# Official Journal C 57/5 Ma

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 57 |
| | |
| English edition | Information and Notices | Volume 485 March 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 57

English edition

Information and Notices

Volume 485 March 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 057/1 | Judgment of the Court (Full Court) of 18 January 2005 in Case C-257/01: Commission of the European Communities v Council of the European Union (Regulations (EC) Nos 789/2001 and 790/2001 — Visa policy — Border checks and surveillance — Article 202 EC — Implementing powers reserved to the Council — Updating reserved to the Member States — Specific cases — Obligation to state reasons) | 1 |
| 2005/C 057/2 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-464/01 (reference for a preliminary ruling from the Oberster Gerichtshof): Johann Gruber v Bay Wa AG (Brussels Convention — Article 13, first paragraph — Conditions for application — Definition of consumer contract — Purchase of tiles by a farmer for roofing a farm building used partly for private and partly for business purposes) | 1 |
| 2005/C 057/3 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-27/02 (reference for a preliminary ruling by the Oberlandesgericht Innsbruck): Petra Engler v Janus Versand GmbH (Brussels Convention — Request for the interpretation of Article 5(1) and (3) and Article 13, first paragraph, point 3 — Entitlement of a consumer to whom misleading advertising has been sent to seek payment, in judicial proceedings, of the prize which he has ostensibly won — Classification — Action of a contractual nature covered by Article 13, first paragraph, point 3, or by Article 5(1) or in matters of tort, delict or quasi-delict by Article 5(3) — Conditions) | 2 |
| 2005/C 057/4 | Judgment of the Court (First Chamber) of 13 January 2005 in Case C-145/02 (reference for a preliminary ruling by the Bundesverwaltungsgericht): Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH (Free movement of goods — Directive 70/524/EEC — Articles 28 EC and 30 EC — Additives — Harmonisation of national provisions relating to the vitamin D content of animal feedingstuffs — Legislation of a Member State prohibiting the importation of animal feedingstuffs which have been lawfully manufactured in another Member State and the vitamin D3 content of which exceeds that authorised in that first State) | 3 |
| 2005/C 057/5 | Judgment of the Court (First Chamber) of 13 January 2005 in Case C-174/02 (reference for a preliminary ruling by the Hoge Raad der Nederlanden): Streekgewest Westelijk Noord-Brabant v Staatssecretaris van Financiën (State aid — Article 93(3) of the EC Treaty (now Article 88(3) EC) — Planned aid — Prohibition on the implementation of planned measures before the Commission's final decision — Scope of the prohibition if the aid consists of an exemption from a tax — Persons who may rely on an infringement) | 3 |
| 2005/C 057/6 | Judgment of the Court (First Chamber) of 13 January 2005 in Case C-175/02: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in F.J. Pape v Minister van Landbouw, Natuurbeheer en Visserij (State aid — Article 93(3) of the EC Treaty (now Article 88(3) EC) — Planned aid — Prohibition on the implementation of planned measures before the Commission's final decision — Tax partly earmarked for financing the aid measure — Tax imposed before approval of the aid) | 4 |
| 2005/C 057/7 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-225/02 (reference for a preliminary ruling by the Juzgado de lo Social no 3 de Orense): Rosa García Blanco v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) (Social security of migrant workers — Old age — Unemployment — Minimum periods of insurance — Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits — Periods of unemployment — Aggregation) | 4 |
| 2005/C 057/8 | Judgment of the Court (First Chamber) of 20 January 2005 in Case C-302/02 (reference for a preliminary ruling from the Oberster Gerichtshof): in the proceedings brought on behalf of Nils Laurin Effing (Family benefits — Grant by a Member State of advances on maintenance payments for minor children — Child of a prisoner — Conditions of granting the maintenance payment — Prisoner transferred to another Member State to serve his sentence — Article 12 EC — Articles 3 and 13 of Regulation (EEC) No 1408/71) | 5 |
| 2005/C 057/9 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-448/02: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — 1995 financial year — Arable crops) | 5 |
| 2005/C 057/0 | Judgment of the Court (First Chamber) of 11 January 2005 in Case C-26/03 (reference for a preliminary ruling from the Oberlandesgericht Naumburg): Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna (Directive 92/50/EEC — Public service contracts — Award with no public call for tenders — Award of the contract to a semi-public undertaking — Judicial protection — Directive 89/665/EEC) | 6 |
| 2005/C 057/1 | Judgment of the Court (Sixth Chamber) of 13 January 2005 in Case C-38/03: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Article 28 EC — Measures having equivalent effect — Wheelchairs — Admission to the reimbursement system under the social security scheme) | 6 |
| 2005/C 057/2 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case 74/03 (reference for a preliminary ruling by the Østre Landsret): SmithKline Beecham plc v Lægemiddelstyrelsen (Medicinal products — Marketing authorisation — Abridged procedure — Essentially similar products — Active substance in different forms of salt — Additional documentation) | 7 |
| 2005/C 057/3 | Judgment of the Court (Second Chamber) of 13 January 2005 in Case C-117/03 (reference for a preliminary ruling from the Consiglio di Stato): Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia (Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — National list of sites eligible for identification as sites of Community importance — Conservation measures) | 7 |
| 2005/C 057/4 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-245/03 (reference for a preliminary ruling by the Conseil d'État): Merck, Sharp & Dohme BV v État belge (Directive 89/105/EEC — Medicinal products for human use — Application for entry on a positive list — Nature of the time-limit for responding — Mandatory nature — Consequences of exceeding the time-limit) | 8 |
| 2005/C 057/5 | Judgment of the Court (First Chamber) of 13 January 2005 in Case C-254/03 P Eduardo Vieira SA v Commission of the European Communities (Appeal — Fisheries — Fisheries agreement with Argentina — Community financial aid — Reduction) | 8 |
| 2005/C 057/6 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-296/03 (reference for a preliminary ruling by the Conseil d'État): Glaxosmithkline SA v État Belge (Directive 89/105/EEC — Medicinal products for human use — Application for entry on a positive list — Nature of the time-limit for responding — Mandatory nature — Consequences of exceeding the time-limit where a decision refusing entry is annulled) | 9 |
| 2005/C 057/7 | Judgment of the Court (Fourth Chamber) of 20 January 2005 in Case C-300/03 (reference for a preliminary ruling by the Hessisches Finanzgericht, Kassel): Honeywell Aerospace GmbH v Hauptzollamt Gießen (Community transit — Incurrence of a customs debt in the event of offences or irregularities — Consequence of the lack of indication to the principal of the time-limit for furnishing proof of the place where the offence or irregularity occurred) | 9 |
| 2005/C 057/8 | Judgment of the Court (Second Chamber) of 20 January 2005 in Case 306/03 (reference for a preliminary ruling by the Juzgado de lo Social no 3 de Orense): Cristalina Salgado Alonso v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) (Social security of migrant workers — Articles 12 EC, 39 EC and 42 EC — Articles 45 and 48(1) of Regulation (EEC) No 1408/71 — Old age and death — Unemployment — Minimum periods of insurance — Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits — Periods of unemployment — Aggregation) | 10 |
| 2005/C 057/9 | Judgment of the Court (Fifth Chamber) of 16 December 2004 in Case C-313/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Directive 1999/63/EC — Failure to transpose within the prescribed period — Failure to communicate the implementing measures) | 10 |
| 2005/C 057/0 | Judgment of the Court (First Chamber) of 13 January 2005 in Case C-356/03 (reference for a preliminary ruling from the Bundesgerichtshof): Elisabeth Mayer v Versorgungsanstalt des Bundes und der Länder (Equal treatment for men and women — Maternity leave — Acquisition of pension rights) | 11 |
| 2005/C 057/1 | Judgment of the Court (First Chamber) of 20 January 2005 in Case C-412/03: Reference for a preliminary ruling by the Regeringsrätten in Hotel Scandic Gåsabäck AB v Riksskatteverket (Sixth VAT Directive — Articles 2, 5(6) and 6(2) — Provision of meals in a company canteen for a price lower than the cost price — Taxable amount) | 11 |
| 2005/C 057/2 | Judgment of the Court (Fifth Chamber) of 13 January 2005 in Case C-32/04: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Directive 2001/58/EC — Non-transposition within the period prescribed) | 12 |
| 2005/C 057/3 | Judgment of the Court (Fourth Chamber) of 13 January 2005 in Case C-61/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Directive 2000/76/EC — Incineration of waste — Failure to transpose) | 12 |
| 2005/C 057/4 | Judgment of the Court (Fourth Chamber) of 20 January 2005 in Case C-101/04 (Reference for a preliminary ruling from the Arbeidsrechtbank Gent (Belgium)): Roger Noteboom v Rijksdienst voor Pensioenen (Social security for migrant workers — Regulation (EEC) No 1408/71 — Old-age benefits — Holiday pay given to persons entitled to a retirement pension — Unemployed frontier worker receiving benefit of a pension scheme) | 13 |
| 2005/C 057/5 | Judgment of the Court (Fifth Chamber) of 20 January 2005 in Case C-198/04: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directives 89/48/EEC and 92/51/EEC — Recognition of diplomas — Regulated professions — Tour guide) | 13 |
| 2005/C 057/6 | Case C-500/04: Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 29 November 2004 in the case of Proxxon GmbH against Oberfinanzdirektion Köln | 14 |
| 2005/C 057/7 | Case C-504/04: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin by order of that court of 9 January 2004 in the case of Agrarproduktion Staebelow GmbH against Landrat des Landkreises Bad Doberan | 14 |
| 2005/C 057/8 | Case C-513/04: Reference for a preliminary ruling by the Rechtbank Eerste Aanleg te Gent by decision of that court of 15 December 2004 in the case of Kerckhaert-Morres v Belgische Staat | 14 |
| 2005/C 057/9 | Case C-514/04: Reference for a preliminary ruling by the Gerechtshof te Amsterdam, by decision of that court of 30 November 2004, in the case of Uroplasty B.V. against Inspecteur van de Belastingdienst/Douane District Rotterdam | 15 |
| 2005/C 057/0 | Case C-518/04: Action brought on 21 December 2004 by the Commission of the European Communities against the Hellenic Republic | 15 |
| 2005/C 057/1 | Case C-519/04 P: Appeal brought on 22 December 2004 by D. Meca-Medina and I. Majcen against the judgment delivered on 30 September 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-313/02 between D. Meca-Medina and I. Majcen, and the Commission of the European Communities, supported by the Republic of Finland | 16 |
| 2005/C 057/2 | Case C-520/04: Reference for a preliminary ruling from the Korkein hallinto-oikeus by order of that court of 20 December 2004, received at the Court Registry on 22 December 2004, in the case of Pirkko Marjatta Turpeinen | 17 |
| 2005/C 057/3 | Case C-522/04: Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of Belgium | 17 |
| 2005/C 057/4 | Case C-523/04: Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of the Netherlands | 19 |
| 2005/C 057/5 | Case C-524/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 21 December 2004, in the case of Test Claimants in the Thin Cap Group Litigation against Commissioners of Inland Revenue | 20 |
| 2005/C 057/6 | Case C-1/05: Reference for a preliminary ruling from the Utlänningsnämnden by order of that court of 30 December 2004, received at the Court Registry on 4 January 2005, in the case of Yunying Jia against Migrationsverket | 22 |
| 2005/C 057/7 | Case C-4/05: Reference for a preliminary ruling from the Verwaltungsgericht Aachen by order of that court of 29 December 2004, in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen | 23 |
| 2005/C 057/8 | Removal from the register of Case C-11/03 | 23 |
| 2005/C 057/9 | Removal from the register of Case C-10/04 | 23 |
| 2005/C 057/0 | Removal from the register of Case C-13/04 | 24 |
| 2005/C 057/1 | Removal from the register of Case C-307/04 P | 24 |
| | COURT OF FIRST INSTANCE |
| 2005/C 057/2 | Case T-453/04: Action brought on 22 September 2004 by Dr Peter Lesetar against the Commission of the European Communities | 25 |
| 2005/C 057/3 | Case T-455/04: Action brought on 18 November 2004 by Ms D. Beyatli and Mr A. Candan against the Commission of the European Communities | 25 |
| 2005/C 057/4 | Case T-461/04: Action brought on 1 December 2004 by Imagination Technologies Ltd against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 26 |
| 2005/C 057/5 | Case T-465/04: Action brought on 25 November 2004 by European Dynamics SA against the Commission of the European Communities | 26 |
| 2005/C 057/6 | Case T-468/04: Action brought on 19 November 2004 by Kenzo Takada against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 27 |
| 2005/C 057/7 | Case T-470/04: Action brought on 19 November 2004 by Thomas Peyker against Commission of the European Communities | 28 |
| 2005/C 057/8 | Case T-471/04: Action brought on 6 December 2004 by Mr Georgios Karatzoglou against the European Agency for Reconstruction | 28 |
| 2005/C 057/9 | Case T-472/04: Action brought on 20 November 2004 by Vassilios Tsarnavas against the Commission of the European Communities | 29 |
| 2005/C 057/0 | Case T-480/04: Action brought on 14 December 2004 by Chr. Muller Touw B.V. and A&C Braid and Rope Co. Pvt. Ltd against the Council of the European Union | 29 |
| 2005/C 057/1 | Case T-481/04: Action brought on 10 December 2004 by Advance Magazine Publishers Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 30 |
| 2005/C 057/2 | Case T-482/04: Action by Komsa Kommunikation Sachsen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) brought on 13 December 2004 | 30 |
| 2005/C 057/3 | Case T-484/04: Action brought on 9 December 2004 by François Pilat against the Council of the European Union and the Commission of the European Communities | 31 |
| 2005/C 057/4 | Case T-485/04: Action brought on 10 December 2004 by Association Coopération des Bibliothèques de Bretagne (COBB) against Commission of the European Communities | 32 |
| 2005/C 057/5 | Case T-486/04: Action brought on 13 December 2004 by Christos Michail against the Commission of the European Communities | 32 |
| 2005/C 057/6 | Case T-487/04: Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 33 |
| 2005/C 057/7 | Case T-488/04: Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 33 |
| 2005/C 057/8 | Case T-494/04: Action brought on 22 December 2004 by Wineke Neirinck against the Commission of the European Communities | 34 |
| 2005/C 057/9 | Case T-495/04: Action brought on 23 December 2004 by Belfass against the Council of the European Union | 34 |
| 2005/C 057/0 | Case T-498/04: Action brought on 23 December 2004 by Zhejiang Xinan Chemical Industrial Group Co., Ltd against the Council of the European Union | 35 |
| 2005/C 057/1 | Case T-499/04: Action brought on 23 December 2004 by Hammarplast AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 36 |
| 2005/C 057/2 | Case T-502/04: Action brought on 24 December 2004 by Stéphane Lopparelli against Commission of the European Communities | 36 |
| 2005/C 057/3 | Case T-503/04: Action brought on 27 December 2004 by José Pedro Pessoa e Costa against the Commission of the European Communities | 37 |
| 2005/C 057/4 | Case T-504/04: Action brought on 29 December 2004 by Navigazione Libera del Golfo S.p.A. against the Commission of the European Communities | 37 |
| 2005/C 057/5 | Case T-4/05: Action brought on 4 January 2005 by Guido Strack against the Commission of the European Communities | 39 |
| 2005/C 057/6 | Case T-7/05: Action brought on 11 January 2005 by the Commission of the European Communities against Parthenon A.E. | 39 |
| 2005/C 057/7 | Case T-15/05: Action brought on 18 January 2005 by Wim De Waele against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 40 |
| 2005/C 057/8 | Removal from the Register of Case T-313/01 R | 40 |
| 2005/C 057/9 | Removal from the Register of Case T-386/03 | 40 |
| 2005/C 057/0 | Removal from the Register of Case T-103/04 | 41 |
| 2005/C 057/1 | Removal from the Register of Case T-324/04 R | 41 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 057/1

Judgment of the Court (Full Court) of 18 January 2005 in Case C-257/01: Commission of the European Communities v Council of the European Union (Regulations (EC) Nos 789/2001 and 790/2001 — Visa policy — Border checks and surveillance — Article 202 EC — Implementing powers reserved to the Council — Updating reserved to the Member States — Specific cases — Obligation to state reasons)

1

2005/C 057/2

Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-464/01 (reference for a preliminary ruling from the Oberster Gerichtshof): Johann Gruber v Bay Wa AG (Brussels Convention — Article 13, first paragraph — Conditions for application — Definition of consumer contract — Purchase of tiles by a farmer for roofing a farm building used partly for private and partly for business purposes)

1

2005/C 057/3

Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-27/02 (reference for a preliminary ruling by the Oberlandesgericht Innsbruck): Petra Engler v Janus Versand GmbH (Brussels Convention — Request for the interpretation of Article 5(1) and (3) and Article 13, first paragraph, point 3 — Entitlement of a consumer to whom misleading advertising has been sent to seek payment, in judicial proceedings, of the prize which he has ostensibly won — Classification — Action of a contractual nature covered by Article 13, first paragraph, point 3, or by Article 5(1) or in matters of tort, delict or quasi-delict by Article 5(3) — Conditions)

2

2005/C 057/4

Judgment of the Court (First Chamber) of 13 January 2005 in Case C-145/02 (reference for a preliminary ruling by the Bundesverwaltungsgericht): Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH (Free movement of goods — Directive 70/524/EEC — Articles 28 EC and 30 EC — Additives — Harmonisation of national provisions relating to the vitamin D content of animal feedingstuffs — Legislation of a Member State prohibiting the importation of animal feedingstuffs which have been lawfully manufactured in another Member State and the vitamin D3 content of which exceeds that authorised in that first State)

