- | --- |

—

misuse of powers and manifest error of assessment on the part of the Commission;

It is noted in that respect that, for the purpose of attaining the objective pursued by Regulation No 2777/75, the Commission ought to have adopted exceptional measures to support the Italian market in poultrymeat, by far the most affected avicultural sector in Italy. By contrast, despite the repeated request put forward by the applicant, the Commission refused to do so, merely granting support measures in favour of the egg-laying sector, the least affected in Italy by restrictive measures and, essentially, the only one affected in the Netherlands. In so doing, the Commission clearly intended to allocate the majority of the available resources to Netherlands producers, reducing to a minimum the indemnity granted to Italian producers;

| — | misinterpretation and infringement of Article 14 of Regulation No 2777/75 and manifest error of assessment.
  In the applicant's view, contrary to the view of the defendant, Article 14 of the regulation at issue does not apply only when the imbalances on the market are caused by the fact that it is impossible for producers which are in an area under surveillance and protection to have access to the market outside that area. In fact, the Commission could adopt exceptional support measures to restabilise the market affected by restrictions on free circulation which result from the application of measures intended to prevent the spread of animal disease, irrespective of whether those restrictions relate to products entering or those exiting a particular area; |
| --- | --- |

—

misinterpretation and infringement of Article 14 of Regulation No 2777/75 and manifest error of assessment.

In the applicant's view, contrary to the view of the defendant, Article 14 of the regulation at issue does not apply only when the imbalances on the market are caused by the fact that it is impossible for producers which are in an area under surveillance and protection to have access to the market outside that area. In fact, the Commission could adopt exceptional support measures to restabilise the market affected by restrictions on free circulation which result from the application of measures intended to prevent the spread of animal disease, irrespective of whether those restrictions relate to products entering or those exiting a particular area;

| — | lastly, also the breach of the principles of sound administration, impartiality, fairness and transparency. |
| --- | --- |

—

lastly, also the breach of the principles of sound administration, impartiality, fairness and transparency.

---

(1)  OJ L 282 of 1.11.1975, p. 77.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/39 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/39

---

Action brought on 30 April 2007 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE)

(Case T-136/07)

(2007/C 140/64)

Language in which the application was lodged: English

Parties

Applicant: Colgate-Palmolive Co. (New York, United States) (represented by: M. Zintler, H. Harmeling and K.-U. Plath, lawyers)

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

Other party to the proceedings before the Board of Appeal: CMS Hasche Sigle (Cologne, Germany)

Form of order sought

| — | The decision of the Fourth Board of Appeal dated 15 February 2007 shall be annulled; |
| --- | --- |

—

The decision of the Fourth Board of Appeal dated 15 February 2007 shall be annulled;

| — | the Court shall confirm the decision of the Cancellation Division and declare that the Community trade mark No 802 793 ‘VISIBLE WHITE’ remains registered; |
| --- | --- |

—

the Court shall confirm the decision of the Cancellation Division and declare that the Community trade mark No 802 793 ‘VISIBLE WHITE’ remains registered;

| — | the applicant receives an award of costs in respect of the request for a declaration of invalidity, a reversal of the award of the costs made in the Board's decision, and an award of costs in respect of this application. |
| --- | --- |

—

the applicant receives an award of costs in respect of the request for a declaration of invalidity, a reversal of the award of the costs made in the Board's decision, and an award of costs in respect of this application.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘VISIBLE WHITE’ for goods in class 3 — Community trade mark No 802 793

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: CMS Hasche Sigle

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the Board of Appeal wrongly considered both the element ‘VISIBLE’ and the element ‘WHITE’ as descriptive in relation to ‘toothpaste’ as well as ‘mouthwash’ and considered the combination as a whole descriptive and devoid of distinctive character.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/39 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/39

---

Action brought on 4 May 2007 — General Technic-Otis v Commission

(Case T-141/07)

(2007/C 140/65)

