# Official Journal C 146/2004

| | ISSN 1725-2423 |
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| Official Journal
  of the European Union | C 146 |
| | |
| English edition | Information and Notices | Volume 4729 May 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 146

English edition

Information and Notices

Volume 4729 May 2004

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 146/1 | Case C-144/04: Reference for a preliminary ruling by the Arbeitsgericht München, by judgment of that court of 26 February 2004 in the case of Werner Mangold against Rüdiger Helm | 1 |
| 2004/C 146/2 | Case C-162/04: Action brought on 31 March 2004 by the Republic of Finland against the Commission of the European Communities | 1 |
| 2004/C 146/3 | Case C-168/04: Action brought on 5 April 2004 by the Commission of the European Communities against the Republic of Austria | 2 |
| 2004/C 146/4 | Case C-169/04: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 2 April 2004, in the case of Abbey National plc (with Inscape Investments Ltd as Joined Party) against Commissioners of Customs and Excise. | 3 |
| 2004/C 146/5 | Case C-175/04: Action brought on 13 April 2004 by the Kingdom of Spain against the Commission of the European Communities | 4 |
| | COURT OF FIRST INSTANCE |
| 2004/C 146/6 | Action brought on 18 March 2004 by Railion Deutschland AG against the Commission of the European Communities (Case T-109/04) | 5 |
| 2004/C 146/7 | Action brought on 1 April 2004 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities (Case T-127/04) | 5 |
| 2004/C 146/8 | Action brought on 8 April 2004 by Giuseppe Caló against Commission of the European Communities (Case T-134/04) | 6 |
| 2004/C 146/9 | Action brought on 13 April 2004 by K.M. Mayer, Tilly Forstbetriebe GesmbH, A. Volpini de Maestri and J. Volpini de Maestri against the Commission of the European Communities (Case T-137/04) | 6 |
| 2004/C 146/0 | Action brought on 8 April 2004 by Adviesbureau Ehcon B.V. against Commission of the European Communities (Case T-140/04) | 7 |
| 2004/C 146/1 | Action brought on 9 April 2004 by Lapin liitto, Enontekiön kunta, Inarin kunta, Utsjoen kunta and Unto Autto against the Commission of the European Communities (Case T-141/04) | 8 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 146/1

Case C-144/04: Reference for a preliminary ruling by the Arbeitsgericht München, by judgment of that court of 26 February 2004 in the case of Werner Mangold against Rüdiger Helm

1

2004/C 146/2

Case C-162/04: Action brought on 31 March 2004 by the Republic of Finland against the Commission of the European Communities

1

2004/C 146/3

Case C-168/04: Action brought on 5 April 2004 by the Commission of the European Communities against the Republic of Austria

2

2004/C 146/4

Case C-169/04: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 2 April 2004, in the case of Abbey National plc (with Inscape Investments Ltd as Joined Party) against Commissioners of Customs and Excise.

3

2004/C 146/5

Case C-175/04: Action brought on 13 April 2004 by the Kingdom of Spain against the Commission of the European Communities

4

COURT OF FIRST INSTANCE

2004/C 146/6

Action brought on 18 March 2004 by Railion Deutschland AG against the Commission of the European Communities (Case T-109/04)

5

2004/C 146/7

Action brought on 1 April 2004 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities (Case T-127/04)

5

2004/C 146/8

Action brought on 8 April 2004 by Giuseppe Caló against Commission of the European Communities (Case T-134/04)

6

2004/C 146/9

Action brought on 13 April 2004 by K.M. Mayer, Tilly Forstbetriebe GesmbH, A. Volpini de Maestri and J. Volpini de Maestri against the Commission of the European Communities (Case T-137/04)

6

2004/C 146/0

Action brought on 8 April 2004 by Adviesbureau Ehcon B.V. against Commission of the European Communities (Case T-140/04)

7

2004/C 146/1

Action brought on 9 April 2004 by Lapin liitto, Enontekiön kunta, Inarin kunta, Utsjoen kunta and Unto Autto against the Commission of the European Communities (Case T-141/04)

8

| | III   Notices |
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| 2004/C 146/2 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 106, 30.4.2004 | 10 |

III   Notices

2004/C 146/2

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 106, 30.4.2004

Official Journal of the European Union

10

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 29.5.2004 | EN | Official Journal of the European Union | C 146/1 |
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29.5.2004

EN

Official Journal of the European Union

C 146/1

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Reference for a preliminary ruling by the Arbeitsgericht München, by judgment of that court of 26 February 2004 in the case of Werner Mangold against Rüdiger Helm

(Case C-144/04)

(2004/C 146/01)

Reference has been made to the Court of Justice of the European Communities by the Arbeitsgericht München, of 26 February 2004, which was received at the Court Registry on 17 March 2004, for a preliminary ruling in the case of Werner Mangold against Rüdiger Helm on the following questions:

1(a)

| Is Clause 8(3) of the Framework Agreement (Council Directive 1999/70/EC (1) of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) to be interpreted as prohibiting, in the course of the implementation of that agreement in national law, any reduced protection as a result of a reduction in the age limit from 60 to 58? | 1(b) |
| --- | --- |

Is Clause 8(3) of the Framework Agreement (Council Directive 1999/70/EC (1) of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) to be interpreted as prohibiting, in the course of the implementation of that agreement in national law, any reduced protection as a result of a reduction in the age limit from 60 to 58?