3

2005/C 057/5

Judgment of the Court (First Chamber) of 13 January 2005 in Case C-174/02 (reference for a preliminary ruling by the Hoge Raad der Nederlanden): Streekgewest Westelijk Noord-Brabant v Staatssecretaris van Financiën (State aid — Article 93(3) of the EC Treaty (now Article 88(3) EC) — Planned aid — Prohibition on the implementation of planned measures before the Commission's final decision — Scope of the prohibition if the aid consists of an exemption from a tax — Persons who may rely on an infringement)

3

2005/C 057/6

Judgment of the Court (First Chamber) of 13 January 2005 in Case C-175/02: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in F.J. Pape v Minister van Landbouw, Natuurbeheer en Visserij (State aid — Article 93(3) of the EC Treaty (now Article 88(3) EC) — Planned aid — Prohibition on the implementation of planned measures before the Commission's final decision — Tax partly earmarked for financing the aid measure — Tax imposed before approval of the aid)

4

2005/C 057/7

Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-225/02 (reference for a preliminary ruling by the Juzgado de lo Social no 3 de Orense): Rosa García Blanco v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) (Social security of migrant workers — Old age — Unemployment — Minimum periods of insurance — Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits — Periods of unemployment — Aggregation)

o

4

2005/C 057/8

Judgment of the Court (First Chamber) of 20 January 2005 in Case C-302/02 (reference for a preliminary ruling from the Oberster Gerichtshof): in the proceedings brought on behalf of Nils Laurin Effing (Family benefits — Grant by a Member State of advances on maintenance payments for minor children — Child of a prisoner — Conditions of granting the maintenance payment — Prisoner transferred to another Member State to serve his sentence — Article 12 EC — Articles 3 and 13 of Regulation (EEC) No 1408/71)

5

2005/C 057/9

Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-448/02: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — 1995 financial year — Arable crops)

5

2005/C 057/0

Judgment of the Court (First Chamber) of 11 January 2005 in Case C-26/03 (reference for a preliminary ruling from the Oberlandesgericht Naumburg): Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna (Directive 92/50/EEC — Public service contracts — Award with no public call for tenders — Award of the contract to a semi-public undertaking — Judicial protection — Directive 89/665/EEC)

6

2005/C 057/1

Judgment of the Court (Sixth Chamber) of 13 January 2005 in Case C-38/03: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Article 28 EC — Measures having equivalent effect — Wheelchairs — Admission to the reimbursement system under the social security scheme)

6

2005/C 057/2

Judgment of the Court (Second Chamber) of 20 January 2005 in Case 74/03 (reference for a preliminary ruling by the Østre Landsret): SmithKline Beecham plc v Lægemiddelstyrelsen (Medicinal products — Marketing authorisation — Abridged procedure — Essentially similar products — Active substance in different forms of salt — Additional documentation)

7

2005/C 057/3

Judgment of the Court (Second Chamber) of 13 January 2005 in Case C-117/03 (reference for a preliminary ruling from the Consiglio di Stato): Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia (Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — National list of sites eligible for identification as sites of Community importance — Conservation measures)

7

2005/C 057/4

Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-245/03 (reference for a preliminary ruling by the Conseil d'État): Merck, Sharp & Dohme BV v État belge (Directive 89/105/EEC — Medicinal products for human use — Application for entry on a positive list — Nature of the time-limit for responding — Mandatory nature — Consequences of exceeding the time-limit)

8

2005/C 057/5

Judgment of the Court (First Chamber) of 13 January 2005 in Case C-254/03 P Eduardo Vieira SA v Commission of the European Communities (Appeal — Fisheries — Fisheries agreement with Argentina — Community financial aid — Reduction)

8

2005/C 057/6

Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-296/03 (reference for a preliminary ruling by the Conseil d'État): Glaxosmithkline SA v État Belge (Directive 89/105/EEC — Medicinal products for human use — Application for entry on a positive list — Nature of the time-limit for responding — Mandatory nature — Consequences of exceeding the time-limit where a decision refusing entry is annulled)

9

2005/C 057/7

Judgment of the Court (Fourth Chamber) of 20 January 2005 in Case C-300/03 (reference for a preliminary ruling by the Hessisches Finanzgericht, Kassel): Honeywell Aerospace GmbH v Hauptzollamt Gießen (Community transit — Incurrence of a customs debt in the event of offences or irregularities — Consequence of the lack of indication to the principal of the time-limit for furnishing proof of the place where the offence or irregularity occurred)

9

2005/C 057/8

Judgment of the Court (Second Chamber) of 20 January 2005 in Case 306/03 (reference for a preliminary ruling by the Juzgado de lo Social no 3 de Orense): Cristalina Salgado Alonso v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) (Social security of migrant workers — Articles 12 EC, 39 EC and 42 EC — Articles 45 and 48(1) of Regulation (EEC) No 1408/71 — Old age and death — Unemployment — Minimum periods of insurance — Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits — Periods of unemployment — Aggregation)

o

10

2005/C 057/9

Judgment of the Court (Fifth Chamber) of 16 December 2004 in Case C-313/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Directive 1999/63/EC — Failure to transpose within the prescribed period — Failure to communicate the implementing measures)

10

2005/C 057/0

Judgment of the Court (First Chamber) of 13 January 2005 in Case C-356/03 (reference for a preliminary ruling from the Bundesgerichtshof): Elisabeth Mayer v Versorgungsanstalt des Bundes und der Länder (Equal treatment for men and women — Maternity leave — Acquisition of pension rights)

11

2005/C 057/1

Judgment of the Court (First Chamber) of 20 January 2005 in Case C-412/03: Reference for a preliminary ruling by the Regeringsrätten in Hotel Scandic Gåsabäck AB v Riksskatteverket (Sixth VAT Directive — Articles 2, 5(6) and 6(2) — Provision of meals in a company canteen for a price lower than the cost price — Taxable amount)

11

2005/C 057/2

Judgment of the Court (Fifth Chamber) of 13 January 2005 in Case C-32/04: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Directive 2001/58/EC — Non-transposition within the period prescribed)

12

2005/C 057/3

Judgment of the Court (Fourth Chamber) of 13 January 2005 in Case C-61/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Directive 2000/76/EC — Incineration of waste — Failure to transpose)

12

2005/C 057/4

Judgment of the Court (Fourth Chamber) of 20 January 2005 in Case C-101/04 (Reference for a preliminary ruling from the Arbeidsrechtbank Gent (Belgium)): Roger Noteboom v Rijksdienst voor Pensioenen (Social security for migrant workers — Regulation (EEC) No 1408/71 — Old-age benefits — Holiday pay given to persons entitled to a retirement pension — Unemployed frontier worker receiving benefit of a pension scheme)

13

2005/C 057/5

Judgment of the Court (Fifth Chamber) of 20 January 2005 in Case C-198/04: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directives 89/48/EEC and 92/51/EEC — Recognition of diplomas — Regulated professions — Tour guide)

13

2005/C 057/6

Case C-500/04: Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 29 November 2004 in the case of Proxxon GmbH against Oberfinanzdirektion Köln

14

2005/C 057/7

Case C-504/04: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin by order of that court of 9 January 2004 in the case of Agrarproduktion Staebelow GmbH against Landrat des Landkreises Bad Doberan

14

2005/C 057/8

Case C-513/04: Reference for a preliminary ruling by the Rechtbank Eerste Aanleg te Gent by decision of that court of 15 December 2004 in the case of Kerckhaert-Morres v Belgische Staat

14

2005/C 057/9

Case C-514/04: Reference for a preliminary ruling by the Gerechtshof te Amsterdam, by decision of that court of 30 November 2004, in the case of Uroplasty B.V. against Inspecteur van de Belastingdienst/Douane District Rotterdam

15

2005/C 057/0

Case C-518/04: Action brought on 21 December 2004 by the Commission of the European Communities against the Hellenic Republic

15

2005/C 057/1

Case C-519/04 P: Appeal brought on 22 December 2004 by D. Meca-Medina and I. Majcen against the judgment delivered on 30 September 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-313/02 between D. Meca-Medina and I. Majcen, and the Commission of the European Communities, supported by the Republic of Finland

16

2005/C 057/2

Case C-520/04: Reference for a preliminary ruling from the Korkein hallinto-oikeus by order of that court of 20 December 2004, received at the Court Registry on 22 December 2004, in the case of Pirkko Marjatta Turpeinen

17

2005/C 057/3

Case C-522/04: Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of Belgium

17

2005/C 057/4

Case C-523/04: Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

19

2005/C 057/5

Case C-524/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 21 December 2004, in the case of Test Claimants in the Thin Cap Group Litigation against Commissioners of Inland Revenue

20

2005/C 057/6

Case C-1/05: Reference for a preliminary ruling from the Utlänningsnämnden by order of that court of 30 December 2004, received at the Court Registry on 4 January 2005, in the case of Yunying Jia against Migrationsverket

22

2005/C 057/7

Case C-4/05: Reference for a preliminary ruling from the Verwaltungsgericht Aachen by order of that court of 29 December 2004, in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen

23

2005/C 057/8

Removal from the register of Case C-11/03

23

2005/C 057/9

Removal from the register of Case C-10/04

23

2005/C 057/0

Removal from the register of Case C-13/04

24

2005/C 057/1

Removal from the register of Case C-307/04 P

24

COURT OF FIRST INSTANCE

2005/C 057/2

Case T-453/04: Action brought on 22 September 2004 by Dr Peter Lesetar against the Commission of the European Communities

25

2005/C 057/3

Case T-455/04: Action brought on 18 November 2004 by Ms D. Beyatli and Mr A. Candan against the Commission of the European Communities

25

2005/C 057/4

Case T-461/04: Action brought on 1 December 2004 by Imagination Technologies Ltd against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

26

2005/C 057/5

Case T-465/04: Action brought on 25 November 2004 by European Dynamics SA against the Commission of the European Communities

26

2005/C 057/6

Case T-468/04: Action brought on 19 November 2004 by Kenzo Takada against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

27

2005/C 057/7

Case T-470/04: Action brought on 19 November 2004 by Thomas Peyker against Commission of the European Communities

28

2005/C 057/8

Case T-471/04: Action brought on 6 December 2004 by Mr Georgios Karatzoglou against the European Agency for Reconstruction

28

2005/C 057/9

Case T-472/04: Action brought on 20 November 2004 by Vassilios Tsarnavas against the Commission of the European Communities

29

2005/C 057/0

Case T-480/04: Action brought on 14 December 2004 by Chr. Muller Touw B.V. and A&C Braid and Rope Co. Pvt. Ltd against the Council of the European Union

29

2005/C 057/1

Case T-481/04: Action brought on 10 December 2004 by Advance Magazine Publishers Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

30

2005/C 057/2

Case T-482/04: Action by Komsa Kommunikation Sachsen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) brought on 13 December 2004

30

2005/C 057/3

Case T-484/04: Action brought on 9 December 2004 by François Pilat against the Council of the European Union and the Commission of the European Communities

31

2005/C 057/4

Case T-485/04: Action brought on 10 December 2004 by Association Coopération des Bibliothèques de Bretagne (COBB) against Commission of the European Communities

32

2005/C 057/5

Case T-486/04: Action brought on 13 December 2004 by Christos Michail against the Commission of the European Communities

32

2005/C 057/6

Case T-487/04: Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

33

2005/C 057/7

Case T-488/04: Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

33

2005/C 057/8

Case T-494/04: Action brought on 22 December 2004 by Wineke Neirinck against the Commission of the European Communities

34

2005/C 057/9

Case T-495/04: Action brought on 23 December 2004 by Belfass against the Council of the European Union

34

2005/C 057/0

Case T-498/04: Action brought on 23 December 2004 by Zhejiang Xinan Chemical Industrial Group Co., Ltd against the Council of the European Union

35

2005/C 057/1

Case T-499/04: Action brought on 23 December 2004 by Hammarplast AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

36

2005/C 057/2

Case T-502/04: Action brought on 24 December 2004 by Stéphane Lopparelli against Commission of the European Communities

36

2005/C 057/3

Case T-503/04: Action brought on 27 December 2004 by José Pedro Pessoa e Costa against the Commission of the European Communities

37

2005/C 057/4

Case T-504/04: Action brought on 29 December 2004 by Navigazione Libera del Golfo S.p.A. against the Commission of the European Communities

37

2005/C 057/5

Case T-4/05: Action brought on 4 January 2005 by Guido Strack against the Commission of the European Communities

39

2005/C 057/6

Case T-7/05: Action brought on 11 January 2005 by the Commission of the European Communities against Parthenon A.E.

39

2005/C 057/7

Case T-15/05: Action brought on 18 January 2005 by Wim De Waele against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

40

2005/C 057/8

Removal from the Register of Case T-313/01 R

40

2005/C 057/9

Removal from the Register of Case T-386/03

40

2005/C 057/0

Removal from the Register of Case T-103/04

41

2005/C 057/1

Removal from the Register of Case T-324/04 R

41

| | III   Notices |
| --- | --- |
| 2005/C 057/2 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 45, 19.2.2005 | 42 |

III   Notices

2005/C 057/2

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 45, 19.2.2005

Official Journal of the European Union

42

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 5.3.2005 | EN | Official Journal of the European Union | C 57/1 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/1

---

JUDGMENT OF THE COURT

(Full Court)

of 18 January 2005

in Case C-257/01: Commission of the European Communities v Council of the European Union (1)

(Regulations (EC) Nos 789/2001 and 790/2001 - Visa policy - Border checks and surveillance - Article 202 EC - Implementing powers reserved to the Council - Updating reserved to the Member States - Specific cases - Obligation to state reasons)

(2005/C 57/01)

Language of the case: English

In Case C-257/01: application for annulment under Article 230 EC, brought on 3 July 2001, Commission of the European Communities (Agents: D. Maidani and C. O'Reilly) supported by Kingdom of the Netherlands (Agent: H.G. Sevenster) v Council of the European Union (Agents: E. Finnegan and I. Díez Parra) supported by: Kingdom of Spain, (Agent: R. Silva de Lapuerta) – the Court (Full Court), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Lenaerts, Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur), N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 18 January 2005, in which it:

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

1.

Dismisses the action;

| 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 245 of 1.09.2001.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/1 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/1

---

JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-464/01 (reference for a preliminary ruling from the Oberster Gerichtshof): Johann Gruber v Bay Wa AG (1)

(Brussels Convention - Article 13, first paragraph - Conditions for application - Definition of ‘consumer contract’ - Purchase of tiles by a farmer for roofing a farm building used partly for private and partly for business purposes)

(2005/C 57/02)

Language of the case: German

In Case C-464/01: reference for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, from the Oberster Gerichtshof (Austria), made by decision of 8 November 2001, received at the Court on 4 December 2001, in the proceedings between Johann Gruber and Bay Wa AG – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen (Rapporteur), G. Arestis and J. Klučka, Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, in which it has ruled:

The rules of jurisdiction laid down by the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, must be interpreted as follows:

| — | a person who concludes a contract for goods intended for purposes which are in part within and in part outside his trade or profession may not rely on the special rules of jurisdiction laid down in Articles 13 to 15 of the Convention, unless the trade or professional purpose is so limited as to be negligible in the overall context of the supply, the fact that the private element is predominant being irrelevant in that respect; |
| --- | --- |

—

a person who concludes a contract for goods intended for purposes which are in part within and in part outside his trade or profession may not rely on the special rules of jurisdiction laid down in Articles 13 to 15 of the Convention, unless the trade or professional purpose is so limited as to be negligible in the overall context of the supply, the fact that the private element is predominant being irrelevant in that respect;

| — | it is for the court seised to decide whether the contract at issue was concluded in order to satisfy, to a non-negligible extent, needs of the business of the person concerned or whether, on the contrary, the trade or professional purpose was negligible; |
| --- | --- |

—

it is for the court seised to decide whether the contract at issue was concluded in order to satisfy, to a non-negligible extent, needs of the business of the person concerned or whether, on the contrary, the trade or professional purpose was negligible;

| — | to that end, that court must take account of all the relevant factual evidence objectively contained in the file. On the other hand, it must not take account of facts or circumstances of which the other party to the contract may have been aware when the contract was concluded, unless the person who claims the capacity of consumer behaved in such a way as to give the other party to the contract the legitimate impression that he was acting for the purposes of his business. |
| --- | --- |

—

to that end, that court must take account of all the relevant factual evidence objectively contained in the file. On the other hand, it must not take account of facts or circumstances of which the other party to the contract may have been aware when the contract was concluded, unless the person who claims the capacity of consumer behaved in such a way as to give the other party to the contract the legitimate impression that he was acting for the purposes of his business.