Language of the case: French

Parties

Applicant: General Technic-Otis Sàrl (Howald, Grand Duchy of Luxembourg) (represented by: M. Nobusch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul on the basis of Article 230 EC the decision adopted by the Commission on 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/E-1/38.823 — Elevators and Escalators, in so far as it concerns GTO; |
| --- | --- |

—

annul on the basis of Article 230 EC the decision adopted by the Commission on 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/E-1/38.823 — Elevators and Escalators, in so far as it concerns GTO;

| — | in the alternative, annul or reduce, on the basis of Article 229 EC, the fine imposed on it by that decision; |
| --- | --- |

—

in the alternative, annul or reduce, on the basis of Article 229 EC, the fine imposed on it by that decision;

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

—

order the Commission to pay all the costs.

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of Commission decision C(2007)512 final of 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators), concerning a cartel on the market for the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands, and relating to the manipulation of calls for tenders, market-sharing, price-fixing, the award of projects and sales contracts, the installation, maintenance and modernisation of machinery and the exchange of information, in so far as it concerns the applicant. In the alternative, the applicant seeks annulment or reduction of the fine imposed on it by the contested decision.

In support of its claims, the applicant raises seven pleas.

In the first plea, the applicant submits that the Commission erred in fact and in law in application of the rules on the calculation of fines in so far as it held that the incriminating practices constituted a ‘very serious’ infringement. The applicant alleges that the starting amount of the fine should consequently be reduced owing to the limited geographical scope of the market in question and the limited impact of the offending practices on the market in question.

In its second plea, the applicant claims that the Commission erred in law and in fact in so far as it did not take into account the applicant's actual economic capacity to cause damage. It also maintains that the Commission should have taken into account, when fixing the amount of the fine, the applicant's status as a small or medium-sized undertaking, managed entirely independently and which, consequently, is incapable of causing significant damage on the market.

In the third plea, the applicant submits that the Commission erred in law and in fact in so far as it did not limit the amount of the fine to 10 % of its turnover and that it was wrong to take into account the turnover of the parent companies for the purpose of calculating the maximum fine to impose on the applicant.

The fourth plea alleges infringement by the Commission of the principle of equal treatment in so far as it did not apply the principles on liability consistently to all the members of the cartel in question. The applicant maintains that the Commission attributed the offending practices to its parent companies while it did not do so in respect of another company against which a finding of infringement was made in the same decision, although that company was in a comparable situation to the applicant's as regards the control exercised by the parent companies.

By its fifth plea, the applicant submits that the Commission erred in fact in so far as it did not grant it a reduction of 50 % of the fine under the Leniency Notice (1). The applicant maintains that its cooperation with the Commission was close, consistent and particularly wide in its scope and that it warrants the maximum reduction in the fine provided for by the Leniency Notice, that is, 50 %.

The sixth plea put forward by the applicant alleges infringement of the principle of legitimate expectations in so far as the Commission did not grant it a supplementary reduction of 10 % of the fine in return for not contesting the facts. The applicant claims that the notification of the statement of objections and the Commission's practice in taking decisions gave rise to the justified expectation on its part that it would obtain on that basis a reduction of 10 %, and not merely 1 % as granted in the contested decision.

The seventh plea alleges infringement of the principle of proportionality of penalties, in so far as the fine imposed on the applicant is not justified in the light of the infringement in question, and above all having regard to what is alleged to be its limited impact on the market and the fact it was committed by a company of limited size.

---

(1)  Commission notice on immunity from fines and reduction of fines in cartel cases, OJ 2002 C 45, p. 3.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/40 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/40

---

Action brought on 4 May 2007 — General Technic v Commission

(Case T-142/07)

(2007/C 140/66)

Language of the case: French

Parties

Applicant: General Technic Sàrl (Luxembourg, Grand Duchy of Luxembourg) (represented by: M. Nosbusch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul on the basis of Article 230 EC the decision adopted by the Commission on 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/E-1/38.823 — Elevators and Escalators, in so far as it concerns GT; |
| --- | --- |

—

annul on the basis of Article 230 EC the decision adopted by the Commission on 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/E-1/38.823 — Elevators and Escalators, in so far as it concerns GT;

| — | in the alternative, annul or reduce, on the basis of Article 229 EC, the fine imposed on it by that decision; |
| --- | --- |

—

in the alternative, annul or reduce, on the basis of Article 229 EC, the fine imposed on it by that decision;

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

—

order the Commission to pay all the costs.