1(b)

| Is Clause 5(1) of the Framework Agreement (Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) to be interpreted as precluding a provision of national law which – like the provision at issue in this case – does not contain any of the three restrictions set out in paragraph 1 of that clause? | 2. |
| --- | --- |

Is Clause 5(1) of the Framework Agreement (Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) to be interpreted as precluding a provision of national law which – like the provision at issue in this case – does not contain any of the three restrictions set out in paragraph 1 of that clause?

2.

| Is Article 6 of Council Directive 2000/78/EC (2) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as precluding a provision of national law under which – like under the provision at issue in this case – fixed-term employment contracts may be concluded, without any objective reason, with workers aged 52 and over, thus running counter to the principle of justification on objective grounds? | 3. |
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Is Article 6 of Council Directive 2000/78/EC (2) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as precluding a provision of national law under which – like under the provision at issue in this case – fixed-term employment contracts may be concluded, without any objective reason, with workers aged 52 and over, thus running counter to the principle of justification on objective grounds?

3.

| If one of those three questions is answered in the affirmative: | Must the national court refuse to apply the provision of national law which conflicts with Community law and, in that case, does the general principle laid down in national law apply, under which fixed terms of employment are permissible only if they are justified on an objective ground? |
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If one of those three questions is answered in the affirmative:

Must the national court refuse to apply the provision of national law which conflicts with Community law and, in that case, does the general principle laid down in national law apply, under which fixed terms of employment are permissible only if they are justified on an objective ground?

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(1)  OJ L 175, p. 43.

(2)  OJ L 303, p. 16.

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/1 |
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29.5.2004

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Official Journal of the European Union

C 146/1

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Action brought on 31 March 2004 by the Republic of Finland against the Commission of the European Communities

(Case C-162/04)

(2004/C 146/02)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 31 March 2004 by the Republic of Finland, represented by A. Guimaraes-Purokoski, acting as Agent, with an address for service in Luxembourg.

The Republic of Finland claims principally that the Court should:

| i) | annul Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (1) in so far as it concerns Finland; |
| --- | --- |

i)

annul Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (1) in so far as it concerns Finland;

| ii) | order the Commission to pay the costs.
  The Republic of Finland claims in the alternative that the Court should: |
| --- | --- |

ii)

order the Commission to pay the costs.

The Republic of Finland claims in the alternative that the Court should:

| iii) | annul Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) as regards the sum of EUR 3 194 596; |
| --- | --- |

iii)

annul Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) as regards the sum of EUR 3 194 596;

| iv) | order the Commission to pay the costs. |
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iv)

order the Commission to pay the costs.

Pleas in law and main arguments

Finland considers that when adopting the contested decision the Commission:

| i) | misapplied Article 9(2) of Regulation No 3887/92 (2) and wrongly assessed the factual situation in Pohjois-Karjala. The Commission failed to demonstrate that there were substantial defects in the Finnish system of control of area aid in Pohjois-Karjala and that the Finnish authorities had not taken the corrective measures required by the Commission; |
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i)

misapplied Article 9(2) of Regulation No 3887/92 (2) and wrongly assessed the factual situation in Pohjois-Karjala. The Commission failed to demonstrate that there were substantial defects in the Finnish system of control of area aid in Pohjois-Karjala and that the Finnish authorities had not taken the corrective measures required by the Commission;

| ii) | wrongly assessed the factual situation in Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi. The Commission failed to demonstrate that there were serious defects in the Finnish system of control of area aid in those regions and that the Finnish authorities had not taken the corrective measures required by the Commission; |
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ii)

wrongly assessed the factual situation in Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi. The Commission failed to demonstrate that there were serious defects in the Finnish system of control of area aid in those regions and that the Finnish authorities had not taken the corrective measures required by the Commission;

| iii) | breached the principle of proportionality by extending the contested decision to apply, in addition to Pohjois-Karjala, also to Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi; and |
| --- | --- |

iii)

breached the principle of proportionality by extending the contested decision to apply, in addition to Pohjois-Karjala, also to Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi; and

| iv) | failed to demonstrate that the methods of measurement used in the system of control of area aid in Pohjois-Karjala, Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi were contrary to Community law. |
| --- | --- |

iv)

failed to demonstrate that the methods of measurement used in the system of control of area aid in Pohjois-Karjala, Pohjois-Pohjanmaa, Pohjois-Savo, Keski-Suomi, Kainuu and Lappi were contrary to Community law.