---

(1)  OJ C 56 of 02.03.2002.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/2 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/2

---

JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-27/02 (reference for a preliminary ruling by the Oberlandesgericht Innsbruck): Petra Engler v Janus Versand GmbH (1)

(Brussels Convention - Request for the interpretation of Article 5(1) and (3) and Article 13, first paragraph, point 3 - Entitlement of a consumer to whom misleading advertising has been sent to seek payment, in judicial proceedings, of the prize which he has ostensibly won - Classification - Action of a contractual nature covered by Article 13, first paragraph, point 3, or by Article 5(1) or in matters of tort, delict or quasi-delict by Article 5(3) - Conditions)

(2005/C 57/03)

Language of the case: German

In Case C-27/02: reference to the Court under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters from the Oberlandesgericht Innsbruck (Austria), made by decision 14 January 2002, registered at the Court 31 January 2002, in the proceedings between Petra Engler and Janus Versand GmbH – the Court (Second Chamber) composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann and R. Schintgen (Rapporteur), Judges; F.G. Jacobs, Advocate General, M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 20 January 2005, in which it ruled:

The rules of jurisdiction of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden must be interpreted in the following way:

| — | legal proceedings by which a consumer seeks an order, under the law of the Contracting State in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5(1) of that convention, provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the ‘payment notice’ attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced; |
| --- | --- |

—

legal proceedings by which a consumer seeks an order, under the law of the Contracting State in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5(1) of that convention, provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the ‘payment notice’ attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced;

| — | on the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a ‘trial without obligation’, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation. |
| --- | --- |

—

on the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a ‘trial without obligation’, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation.

---

(1)  OJ C 109 of 04.05.2002.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/3 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/3

---

JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-145/02 (reference for a preliminary ruling by the Bundesverwaltungsgericht): Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH (1)

(Free movement of goods - Directive 70/524/EEC - Articles 28 EC and 30 EC - Additives - Harmonisation of national provisions relating to the vitamin D content of animal feedingstuffs - Legislation of a Member State prohibiting the importation of animal feedingstuffs which have been lawfully manufactured in another Member State and the vitamin D3 content of which exceeds that authorised in that first State)

(2005/C 57/04)

Language of the case: German

In Case C-145/02: reference to the Court under Article 234 EC from the Bundesverwaltungsgericht (Federal Administrative Court)(Germany), made by decision of 31 January 2002, received at the Court on 18 April 2002, in the proceedings between Land Nordrhein-Westfalen and Denkavit Futtermittel GmbH – the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 13 January 2005, in which it has ruled:

The combined provisions of Articles 12 and 19 of Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs, as amended by Council Directive 84/587/EEC of 29 November 1984, must be interpreted as precluding a measure by which a Member State prohibits the marketing within its territory of a supplementary feedingstuff lawfully manufactured in another Member State in accordance with Article 12(1) of that directive on grounds of its vitamin D level.

---

(1)  OJ C 144 of 15.06.2002.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/3 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/3

---

JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-174/02 (reference for a preliminary ruling by the Hoge Raad der Nederlanden): Streekgewest Westelijk Noord-Brabant v Staatssecretaris van Financiën (1)

(State aid - Article 93(3) of the EC Treaty (now Article 88(3) EC) - Planned aid - Prohibition on the implementation of planned measures before the Commission's final decision - Scope of the prohibition if the aid consists of an exemption from a tax - Persons who may rely on an infringement)

(2005/C 57/05)

Language of the case: Dutch

In Case C-174/02: reference to the Court under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 8 March 2002, received at the Court on 13 May 2002, in the proceedings between Streekgewest Westelijk Noord-Brabant and Staatssecretaris van Financiën – the Court (First Chamber) composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges; L.A. Geelhoed, Advocate General, M.-F. Contet, Principal Administrator, gave a judgment on 13 January 2005, in which it ruled:

| 1. | The last sentence of Article 93(3) of the EC Treaty (now the last sentence of Article 88(3) EC) must be interpreted as meaning that it may be relied on by a person liable to a tax forming an integral part of an aid measure levied in breach of the prohibition on implementation referred to in that provision, whether or not the person is affected by the distortion of competition resulting from that aid measure. |
| --- | --- |

1.

The last sentence of Article 93(3) of the EC Treaty (now the last sentence of Article 88(3) EC) must be interpreted as meaning that it may be relied on by a person liable to a tax forming an integral part of an aid measure levied in breach of the prohibition on implementation referred to in that provision, whether or not the person is affected by the distortion of competition resulting from that aid measure.

| 2. | The last sentence of Article 93(3) of the Treaty must be interpreted as meaning that the prohibition in it applies to a tax only if the revenue from it is hypothecated to the aid measure at issue. The fact that the aid is granted in the form of a tax exemption or that the loss of revenue due to that exemption is, for the purposes of the budget estimates of the Member State in question, offset by an increase in the tax are not in themselves sufficient to amount to such hypothecation. |
| --- | --- |

2.

The last sentence of Article 93(3) of the Treaty must be interpreted as meaning that the prohibition in it applies to a tax only if the revenue from it is hypothecated to the aid measure at issue. The fact that the aid is granted in the form of a tax exemption or that the loss of revenue due to that exemption is, for the purposes of the budget estimates of the Member State in question, offset by an increase in the tax are not in themselves sufficient to amount to such hypothecation.

---

(1)  OJ C 169 of 13.07.2002.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/4 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/4

---

JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-175/02: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in F.J. Pape v Minister van Landbouw, Natuurbeheer en Visserij (1)

(State aid - Article 93(3) of the EC Treaty (now Article 88(3) EC) - Planned aid - Prohibition on the implementation of planned measures before the Commission's final decision - Tax partly earmarked for financing the aid measure - Tax imposed before approval of the aid)

(2005/C 57/06)

Language of the case: Dutch

In Case C-175/02: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 8 March 2002, received at the Court on 13 May 2002, in the proceedings between F.J. Pape and Minister van Landbouw, Natuurbeheer en Visserij – the Court: (First Chamber) composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges; L.A. Geelhoed, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 13 January 2005, in which it ruled:

The prohibition on implementation laid down in the last sentence of Article 93(3) of the EC Treaty (now the last sentence of Article 88(3) EC) cannot apply to a tax if that tax, or a certain part of the revenue from it, is not hypothecated to the financing of an aid measure.

---

(1)  OJ C 169 of 13.07.2002.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/4 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/4

---

JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-225/02 (reference for a preliminary ruling by the Juzgado de lo Social no 3 de Orense): Rosa García Blanco v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) (1)

(Social security of migrant workers - Old age - Unemployment - Minimum periods of insurance - Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits - Periods of unemployment - Aggregation)

(2005/C 57/07)

Language of the case: Spanish

In Case C-225/02: reference for a preliminary ruling under Article 234 EC from the Juzgado de lo Social no 3 de Orense (Spain), made by decision of 30 March 2002, received at the Court on 17 June 2002, in the proceedings between Rosa García Blanco and Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, R. Schintgen (Rapporteur), P. Kūris and G. Arestis, Judges; J. Kokott, Advocate General, M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, in which it has ruled:

There is no need to reply to the reference for a preliminary ruling in Case C-225/02.

---

(1)  OJ C 191 of 10.08.2002

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/5 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/5

---

JUDGMENT OF THE COURT

(First Chamber)

of 20 January 2005

in Case C-302/02 (reference for a preliminary ruling from the Oberster Gerichtshof): in the proceedings brought on behalf of Nils Laurin Effing (1)

(Family benefits - Grant by a Member State of advances on maintenance payments for minor children - Child of a prisoner - Conditions of granting the maintenance payment - Prisoner transferred to another Member State to serve his sentence - Article 12 EC - Articles 3 and 13 of Regulation (EEC) No 1408/71)

(2005/C 57/08)

Language of the case: German

In Case C-302/02: reference to the Court under Article 234 EC from the Oberster Gerichtshof (Austria), made by decision of 11 July 2002, received at the Court on 26 August 2002, in the proceedings brought on behalf of Nils Laurin Effing – the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges; J. Kokott Advocate General, R. Grass, Registrar, gave a judgment on 20 January 2005, in which it ruled:

In circumstances such as those in the main proceedings, in which an employed person within the meaning of Article 2(1) of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, has been transferred, as a prisoner, to the Member State from which he comes in order to serve the remainder of his sentence there, it is the legislation of that Member State which, in the area of family benefits and in accordance with the provisions of Article 13(2) of that regulation, is the applicable legislation. Neither the provisions of that regulation, particularly Article 3 thereof, nor Article 12 EC, preclude, in such a situation, the legislation of a Member State from making the grant of family benefits such as those provided for by the Österreichisches Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschußgesetz) (Austrian Federal Law on the Grant of Advances for the Maintenance of Children) to the members of the family of such a Community national subject to the condition that he remain a prisoner in that State.

---

(1)  OJ C 305 of 07.12.2002.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/5 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/5

---

JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-448/02: Hellenic Republic v Commission of the European Communities (1)

(EAGGF - Clearance of accounts - 1995 financial year - Arable crops)

(2005/C 57/09)

Language of the case: Greek

In Case C-448/02: Hellenic Republic (Agents: I. Chalkias and G. Kanellopoulos) v Commission of the European Communities (Agent: M. Condou-Durande) – Action for annulment under Article 230 EC, brought on 10 December 2002 – the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, J. Makarczyk, P. Kūris (Rapporteur) and G. Arestis, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 20 January 2005 in which it:

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

1.

Dismisses the action.

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 31, 08.02.2003.

---

| 5.3.2005 | EN | Official Journal of the European Union | C 57/6 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/6

---

JUDGMENT OF THE COURT

(First Chamber)

of 11 January 2005

in Case C-26/03 (reference for a preliminary ruling from the Oberlandesgericht Naumburg): Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna (1)

(Directive 92/50/EEC - Public service contracts - Award with no public call for tenders - Award of the contract to a semi-public undertaking - Judicial protection - Directive 89/665/EEC)

(2005/C 57/10)

Language of the case: German

In Case C-26/03: reference for a preliminary ruling under Article 234 EC from the Oberlandesgericht Naumburg (Higher Regional Court, Naumburg, Germany), made by decision of 8 January 2003, received at the Court on 23 January 2003, in the proceedings between Stadt Halle, RPL Recyclingpark Lochau GmbH and Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna — the Court (First Chamber), composed of P. Jann, President of the Chamber, J.N. Cunha Rodrigues, E. Juhász (Rapporteur), M. Ilešič and E. Levits, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 11 January 2005, in which it has ruled:

| 1. | Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, itself amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, must be interpreted as meaning that the obligation of the Member States to ensure that effective and rapid remedies are available against decisions taken by contracting authorities extends also to decisions taken outside a formal award procedure and decisions prior to a formal call for tenders, in particular the decision on whether a particular contract falls within the personal and material scope of Directive 92/50, as amended. That possibility of review is available to any person having or having had an interest in obtaining the contract in question who has been or risks being harmed by an alleged infringement, from the time when the contracting authority has expressed its will in a manner capable of producing legal effects. The Member States are not therefore authorised to make the possibility of review subject to the fact that the public procurement procedure in question has formally reached a particular stage. |
| --- | --- |

1.

Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, itself amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, must be interpreted as meaning that the obligation of the Member States to ensure that effective and rapid remedies are available against decisions taken by contracting authorities extends also to decisions taken outside a formal award procedure and decisions prior to a formal call for tenders, in particular the decision on whether a particular contract falls within the personal and material scope of Directive 92/50, as amended. That possibility of review is available to any person having or having had an interest in obtaining the contract in question who has been or risks being harmed by an alleged infringement, from the time when the contracting authority has expressed its will in a manner capable of producing legal effects. The Member States are not therefore authorised to make the possibility of review subject to the fact that the public procurement procedure in question has formally reached a particular stage.

| 2. | Where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50, as amended by Directive 97/52, with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied. |
| --- | --- |

2.

Where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50, as amended by Directive 97/52, with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied.

---

(1)  OJ C 101 of 26.04.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/6 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/6

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 13 January 2005

in Case C-38/03: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil its obligations - Article 28 EC - Measures having equivalent effect - Wheelchairs - Admission to the reimbursement system under the social security scheme)

(2005/C 57/11)

Language of the case: French

In Case C-38/03: Commission of the European Communities (Agents: L. Ström and F. Simonetti) v Kingdom of Belgium (Agent: initially A. Snoecx, then E. Dominkovits) supported by Kingdom of Spain (Agent: L. Fraguas Gadea) – ACTION under Article 226 EC for failure to fulfil obligations, brought on 3 February 2003 – the Court (Sixth Chamber), composed of: A. Borg Barthet, President of Chamber, J.-P. Puissochet and S. von Bahr (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 13 January 2005, in which it:

| 1. | Declares that,






  — | by laying down the technical criteria to be met by wheelchairs in order to be eligible for reimbursement by social security in such a way as to exclude from the list of reimbursable wheelchairs those bearing EC markings but which do not meet the relevant criteria, namely, as regards the diameter of the front and rear wheels, the cover and filling of the seat and back, the dimensions of the flat sections and crossbars, head rests and/or foot or leg rests; |
| --- | --- | --- |

1.

Declares that,

—

by laying down the technical criteria to be met by wheelchairs in order to be eligible for reimbursement by social security in such a way as to exclude from the list of reimbursable wheelchairs those bearing EC markings but which do not meet the relevant criteria, namely, as regards the diameter of the front and rear wheels, the cover and filling of the seat and back, the dimensions of the flat sections and crossbars, head rests and/or foot or leg rests;

| — | by laying down more general criteria which the economic operator must meet in order to be included on the list of reimbursable wheelchairs, namely special conditions for manual wheelchairs, as well as special conditions for power wheelchairs according to which such wheelchairs must be available in a minimum number of seat sizes; |
| --- | --- |

—

by laying down more general criteria which the economic operator must meet in order to be included on the list of reimbursable wheelchairs, namely special conditions for manual wheelchairs, as well as special conditions for power wheelchairs according to which such wheelchairs must be available in a minimum number of seat sizes;

| — | by being too rigid in its updating of the list of equipment admitted to the reimbursement scheme, |
| --- | --- |

—

by being too rigid in its updating of the list of equipment admitted to the reimbursement scheme,

the Kingdom of Belgium has failed to fulfil its obligations under Article 28 EC.

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

2.

Orders the Kingdom of Belgium to pay the costs.

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

3.

Orders the Kingdom of Spain to bear its own costs.

---

(1)  OJ C 70, 22.03.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/7 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/7

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JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case 74/03 (reference for a preliminary ruling by the Østre Landsret): SmithKline Beecham plc v Lægemiddelstyrelsen (1)

(Medicinal products - Marketing authorisation - Abridged procedure - Essentially similar products - Active substance in different forms of salt - Additional documentation)

(2005/C 57/12)

Language of the case: Danish

In Case 74/03: reference for a preliminary ruling under Article 234 EC by the Østre Landsret (Denmark), made by decision of 14 February 2003, received at the Court on 19 February 2003, in the proceedings between SmithKline Beecham plc and Lægemiddelstyrelsen, interveners: Synthon BV and Genthon BV – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, N. Colneric and J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, in which it has ruled:

| 1. | Article 4.8(a)(iii) of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products, as amended by Council Directives 87/21/EEC of 22 December 1986, 89/341/EEC of 3 May 1989 and 93/39/EEC of 14 June 1993, must be interpreted as not preventing an application for marketing authorisation in respect of a medicinal product from being handled under the abridged procedure under that provision where that product contains the same therapeutic moiety as the reference product but combined with another salt. |
| --- | --- |

1.

Article 4.8(a)(iii) of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products, as amended by Council Directives 87/21/EEC of 22 December 1986, 89/341/EEC of 3 May 1989 and 93/39/EEC of 14 June 1993, must be interpreted as not preventing an application for marketing authorisation in respect of a medicinal product from being handled under the abridged procedure under that provision where that product contains the same therapeutic moiety as the reference product but combined with another salt.

| 2. | In support of an application under Article 4.8(a)(iii) of Directive 65/65 as amended, an applicant may, either spontaneously or at the request of the competent authority of a Member State, supply additional documentation in the form of certain pharmacological and toxicological tests or clinical trials in order to demonstrate that his product is essentially similar to the reference product. |
| --- | --- |

2.

In support of an application under Article 4.8(a)(iii) of Directive 65/65 as amended, an applicant may, either spontaneously or at the request of the competent authority of a Member State, supply additional documentation in the form of certain pharmacological and toxicological tests or clinical trials in order to demonstrate that his product is essentially similar to the reference product.

---

(1)  OJ C 101 of 26.04.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/7 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/7

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JUDGMENT OF THE COURT

(Second Chamber)

of 13 January 2005

in Case C-117/03 (reference for a preliminary ruling from the Consiglio di Stato): Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia (1)

(Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora - National list of sites eligible for identification as sites of Community importance - Conservation measures)

(2005/C 57/13)

Language of the case: Italian

In Case C-117/03: reference for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by order of 17 December 2002, received at the Court on 18 March 2003, in the proceedings between Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia – the Court (Second Chamber) composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, N. Colneric and J.N. Cunha Rodrigues, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 13 January 2005, the operative part of which is as follows:

On a proper construction of Article 4(5) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the protective measures prescribed in Article 6(2), (3) and (4) of that directive are required only as regards sites which, in accordance with the third subparagraph of Article 4(2) of the directive, are on the list of sites selected as sites of Community importance adopted by the Commission of the European Communities in accordance with the procedure laid down in Article 21 of the directive.

In the case of sites eligible for identification as sites of Community importance which are included in the national lists transmitted to the Commission and, in particular, sites hosting priority natural habitat types or priority species, the Member States are, by virtue of Directive 92/43, required to take protective measures that are appropriate, from the point of view of the directive's conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.