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of Commission decision C(2007)512 final of 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators), concerning a cartel on the market for the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands, and relating to the manipulation of calls for tenders, market-sharing, price-fixing, the award of projects and sales contracts, the installation, maintenance and modernisation of machinery and the exchange of information, in so far as it concerns the applicant. In the alternative, the applicant seeks the annulment or reduction of the fine imposed on it by the contested decision.

In support of its action, the applicant submits that the Commission was wrong to find it jointly and severally liable for payment of the fine imposed on its subsidiary, a member of the cartel. It claims that the Commission was mistaken about the nature and extent of its shareholding in the share capital of its subsidiary in so far as the applicant is a purely financial company which does not carry out any trade of its own and that its shareholding in the subsidiary is a minority shareholding which does not exceed what is necessary for the protection of its financial interests. The applicant maintains also that the Commission has not stated to the requisite legal standard its reasons for finding that the applicant was involved in the cartel in question, in contrast to the personal role played by its shareholder, in his capacity as managing associate of the subsidiary.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/41 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/41

---

Action brought on 30 April 2007 — UMG Recordings/OHMI — Osman (MOTOWN)

(Case T-143/07)

(2007/C 140/67)

Language in which the application was lodged: English

Parties

Applicant: UMG Recordings, Inc. (Santa Monica, USA) (represented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers)

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

Other party/parties to the proceedings before the Board of Appeal: Jimmy Osman (London, United Kingdom)

Form of order sought

The applicant petitions the Court:

| — | to admit its brief and documents appended thereto and consider an appeal to have been filed in good time and due order against the decision issued by OHIM's Second Board of Appeal on 15 February 2007 in Case R-523/2006-2 and following completion of appropriate procedural steps, to render judgment in due course overturning that decision and expressly ordering OHIM to pay the costs of the proceedings. |
| --- | --- |

—

to admit its brief and documents appended thereto and consider an appeal to have been filed in good time and due order against the decision issued by OHIM's Second Board of Appeal on 15 February 2007 in Case R-523/2006-2 and following completion of appropriate procedural steps, to render judgment in due course overturning that decision and expressly ordering OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revocation: the word Community trade mark ‘MOTOWN’ for goods and services in Classes 9, 25, 41 and 42 — application No 206 243

Proprietor of the Community trade mark: UMG Recordings

Party requesting the revocation of the Community trade mark: Jimmy Osman

Decision of the Cancellation Division: Upheld the revocation request for all contested services in Class 42 and rejected it insofar as it was directed against services in Class 41

Decision of the Board of Appeal: Upheld the appeal lodged by Jimmy Osman

Pleas in law: Infringement of Articles 15(1) and 50(1) of Council Regulation (EC) No 40/94.

The applicant claims that the Board allegedly erred in its assessment of evidence submitted to prove the use of its mark with regards to the contested services in Class 41.

First, the applicant submits that the Board failed to consider that the contested mark was the subject of acts of use for the contested services by both the registered proprietor and third parties with the proprietor's consent.

Secondly, according to the applicant the Board confused ‘discotheques services’ with ‘the organisation of musical events’ while it did not take into account that they fell into different categories of services.

Thirdly, the applicant contends that, even assuming that it did not participate either directly or indirectly in the provision of ‘discotheques services’ and/or the ‘organisation of musical events’ it should have been held that it did render specific services falling within the aforementioned categories and that the provision of those ‘sub-services’ served to overcome the obligation to use its mark for so-called general categories of services (namely, the contested services).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/42 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/42

---

Action brought on 4 May 2007 — Européenne de traitement de l'Information (Euro-Information) v OHIM

(Case T-155/07)

(2007/C 140/68)