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(1)  OJ L 40 of 12.2.2004, p. 31.

(2)  Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes, OJ L 391 of 31.12.1992, p. 36.

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/2 |
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29.5.2004

EN

Official Journal of the European Union

C 146/2

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Action brought on 5 April 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-168/04)

(2004/C 146/03)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 5 April 2004 by the Commission of the European Communities, represented by Barbara Eggers and Enrico Traversa, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Declare that the Republic of Austria has failed to fulfil its obligations under Article 49 EC inasmuch as by means of Article 18(12) to (16) of the AuslBG and Article 10(1)(3) FrG it is disproportionately restricting the posting of workers who are third-country nationals in connection with the provision of services. |
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Declare that the Republic of Austria has failed to fulfil its obligations under Article 49 EC inasmuch as by means of Article 18(12) to (16) of the AuslBG and Article 10(1)(3) FrG it is disproportionately restricting the posting of workers who are third-country nationals in connection with the provision of services.

| — | Order the Republic of Austria to pay the costs. |
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Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Providers of services resident in another Member State are adversely affected by three different supervisory procedures with three different Austrian authorities in regard to the posting of workers who are third-country nationals to Austria. Thus the Ausländerbeschaftigungsgesetz (Law on employment of foreign nationals - AuslBG) requires an ‘EU Posting of Workers Certificate’ to be obtained at the regional branch of the employment service in addition to the visa under the Fremdengesetz (Law on foreign nationals - FrG) issued by the competent consulates, and a notification procedure to check pay and working conditions in accordance with the Arbeitsvertragsrechtsanpassungsgesetz (Law adapting employment contracts - AVRAG).

I.   EU Posting of Workers Certificate, Article 18 (12) to (16) AuslBG

The requirement of an EU Posting of Workers Certificate pursuant to Article 18(12) to (16) of the AuslBG has a restrictive effect on freedom to provide services in the Community.

The requirement of an EU Posting of Workers Certificate in addition to the visa under the FrG and the notification procedure under the AVRAG is disproportionate to the objectives pursued by the Republic of Austria of combating abusive practices and protecting workers.

1.   Prevention of abusive practices

The Austrian Government is infringing the principle of proportionality, as effective control of the conditions governing the posting of workers in connection with the provision of services can be ensured through less far-reaching measures.

The legitimate interest of a Member State in checking compliance with the conditions governing the posting of workers who are third-country nationals by companies providing services can be adequately served by the requirement of a visa. Any additional control, as here by way of an EU Posting of Workers Certificate, which is issued by another authority, is unjustified.

2.   Compliance with pay and working conditions

The substantive condition in Article 18(13)(2) AuslBG under which the EU Posting of Workers Certificate is issued only if the Austrian wage and working conditions laid down in the AVRAG are complied with likewise results in disproportionate duplicated checks.

The requirement of an EU Posting of Workers Certificate and the procedure associated with it are disproportionate to the objective sought of ensuring worker protection, since the Republic of Austria already has available to it less far-reaching means.

The Republic of Austria transposed the posting of workers directive by means of the AVRAG which provides for the possibility of ex post controls in order to check that the requisite salaries are actually being paid.

3.   Regular workers

The requirement set out in Article 18(13)(1) AuslBG as a condition for the EU Posting of Workers Certificate of at least one-year's employment or an indefinite employment contract with the provider of services constitutes an unjustified restriction on freedom to provide services. The objective of combating abusive practices can also be attained through far less restrictive measures.

II.   Refusal of residence permits, Article 10(1)(3) FrG

Under Article 10(1)(3) FrG a residence permit must be refused when the worker has already entered the country without a visa. That provision prohibits a posting, even if the providers of the services can establish lawfulness, namely that an application has already been made on the basis of which a Member State can carry out the required checks.

The automatic refusal of a residence permit under Article 10(1)(3) FrG is disproportionate to the objective of control of the conditions governing the right of residence and should therefore be declared unlawful.

The automatic refusal of a visa in cases of merely formal illegal entry considerably restricts freedom to provide services and renders that freedom illusory in some service sectors. In the current state of Community law the Austrian Republic has, by virtue of the checks on issue of entry visas, means available to it which are just as effective but less far-reaching of reviewing whether third-country nationals are entering the country for the purpose of providing services.

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/3 |
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29.5.2004

EN

Official Journal of the European Union

C 146/3

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Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 2 April 2004, in the case of Abbey National plc (with Inscape Investments Ltd as Joined Party) against Commissioners of Customs and Excise.

(Case C-169/04)

(2004/C 146/04)

Reference has been made to the Court of Justice of the European Communities by direction of the VAT and Duties Tribunals, London Tribunal Centre, dated 2 April 2004, which was received at the Court Registry on 5 April 2004, for a preliminary ruling in the case of Abbey National plc (with Inscape Investments Ltd as Joined Party) and Commissioners of Customs and Excise on the following questions:

| 1. | Does the exemption for ‘management of special investment funds as defined by Member States’, contained in Article 13B(d)(6) of the Sixth VAT Directive (1) mean that the Member States have the power to define the activities comprising the ‘management’ of the special investment funds, as well as the power to define the special investment funds which may benefit from the exemption? |
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1.