---

(1)  OJ C 146 of 21.06.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/8 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/8

---

JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-245/03 (reference for a preliminary ruling by the Conseil d'État): Merck, Sharp & Dohme BV v État belge (1)

(Directive 89/105/EEC - Medicinal products for human use - Application for entry on a positive list - Nature of the time-limit for responding - Mandatory nature - Consequences of exceeding the time-limit)

(2005/C 57/14)

Language of the case: French

In Case C-245/03: reference for a preliminary ruling under Article 234 EC from the Conseil d'État (Belgium), by decision of 9 May 2003, received at the Court on 10 June 2003, in the proceedings, between Merck, Sharp & Dohme BV and État belge – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, R. Schintgen and G. Arestis, Judges; A. Tizzano, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, in which it has ruled:

| 1. | The time-limit laid down in the first subparagraph of Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems is a mandatory time-limit which the national authorities are not entitled to exceed. |
| --- | --- |

1.

The time-limit laid down in the first subparagraph of Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems is a mandatory time-limit which the national authorities are not entitled to exceed.

| 2. | The first subparagraph of Article 6(1) of Directive 89/105 does not impose the automatic entry of a medicinal product on the list of proprietary medicinal products covered by the sickness insurance system where the time-limit laid down in that article is exceeded. |
| --- | --- |

2.

The first subparagraph of Article 6(1) of Directive 89/105 does not impose the automatic entry of a medicinal product on the list of proprietary medicinal products covered by the sickness insurance system where the time-limit laid down in that article is exceeded.

---

(1)  OJ C 213 of 06.09.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/8 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/8

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JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-254/03 P Eduardo Vieira SA v Commission of the European Communities (1)

(Appeal - Fisheries - Fisheries agreement with Argentina - Community financial aid - Reduction)

(2005/C 57/15)

Language of the case: Spanish

In Case C-254/03 P: appeal under Article 56 of the Statute of the Court of Justice brought on 13 June 2003 by Eduardo Vieira SA (lawyers: J.-R. García-Gallardo Gil-Fournier and D. Domínguez Pérez), the other party to the proceedings being: Commission of the European Communities (Agents: S. Pardo Quintillán, and J. Rivas-Andres and J. Gutiérrez Gisbert) – the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E. Levits, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 13 January 2005, in which it:

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

1.

Dismisses the appeal;

| 2. | Orders Eduardo Vieira SA to pay the costs. |
| --- | --- |

2.

Orders Eduardo Vieira SA to pay the costs.

---

(1)  OJ C 184, 2.8.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/9 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/9

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JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-296/03 (reference for a preliminary ruling by the Conseil d'État): Glaxosmithkline SA v État Belge (1)

(Directive 89/105/EEC - Medicinal products for human use - Application for entry on a positive list - Nature of the time-limit for responding - Mandatory nature - Consequences of exceeding the time-limit where a decision refusing entry is annulled)

(2005/C 57/16)

Language of the case: French

In Case C-296/03: reference for a preliminary ruling under Article 234 EC by the Conseil d'État (Belgium) by decision of 27 June 2003, received at the Court on 8 July 2003, in the proceedings Glaxosmithkline SA v État Belge – the Court: (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, P. Kūris and G. Arestis, Judges; A. Tizzano, Advocate General, M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, the operative part of which is as follows:

| 1. | The time-limit laid down in the first subparagraph of Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems is a mandatory time-limit which the national authorities are not entitled to exceed. |
| --- | --- |

1.

The time-limit laid down in the first subparagraph of Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems is a mandatory time-limit which the national authorities are not entitled to exceed.

| 2. | It is for the Member States to determine whether the fact that the time-limit laid down in the first subparagraph of Article 6(1) of Directive 89/105 is exceeded precludes the competent authorities from formally adopting a new decision when the previous decision has been annulled in court proceedings, although such a possibility can be exercised only within a reasonable time which may not in any event exceed the time-limit laid down in that article. |
| --- | --- |

2.

It is for the Member States to determine whether the fact that the time-limit laid down in the first subparagraph of Article 6(1) of Directive 89/105 is exceeded precludes the competent authorities from formally adopting a new decision when the previous decision has been annulled in court proceedings, although such a possibility can be exercised only within a reasonable time which may not in any event exceed the time-limit laid down in that article.

---

(1)  OJ C 213 of 06.09.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/9 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/9

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 20 January 2005

in Case C-300/03 (reference for a preliminary ruling by the Hessisches Finanzgericht, Kassel): Honeywell Aerospace GmbH v Hauptzollamt Gießen (1)

(Community transit - Incurrence of a customs debt in the event of offences or irregularities - Consequence of the lack of indication to the principal of the time-limit for furnishing proof of the place where the offence or irregularity occurred)

(2005/C 57/17)

Language of the case: German

In Case C-300/03: reference for a preliminary ruling under Article 234 EC from the Hessisches Finanzgericht, Kassel (Germany), made by decision of 25 April 2003, received at the Court on 11 July 2003, in the proceedings between Honeywell Aerospace GmbH and Hauptzollamt Gießen – the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, J.N. Cunha Rodrigues (Rapporteur) and K. Schiemann, Judges; D. Ruiz-Jarabo Colomer, Advocate General, R. Grass, Registrar, has given a judgment on 20 January 2005, in which it has ruled:

Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code in conjunction with Article 379 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 must be interpreted as meaning that a customs debt has been incurred where a consignment placed under the external Community transit procedure has not been presented at the customs office of destination, but that the Member State to which the office of departure belongs may take steps to recover the debt only if it has indicated to the principal that he has three months in which to furnish the proof requested and such proof has not been provided within that period.

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(1)  OJ C 226 of 20.09.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/10 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/10

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JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case 306/03 (reference for a preliminary ruling by the Juzgado de lo Social no 3 de Orense): Cristalina Salgado Alonso v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) (1)

(Social security of migrant workers - Articles 12 EC, 39 EC and 42 EC - Articles 45 and 48(1) of Regulation (EEC) No 1408/71 - Old age and death - Unemployment - Minimum periods of insurance - Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits - Periods of unemployment - Aggregation)

(2005/C 57/18)

Language of the case: Spanish

In Case 306/03: reference for a preliminary ruling under Article 234 EC from the Juzgado de lo Social no 3 de Orense (Spain), made by decision of 24 June 2003, received at the Court on 16 July 2003, in the proceedings between Cristalina Salgado Alonso and Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, R. Schintgen (Rapporteur), P. Kūris and G. Arestis, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, in which it has ruled:

Articles 39 EC and 42 EC and Article 45 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, must be interpreted as not precluding a national provision, such as that set out in the 28th Additional Provision of the General Social Security Law, which does not allow the competent authorities of a Member State to take into consideration, for the purposes of acquiring the right to a retirement pension under the national scheme, certain periods of insurance completed on the territory of that State by an unemployed worker during which contributions to old-age insurance were paid by the unemployment benefit agency, such periods being taken into consideration solely for the calculation of the amount of that pension.

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(1)  OJ C 226 of 20.09.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/10 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/10

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 16 December 2004

in Case C-313/03: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil its obligations - Directive 1999/63/EC - Failure to transpose within the prescribed period - Failure to communicate the implementing measures)

(2005/C 57/19)

Language of the case: Italian

In Case C-313/03, action for failure to fulfil obligations under Article 226 EC brought on 23 July 2003 by Commission of the European Communities (Agent: M.-J. Jonczy) against Italian Republic (Agent: I.M Braguglia, assisted by A. Cingolo), the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of Chamber, R. Schintgen (Rapporteur) and J. Makarczyk, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 16 December 2004, the operative part of which is as follows:

| 1. | By failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/63/EC concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) – Annex: European Agreement on the organisation of working time of seafarers, or in any event, by failing to communicate any such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) of that directive; |
| --- | --- |

1.

By failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/63/EC concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) – Annex: European Agreement on the organisation of working time of seafarers, or in any event, by failing to communicate any such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) of that directive;

| 2. | The Italian Republic is ordered to pay the costs. |
| --- | --- |

2.

The Italian Republic is ordered to pay the costs.

---

(1)  OJ C 226 of 20.09.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/11 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/11

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JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-356/03 (reference for a preliminary ruling from the Bundesgerichtshof): Elisabeth Mayer v Versorgungsanstalt des Bundes und der Länder (1)

(Equal treatment for men and women - Maternity leave - Acquisition of pension rights)

(2005/C 57/20)

Language of the case: German

In Case C-356/03: reference to the Court under Article 234 EC from the Bundesgerichtshof (Germany), made by decision of 9 July 2003, received at the Court on 18 August 2003, in the proceedings between Elisabeth Mayer and Versorgungsanstalt des Bundes und der Länder – the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues (Rapporteur), K. Schiemann and E. Juhász, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has given a judgment on 13 January 2005, in which it has ruled:

Article 6(1)(g) of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes, as amended by Council Directive 96/97/EC of 20 December 1996, must be interpreted as meaning that it precludes national rules under which a worker acquires no rights to an insurance annuity which is part of a supplementary occupational pension scheme during statutory maternity leave paid in part by her employer because the acquisition of those rights is conditional upon the worker's receiving taxable pay during the maternity leave.

---

(1)  OJ C 264 of 01.11.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/11 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/11

---

JUDGMENT OF THE COURT

(First Chamber)

of 20 January 2005

in Case C-412/03: Reference for a preliminary ruling by the Regeringsrätten in Hotel Scandic Gåsabäck AB v Riksskatteverket (1)

(Sixth VAT Directive - Articles 2, 5(6) and 6(2) - Provision of meals in a company canteen for a price lower than the cost price - Taxable amount)

(2005/C 57/21)

Language of the case: Swedish

In Case C-412/03: reference for a preliminary ruling under Article 234 EC from the Regeringsrätten (Sweden), made by decision of 29 September 2003, received at the Court on 3 October 2003, in the proceedings between Hotel Scandic Gåsabäck AB and Riksskatteverket – the Court: (First Chamber) composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), J.N. Cunha Rodrigues, E. Juhász and M. Ilešič, Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 20 January 2005, in which it ruled:

Articles 2, 5(6) and 6(2)(b) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment must be interpreted as precluding a national rule whereby transactions in respect of which an actual consideration is paid are regarded as an application of goods or services for private use, even where that consideration is less than the cost price of the goods or services supplied.

---

(1)  OJ C 289 of 29.11.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/12 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/12

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 13 January 2005

in Case C-32/04: Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/58/EC - Non-transposition within the period prescribed)

(2005/C 57/22)

Language of the case: French

In Case C-32/04 Commission of the European Communities (Agents: U.Wölker and F. Simonetti) v French Republic (Agents: G. de Bergues and C. Mercier) – action under Article 226 EC for failure to fulfil obligations, brought on 29 January 2004 – the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen and J. Klučka (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 13 January 2005, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2001/58/EC of 27 July 2001 amending for the second time Directive 91/155/EEC defining and laying down the detailed arrangements for the system of specific information relating to dangerous preparations in implementation of Article 14 of European Parliament and Council Directive 1999/45/EC and relating to dangerous substances in implementation of Article 27 of Council Directive 67/548/EEC (safety data sheets), the French Republic 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 Commission Directive 2001/58/EC of 27 July 2001 amending for the second time Directive 91/155/EEC defining and laying down the detailed arrangements for the system of specific information relating to dangerous preparations in implementation of Article 14 of European Parliament and Council Directive 1999/45/EC and relating to dangerous substances in implementation of Article 27 of Council Directive 67/548/EEC (safety data sheets), the French Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 71 of 20.03.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/12 |
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JUDGMENT OF THE COURT

(Fourth Chamber)

of 13 January 2005

in Case C-61/04: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil its obligations - Directive 2000/76/EC - Incineration of waste - Failure to transpose)

(2005/C 57/23)

Language of the case: Greek

In Case C-61/04: Commission of the European Communities (Agent: M. Konstantinidis) v Hellenic Republic (Agent: N. Dafniou) – Action under Article 226 EC for failure to fulfil obligations, brought on 12 February 2004 – the Court (Fourth Chamber), composed of K. Lenaerts, President of Chamber, N. Colneric and E. Levits (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 13 January 2005, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste, the Hellenic Republic 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 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 106, 30.04.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/13 |
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JUDGMENT OF THE COURT

(Fourth Chamber)

of 20 January 2005

in Case C-101/04 (Reference for a preliminary ruling from the Arbeidsrechtbank Gent (Belgium)): Roger Noteboom v Rijksdienst voor Pensioenen (1)

(Social security for migrant workers - Regulation (EEC) No 1408/71 - Old-age benefits - ‘Holiday pay’ given to persons entitled to a retirement pension - Unemployed frontier worker receiving benefit of a pension scheme)

(2005/C 57/24)

Language of the case: Dutch

In Case C-101/04: Reference for a preliminary ruling under Article 234 EC from the Arbeidsrechtbank Gent (Belgium), made by decision of 17 February 2004, received at the Court on 26 February 2004, in the proceedings between Roger Noteboom and Rijksdienst voor Pensioenen – the Court (Fourth Chamber), composed of N. Colneric (Rapporteur), acting for the President of the Fourth Chamber, J.N. Cunha Rodrigues and E. Levits, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 20 January 2005, in which it ruled:

| 1. | A benefit such as the holiday pay referred to in Article 22 of Royal Decree No 50 of 24 October 1967 concerning retirement and survivor's pensions for employed persons, as amended by the Law of 30 March 1994, and in Article 56 of the Royal Decree of 21 December 1967 concerning general rules for the scheme of retirement and survivor's pensions for employed persons, as amended by the Royal Decree of 27 January 1998 and by the Royal Decree of 4 March 2002, constitutes an old-age benefit within the meaning of Article 4(1)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998. |
| --- | --- |

1.

A benefit such as the holiday pay referred to in Article 22 of Royal Decree No 50 of 24 October 1967 concerning retirement and survivor's pensions for employed persons, as amended by the Law of 30 March 1994, and in Article 56 of the Royal Decree of 21 December 1967 concerning general rules for the scheme of retirement and survivor's pensions for employed persons, as amended by the Royal Decree of 27 January 1998 and by the Royal Decree of 4 March 2002, constitutes an old-age benefit within the meaning of Article 4(1)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998.

| 2. | Article 45(6) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as that in question in the main proceedings, of a period of full unemployment during which the formerly employed person received benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment. |
| --- | --- |

2.

Article 45(6) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as that in question in the main proceedings, of a period of full unemployment during which the formerly employed person received benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment.

---

(1)  OJ C 94, 17.04.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/13 |
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JUDGMENT OF THE COURT

(Fifth Chamber)

of 20 January 2005

in Case C-198/04: Commission of the European Communities v French Republic (1)

(Failure of a Member State to fulfil obligations - Directives 89/48/EEC and 92/51/EEC - Recognition of diplomas - Regulated professions - Tour guide)

(2005/C 57/25)

Language of the case: French

In Case C-198/04: Commission of the European Communities (Agents: M. Patakia and H. Stovlbaek) v French Republic (Agents: G. de Bergues, C. Isidoro and O. Christmann) – ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 May 2004 – the Court (Fifth Chamber), composed of: R. Silva de Lapuerta, President of Chamber, J. Makarczyk and P. Kūris (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 20 January 2005, in which it:

| 1. | Declares that, by failing to take all the measures necessary to comply with Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration and, by failing to adopt all the laws, regulations and administrative measures necessary to comply with Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48, as regards tour guides, the French Republic has failed to fulfil its obligations under those directives; |
| --- | --- |

1.

Declares that, by failing to take all the measures necessary to comply with Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration and, by failing to adopt all the laws, regulations and administrative measures necessary to comply with Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48, as regards tour guides, the French Republic has failed to fulfil its obligations under those directives;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 168, 26.06.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/14 |
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Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 29 November 2004 in the case of Proxxon GmbH against Oberfinanzdirektion Köln

(Case C-500/04)

(2005/C 57/26)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Düsseldorf (Finance Court, Dusseldorf) (Germany) of 29 November 2004 received at the Court Registry on 2 December 2004, for a preliminary ruling in the case of Proxxon GmbH against Oberfinanzdirektion Köln on the following questions:

| 1. | Do separately imported screwdriver bits with square drive for slotted-head, cross-head, TX (internal Torx) and hexagon socket head screws, of the type described in more detail in the order, fall within heading 8204? |
| --- | --- |

1.

Do separately imported screwdriver bits with square drive for slotted-head, cross-head, TX (internal Torx) and hexagon socket head screws, of the type described in more detail in the order, fall within heading 8204?

| 2. | Do separately imported parts of the square system described in more detail in the order, which are not in direct contact with the fastener (nut, screw) during use, fall within heading 8204? |
| --- | --- |

2.

Do separately imported parts of the square system described in more detail in the order, which are not in direct contact with the fastener (nut, screw) during use, fall within heading 8204?

| 3. | Do separately imported square-system torque meter wrenches of the type described in more detail in the order fall within heading 8204? |
| --- | --- |

3.

Do separately imported square-system torque meter wrenches of the type described in more detail in the order fall within heading 8204?

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/14 |
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Reference for a preliminary ruling from the Verwaltungsgericht Schwerin by order of that court of 9 January 2004 in the case of Agrarproduktion Staebelow GmbH against Landrat des Landkreises Bad Doberan

(Case C-504/04)

(2005/C 57/27)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Schwerin (Germany) of 9 January 2004 received at the Court Registry on 8 December 2004, for a preliminary ruling in the case of Agrarproduktion Staebelow GmbH against Landrat des Landkreises Bad Doberan on the following question:

Is Article 13(1)(c) in conjunction with Annex VII(2)(a) and the third indent of Annex VII(1)(a) of Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 (1) laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies as amended by Article 3(1) of and Annex II to Regulation (EC) no 1326/2001 (2) invalid because the measure infringes the principle of proportionality?