Language in which the application was lodged: French

Parties

Applicant: Européenne de traitement de l'Information (Euro-Information) (Strasbourg, France) (represented by: P. Greffe and J. Schouman, lawyers)

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

Form of order sought

| — | annulment of the decision of the First Board of Appeal of OHIM of 28 February 2007 and notified on 8 March 2007, Case R 1046/2006-1, in so far as it refused registration of the Community trade mark CYBERBOURSE as set out in application No 4 114 682 in respect of some of the goods and services claimed in Classes 9, 36 and 38; |
| --- | --- |

—

annulment of the decision of the First Board of Appeal of OHIM of 28 February 2007 and notified on 8 March 2007, Case R 1046/2006-1, in so far as it refused registration of the Community trade mark CYBERBOURSE as set out in application No 4 114 682 in respect of some of the goods and services claimed in Classes 9, 36 and 38;

| — | registration of the Community trade mark CYBERBOURSE as set out in application No 4 114 682 in respect of all of the goods and services claimed. |
| --- | --- |

—

registration of the Community trade mark CYBERBOURSE as set out in application No 4 114 682 in respect of all of the goods and services claimed.

Pleas in law and main arguments

Community trade mark concerned: Word mark CYBERBOURSE for goods and services in Classes 9, 36 and 38 (application No 4 114 682)

Decision of the Examiner: Refusal to register

Decision of the Board of Appeal: Dismissal of the action

Pleas in law: The applicant states that, contrary to what the Board of Appeal of OHIM found in the contested decision, its trade mark is arbitrary and has sufficient distinctive character as required by Council Regulation No 40/94 (1) in respect of the goods and services claimed.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/42 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/42

---

Action brought on 9 May 2007 — Spain v Commission

(Case T-156/07)

(2007/C 140/69)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: F. Díez Moreno)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Notice of open competition EPSO/AD/94/07 published by the European Personnel Selection Office (EPSO) in OJEU 2007 C 45 A of 28 February 2007; |
| --- | --- |

—

annul Notice of open competition EPSO/AD/94/07 published by the European Personnel Selection Office (EPSO) in OJEU 2007 C 45 A of 28 February 2007;

| — | order the Commission to publish all notices of competitions to fill posts in the European Civil Service in the Official Journal in all languages; |
| --- | --- |

—

order the Commission to publish all notices of competitions to fill posts in the European Civil Service in the Official Journal in all languages;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The present action is brought against Notice of open competition EPSO/AD/94/07, published by the European Personnel Selection Office (EPSO) in OJEU 2007 C 45 A of 28 February 2007, in so far as that notice was published in only the English, French and German versions of the OJEU.

The applicant contends that by acting in that manner the defendant has infringed Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community and Council Regulation No 259/68 of 29 February 1968 laying down the Staff Regulations of the European Civil Service. The defendant has also infringed the principles of equality and non-discrimination for European citizens, proportionality and legal certainty, recognised in the EC Treaty and in the consistent case-law of the Court of Justice.

As regards, specifically, the principle of legal certainty, the applicant observes that the Staff Regulations of Officials provide, in Annex II, that notices of open competitions are to be published in the Official Journal of the European Communities. In fact, in accordance with Article 5 of Council Regulation No 1/58, the Official Journal is to be published in the 23 official languages. However, the notice in question was published in only three official languages.

The applicant submits, last, that there has also been an interference with the exclusive competence of the Council, acting unanimously, to amend the rules on the languages to be used by the Community.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/43 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/43

---

Action brought on 9 May 2007 — People's Mojahedin Organization of Iran v Council

(Case T-157/07)

(2007/C 140/70)

Language of the case: English

Parties

Applicant: People's Mojahedin Organization of Iran (Auvers sur Oise, France) (represented by: J.P. Spitzer, lawyer, and D. Vaughan QC)

Defendant: Council of the European Union

Form of order sought

| — | Annul the continuing decisions of the Council:






  — | Not to review within six months or thereafter Council Decision 2006/379 in relation to the applicant; |
| --- | --- | --- |

—

Annul the continuing decisions of the Council:

—

Not to review within six months or thereafter Council Decision 2006/379 in relation to the applicant;

| — | to maintain until the date hereof and thereafter the applicant in a list of terrorist organisations established by Council Decision 2006/379 of 29 May 2006 with effect from the date of that decision notwithstanding the judgment of this Court in Case T-228/02 of 12 December 2006 and the Council's obligations under Article 233 EC. |
| --- | --- |

—

to maintain until the date hereof and thereafter the applicant in a list of terrorist organisations established by Council Decision 2006/379 of 29 May 2006 with effect from the date of that decision notwithstanding the judgment of this Court in Case T-228/02 of 12 December 2006 and the Council's obligations under Article 233 EC.

| — | To make such further order requiring the defendant to act in accordance with its legal obligations as may be appropriate. |
| --- | --- |

—

To make such further order requiring the defendant to act in accordance with its legal obligations as may be appropriate.

| — | To order the defendant to pay the applicant damages amounting to EUR 1 090 000 as set out in Annex 18 (and continuing) and interest thereon. |
| --- | --- |

—

To order the defendant to pay the applicant damages amounting to EUR 1 090 000 as set out in Annex 18 (and continuing) and interest thereon.

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

—

To order the defendant to pay the applicant's costs.

Pleas in law and main arguments

The applicant seeks the annulment of certain letters from the Council and applies for damages as the Council did not carry out a review after six months of the list contained in Council Decision 2006/379 (1) of the persons, groups and entities to which Regulation (EC) No 2580/2001 (2) on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, i.e. a freeze of funds and other financial resources, applies and as the Council maintained the applicant on the said list.

According to the applicant the Council was under an obligation to carry out a review of the list of persons included in any list of terrorist organisations and to do so at a regular basis and at least once every six months. The applicant contends that the Council did not do so in relation to the inclusion of the applicant's name in the list of terrorist organisations.

The applicant further submits that, following the judgement of the Court of First Instance in Case T-228/02 Organisation des Modjahedines du peuple d'Iran v Council [2006] ECR II-0000, the Council was under an obligation to remove the applicant's name from the said list.

---

(1)  Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC (OJ 2006 L 144, p. 21).

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

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/43 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/43

---

Action brought on 7 May 2007 — Lancôme Parfums et Beauté & Cie v OHIM

(Case T-160/07)

(2007/C 140/71)

Language in which the application was lodged: French

Parties

Applicant: Lancôme Parfums et Beauté & Cie (Paris, France) (represented by: E. Baud, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: CMS Hasche Sigle (Cologne, Germany)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of OHIM delivered on 26 February 2007 in Case R231/2006-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM delivered on 26 February 2007 in Case R231/2006-2;

| — | Order the defendant and, if necessary, the intervener, to pay the costs. |
| --- | --- |

—

Order the defendant and, if necessary, the intervener, to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: COLOR EDITION for goods in Class 3 — Community trade mark No 2 965 804

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: CMS Hasche Sigle

Decision of the Cancellation Division: dismissal of the application for the declaration of invalidity.

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division.

Pleas in law: infringement of Article 55(1)(a) of Council Regulation No 40/94 (1) in that the Board of Appeal held that CMS Hasche Sigle was entitled to bring an application for a declaration of invalidity and infringement of Article 7(1)(c) of that regulation in that the contested decision held that the disputed mark COLOR EDITION was descriptive.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

---

European Union Civil Service Tribunal

| 23.6.2007 | EN | Official Journal of the European Union | C 140/45 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/45

---

Action brought on 16 April 2007 — Klug v European Medicines Agency

(Case F-35/07)

(2007/C 140/72)

Language of the case: German

Parties

Applicant: Bettina Klug (London, United Kingdom) (represented by: G. Grupp, lawyer)

Defendant: European Medicines Agency

Form of order sought

| — | Order the defendant to extend the applicant's contract of employment of 7 February 2002, |
| --- | --- |

—

Order the defendant to extend the applicant's contract of employment of 7 February 2002,

| — | order the defendant to pay the applicant damages for pain and suffering in the amount of EUR 200 000, |
| --- | --- |

—

order the defendant to pay the applicant damages for pain and suffering in the amount of EUR 200 000,

| — | order the defendant to annul the applicant's staff report from 31 December 2004 to 31 December 2006 and to decide anew in the light of the findings of the Tribunal. |
| --- | --- |

—

order the defendant to annul the applicant's staff report from 31 December 2004 to 31 December 2006 and to decide anew in the light of the findings of the Tribunal.