Does the exemption for ‘management of special investment funds as defined by Member States’, contained in Article 13B(d)(6) of the Sixth VAT Directive (1) mean that the Member States have the power to define the activities comprising the ‘management’ of the special investment funds, as well as the power to define the special investment funds which may benefit from the exemption?

| 2. | If the answer to question 1 is no and the term ‘management’ in Article 13B(d)(6) of the Sixth VAT Directive is to be given an independent Community law meaning, in the light of Council Directive 85/611/EEC as amended on the co-ordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (‘the UCITS Directive’) (2), are charges made by a depositary or trustee for the services it provides pursuant to articles 7 and 14 of the UCITS Directive, national regulatory provisions and the relevant fund rules, exempt supplies of ‘management of special investment funds’ under Article 13B(d)(6) of the Sixth VAT Directive? |
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2.

If the answer to question 1 is no and the term ‘management’ in Article 13B(d)(6) of the Sixth VAT Directive is to be given an independent Community law meaning, in the light of Council Directive 85/611/EEC as amended on the co-ordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (‘the UCITS Directive’) (2), are charges made by a depositary or trustee for the services it provides pursuant to articles 7 and 14 of the UCITS Directive, national regulatory provisions and the relevant fund rules, exempt supplies of ‘management of special investment funds’ under Article 13B(d)(6) of the Sixth VAT Directive?

| 3. | Again, if the answer to question 1 is no and the term ‘management’ is to be given an independent Community law meaning, does the exemption for the ‘management of special investment funds’ in Article 13B(d)(6) of the Sixth VAT Directive apply to services performed by a third party manager in respect of the administrative management of the funds? |
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3.

Again, if the answer to question 1 is no and the term ‘management’ is to be given an independent Community law meaning, does the exemption for the ‘management of special investment funds’ in Article 13B(d)(6) of the Sixth VAT Directive apply to services performed by a third party manager in respect of the administrative management of the funds?

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

(2)  of 20 December 1985 (OJ L 375, 31.12.1985, p. 3).

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/4 |
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29.5.2004

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Official Journal of the European Union

C 146/4

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Action brought on 13 April 2004 by the Kingdom of Spain against the Commission of the European Communities

(Case C-175/04)

(2004/C 146/05)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 13 April 2004 by the Kingdom of Spain, represented by Lourdes Fraguas Gadea, Abogado del Estado, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of 4 February 2004 (1), in so far as concerns Spain's exclusion for 'inadequate quality checks' (EUR 7314 117) in respect of aid for processors of tomatoes and for 'failure to comply with the delivery timetable' (EUR 1277 630. 65) in the case of aid to certain producers of citrus fruit. |
| --- | --- |

—

annul the decision of 4 February 2004 (1), in so far as concerns Spain's exclusion for 'inadequate quality checks' (EUR 7314 117) in respect of aid for processors of tomatoes and for 'failure to comply with the delivery timetable' (EUR 1277 630. 65) in the case of aid to certain producers of citrus fruit.

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

—

order the defendant institution to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the procedure which was carried out in relation to the quality checks for finished products does not conform to Article 15 of Commission Regulation (EC) No 504/97 of 19 March 1997, laying down detailed rules for the application of Council Regulation (EC) No 2201/96 as regards the system of production aid for products processed from fruit and vegetables. Therefore, the Commission proposes a flat-rate adjustment of 10 % of the total expenditure by way of aid in Spain. Nonetheless, checks are carried out annually in Spain on all undertakings throughout the marketing year. However, in accordance with the provisions in Article 15(1)(a) of Regulation 504/97, for selected undertakings, ('the sample group'), additional analytical checks are carried out for finished products which may be the subject of an application for financial assistance, which does not mean that the remainder have committed irregularities.

Aid for certain producers of citrus fruits:

The reason given by the Commission for the proposal for financial correction is the transfer of the agreed quantities between different delivery periods. However, in the marketing year 1997/98 there was considerably above average rainfall in Spain which gave rise, in some regions or localities, to difficulties in gathering those varieties of fruit ready for harvest and delays in ripening for later varieties. Those circumstances affected the delivery timetable mentioned in those contracts. The Spanish authorities argue that it was a case of force majeure. Moreover, in the marketing year 1997/98, there were no rules governing the transfers of quantities agreed quarterly between different delivery periods in respect of multi-annual contracts. Thus the conduct cannot be deemed to be unlawful, since in previous marketing years the transfer of agreed quantities between different delivery period had been authorised.