---

(1)  OJ L 147, p. 1.

(2)  OJ L 177, p. 60.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/14 |
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Reference for a preliminary ruling by the Rechtbank Eerste Aanleg te Gent by decision of that court of 15 December 2004 in the case of Kerckhaert-Morres v Belgische Staat

(Case C-513/04)

(2005/C 57/28)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Rechtbank Eerste Aanleg te Gent (Court of first instance, Ghent) – Sixth Chamber (Netherlands) of 1 December 2004 received at the Court Registry on 15 December 2004, for a preliminary ruling in the proceedings between Kerckhaert-Morres and Belgische Staat, on the following question:

Is Article 56(1) of the EC Treaty (at the material time: Article 73b(1) of the EC Treaty) to be interpreted as precluding a restriction resulting from a provision in the income tax legislation of a Member State (in this case, Belgium) by which both dividends from shares in a company established in that State and dividends from shares in companies not established in that State are subject, in the hands of the share owner, to a uniform rate but where, in regard to share dividends from companies that are not established in that Member State, no deduction of taxation at source levied in that other Member State is allowed?

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/15 |
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Reference for a preliminary ruling by the Gerechtshof te Amsterdam, by decision of that court of 30 November 2004, in the case of Uroplasty B.V. against Inspecteur van de Belastingdienst/Douane District Rotterdam

(Case C-514/04)

(2005/C 57/29)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Gerechtshof te Amsterdam, (Amsterdam Regional Court of Appeal) (Netherlands) of 30 November 2004, received at the Court Registry on 15 December 2004, for a preliminary ruling in the case of Uroplasty B.V. against Inspecteur van de Belastingdienst/Douane District Rotterdam on the following questions:

| 1. | (a) | Must heading 9021 of the CCT be interpreted as meaning that a product consisting of sterile, white flakes of polydimethylsiloxane, specially developed and intended solely for use as a medical/surgical implant, can be classified under that heading? |
| --- | --- | --- |

1.

(a)

Must heading 9021 of the CCT be interpreted as meaning that a product consisting of sterile, white flakes of polydimethylsiloxane, specially developed and intended solely for use as a medical/surgical implant, can be classified under that heading?

| (b) | If so, under which subheading of heading 9021 of the CCT must the product be classified? |
| --- | --- |

(b)

If so, under which subheading of heading 9021 of the CCT must the product be classified?

| 2. | If heading 9021 is not possible in this case, is the product eligible for classification under heading 3926 of the CCT? |
| --- | --- |

2.

If heading 9021 is not possible in this case, is the product eligible for classification under heading 3926 of the CCT?

| 3. | If not, classification under which other heading results from the interpretation of the CCT? |
| --- | --- |

3.

If not, classification under which other heading results from the interpretation of the CCT?

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/15 |
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Action brought on 21 December 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-518/04)

(2005/C 57/30)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 21 December 2004 by the Commission of the European Communities, represented by Michel van Beek, Legal Adviser in its Legal Service, and Minas Konstantinidis, member of its Legal Service.

The Commission claims that the Court should:

| — | declare that, by failing to take the necessary measures for the establishment and application of an effective system of strict protection for the viper Vipera schweizeri on the island of Milos in order to avoid any deliberate disturbance of the species, particularly during the period of breeding, rearing and hibernation, and any deterioration or destruction of breeding sites or resting places, the Hellenic Republic has failed to fulfil its obligations under Article 12(1)(b) and (d) of Directive 92/43/EEC (1) on the conservation of natural habitats and of wild fauna and flora; |
| --- | --- |

—

declare that, by failing to take the necessary measures for the establishment and application of an effective system of strict protection for the viper Vipera schweizeri on the island of Milos in order to avoid any deliberate disturbance of the species, particularly during the period of breeding, rearing and hibernation, and any deterioration or destruction of breeding sites or resting places, the Hellenic Republic has failed to fulfil its obligations under Article 12(1)(b) and (d) of Directive 92/43/EEC (1) on the conservation of natural habitats and of wild fauna and flora;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The aim of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora is to contribute towards the protection of biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies.

The Commission's action relates to the failure on the part of the Greek Government to establish and apply a system of strict protection for the species of reptile Vipera schweizeri (viper) on the island of Milos.

The Commission requests the Court to declare that, by failing to take the necessary measures for the establishment and application of an effective system of strict protection for the viper Vipera schweizeri on the island of Milos in order to avoid any deliberate disturbance of the species, particularly during the period of breeding, rearing and hibernation, and any deterioration or destruction of breeding sites or resting places, the Hellenic Republic has failed to fulfil its obligations under Article 12(1)(b) and (d) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

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(1)  OJ No L 206, 22.7.1992, p. 7.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/16 |
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Appeal brought on 22 December 2004 by D. Meca-Medina and I. Majcen against the judgment delivered on 30 September 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-313/02 between D. Meca-Medina and I. Majcen, and the Commission of the European Communities, supported by the Republic of Finland

(Case C-519/04 P)

(2005/C 57/31)

Language of the case: French

An appeal against the judgment delivered on 30 September 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-313/02 between D. Meca-Medina and I. Majcen, and the Commission of the European Communities, supported by the Republic of Finland, was brought before the Court of Justice of the European Communities on 22 December 2004 (fax: 20.12.2004) by D. Meca-Medina and I. Majcen, represented by J.- L. Dupont and M.- A. Lucas, lawyers.

The appellants claim that the Court should:

| — | set aside the judgment of the Court of First Instance of 30 September 2004 in Case T-313/02, against which the appeal has been brought; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 30 September 2004 in Case T-313/02, against which the appeal has been brought;

| — | grant the form of order sought by the appellants in the Court of First Instance; |
| --- | --- |

—

grant the form of order sought by the appellants in the Court of First Instance;

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

—

order the Commission to pay the costs of the proceedings at both instances.

Pleas on appeal and main arguments

The judgement of the Court of First Instance infringes Articles 49 EC, 81 EC and 82 EC, as interpreted by the Court of Justice.

Firstly, the Court of First Instance was wrong to hold that those provisions apply only to rules laid down in the field of sport which concern the economic aspect of sport, to the exclusion of purely sporting rules. The Court of Justice has not laid down such a general exclusion of purely sporting rules from the scope of the provisions of the Treaty, that exclusion being limited to the rules relating to the composition and training of national teams.

The Court of First Instance was also wrong to hold that that the anti-doping legislation is based on purely sporting considerations when it accepted that such legislation may pursue an economic objective. The Court of First Instance thereby made materially inaccurate factual findings, contradicted itself in the grounds, which are moreover inadequate, and erred in its legal characterisation of the facts.

Furthermore, by holding that that the legislation at issue falls outside the scope of Articles 81 EC and 82 EC, the Court of First Instance infringed those articles.

Finally, the Court of First Instance committed a breach of the procedural rules and more specifically the rights of the defence, by holding that the Commission's analysis of the legislation at issue in its decision rejecting the complaint is superfluous, when it is apparent from that decision that the Commission had regarded that legislation as falling within the scope of the provisions of the EC Treaty. The Court of First Instance thereby infringed the rights of the defence of the appellants, who were not able to present their point of view on that question.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/17 |
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Reference for a preliminary ruling from the Korkein hallinto-oikeus by order of that court of 20 December 2004, received at the Court Registry on 22 December 2004, in the case of Pirkko Marjatta Turpeinen

(Case C-520/04)

(2005/C 57/32)

Language of the case: Finnish

Reference has been made to the Court of Justice of the European Communities by order of the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) of 20 December 2004, received at the Court Registry on 22 December 2004, for a preliminary ruling in the case of Pirkko Marjatta Turpeinen on the following questions:

| 1. | Is Article 18 of the Treaty establishing the European Community on the right of a citizen of the Union to move and reside freely in the territory of the Member States, or Article 39 on ensuring the freedom of movement of workers within the Community, to be interpreted as meaning that one or both of them preclude national legislation under which, in the case of a person who resides abroad and is a limited taxpayer in the Member State, the withholding tax charged on the taxpayer's pension based on a public-law service relationship paid from that Member State exceeds in certain cases the tax which the taxpayer would be charged as a person resident and hence a general taxpayer in the Member State? |
| --- | --- |

1.

Is Article 18 of the Treaty establishing the European Community on the right of a citizen of the Union to move and reside freely in the territory of the Member States, or Article 39 on ensuring the freedom of movement of workers within the Community, to be interpreted as meaning that one or both of them preclude national legislation under which, in the case of a person who resides abroad and is a limited taxpayer in the Member State, the withholding tax charged on the taxpayer's pension based on a public-law service relationship paid from that Member State exceeds in certain cases the tax which the taxpayer would be charged as a person resident and hence a general taxpayer in the Member State?

| 2. | Is Council Directive 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity (1) to be interpreted as precluding national legislation such as that described in Question 1 above? |
| --- | --- |

2.

Is Council Directive 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity (1) to be interpreted as precluding national legislation such as that described in Question 1 above?

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(1)  OJ L 180 of 13.7.1990, p. 28.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/17 |
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Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-522/04)

(2005/C 57/33)

Language of the case: English

An action was brought before the Court of Justice of the European Communities on 23 December 2004 against the Kingdom of Belgium by the Commission of the European Communities, represented by Richard Lyal and Dimitris Triantafyllou, acting as Agents, with an address for service in Luxembourg.

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

| — | by making the deductibility of employers' contributions for supplementary old age and premature death insurance subject to the condition, laid down in Article 59 of the CIR'92 (Income Tax Code), that the contributions must be paid to an insurance undertaking or welfare fund established in Belgium; |
| --- | --- |

—

by making the deductibility of employers' contributions for supplementary old age and premature death insurance subject to the condition, laid down in Article 59 of the CIR'92 (Income Tax Code), that the contributions must be paid to an insurance undertaking or welfare fund established in Belgium;

| — | by making the reduction of tax for long-term savings, granted by virtue of Articles 145/1 and 145/3 of the CIR'92 for personal contributions for supplementary old age and premature death insurance in the form of deductions made by the employer from the employee's remuneration, subject to the condition that the contributions must be paid to an insurance undertaking or welfare fund established in Belgium; |
| --- | --- |

—

by making the reduction of tax for long-term savings, granted by virtue of Articles 145/1 and 145/3 of the CIR'92 for personal contributions for supplementary old age and premature death insurance in the form of deductions made by the employer from the employee's remuneration, subject to the condition that the contributions must be paid to an insurance undertaking or welfare fund established in Belgium;

| — | by providing in Article 364 bis of the CIR'92 that, where capital, surrender values and savings referred to in Article 34 if the CIR'92 are paid or allocated to a taxpayer who has previously transferred his residence or the primary location of his assets abroad, the payment or allocation is deemed to have taken place on the day preceding that transfer, and by, under paragraph 2 of the same article, assimilating to an allocation all transfers referred to in Article 34(2)(3), so that every insurer is under an obligation to withhold amounts in respect of income tax, in accordance with Article 270 of the CIR'92, from capital and redemption values paid to a non-resident who has been, at one time or another, a resident for tax purposes in Belgium, provided that those sums have, totally or partially, been constituted during the period in which the person concerned was a Belgian resident for tax purposes, even though bilateral tax agreements concluded by Belgium grant the right to tax such income to another Contracting State; |
| --- | --- |

—

by providing in Article 364 bis of the CIR'92 that, where capital, surrender values and savings referred to in Article 34 if the CIR'92 are paid or allocated to a taxpayer who has previously transferred his residence or the primary location of his assets abroad, the payment or allocation is deemed to have taken place on the day preceding that transfer, and by, under paragraph 2 of the same article, assimilating to an allocation all transfers referred to in Article 34(2)(3), so that every insurer is under an obligation to withhold amounts in respect of income tax, in accordance with Article 270 of the CIR'92, from capital and redemption values paid to a non-resident who has been, at one time or another, a resident for tax purposes in Belgium, provided that those sums have, totally or partially, been constituted during the period in which the person concerned was a Belgian resident for tax purposes, even though bilateral tax agreements concluded by Belgium grant the right to tax such income to another Contracting State;

| — | by levying tax, under Article 364 ter of the CIR'92, on transfers of capital or redemption values constituted by means of employers' contributions or personal contributions for supplementary retirement benefits, effected by the pension fund or insurance institution with which they have been established, for the benefit of the beneficiary or persons claiming through him, to another pension fund or insurance institution established outside Belgium, whereas such a transfer does not constitute a taxable transaction if the capital or redemption values are transferred to another pension fund or insurance institution established in Belgium; and |
| --- | --- |

—

by levying tax, under Article 364 ter of the CIR'92, on transfers of capital or redemption values constituted by means of employers' contributions or personal contributions for supplementary retirement benefits, effected by the pension fund or insurance institution with which they have been established, for the benefit of the beneficiary or persons claiming through him, to another pension fund or insurance institution established outside Belgium, whereas such a transfer does not constitute a taxable transaction if the capital or redemption values are transferred to another pension fund or insurance institution established in Belgium; and

| — | by, on the basis of Article 224/2 bis of the Règlement général sur les taxes assimilées au timbre (General Regulation on taxes assimilated to stamp duty), requiring foreign insurers who have no operational headquarters in Belgium to obtain approval, before providing their services in Belgium, of a representative residing in Belgium, who must personally assume, in writing, responsibility towards the State for paying the annual tax on insurance contracts, interest and fines which may be due in respect of contracts relating to risks situated in Belgium, |
| --- | --- |

—

by, on the basis of Article 224/2 bis of the Règlement général sur les taxes assimilées au timbre (General Regulation on taxes assimilated to stamp duty), requiring foreign insurers who have no operational headquarters in Belgium to obtain approval, before providing their services in Belgium, of a representative residing in Belgium, who must personally assume, in writing, responsibility towards the State for paying the annual tax on insurance contracts, interest and fines which may be due in respect of contracts relating to risks situated in Belgium,

| — | the Kingdom of Belgium has failed to fulfil its obligations under Articles 18, 39, 43, 49 and 56 of the EC Treaty and Articles 28, 31, 36 and 40 of the EEE Agreement, and Articles 4 and 11(2) of Directive 92/96/EEC of 10.11. 1992 (1) – following the recasting of Articles 5(1) and 53(2) of Directive 2002/83/EC of 5. 11. 2002. (2) |
| --- | --- |

—

the Kingdom of Belgium has failed to fulfil its obligations under Articles 18, 39, 43, 49 and 56 of the EC Treaty and Articles 28, 31, 36 and 40 of the EEE Agreement, and Articles 4 and 11(2) of Directive 92/96/EEC of 10.11. 1992 (1) – following the recasting of Articles 5(1) and 53(2) of Directive 2002/83/EC of 5. 11. 2002. (2)

Pleas in law and main arguments

The Belgian tax rules on occupational retirement schemes contain restrictions on the free movement of services, freedom of movement for workers and freedom of establishment, and free movement of capital.

Freedom to provide services

Tax provisions limiting the deductibility of employers' and personal contributions to occupational retirement schemes to contributions paid to institutions established in Belgium, thereby excluding contributions paid to institutions established outside Belgium, are contrary to the freedom to provide services.

The provision which states that transfers of capital or surrender values created through employers' or personal contributions for supplementary retirement insurance are to be taxable where made to a pension fund or insurance undertaking established abroad likewise constitutes an obstacle to the freedom to provide services for companies established in other Member States.

Finally, the general and absolute obligation imposed on foreign insurance undertakings to appoint a representative residing in Belgium, who must give a personal undertaking to pay the annual tax on insurance contracts, is to be regarded as not being proportional and as undermining the freedom to provide services for companies established in other Member States. Its aim, which is to ensure payment of the tax, could be attained by less stringent means.

The abovementioned national provisions are also contrary to Article 5 of Directive 2002/83/EC, which provides that authorisation obtained in a Member State is valid for the entire Community and enables the undertaking to carry on business there, either by virtue of being established there, or by virtue of the freedom to provide services, and to Article 53(2) of the same directive, which provides that each Member State must authorise insurance undertakings whose headquarters is established in its territory to transfer all or part of their portfolios to a transferee established in the Community.

Freedom of movement for workers and freedom of establishment

The provisions which disallow deduction of employers' contributions or a tax reduction for personal contributions paid to institutions established in other Member States are also contrary to the freedom of movement for employed and self-employed workers which is guaranteed by Articles 39 and 43 EC, in that workers who have engaged in an occupational activity in a Member State and joined an occupational retirement scheme in that State and then go to work in Belgium are unable to benefit from tax advantages for contributions paid in that other State. However, the income deriving from those schemes is taxable in Belgium if the persons concerned are Belgian residents when the income is received.

The free movement of workers and freedom of establishment are also infringed by the provision under which the transfer of capital or surrender values created through employers' or personal contributions to supplementary retirement schemes is taxable when made to a pension fund or insurance institution established abroad. It places at a disadvantage employees and self-employed persons who wish to set up in another Member State and who, at that time, wish to transfer the said capital or surrender values.

Free movement of capital

Finally, the provisions in question also constitute obstacles to the free movement of capital, contrary to Article 56 EC and Article 40 EEE.

Transfers under insurance contracts are to be regarded as capital movements and any limitation on the deductibility of employers' contributions and on tax abatements for personal contributions, whereby only contributions paid to institutions established in Belgium qualify, constitute discriminatory restrictions on the said free movement of capital.