Pleas in law and main arguments

The action is based on Article 12(a) Title II of the Staff Regulations of Officials (harassment). It alleges incorrect exercise of discretion regarding the applicant's staff report, infringement of the Agency's procedural rules on drawing up a staff report, and, as a result, that the Agency unlawfully failed to extend the applicant's contract of employment.

The applicant asserts in support of her action that owing to the harassment and lack of objectivity in the assessment of her work, her work deteriorated and thus her five-year contract was not extended.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/45 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/45

---

Action brought on 20 April 2007 — Francesco Caleprico v Commission

(Case F-38/07)

(2007/C 140/73)

Language of the case: Italian

Parties

Applicant: Francesco Caleprico (Brussels, Belgium) (represented by: V. Guagliulmi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | declare Articles 12 and 13 of Annex XIII to the Staff Regulations inapplicable, as provided for in Article 241 EC, in that they are unlawful; |
| --- | --- |

—

declare Articles 12 and 13 of Annex XIII to the Staff Regulations inapplicable, as provided for in Article 241 EC, in that they are unlawful;

| — | annul the decision by which the appointing authority implicitly rejected the complaint submitted by the applicant against the decision of 12 June 2006; |
| --- | --- |

—

annul the decision by which the appointing authority implicitly rejected the complaint submitted by the applicant against the decision of 12 June 2006;

| — | annul in part the decision of the Commission of 12 June 2006, in so far as the appointing authority established the applicant in grade AD6/2 rather than AD8/3; |
| --- | --- |

—

annul in part the decision of the Commission of 12 June 2006, in so far as the appointing authority established the applicant in grade AD6/2 rather than AD8/3;

| — | order the Commission to replace the contested part of the decision of 12 June 2006 with a part establishing the applicant in grade AD8/3 with retroactive effect (from 1 July 2006); |
| --- | --- |

—

order the Commission to replace the contested part of the decision of 12 June 2006 with a part establishing the applicant in grade AD8/3 with retroactive effect (from 1 July 2006);

| — | order the Commission to pay the applicant all the amounts which he has not received on account of the unlawfulness of the contested decisions, plus interest due and becoming due; |
| --- | --- |

—

order the Commission to pay the applicant all the amounts which he has not received on account of the unlawfulness of the contested decisions, plus interest due and becoming due;

| — | order the Commission to compensate all and any other damage suffered by the applicant as the Court of First Instance may deem fit in the present case; |
| --- | --- |

—

order the Commission to compensate all and any other damage suffered by the applicant as the Court of First Instance may deem fit in the present case;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, placed on the reserve list of competition EUR/A/155/2000 (1) for the establishment of a list of suitable candidates for grades A7/A6, was employed after Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (2) came into force, and established in grade AD6/2.

In support of his application, the applicant pleads two grounds.

In connection with the first plea, he submits that the decision of 12 June 2006 is vitiated by a conflict between, on the one hand, the reference in the preamble to Article 31 of the Staff Regulations, according to which candidates are to be appointed to the grade of the function group set out in the notice of the competition, and, on the other hand, the operative part of that decision which establishes him in grade AD6/2.