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(1)  Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) OJ L 40, p. 31

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COURT OF FIRST INSTANCE

| 29.5.2004 | EN | Official Journal of the European Union | C 146/5 |
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29.5.2004

EN

Official Journal of the European Union

C 146/5

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Action brought on 18 March 2004 by Railion Deutschland AG against the Commission of the European Communities

(Case T-109/04)

(2004/C 146/06)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 March 2004 by Raillion Deutschland AG, Mainz (Germany), represented by H. Johlen, lawyer.

The applicant claims that the Court should:

| — | annul Commission Decision of 12 December 2003 C(2993)4660/F noting that a remission of import duties was not justified in a particular case; |
| --- | --- |

—

annul Commission Decision of 12 December 2003 C(2993)4660/F noting that a remission of import duties was not justified in a particular case;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant is an undertaking engaged in the transport of goods by rail. The complaint is against the Commission decision refusing an application by the Federal Republic of Germany for authority to allow a remission of customs debt in favour of the applicant. The liability to pay the customs debt arose because the applicant was alleged to have transported alcohol declared as paint from the Bremen free zone to the Hamburg free zone by rail. There was nothing to indicate to the applicant that the declaration was false. After the goods reached Hamburg, they were properly transported to their final destination in the Czech Republic.

The applicant claims inter alia that the decision failed to satisfy the essential procedural requirement of the right to be heard. It is true that the applicant was given a formal opportunity to state its position. However the right to be heard also requires that the arguments of the parties be considered; in its decision refusing the application the defendant did not deal with the arguments submitted. The Commission failed to have regard to the points made in relation to the different risks incurred by a rail freight company and a shipping company in a free zone. The Commission's decision was based on the premise that as a rail freight company the applicant would be dealt with in exactly the same way as a shipping company.

The applicant also claims that the decision infringes Article 239 of the Community Customs Code. The decision denies the existence of ‘special circumstances’ on grounds that are irrelevant or are based on facts that are not fully established. Because of the simplification of rail transport procedures, the applicant was exposed to greater risk of deception by fraud in relation to the goods transported. It could not eliminate or control that risk on its own. In particular, it was impossible in practice to inspect the container.

Lastly, the applicant claims that when making an equitable decision under Article 239 of the Community Customs Code it was necessary to take into account the fact that no financial loss was incurred by the European Communities and that at no stage was this threatened, as the alcohol was destined for the Czech market and was also delivered there.

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/5 |
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29.5.2004

EN

Official Journal of the European Union

C 146/5

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Action brought on 1 April 2004 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities

(Case T-127/04)

(2004/C 146/07)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 April 2004 by KM Europa Metal AG, Osnabruck (Germany), Tréfimétaux S.A., Courbevoie Cedex (France), and Europa Metalli S.p.A., Florence (Italy), represented by M. Siragusa, A. Winckler, G. Cesare Rizza, T. Graf and M. Piergiovanni, lawyers.

The applicants claim that the Court should:

| — | substantially reduce the fine imposed on the applicants by the decision of the Commission of the European Communities adopted on 16 December 2003 in Case COMP/E-l/38.240 |
| --- | --- |

—

substantially reduce the fine imposed on the applicants by the decision of the Commission of the European Communities adopted on 16 December 2003 in Case COMP/E-l/38.240

| — | order the Commission to pay the Applicants' legal fees and expenses as well as the costs incurred by the Applicants in providing a bank guarantee in lieu of payment of KME's Fine pending judgment |
| --- | --- |

—

order the Commission to pay the Applicants' legal fees and expenses as well as the costs incurred by the Applicants in providing a bank guarantee in lieu of payment of KME's Fine pending judgment

Pleas in law and main arguments:

By the contested decision the Commission found that the applicants, among others, infringed Articles 81 EC and 53(1) EEA by participating in a complex of agreements and concerted practices which affected the EEA market for industrial copper tubes supplied in level wound coils. On these grounds, the Commission imposed a fine of 18.990.000 Euros on the applicants, jointly and severally.

The applicants do not contest the Decision's findings with respect to their infringement of the EC and EEA competition rules, but contend that the Commission committed a number of factual and legal errors in calculating the amount of the fine. Firstly, they submit that in establishing the basic amount of the fine and in its calculation of the duration element, the Commission violated the principles of proportionality and equal treatment by not taking the statistically insignificant market impact of the agreements in question and the variations in the cartel's activities into account.

The applicants further claim that in the context of its assessment of the gravity of the infringement, the Commission grossly overstated the economic impact of the agreements in question, by taking the size of the market for the semi-finished products (copper industrial tubes) into account rather than the market for conversion services.

The applicants also contend that the Commission wrongly failed to take several attenuating circumstances into account, namely: the limited implementation of the agreements in question by the applicants, their immediate and voluntary termination of the infringement; the structural crisis of the industrial tube industry; and the applicants' cooperation with the Commission. They claim that the 30 % fine reduction they were granted was based on erroneous factual premises, and was inconsistent with the Commission's practice and the case law. They further submit that the Commission unlawfully discriminated between them and another company, by applying certain attenuating circumstance only to the latter and by according a much more lenient treatment to it without any objective reason.