Similarly, the provision which states that the transfer of capital or surrender values created through employers' or personal contributions to supplementary retirement schemes is to be taxable when made to a pension fund or insurance institution established abroad, whereas that is not the case when the transfer is made to an undertaking established in Belgium, is likewise contrary to the free movement of capital.

---

(1)  Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance directive), OJ L 360 of 9. 12. 1992, p. 1.

(2)  Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance, OJ L 345 of 19. 12. 2002, p. 1.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/19 |
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5.3.2005

EN

Official Journal of the European Union

C 57/19

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Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-523/04)

(2005/C 57/34)

Language of the case: Dutch

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 23 December 2004 by the Commission of the European Communities, represented by Mikko Huttunen and Wouter Wils, acting as Agents.

The applicant claims that the Court should:

| 1. | Declare that, by entering into international arrangements with the United States of America or, notwithstanding the review of the agreement on air traffic of 3 April 1957 between the Kingdom of the Netherlands and the United States of America, enforcing obligations






  — | concerning the fares of airline companies specified by the United States on intra-Community routes; |
| --- | --- | --- |

1.

Declare that, by entering into international arrangements with the United States of America or, notwithstanding the review of the agreement on air traffic of 3 April 1957 between the Kingdom of the Netherlands and the United States of America, enforcing obligations

—

concerning the fares of airline companies specified by the United States on intra-Community routes;

| — | concerning the computerised reservation systems offered or in use in Netherlands territory, |
| --- | --- |

—

concerning the computerised reservation systems offered or in use in Netherlands territory,

| — | whereby the right is conferred on the United States to withdraw, curtail or restrict transport rights where the airline companies specified by the Kingdom of the Netherlands are not in the hands of the latter or of Netherlands nationals, |
| --- | --- |

—

whereby the right is conferred on the United States to withdraw, curtail or restrict transport rights where the airline companies specified by the Kingdom of the Netherlands are not in the hands of the latter or of Netherlands nationals,

the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of the EC Treaty (now Article 10 EC), Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Council Regulations (EEC) Nos 2409/92 (1) of 23 July 1992 on fares and rates for air services, and 2299/89 (2) of 24 July 1989 on a code of conduct for computerised reservation systems, as amended by Council Regulation (EEC) No 3089/93 (3) of 29 October 1993;

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

2.

Order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

A.   Existence of a new agreement

| — | The amendments made in 1992 to the 1957 agreement created the framework for closer cooperation between the United States and the Kingdom of the Netherlands which entail appreciable new obligations for that country. |
| --- | --- |

—

The amendments made in 1992 to the 1957 agreement created the framework for closer cooperation between the United States and the Kingdom of the Netherlands which entail appreciable new obligations for that country.

| — | In light of the 1992 amendments the 1957 agreement was revised in its entirety. The fact that a number of provisions of that agreement were not formally amended in 1992 or only underwent inessential editorial changes, does not therefore alter the fact that the obligations flowing from those provisions were reaffirmed on the occasion of that review. In such a situation the Member States are not only not authorised to assume new obligations, but moreover may not operate such arrangements if they run counter to Community law. |
| --- | --- |

—

In light of the 1992 amendments the 1957 agreement was revised in its entirety. The fact that a number of provisions of that agreement were not formally amended in 1992 or only underwent inessential editorial changes, does not therefore alter the fact that the obligations flowing from those provisions were reaffirmed on the occasion of that review. In such a situation the Member States are not only not authorised to assume new obligations, but moreover may not operate such arrangements if they run counter to Community law.

B.   Infringement of an exclusive external competence of the Community within the meaning of the AETR judgment

| — | In 1991 the Netherlands and the United States added an annex to the 1957 agreement incorporating the CRS (computerised reservation systems) principles, including those concerning the availability or use of the CRS in Netherlands territory. On review in 1992 of the 1957 agreement the Netherlands applied that annex. In so doing the Netherlands infringed the Community's exclusive external competence flowing from Regulation No 2299/89. |
| --- | --- |

—

In 1991 the Netherlands and the United States added an annex to the 1957 agreement incorporating the CRS (computerised reservation systems) principles, including those concerning the availability or use of the CRS in Netherlands territory. On review in 1992 of the 1957 agreement the Netherlands applied that annex. In so doing the Netherlands infringed the Community's exclusive external competence flowing from Regulation No 2299/89.

C.   Infringement of Article 52 of the Treaty

| — | Community airline companies in the Netherlands may always be excluded from application of the agreement on air traffic between the Kingdom of the Netherlands and the United States, whereas that agreement is automatically applicable to Netherlands airline companies. Community airline companies are thus discriminated against since, in the host State, that is to say the Kingdom of the Netherlands, they are not accorded national treatment. |
| --- | --- |

—

Community airline companies in the Netherlands may always be excluded from application of the agreement on air traffic between the Kingdom of the Netherlands and the United States, whereas that agreement is automatically applicable to Netherlands airline companies. Community airline companies are thus discriminated against since, in the host State, that is to say the Kingdom of the Netherlands, they are not accorded national treatment.

---

(1)  OJ 1992 L 240, p. 15.

(2)  OJ 1989 L 220, p. 1.

(3)  OJ 1993 L 278, p. 1.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/20 |
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Official Journal of the European Union

C 57/20

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Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 21 December 2004, in the case of Test Claimants in the Thin Cap Group Litigation against Commissioners of Inland Revenue

(Case C-524/04)

(2005/C 57/35)

Language of procedure: English

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Chancery Division, dated 21 December 2004, which was received at the Court Registry on 31 December 2004 for a preliminary ruling in the case of Test Claimants in the Thin Cap Group Litigation and Commissioners of Inland Revenue on the following questions:

| 1. | Is it contrary to Article 43, 49 or 56 EC for a Member State (‘the State of the borrowing company’) to keep in force and apply provisions such as those in sections 209, 212 and schedule 28AA of the Income and Corporation Taxes Act 1988 (‘the national provisions’) which impose restrictions upon the ability of a company resident in that Member State (‘the borrowing company’) to deduct for tax purposes interest on loan finance granted by a direct or indirect parent company resident in another Member State in circumstances where the borrowing company would not be subject to such restrictions if the parent company had been resident in the State of the borrowing company? |
| --- | --- |

1.

Is it contrary to Article 43, 49 or 56 EC for a Member State (‘the State of the borrowing company’) to keep in force and apply provisions such as those in sections 209, 212 and schedule 28AA of the Income and Corporation Taxes Act 1988 (‘the national provisions’) which impose restrictions upon the ability of a company resident in that Member State (‘the borrowing company’) to deduct for tax purposes interest on loan finance granted by a direct or indirect parent company resident in another Member State in circumstances where the borrowing company would not be subject to such restrictions if the parent company had been resident in the State of the borrowing company?

| 2. | What difference, if any, does it make to the answer to Question 1:






  a) | if the loan finance is provided not by the parent company of the borrowing company but by another company (‘the lending company’) in the same company group sharing a common direct or indirect parent company with the borrowing company and both that common parent and the lending company are resident in Member States other than the State of the borrowing company? |
| --- | --- | --- |

2.

What difference, if any, does it make to the answer to Question 1:

a)

if the loan finance is provided not by the parent company of the borrowing company but by another company (‘the lending company’) in the same company group sharing a common direct or indirect parent company with the borrowing company and both that common parent and the lending company are resident in Member States other than the State of the borrowing company?

| b) | if the lending company is resident in a Member State other than that of the borrowing company but all common direct or indirect parent companies of the borrowing company and the lending company are resident in a third country? |
| --- | --- |

b)

if the lending company is resident in a Member State other than that of the borrowing company but all common direct or indirect parent companies of the borrowing company and the lending company are resident in a third country?

| c) | if all the common direct or indirect parent companies of the lending company and the borrowing company are resident in third countries and the lending company is resident in a Member State other than that of the borrowing company, but advances the loan finance to the borrowing company from a branch of the lending company situated in a third country? |
| --- | --- |

c)

if all the common direct or indirect parent companies of the lending company and the borrowing company are resident in third countries and the lending company is resident in a Member State other than that of the borrowing company, but advances the loan finance to the borrowing company from a branch of the lending company situated in a third country?

| d) | if the lending company and all the common direct or indirect parent companies of the lending company and the borrowing company are resident in third countries? |
| --- | --- |

d)

if the lending company and all the common direct or indirect parent companies of the lending company and the borrowing company are resident in third countries?

| 3. | Would it make any difference to the answers to Questions 1 and 2 if it could be shown that the borrowing constituted an abuse of rights or was part of an artificial arrangement designed to circumvent the tax law of the Member State of the borrowing company? If so, what guidance does the Court of Justice think it appropriate to provide as to what constitutes such an abuse or artificial arrangement in the context of cases such as the present? |
| --- | --- |

3.

Would it make any difference to the answers to Questions 1 and 2 if it could be shown that the borrowing constituted an abuse of rights or was part of an artificial arrangement designed to circumvent the tax law of the Member State of the borrowing company? If so, what guidance does the Court of Justice think it appropriate to provide as to what constitutes such an abuse or artificial arrangement in the context of cases such as the present?

| 4. | If there is a restriction on the movement of capital between Member States and third countries within article 56 EC, did that restriction exist on 31 December 1993 for the purposes of article 57 EC? |
| --- | --- |

4.

If there is a restriction on the movement of capital between Member States and third countries within article 56 EC, did that restriction exist on 31 December 1993 for the purposes of article 57 EC?

| 5. | In the event that any of the matters referred to in questions 1 or 2 are contrary to Articles 43, 49 or 56 EC, then in circumstances where the borrowing company, or other companies in the borrowing company's group (‘the Claimants’) make the following claims:






  a) | a claim for the repayment of the additional corporation tax paid by the borrowing company as a result of the disallowance, as a deduction against its profits chargeable to corporation tax, of interest paid to the lending company, where those interest payments would have been regarded as allowable deductions from the borrowing company's profits if the lending company had also been resident in the State of the borrowing company; |
| --- | --- | --- |

5.

In the event that any of the matters referred to in questions 1 or 2 are contrary to Articles 43, 49 or 56 EC, then in circumstances where the borrowing company, or other companies in the borrowing company's group (‘the Claimants’) make the following claims:

a)

a claim for the repayment of the additional corporation tax paid by the borrowing company as a result of the disallowance, as a deduction against its profits chargeable to corporation tax, of interest paid to the lending company, where those interest payments would have been regarded as allowable deductions from the borrowing company's profits if the lending company had also been resident in the State of the borrowing company;

| b) | a claim for repayment of the additional corporation tax paid by the borrowing company where the full amount of interest on the loan has actually been paid to the lending company but the claim for a deduction in respect of that interest has been reduced because of the national provisions or the tax authority's application of them; |
| --- | --- |

b)

a claim for repayment of the additional corporation tax paid by the borrowing company where the full amount of interest on the loan has actually been paid to the lending company but the claim for a deduction in respect of that interest has been reduced because of the national provisions or the tax authority's application of them;

| c) | a claim for the repayment of the additional corporation tax paid by the borrowing company where the amount of interest on loans from the lending company, allowable as a deduction against the borrowing company's profits, has been reduced because equity capital has been subscribed rather than loan capital, or has been substituted for existing loan capital, because of the national provisions or the tax authority's application of them; |
| --- | --- |

c)

a claim for the repayment of the additional corporation tax paid by the borrowing company where the amount of interest on loans from the lending company, allowable as a deduction against the borrowing company's profits, has been reduced because equity capital has been subscribed rather than loan capital, or has been substituted for existing loan capital, because of the national provisions or the tax authority's application of them;

| d) | a claim for the repayment of the additional corporation tax paid by the borrowing company where the interest on loans from the lending company allowable as a deduction against the borrowing company's profits has been reduced by reducing the rate of interest chargeable on the loan (or making the loan interest free) as a result of the national provisions or the tax authority's application of them; |
| --- | --- |

d)

a claim for the repayment of the additional corporation tax paid by the borrowing company where the interest on loans from the lending company allowable as a deduction against the borrowing company's profits has been reduced by reducing the rate of interest chargeable on the loan (or making the loan interest free) as a result of the national provisions or the tax authority's application of them;

| e) | a claim for restitution or compensation in respect of losses, or other tax reliefs or credits, of the borrowing company (or which were surrendered to the borrowing company by other companies in the borrowing company's group which were also resident in the State of the borrowing company) used by the borrowing company to offset the additional corporation tax liabilities referred to in paragraphs (a), (b) or (c) above, where such losses, reliefs and credits would otherwise have been available for alternative use or to be carried forward; |
| --- | --- |

e)

a claim for restitution or compensation in respect of losses, or other tax reliefs or credits, of the borrowing company (or which were surrendered to the borrowing company by other companies in the borrowing company's group which were also resident in the State of the borrowing company) used by the borrowing company to offset the additional corporation tax liabilities referred to in paragraphs (a), (b) or (c) above, where such losses, reliefs and credits would otherwise have been available for alternative use or to be carried forward;

| f) | a claim for repayment of un-utilised advance corporation tax paid by the borrowing company upon interest payments to the lending company which were re-characterised as distributions; |
| --- | --- |

f)

a claim for repayment of un-utilised advance corporation tax paid by the borrowing company upon interest payments to the lending company which were re-characterised as distributions;

| g) | a claim for restitution or compensation in respect of amounts of advance corporation tax paid in the circumstances referred to in paragraph (f) above but which were subsequently set off against the borrowing company's corporation tax liabilities; |
| --- | --- |

g)

a claim for restitution or compensation in respect of amounts of advance corporation tax paid in the circumstances referred to in paragraph (f) above but which were subsequently set off against the borrowing company's corporation tax liabilities;

| h) | a claim for compensation for costs and expenses incurred by the Claimants in complying with the national provisions and the Revenue authority's application of them; |
| --- | --- |

h)

a claim for compensation for costs and expenses incurred by the Claimants in complying with the national provisions and the Revenue authority's application of them;

| i) | a claim for restitution or compensation for the loss of return upon loan capital invested as equity (or converted to equity) in the circumstances described in (c); and |
| --- | --- |

i)

a claim for restitution or compensation for the loss of return upon loan capital invested as equity (or converted to equity) in the circumstances described in (c); and

| j) | a claim for restitution or compensation for any tax liability incurred by the lending company in its State of residence upon the deemed or imputed receipt of interest from the borrowing company which was recharacterised as a distribution under the national provisions referred to in question 1
  are such claims to be regarded, for the purposes of Community law, as:
  claims for restitution or repayment of sums unduly levied which arise as a consequence of, and adjunct to, the breach of the abovementioned Community provisions; or
  claims for compensation or damages; or
  claims for payment of an amount representing a benefit unduly denied? |
| --- | --- |

j)

a claim for restitution or compensation for any tax liability incurred by the lending company in its State of residence upon the deemed or imputed receipt of interest from the borrowing company which was recharacterised as a distribution under the national provisions referred to in question 1

are such claims to be regarded, for the purposes of Community law, as:

claims for restitution or repayment of sums unduly levied which arise as a consequence of, and adjunct to, the breach of the abovementioned Community provisions; or

claims for compensation or damages; or

claims for payment of an amount representing a benefit unduly denied?

| 6. | In the event that the answer to any part of Question 5 is that the claims are claims for payment of an amount representing a benefit unduly denied:






  a) | are such claims a consequence of, and an adjunct to, the right conferred by the abovementioned Community provisions; or |
| --- | --- | --- |

6.

In the event that the answer to any part of Question 5 is that the claims are claims for payment of an amount representing a benefit unduly denied:

a)

are such claims a consequence of, and an adjunct to, the right conferred by the abovementioned Community provisions; or

| b) | must all or some of the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or |
| --- | --- |

b)

must all or some of the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or

| c) | must some other conditions be met? |
| --- | --- |

c)

must some other conditions be met?

| 7. | Does it make any difference whether as a matter of domestic law the claims referred to in Question 6 are brought as restitutionary claims or are brought or have to be brought as claims for damages? |
| --- | --- |

7.

Does it make any difference whether as a matter of domestic law the claims referred to in Question 6 are brought as restitutionary claims or are brought or have to be brought as claims for damages?

| 8. | What guidance, if any, does the Court of Justice think it appropriate to provide in the present cases as to which circumstances the national court ought to take into consideration when it comes to determine whether there is a sufficiently serious breach within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame, in particular as to whether, given the state of the case law on the interpretation of the relevant Community provisions, the breach was excusable? |
| --- | --- |

8.

What guidance, if any, does the Court of Justice think it appropriate to provide in the present cases as to which circumstances the national court ought to take into consideration when it comes to determine whether there is a sufficiently serious breach within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame, in particular as to whether, given the state of the case law on the interpretation of the relevant Community provisions, the breach was excusable?

| 9. | As a matter of principle, can there be a direct causal link (within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame) between any breach of Articles 43, 49 and 56 EC and losses falling into the categories identified in Question 5(a)-(h) that are claimed to flow from it? If so, what guidance, if any, does the Court of Justice think it appropriate to provide as to the circumstances which the national court should take into account in determining whether such a direct causal link exists? |
| --- | --- |

9.