In connection with the second plea, he claims that, in any event, the decision at issue is unlawful because it is founded on an implicit legal basis (Articles 12 and 13 of Annex XIII to the Staff Regulations) which is unlawful under the following heads:

| — | breach of the principles of legal certainty and the protection of legitimate expectations; |
| --- | --- |

—

breach of the principles of legal certainty and the protection of legitimate expectations;

| — | breach of the principle of non-discrimination and equal treatment; |
| --- | --- |

—

breach of the principle of non-discrimination and equal treatment;

| — | breach of the principle of reasonableness, considering that the application of the new body of rules depends on a circumstance which is absolutely fortuitous, such as that of being recruited before or after a particular date, without any other reason justifying such a rule; |
| --- | --- |

—

breach of the principle of reasonableness, considering that the application of the new body of rules depends on a circumstance which is absolutely fortuitous, such as that of being recruited before or after a particular date, without any other reason justifying such a rule;

| — | breach of the principle of sound administration; |
| --- | --- |

—

breach of the principle of sound administration;

| — | in the alternative, infringement of the obligation to state the reasons on which Community measures are based laid down in Article 251 EC. |
| --- | --- |

—

in the alternative, infringement of the obligation to state the reasons on which Community measures are based laid down in Article 251 EC.

---

(1)  OJ C 147 A of 25.5.2000, p. 10.

(2)  OJ L 124 of 27.4.2004, p. 1.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/46 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/46

---

Action brought on 2 May 2007 — Fernandez García and García Rato v Court of Justice

(Case F-41/07)

(2007/C 140/74)

Language of the case: French

Parties

Applicants: Brigida Fernandez García (Luxembourg, Luxembourg) and Carolina García Rato (Luxembourg, Luxembourg)(represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Court of Justice

Form of order sought

The applicants claim that the Tribunal should:

| — | annul the decisions to appoint the applicants as officials of the European Communities in so far as they fix their grade of recruitment under Article 13 of Annex XIII to the Staff Regulations; |
| --- | --- |

—

annul the decisions to appoint the applicants as officials of the European Communities in so far as they fix their grade of recruitment under Article 13 of Annex XIII to the Staff Regulations;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, successful candidates in competition CJ/LA/25 (1), the notice of which was published before 1 May 2004, were recruited after the entry into force of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (2).

In their action, the applicants claim, first, that the contested decisions misapplied the legal framework established by the notice of competition. Under Article 13 of Annex XIII to the Staff Regulations, they were recruited in a grade lower than that indicated in the notice of competition.

The applicants also plead that the contested decisions infringe Articles 5, 29 and 31 of the Staff Regulations, as well as the principle of equal treatment and non-discrimination. The grade and step of successful candidates in the same competition or in competitions at the same level was fixed at different levels depending on whether they were recruited before or after the entry into force of Regulation No 723/2004.

In addition, the applicants plead breach of the principle of the protection of legitimate expectations, since they legitimately expected to be recruited in the grade indicated in the notice of the competition for filling the posts for which they applied.

---

(1)  OJ C 182 A of 31.07.2002, p. 8.

(2)  OJ L 124 of 27.04.2004, p. 1.

---

| 23.6.2007 | EN | Official Journal of the European Union | C 140/47 |
| --- | --- | --- | --- |

23.6.2007

EN

Official Journal of the European Union

C 140/47

---

Action brought on 10 May 2007 — Prieto v Parliament

(Case F-42/07)

(2007/C 140/75)

Language of the case: French

Parties

Applicant: Antonio Prieto (Bousval, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the European Parliament's decision of 9 June 2006 to appoint the applicant as a probationary official in step 3 of Grade AST 2; |
| --- | --- |

—

annul the European Parliament's decision of 9 June 2006 to appoint the applicant as a probationary official in step 3 of Grade AST 2;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a successful candidate in internal competition C/348 for Grades C5-4, was a member of the Commission's temporary staff in Grade AST 3 (formerly Grade C4) when he was appointed as a probationary official in Grade AST 2.

In support of his action, the applicant claims, first, that the decision to appoint him as an official in a grade and step lower than that which was his when he was a member of the temporary staff infringes Article 5(4) of Annex XIII to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

The applicant also pleads breach of the principle of equal treatment and non-discrimination, on the ground that only the successful candidates in the competition in question who were previously, as members of the temporary staff, in category D were able to retain their former more advantageous grade and step when they were appointed as officials.

The applicant claims, finally, that the contested decision also infringes the principles of legal certainty, the protection of legitimate expectations, proper administration and of sound management.

---