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/6 |
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Official Journal of the European Union

C 146/6

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Action brought on 8 April 2004 by Giuseppe Caló against Commission of the European Communities

(Case T-134/04)

(2004/C 146/08)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 April 2004 by Giuseppe Caló, residing in Luxembourg, represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

| — | annul the Commission decision of 30 March 2004 to fill the Grade A2 post of Director of the Agriculture, fisheries, structural funds and environment statistics directorate of the DG EUROSTAT and that rejecting the applicant's candidature for that post; |
| --- | --- |

—

annul the Commission decision of 30 March 2004 to fill the Grade A2 post of Director of the Agriculture, fisheries, structural funds and environment statistics directorate of the DG EUROSTAT and that rejecting the applicant's candidature for that post;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an official of the defendant assigned to EUROSTAT as Director of the Agriculture, environment, food and regions statistics directorate, had been reassigned, with his post, to the duties of Principal Adviser to the Director-General of the Directorate-General to which he was assigned. The Commission had also decided to fill his former post.

The applicant has challenged those decisions before the Court of First Instance in another case (T-118/04 Caló v Commission).

In the present action, the applicant challenges the decision to appoint another official to his former post, relying, first, on the same pleas in law as those invoked in Case T-118/04. He claims moreover that the candidate appointed does not have the qualifications required by the vacancy notice in question. He also contends that that candidate participated in a meeting of the Commissioners' Chefs de cabinet at which the filling of the post for which he was himself a candidate was decided. The applicant, on that basis, alleges infringement of the principles of transparency, fairness and impartiality and infringement of the rights of the defence. Finally, the applicant alleges a complete failure to state reasons.

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/6 |
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C 146/6

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Action brought on 13 April 2004 by K.M. Mayer, Tilly Forstbetriebe GesmbH, A. Volpini de Maestri and J. Volpini de Maestri against the Commission of the European Communities

(Case T-137/04)

(2004/C 146/09)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 April 2004 by K.M. Mayer, Eisentratten (Austria), Tilly Forstbetriebe GesmbH, Treibach (Austria), A. Volpini de Maestri, Spittal/Drau (Austria), and J. Volpini de Maestri, Seeboden (Austria), represented by M. Schaffgotsch, lawyer.

The applicants claim that the Court should:

| — | annul the entire contested decision of the Commission; or, |
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—

annul the entire contested decision of the Commission; or,

should that form of order not be granted, in the alternative,

| — | annul the contested decision in respect of all Austrian sites of Community importance (Code AT in Annex I to the contested decision); or, |
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—

annul the contested decision in respect of all Austrian sites of Community importance (Code AT in Annex I to the contested decision); or,

should that form of order not be granted, in the alternative,

| — | (a) | annul the contested decision of the Commission insofar as it includes site AT 2102000 ‘Nockberge’ and |
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—

(a)

annul the contested decision of the Commission insofar as it includes site AT 2102000 ‘Nockberge’ and

| (b) | annul the contested decision of the Commission insofar as it includes site AT 2119000 ‘Gut Walterskirchen’; or, |
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(b)

annul the contested decision of the Commission insofar as it includes site AT 2119000 ‘Gut Walterskirchen’; or,

should that form of order not be granted, in the alternative,

| — | annul the contested decision insofar as it includes sites declared in Annex I to be sites of Community importance for habitats and species which, in the standard data forms submitted by the Member States, were awarded a degree of representativity and a global assessment grade of B, C and D (or, in the alternative, C and D, or, in the further alternative, C), with regard to






  (a) | all sites listed in the contested decision (see Annex I), or |
| --- | --- | --- |

—

annul the contested decision insofar as it includes sites declared in Annex I to be sites of Community importance for habitats and species which, in the standard data forms submitted by the Member States, were awarded a degree of representativity and a global assessment grade of B, C and D (or, in the alternative, C and D, or, in the further alternative, C), with regard to

(a)

all sites listed in the contested decision (see Annex I), or

| (b) | all Austrian sites (Code AT in Annex I), or |
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(b)

all Austrian sites (Code AT in Annex I), or

| (c) | merely the sites AT 2102000 ‘Nockberge’ and AT 2119000 ‘Gut Walterskirchen’; |
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(c)

merely the sites AT 2102000 ‘Nockberge’ and AT 2119000 ‘Gut Walterskirchen’;

| — | in any event, however, order the Commission to pay the costs to the authorised representative of the applicants. |
| --- | --- |

—

in any event, however, order the Commission to pay the costs to the authorised representative of the applicants.