As a matter of principle, can there be a direct causal link (within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame) between any breach of Articles 43, 49 and 56 EC and losses falling into the categories identified in Question 5(a)-(h) that are claimed to flow from it? If so, what guidance, if any, does the Court of Justice think it appropriate to provide as to the circumstances which the national court should take into account in determining whether such a direct causal link exists?

| 10. | In determining the loss or damage for which reparation may be granted, is it open to the national court to have regard to the question of whether injured persons showed reasonable diligence in order to avoid or limit their loss, in particular by availing themselves of legal remedies which could have established that the national provisions did not (by reason of the application of double taxation conventions) have the effect of imposing the restrictions set out in Question 1? Is the answer to this question affected by the beliefs of the parties at the relevant times as to the effect of the double taxation conventions? |
| --- | --- |

10.

In determining the loss or damage for which reparation may be granted, is it open to the national court to have regard to the question of whether injured persons showed reasonable diligence in order to avoid or limit their loss, in particular by availing themselves of legal remedies which could have established that the national provisions did not (by reason of the application of double taxation conventions) have the effect of imposing the restrictions set out in Question 1? Is the answer to this question affected by the beliefs of the parties at the relevant times as to the effect of the double taxation conventions?

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/22 |
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5.3.2005

EN

Official Journal of the European Union

C 57/22

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Reference for a preliminary ruling from the Utlänningsnämnden by order of that court of 30 December 2004, received at the Court Registry on 4 January 2005, in the case of Yunying Jia against Migrationsverket

(Case C-1/05)

(2005/C 57/36)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Utlänningsnämnden (Alien Appeals Board) (Sweden) of 30 December 2004, received at the Court Registry on 4 January 2005, for a preliminary ruling in the case of Yunying Jia against Migrationsverket (Immigration Board) on the following questions:

| 1 | a. | In the light of the judgment in Case C-109/01, is Article 10 of Regulation (EEC) No 1612/68 to be interpreted as meaning that a national of a non-Member State related to a worker as specified therein must be lawfully within the Community in order to have the right permanently to reside with the worker – and, in the same way, is Article 1 of Directive 73/148/EEC to be interpreted as meaning that the right to permanent residence of a relative of a citizen of the Union, who is a national of a non-Member State, presupposes that the national of a non-Member State is lawfully resident in the Community? |
| --- | --- | --- |

1

a.

In the light of the judgment in Case C-109/01, is Article 10 of Regulation (EEC) No 1612/68 to be interpreted as meaning that a national of a non-Member State related to a worker as specified therein must be lawfully within the Community in order to have the right permanently to reside with the worker – and, in the same way, is Article 1 of Directive 73/148/EEC to be interpreted as meaning that the right to permanent residence of a relative of a citizen of the Union, who is a national of a non-Member State, presupposes that the national of a non-Member State is lawfully resident in the Community?

| b. | If Directive 73/148/EEC is to be interpreted as meaning that lawful residence within the Community is a requirement in order for a relative of a citizen of the Union, who is a national of a non-Member State, to be able to claim the right to permanent residence under the directive, does that then imply that the relative is to hold a current residence permit valid for or intended to lead to permanent residence in one of the Member States? If there is no permanent residence permit is a residence permit granted on other grounds for a shorter or longer stay sufficient, or is it, as in the case pending before the Utlänningsnämnden, sufficient if the relative applying for a residence permit holds a valid visa? |
| --- | --- |

b.

If Directive 73/148/EEC is to be interpreted as meaning that lawful residence within the Community is a requirement in order for a relative of a citizen of the Union, who is a national of a non-Member State, to be able to claim the right to permanent residence under the directive, does that then imply that the relative is to hold a current residence permit valid for or intended to lead to permanent residence in one of the Member States? If there is no permanent residence permit is a residence permit granted on other grounds for a shorter or longer stay sufficient, or is it, as in the case pending before the Utlänningsnämnden, sufficient if the relative applying for a residence permit holds a valid visa?

| c. | If a relative of a citizen of the Union, who is a national of a non-Member State, cannot benefit from the right to permanent residence under Directive 73/148/EEC because he is not lawfully resident in the Community, does a refusal to grant a relative a residence permit for permanent residence thus restrict the right of the citizen of the Union to freedom of establishment under Article 43 EC? |
| --- | --- |

c.

If a relative of a citizen of the Union, who is a national of a non-Member State, cannot benefit from the right to permanent residence under Directive 73/148/EEC because he is not lawfully resident in the Community, does a refusal to grant a relative a residence permit for permanent residence thus restrict the right of the citizen of the Union to freedom of establishment under Article 43 EC?

| d. | If a relative of a citizen of the Union, who is a national of a non-Member State, cannot benefit from the right to permanent residence under Directive 73/148/EEC because he is not lawfully resident in the Community, is the right of the citizen of the Union to freedom of establishment under Article 43 EC restricted if the relatives of the citizen of the Union are deported because an application for a national residence permit cannot be accepted after entry into Sweden? |
| --- | --- |

d.

If a relative of a citizen of the Union, who is a national of a non-Member State, cannot benefit from the right to permanent residence under Directive 73/148/EEC because he is not lawfully resident in the Community, is the right of the citizen of the Union to freedom of establishment under Article 43 EC restricted if the relatives of the citizen of the Union are deported because an application for a national residence permit cannot be accepted after entry into Sweden?

| 2 | a. | Is Article 1(d) of Directive 73/148/EEC to be interpreted as meaning that ‘dependence’ means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where he is normally resident? |
| --- | --- | --- |

2

a.

Is Article 1(d) of Directive 73/148/EEC to be interpreted as meaning that ‘dependence’ means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where he is normally resident?

| b. | Is Article 6(b) of Directive 73/148/EEC to be interpreted as meaning that the Member States may require a relative of a citizen of the Union who claims to be dependent on the citizen of the Union or his/her spouse to produce documents, in addition to the undertaking given by the citizen of the Union, which prove that there is a factual situation of dependence? |
| --- | --- |

b.

Is Article 6(b) of Directive 73/148/EEC to be interpreted as meaning that the Member States may require a relative of a citizen of the Union who claims to be dependent on the citizen of the Union or his/her spouse to produce documents, in addition to the undertaking given by the citizen of the Union, which prove that there is a factual situation of dependence?

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/23 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/23

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Reference for a preliminary ruling from the Verwaltungsgericht Aachen by order of that court of 29 December 2004, in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen

(Case C-4/05)

(2005/C 57/37)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Aachen (Germany) of 29 December 2004 received at the Court Registry on 6 January 2005, for a preliminary ruling in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen (Mayor of the town of Aachen) on the following questions:

| 1. | Does the prohibition of discrimination in Article 10(1) of Decision No 1/80 preclude a Member State from refusing to allow a Turkish worker in the position of the claimant, who was duly registered as belonging to the labour force of the Member State and had a right of unlimited duration in relation to employment on the date of expiry of the national residence permit originally granted to him, to continue to reside there for the duration of his employment?
  Is it material in this context whether the work permit granted to the Turkish migrant worker






  — | was granted under national law without any time-limit |
| --- | --- | --- |

1.

Does the prohibition of discrimination in Article 10(1) of Decision No 1/80 preclude a Member State from refusing to allow a Turkish worker in the position of the claimant, who was duly registered as belonging to the labour force of the Member State and had a right of unlimited duration in relation to employment on the date of expiry of the national residence permit originally granted to him, to continue to reside there for the duration of his employment?

Is it material in this context whether the work permit granted to the Turkish migrant worker

—

was granted under national law without any time-limit

| — | was granted under national law subject to the continuation of the original residence permit but does not automatically expire when residence authorisation comes to an end and remains valid until such time as the alien is no longer entitled to stay in the Member State on even a temporary basis? |
| --- | --- |

—

was granted under national law subject to the continuation of the original residence permit but does not automatically expire when residence authorisation comes to an end and remains valid until such time as the alien is no longer entitled to stay in the Member State on even a temporary basis?

| 2. | Is the Member State permitted, having regard to Article 10(1) of Decision No 1/80, to refuse to allow a Turkish worker residence if the latter is employed as a seasonal worker after the expiry date of the latest residence permit granted to him – that is to say, if he does not work in the periods between employment? |
| --- | --- |

2.

Is the Member State permitted, having regard to Article 10(1) of Decision No 1/80, to refuse to allow a Turkish worker residence if the latter is employed as a seasonal worker after the expiry date of the latest residence permit granted to him – that is to say, if he does not work in the periods between employment?

| 3. | Does a change in the legal form of national law governing permission to work that takes place after the expiry date of the original residence permit have any effect on the prohibition on refusal of further residence consequent on Article 10(1) of Decision No 1/80? |
| --- | --- |

3.

Does a change in the legal form of national law governing permission to work that takes place after the expiry date of the original residence permit have any effect on the prohibition on refusal of further residence consequent on Article 10(1) of Decision No 1/80?

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/23 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/23

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Removal from the register of Case C-11/03 (1)

(2005/C 57/38)

(Language of the case: Dutch)

By order of 25 October 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-11/03 (reference for a preliminary ruling from the Raad van State): Boss Pharma NV v Belgische Staat.

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(1)  OJ C 55 of 08.03.2003.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/23 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/23

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Removal from the register of Case C-10/04 (1)

(2005/C 57/39)

(Language of the case: German)

By order of 1 December 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-10/04: Commission of the European Communities v Republic of Austria.

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(1)  OJ C 47 of 21.02.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/24 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/24

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Removal from the register of Case C-13/04 (1)

(2005/C 57/40)

(Language of the case: Finnish)

By order of 26 November 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-13/04: Commission of the European Communities v Republic of Finland.

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(1)  OJ C 71 of 20.03.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/24 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/24

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Removal from the register of Case C-307/04 P (1)

(2005/C 57/41)

(Language of the case: English)

By order of 25 November 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-307/04 P: SEC Corporation v Commission of the European Communities.

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(1)  OJ C 239 of 25.09.2004.

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COURT OF FIRST INSTANCE

| 5.3.2005 | EN | Official Journal of the European Union | C 57/25 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/25

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Action brought on 22 September 2004 by Dr Peter Lesetar against the Commission of the European Communities

(Case T-453/04)

(2005/C 57/42)

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 22 September 2004 by Dr Peter Lesetar, represented by E.I. Faludy, lawyer.

The applicant claims that the Court should:

| — | reverse EPSO's decision not to place the applicant on the list of successful candidates for competition EPSO/LA/11/03; |
| --- | --- |

—

reverse EPSO's decision not to place the applicant on the list of successful candidates for competition EPSO/LA/11/03;

| — | order the placement of the applicant on that list; |
| --- | --- |

—

order the placement of the applicant on that list;

| — | order the payment to the applicant of the salary he would have received if he had been duly put on the list of successful candidates, for the time period from the average of the times of commencing employment of the candidates preceding and following him on the list to the day he can actually take up employment, having been placed on the list. |
| --- | --- |

—

order the payment to the applicant of the salary he would have received if he had been duly put on the list of successful candidates, for the time period from the average of the times of commencing employment of the candidates preceding and following him on the list to the day he can actually take up employment, having been placed on the list.

Pleas in law and main arguments

The applicant claims the evaluation of his written work in the context of the above competition grossly understates his performance, that the evaluation of the oral interview also had its flaws and that, overall, his suitability for the job in question has not been examined and evaluated properly.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/25 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/25

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Action brought on 18 November 2004 by Ms D. Beyatli and Mr A. Candan against the Commission of the European Communities

(Case T-455/04)

(2005/C 57/43)

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 18 November 2004 by Ms D. Beyatli, Nicosia, Cyprus and Mr A. Candan, Istanbul, Turkey, represented by Mr A. Demetriades, lawyer.

The applicants claim that the Court should:

| — | annul the Commission's Decision of 5 May 2004 declaring the applicants not successful in the written tests of the Open Competition for assistant administrators for Cypriot citizens EPSO/A/1/03; |
| --- | --- |

—

annul the Commission's Decision of 5 May 2004 declaring the applicants not successful in the written tests of the Open Competition for assistant administrators for Cypriot citizens EPSO/A/1/03;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants are Cypriot nationals whose mother tongue is Turkish. They applied for a position of assistant administrator in the context of Open Competition EPSO/A/1/03 for Cypriot citizens. The notice of competition required that candidates have a thorough knowledge of the Greek language. The applicants failed to receive a sufficient number of points in test (e), which was in the Greek language, and were thus not admitted to the oral tests.

The applicants challenge this decision, submitting that the requirement that candidates should have a thorough knowledge of Greek is discriminatory, given that not all Cypriot citizens have Greek as their mother tongue. According to the applicants this requirement violates Article 12 EC and Articles 1d and 27 of the Staff Regulations. They further allege that Article 3 of Regulation 401/2004 (1) limits recruitment only to those having one of the existing 11 official languages as their main language and is thus not proportionate with the objectives of the European Union and its intention to integrate Turkish speaking Cypriots within the European Union.

---

(1)  Council Regulation (EC, Euratom) No 401/2004 of 23 February 2004 introducing, on the occasion of the accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, special temporary measures for recruitment of officials of the European Communities, OJ L 67, 05/03/2004, p.1

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/26 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/26

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Action brought on 1 December 2004 by Imagination Technologies Ltd against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-461/04)

(2005/C 57/44)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 1 December 2004 by Imagination Technologies Ltd, established in Hertfordshire (United Kingdom), represented by M. Edenborough, Barrister, and P. Brownlow and N. Jenkins, Solicitors.

The applicant claims that the Court should:

| — | annul the decision of the second Board of Appeal No 108/2004-2; |
| --- | --- |

—

annul the decision of the second Board of Appeal No 108/2004-2;

| — | annul the decision of the Examination Division dated 12 September 2003; |
| --- | --- |

—

annul the decision of the Examination Division dated 12 September 2003;

| — | remit the Community trade mark application No 2 396 075 to the Office, or alternatively to the Board of Appeal, for further examination; |
| --- | --- |

—

remit the Community trade mark application No 2 396 075 to the Office, or alternatively to the Board of Appeal, for further examination;

| — | order the Office to pay to the applicant the costs incurred by the applicant in connection with this appeal and the appeal before the Board of Appeal and the prosecution before the Examination Division. |
| --- | --- |

—

order the Office to pay to the applicant the costs incurred by the applicant in connection with this appeal and the appeal before the Board of Appeal and the prosecution before the Examination Division.

Pleas in law and main arguments

| Community trade mark concerned: | The word mark ‘PURE DIGITAL’ for goods and services in classes 9 and 38 (Electric and electronic apparatus for use with multi-media entertaining systems, video apparatus, computer hardware, provision of telecommunications access to computer databases and the internet, ...) — application No 2 396 075 |
| --- | --- |
| Decision of the examiner: | Refusal of the application. |
| Decision of the Board of Appeal: | Dismissal of the appeal. |
| Pleas in law: | Violation of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 40/94. |

Community trade mark concerned:

The word mark ‘PURE DIGITAL’ for goods and services in classes 9 and 38 (Electric and electronic apparatus for use with multi-media entertaining systems, video apparatus, computer hardware, provision of telecommunications access to computer databases and the internet, ...) — application No 2 396 075

Decision of the examiner:

Refusal of the application.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

Violation of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 40/94.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/26 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/26

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Action brought on 25 November 2004 by European Dynamics SA against the Commission of the European Communities

(Case T-465/04)

(2005/C 57/45)

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 25 November 2004 by European Dynamics SA, Athens, Greece, represented by N. Korogiannakis, lawyer.

The applicant claims that the Court should:

| — | annul the Decision of the Commission (DG Fisheries), of 15 September 2004, evaluating the applicant's bid as not successful and awarding the contract to the incumbent contractor; |
| --- | --- |

—

annul the Decision of the Commission (DG Fisheries), of 15 September 2004, evaluating the applicant's bid as not successful and awarding the contract to the incumbent contractor;

| — | order the Commission to re-evaluate the tender submitted by the applicant; |
| --- | --- |

—

order the Commission to re-evaluate the tender submitted by the applicant;

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

—

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

Pleas in law and main arguments

The applicant company filed a bid in response to the Commission's call for tenders FISH/2004/02 (1) for the provision of computer and related services linked to the information systems of the Directorate - General for Fisheries. By the contested decision this bid was rejected and the contract awarded to another bidder, which was also the incumbent contractor.

In support of its application for annulment of that decision the applicant claims first of all that the Commission violated the principle of non-discrimination and of free competition. The applicant considers that the Commission's decision to impose a two month familiarisation period unfavourably discriminated in favour of the incumbent, for whom the familiarisation period was obviously not necessary. In the same context the applicant also contends that delivery of information to the tenderers regarding the software application subject to the call for tenders was insufficient whilst of course the incumbent had unlimited access to such information.

The applicant further submits that the Commission violated the Financial Regulation (2) as well as Directive 92/50 (3) by using evaluation criteria that were not included in the call for tenders, namely the size of the applicant's proposed team, which was considered excessive by the Commission, and the average number of years of experience of the applicant's team, which the Commission considered was lower than that of the team proposed by the successful tenderer.

The applicant further considers that the Commission committed manifest errors of appreciation in its evaluation of the applicant's tender and in particular in its assessments of the expertise of its proposed team and of the applicant's financial offer where, according to the applicant, the Commission mistakenly assumed that all sixteen persons proposed by the applicant would be working in parallel for the whole of the project.

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

---

(1)  OJ 2004/S 73 – 061407

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

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

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/27 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/27

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Action brought on 19 November 2004 by Kenzo Takada against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-468/04)

(2005/C 57/46)

Language in which the application was lodged: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 19 November 2004 by Kenzo Takada, established in Paris, represented by Fernand de Visscher, Eric de Gryse and Donatienne Moreau, lawyers.