Pleas in law and main arguments:

The applicants' action challenges Commission Decision of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Alpine biogeographical region. (1) The applicants are farmers and foresters who operate agricultural and forestry businesses, including ancillary businesses, on their properties, which are located in areas declared in the contested decision to be ‘sites of Community importance’ (SCI). The applicants submit that, by the Decision, they have been made addressees of rules of Community law. The Decision interferes with the applicants' right to land ownership – which is to be protected in accordance with the constitutional tradition of Community law – automatically, without there having been any balancing of interests, without exception and without appropriate compensation (or even mere provision for compensation) and to an extent much greater that which may be necessary on account of any social obligation. This constitutes an infringement of the Treaty within the meaning of paragraph 2 of Article 230 EC, with the result that the contested decision must be annulled.

The applicants argue that the contested decision is also inconsistent with the very Directive on which it is based. (2) The criteria necessary for determining the required financing were not properly drawn up and the coherence of the conservation-area network required under the Directive is not guaranteed.

Moreover, the applicants claim that the Commission failed in the contested decision to make expressly the required statements specifying the species and habitats for which the sites now listed by it as ‘SCIs’ are actually of Community importance. Finally, the applicants submit that, in respect of the conservation areas affecting them, the content of the decision is based on erroneous technical information. The sites were thus wrongly declared SCIs in respect of particular species and habitats and the contested decision must be annulled for this reason also.

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(1)  OJ 2004 L 14, p. 21.

(2)  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).

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/7 |
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Official Journal of the European Union

C 146/7

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Action brought on 8 April 2004 by Adviesbureau Ehcon B.V. against Commission of the European Communities

(Case T-140/04)

(2004/C 146/10)

language of the case Dutch

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 April 2004 by Adviesbureau Ehcon B.V., established in Reeuwijk (Netherlands) represented by M.A. Goedkoop.

The applicant claims that the Court should:

| — | order the European Community to pay compensation for the loss of euro 158 400 which the applicant suffered as a result of the failure to award the contract, together with interest at the legal rate until payment in full has been made; |
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—

order the European Community to pay compensation for the loss of euro 158 400 which the applicant suffered as a result of the failure to award the contract, together with interest at the legal rate until payment in full has been made;

| — | order the European Community to pay compensation for the loss of income suffered by the applicant, amounting to euro 60 000, as a result of the fact that, owing to the rejection, it was unable to exploit and extend its expertise, together with interest at the legal rate until payment in full has been made; |
| --- | --- |

—

order the European Community to pay compensation for the loss of income suffered by the applicant, amounting to euro 60 000, as a result of the fact that, owing to the rejection, it was unable to exploit and extend its expertise, together with interest at the legal rate until payment in full has been made;

| — | order the European Community to pay compensation for the consequential losses suffered by the applicant as a result of the lost chance to acquire a renewal contract. The consequential losses resulting from the reduced chance of a renewal contract are estimated at 10 % of the net income from the renewal contract, thus at euro 25 500; |
| --- | --- |

—

order the European Community to pay compensation for the consequential losses suffered by the applicant as a result of the lost chance to acquire a renewal contract. The consequential losses resulting from the reduced chance of a renewal contract are estimated at 10 % of the net income from the renewal contract, thus at euro 25 500;

| — | in the alternative, order the European Community to pay compensation for the damage suffered by the applicant as a result of the loss of the chance of the award of a contract in the amount of euro 26 400, together with interest at the legal rate until payment in full has been made; |
| --- | --- |

—

in the alternative, order the European Community to pay compensation for the damage suffered by the applicant as a result of the loss of the chance of the award of a contract in the amount of euro 26 400, together with interest at the legal rate until payment in full has been made;

| — | order the European Community to pay compensation for the costs which the applicant has incurred in submitting its tender, amounting to euro 10 000, together with interest at the legal rate until payment in full has been made; |
| --- | --- |

—

order the European Community to pay compensation for the costs which the applicant has incurred in submitting its tender, amounting to euro 10 000, together with interest at the legal rate until payment in full has been made;

| — | order the European Communities to pay compensation for the costs which the applicant has incurred in obtaining evidence and bringing the matter before the European Ombudsman, amounting to euro 40 000, together with interest at the legal rate until payment in full has been made; |
| --- | --- |

—

order the European Communities to pay compensation for the costs which the applicant has incurred in obtaining evidence and bringing the matter before the European Ombudsman, amounting to euro 40 000, together with interest at the legal rate until payment in full has been made;

| — | order the European Community to pay the costs of the proceedings. |
| --- | --- |

—

order the European Community to pay the costs of the proceedings.

Pleas in law and main arguments

In September 1996 the applicant submitted a tender for a public contract from the Commission in the context of services in relation to the Directive concerning water intended for human consumption (1). The applicant was not, however, selected.

According to the applicant, the Commission acted contrary to the requirements of transparency which must be observed in invitations to tender. The applicant submits that the European Ombudsman, after receiving a complaint from the applicant, came to the same conclusion in that respect.

The applicant also submits that the Commission acted contrary to Article 3 of Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts (2). According to the applicant, the Commission infringed the principles of proper administration by treating the various tenderers differently.

According to the applicant, the Commission also infringed Article 12(1) of Directive 92/50/EEC by failing to inform the applicant of the reasons for the rejection within a period of 15 days after receipt of the written request in that regard.

The applicant also submits that if the Commission had acted in accordance with the rules of proper administration it would have been admitted to the award phase. In that case, according to the applicant, it would also have received a contract.

The applicant also claims that the Commission was obliged, under Articles 16 and 17(2) of Directive 92/50/EEC, no later than 48 days after the award of the contract, to send a notice concerning the outcome of the tender procedure to the Publications Office of the European Communities.

Finally, the applicant states that the Commission has attempted to mislead it.

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(1)  Open invitation to tender No XI.D.1 (OJ 1996 C 232, p. 35).

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

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| 29.5.2004 | EN | Official Journal of the European Union | C 146/8 |
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EN

Official Journal of the European Union

C 146/8

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Action brought on 9 April 2004 by Lapin liitto, Enontekiön kunta, Inarin kunta, Utsjoen kunta and Unto Autto against the Commission of the European Communities

(Case T-141/04)

(2004/C 146/11)

Language of the case: Finnish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 April 2004 by Lapin liitto (Lapland Region), Enontekiön kunta (municipality of Enontekiö), Inarin kunta (municipality of Inari), Utsjoen kunta (municipality of Utsjoki) and Unto Autto, reindeer herder, represented by Kari Marttinen, lawyer, and Professor Pertti Eilavaara.

The applicants claim that the Court should:

| — | annul and delete the data on sites concerning Finland from the Commission's decision as unlawful as explained in the application, |
| --- | --- |

—

annul and delete the data on sites concerning Finland from the Commission's decision as unlawful as explained in the application,

| — | annul in particular the Pallas-Ounastunturin kansallispuisto protected site (FI1300101) as infringing the rights of the applicant reindeer herder Unto Autto and unlawful, |
| --- | --- |

—

annul in particular the Pallas-Ounastunturin kansallispuisto protected site (FI1300101) as infringing the rights of the applicant reindeer herder Unto Autto and unlawful,

| — | reimburse the legal costs of the proceedings in full with interest determined from the date of judgment. |
| --- | --- |

—

reimburse the legal costs of the proceedings in full with interest determined from the date of judgment.

Pleas in law and main arguments

The Commission's decision was adopted on the following principal unlawful bases:

| — | The Commission exceeded its jurisdiction when it approved the list of sites submitted by Finland. |
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—

The Commission exceeded its jurisdiction when it approved the list of sites submitted by Finland.

| — | The Commission did not check the lawfulness of Finland's decision in accordance with the Treaty of Rome or as required by the nature directive, so that its own decision-making is based on a procedure contrary to Annex III to the nature directive. |
| --- | --- |

—

The Commission did not check the lawfulness of Finland's decision in accordance with the Treaty of Rome or as required by the nature directive, so that its own decision-making is based on a procedure contrary to Annex III to the nature directive.

| — | Finland drew up its own decision on sites contrary to Community law, since it did not apply the Community law nature directive in accordance with Annex III to the directive, as confirmed by the Court of Justice of the European Communities in several judgments. |
| --- | --- |

—

Finland drew up its own decision on sites contrary to Community law, since it did not apply the Community law nature directive in accordance with Annex III to the directive, as confirmed by the Court of Justice of the European Communities in several judgments.

| — | Objectors were not heard as regards the formation of the alpine regional sites, and the other preparation of the matter was not based in Finland on the procedure laid down by the nature directive. |
| --- | --- |

—

Objectors were not heard as regards the formation of the alpine regional sites, and the other preparation of the matter was not based in Finland on the procedure laid down by the nature directive.

| — | Reindeer herder Unto Autto in particular considers that the Commission's decision on the protection of alpine areas does not safeguard his fundamental rights, since the decisions has legal effects but his fundamental rights are not safeguarded. Fundamental rights mean the rights under the Finnish constitution to protection of property, freedom to carry on an occupation, and protection of culture. The Commission's decision also infringes the fundamental rights recognised by the European Union and applied in consistent practice. |
| --- | --- |

—

Reindeer herder Unto Autto in particular considers that the Commission's decision on the protection of alpine areas does not safeguard his fundamental rights, since the decisions has legal effects but his fundamental rights are not safeguarded. Fundamental rights mean the rights under the Finnish constitution to protection of property, freedom to carry on an occupation, and protection of culture. The Commission's decision also infringes the fundamental rights recognised by the European Union and applied in consistent practice.

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III Notices

| 29.5.2004 | EN | Official Journal of the European Union | C 146/10 |
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(2004/C 146/12)

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

OJ C 146, 29.5.2004

Past publications

OJ C 106, 30.4.2004

OJ C 94, 17.4.2004

OJ C 85, 3.4.2004

OJ C 71, 20.3.2004

OJ C 59, 6.3.2004

OJ C 47, 21.2.2004

These texts are available on:

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

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

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