Kenzo SA was also a party to the proceedings before the First Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision delivered on 14 September 2004 by the First Board of Appeal in case R 643/2003-1; |
| --- | --- |

—

annul the decision delivered on 14 September 2004 by the First Board of Appeal in case R 643/2003-1;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Kenzo Takada |
| --- | --- |
| Community trade mark concerned: | The word mark 'KENZO TAKADA' for goods and services in Classes 3, 25 and 42 (Bleaching preparations and other substances for laundry use; clothing; services for providing food and drink and temporary accommodation, ...) – Application No 2008084 |
| Proprietor of mark or sign cited in the opposition proceedings: | Kenzo SA |
| Mark or sign cited in opposition: | Community, national and international word and figurative marks 'KENZO' for the goods and services in Classes 3, 9, 25 and 42 (Bleaching preparations and other substances for laundry use; clothing; services providing temporary accommodation, food and drink, ...) |
| Decision of the Opposition Division: | Application for Community trade mark rejected. |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | Infringement of Article 8(1)(b) of Council Regulation No 40/94 |

Applicant for Community trade mark:

Kenzo Takada

Community trade mark concerned:

The word mark 'KENZO TAKADA' for goods and services in Classes 3, 25 and 42 (Bleaching preparations and other substances for laundry use; clothing; services for providing food and drink and temporary accommodation, ...) – Application No 2008084

Proprietor of mark or sign cited in the opposition proceedings:

Kenzo SA

Mark or sign cited in opposition:

Community, national and international word and figurative marks 'KENZO' for the goods and services in Classes 3, 9, 25 and 42 (Bleaching preparations and other substances for laundry use; clothing; services providing temporary accommodation, food and drink, ...)

Decision of the Opposition Division:

Application for Community trade mark rejected.

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

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

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/28 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/28

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Action brought on 19 November 2004 by Thomas Peyker against Commission of the European Communities

(Case T-470/04)

(2005/C 57/47)

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 19 November 2004 by Thomas Peyker, residing in Santo Domingo (Dominican Republic), represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission's decision to award points making up the ‘rucksack’, and the decision not to promote the applicant to Grade A6 in the 2003 promotion procedure; |
| --- | --- |

—

annul the Commission's decision to award points making up the ‘rucksack’, and the decision not to promote the applicant to Grade A6 in the 2003 promotion procedure;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in this case challenges the appointing authority's refusal to promote him to Grade A6 in the 2003 promotion procedure, and the award of insufficient, in that regard, merit/priority points making up his ‘rucksack’.

In support of his claims, the applicant alleges breach of Articles 43 and 45 of the Staff Regulations, and of the principles of non-discrimination and that officials should have reasonable career prospects.

He submits, in that regard, that the refusal to award him special additional priority points just because, although he had been put forward for promotion by his Directorate-General in the preceding promotion procedure, he was not within the limit of 150 % of the available promotions, amounts to assimilating him to officials who were not put forward by their superiors for the preceding procedure, in breach of the principle that merit is the determining criterion for all promotions.

In addition, transitional priority points were awarded in this case without taking account of the staff reports established for the reference period and without having considered comparative merits.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/28 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/28

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Action brought on 6 December 2004 by Mr Georgios Karatzoglou against the European Agency for Reconstruction

(Case T-471/04)

(2005/C 57/48)

Language of the case: English

An action against the European Agency for Reconstruction was brought before the Court of First Instance of the European Communities on 6 December 2004 by Mr Georgios Karatzoglou, Ioannina, Greece, represented by S. A. Pappas, lawyer.

The applicant claims that the Court should:

| — | cancel the implicit rejection of the complaint of the applicant and, subsequently, the termination of his contract; |
| --- | --- |

—

cancel the implicit rejection of the complaint of the applicant and, subsequently, the termination of his contract;

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

—

order the Agency to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant was recruited as a temporary agent by the defendant, in accordance with Article 2(a) of the Conditions of employment of other servants of the European Communities. On 7 May 2003, his contract was renewed for an indefinite period. The applicant contests the subsequent termination of his contract in application of Article 47(2) of the Conditions of employment.

In support of his application, the applicant submits a lack of reasoning of the termination of the contract. According to the applicant, the defendant had bound itself not to terminate the contract unless there would be a need for a reduction or winding-up of its operations. The applicant claims that this is not the case and is not even invoked. The applicant furthermore submits a breach of his legitimate expectations, an infringement of Article 47 of the Conditions of employment and a misuse of powers. Finally, the applicant submits a violation of the principle of good administration since, according to the applicant, the supposed need to reduce the staff was caused by unreasonable management.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/29 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/29

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Action brought on 20 November 2004 by Vassilios Tsarnavas against the Commission of the European Communities

(Case T-472/04)

(2005/C 57/49)

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 20 November 2004 by Vassilios Tsarnavas, residing in Volos (Greece), represented by Nicolas Lhoëst, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision of the Commission of 23 December 2003 in so far as it failed to include the applicant's name in the list of officials put forward for promotion in 1999, or on the list of officials adjudged to be the most deserving of promotion to grade A4 in the 1998 and 1999 promotion rounds, or on the list of officials promoted to grade A4 in those promotion rounds; |
| --- | --- |

—

annul the decision of the Commission of 23 December 2003 in so far as it failed to include the applicant's name in the list of officials put forward for promotion in 1999, or on the list of officials adjudged to be the most deserving of promotion to grade A4 in the 1998 and 1999 promotion rounds, or on the list of officials promoted to grade A4 in those promotion rounds;

| — | annul all connected and/or subsequent decisions; |
| --- | --- |

—

annul all connected and/or subsequent decisions;

| — | in so far as may be necessary, annul the decision of the Commission of 5 August 2004, rejecting the applicant's complaint; |
| --- | --- |

—

in so far as may be necessary, annul the decision of the Commission of 5 August 2004, rejecting the applicant's complaint;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant alleges procedural irregularities, an infringement of Article 25(2) of the Staff Regulations, an infringement of Article 45 of the Staff Regulations, infringements of the principle of equal treatment and sound administration and, lastly, a manifest error of assessment.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/29 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/29

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Action brought on 14 December 2004 by Chr. Muller Touw B.V. and A&C Braid and Rope Co. Pvt. Ltd against the Council of the European Union

(Case T-480/04)

(2005/C 57/50)

Language of the case: Dutch

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 14 December 2004 by Chr. Muller Touw B.V, having its registered office in Elst (Netherlands), and A&C Braid and Rope Co. Pvt. Ltd, having its registered office in Rania (India), represented by John Wolfs, advocaat.

The applicants claim that the Court should:

| 1. | annul Regulation No 1736/2004 in so far as it concerns deliveries from A&C in India; |
| --- | --- |

1.

annul Regulation No 1736/2004 in so far as it concerns deliveries from A&C in India;

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

2.

order the Council to pay the costs.

Pleas in law and main arguments:

Chr. Muller Touw, which has its registered office in the Netherlands, supplies raw materials to A&C Braid and Rope in India, which processes those raw materials into rope for export to the EC. The applicants seek the annulment of Regulation No 1736/2004 establishing a definitive anti-dumping duty (1) to the extent to which it applies to them.

In support of their application the applicants submit that there is here no question of material injury, as required by Articles 1 and 3 of Regulation No 384/96. (2) The applicants submit that they manufacture rope for private individual use and that is not suitable for industrial use or for use at sea, as stated in the contested regulation, and that their market share is negligible.

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(1)  Council Regulation (EC) No 1736/2004 of 4 October 2004 imposing a definitive anti-dumping duty on imports of synthetic fibre ropes originating in India (OJ 2004 L 311, p. 1).

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

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/30 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/30

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Action brought on 10 December 2004 by Advance Magazine Publishers Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-481/04)

(2005/C 57/51)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 December 2004 by Advance Magazine Publishers Inc., established in New York (USA), represented by M. Esteve Sanz, lawyer.

J. Capela & Irmãos, Lda., established in Porto (Portugal), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of 27 September 2004 rendered in case R 328/2003-1; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of 27 September 2004 rendered in case R 328/2003-1;

| — | order the defendant and if the case might be, the intervener, to pay the costs of proceedings and the costs of appeal incurred within the OHIM. |
| --- | --- |

—

order the defendant and if the case might be, the intervener, to pay the costs of proceedings and the costs of appeal incurred within the OHIM.

Pleas in law and main arguments

| Applicant for Community trade mark: | Advance Magazine Publishers, Inc. |
| --- | --- |
| Community trade mark concerned: | The word mark ‘VOGUE’ for goods and services in classes 9, 14, 16, 18, 25 and 41 (Clothing,...) — application No 183 756 |
| Proprietor of mark or sign cited in the opposition proceedings: | J. Capela & Irmãos, Lda |
| Trade mark or sign cited in opposition: | The national word mark ‘VOGUE PORTUGAL’ for goods in class 25 (footwear) and the business name ‘VOGUE - SAPATARIA’ |
| Decision of the Opposition Division: | Rejection of the Community trade mark for the contested goods, namely clothing |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Violation of the procedural rules of Articles 61(1), 62(1) and 74(1) of Council Regulation No 40/94; Violation of Articles 73 and 62 (2) of Council Regulation No 40/94 as well as Rule 50(2)(h) of Commission Regulation No 2868/95; Violation of Article 43(2) and 43(3) of Council Regulation No 40/94 and Rule 22 of Commission Regulation 2868/95; Violation of Article 8(1)(b) of Council Regulation No 40/94. |

Applicant for Community trade mark:

Advance Magazine Publishers, Inc.

Community trade mark concerned:

The word mark ‘VOGUE’ for goods and services in classes 9, 14, 16, 18, 25 and 41 (Clothing,...) — application No 183 756

Proprietor of mark or sign cited in the opposition proceedings:

J. Capela & Irmãos, Lda

Trade mark or sign cited in opposition:

The national word mark ‘VOGUE PORTUGAL’ for goods in class 25 (footwear) and the business name ‘VOGUE - SAPATARIA’

Decision of the Opposition Division:

Rejection of the Community trade mark for the contested goods, namely clothing

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Violation of the procedural rules of Articles 61(1), 62(1) and 74(1) of Council Regulation No 40/94; Violation of Articles 73 and 62 (2) of Council Regulation No 40/94 as well as Rule 50(2)(h) of Commission Regulation No 2868/95; Violation of Article 43(2) and 43(3) of Council Regulation No 40/94 and Rule 22 of Commission Regulation 2868/95; Violation of Article 8(1)(b) of Council Regulation No 40/94.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/30 |
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5.3.2005

EN

Official Journal of the European Union

C 57/30

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Action by Komsa Kommunikation Sachsen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) brought on 13 December 2004

(Case T-482/04)

(2005/C 57/52)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 13 December 2004 by Komsa Kommunikation Sachsen AG, established in Hartmannsdorf (Germany), represented by F. Hagemann, lawyer.

The other party before the Board of Appeal was Anders + Kern Präsentationssysteme GmbH & Co. KG., established in Norderstedt (Germany).

The applicant claims that the Court should:

| — | set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2004 (Case R65/2003-4) in so far as it allowed the appeal of the opposing party in respect of the goods submitted for Community registration: ‘Apparatus for recording, transmission or reproduction of images, sound and data; electrotechnical and electronic apparatus and systems composed thereof for the remote control of industrial processes; all such above-mentioned goods being also capable of installation in vehicles; programmed machine-readable data carriers of all kinds’. |
| --- | --- |

—

set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2004 (Case R65/2003-4) in so far as it allowed the appeal of the opposing party in respect of the goods submitted for Community registration: ‘Apparatus for recording, transmission or reproduction of images, sound and data; electrotechnical and electronic apparatus and systems composed thereof for the remote control of industrial processes; all such above-mentioned goods being also capable of installation in vehicles; programmed machine-readable data carriers of all kinds’.

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

| Applicant for the Community mark: | The applicant |
| --- | --- |
| Community mark submitted for registration: | The pictorial mark ‘@k’ for goods and services in Classes 9, 16, 35, 37, 38 and 42 (Application No 1322460) |
| Proprietor of the rival mark or design cited in the opposition procedure: | Anders + Kern Präsentationssysteme GmbH & Co. KG. |
| Mark or design cited in opposition: | The Community pictorial mark 'A+K' for goods and services in Classes 6, 9 and 20 (Community Mark No 294 546). |
| Decision of the Opposition Division: | Dismissal of the Opposition. |
| Decision of the Board of Appeal: | Appeal by Anders+Kern Präsentationssysteme GmbH & Co. KG allowed in so far as it related to ‘Apparatus for recording, transmission or reproduction of images, sound and data; electrotechnical and electronic apparatus and systems composed thereof for the remote control of industrial processes; all such above-mentioned goods being also capable of installation in vehicles; programmed machine-readable data carriers of all kinds’. Otherwise, appeal dismissed. |
| Grounds: | The decision of the Board of Appeal infringed Article 8(1)(b) of Regulation (EC) No 40/94, because the Board made an incorrect assessment of the requirements for the existence of a risk of confusion in trade mark law. In the applicant's submission, there is no such risk of confusion between the marks being compared in this case. |

Applicant for the Community mark:

The applicant

Community mark submitted for registration:

The pictorial mark ‘@k’ for goods and services in Classes 9, 16, 35, 37, 38 and 42 (Application No 1322460)

Proprietor of the rival mark or design cited in the opposition procedure:

Anders + Kern Präsentationssysteme GmbH & Co. KG.

Mark or design cited in opposition:

The Community pictorial mark 'A+K' for goods and services in Classes 6, 9 and 20 (Community Mark No 294 546).

Decision of the Opposition Division:

Dismissal of the Opposition.

Decision of the Board of Appeal:

Appeal by Anders+Kern Präsentationssysteme GmbH & Co. KG allowed in so far as it related to ‘Apparatus for recording, transmission or reproduction of images, sound and data; electrotechnical and electronic apparatus and systems composed thereof for the remote control of industrial processes; all such above-mentioned goods being also capable of installation in vehicles; programmed machine-readable data carriers of all kinds’. Otherwise, appeal dismissed.

Grounds:

The decision of the Board of Appeal infringed Article 8(1)(b) of Regulation (EC) No 40/94, because the Board made an incorrect assessment of the requirements for the existence of a risk of confusion in trade mark law. In the applicant's submission, there is no such risk of confusion between the marks being compared in this case.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/31 |
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5.3.2005

EN

Official Journal of the European Union

C 57/31

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Action brought on 9 December 2004 by François Pilat against the Council of the European Union and the Commission of the European Communities

(Case T-484/04)

(2005/C 57/53)

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 9 December 2004 by François Pilat, residing in Honfleur (France), represented by Jean-François Péricaud, lawyer.

The applicant claims that the Court should:

| — | order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the applicant the sum of EUR 377 253, alternatively the sum of EUR 325 579, together, in either event, with interest from the date when this application was brought; |
| --- | --- |

—

order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the applicant the sum of EUR 377 253, alternatively the sum of EUR 325 579, together, in either event, with interest from the date when this application was brought;

| — | order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the costs. |
| --- | --- |

—

order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant are the same as those raised by the applicants in Case T-440/03 (1)
  Arizmendi and Others v Council and Commission.

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(1)  OJEU C 59, of 06.03.2004, p. 31.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/32 |
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5.3.2005

EN

Official Journal of the European Union

C 57/32

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Action brought on 10 December 2004 by Association Coopération des Bibliothèques de Bretagne (COBB) against Commission of the European Communities

(Case T-485/04)

(2005/C 57/54)

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 10 December 2004 by the Association Coopération des Bibliothèques de Bretagne (COBB), established in Rennes (France), represented by J.-P. Martin, lawyer.

The applicant claims that the Court should:

| — | annul the subparagraph concerning the COBB of Decision No 1116 dated 9 December 2003 of the Commission of the European Communities. |
| --- | --- |

—

annul the subparagraph concerning the COBB of Decision No 1116 dated 9 December 2003 of the Commission of the European Communities.

Pleas in law and main arguments

This action is against the Commission's decision which excluded the operation ‘Réseau des périodiques de Bretagne, année 1999’ (Brittany Periodicals Network 1999), for which the applicant had applied for a subsidy from the ERDF, from expenditure eligible under the Programme Objectif 5b Bretagne 1994-1999 (Programme Objective 5b Brittany 1994-1999).

The applicant sought that financing under a programme of rural and costal development entitled ‘Morgane 2’, which was implemented for the Brittany Region, in respect of Objective 5b for the period 1994-1999. That programme describes all the action eligible for European financing, of which Action 215, which comes within Priority Axis A aimed at mobilising the employment market and, more particularly, within Measure 2 aimed at improving the competitiveness of businesses, by developing remote working and access to teleservices.

In concrete terms, the operation ‘Brittany Periodicals Network’ consists of putting in place, thanks to a network of establishments, a hardware and software infrastructure managing a database made up of articles from periodicals and studies covering Brittany, in order to make high-quality information on that region accessible, via the Internet, to all decision-makers (elected representatives, heads of undertakings, etc.). Its aim is to support and raise the quality of information and decision of the economic decision-makers with a view to greater competitiveness of undertakings.

It was only after two agreements granting subsidy had been signed, that the Region's Prefecture notified the applicant of the contested decision.

In support of its claims, the applicant relies on three pleas in law. The first concerns a mistake in the statement of reasons, the second brings together arguments alleging breach of the principle of the protection of legitimate expectations and the third alleges breach of the duty to state reasons.

The applicant submits in that regard that:

| — | contrary to the defendant's statement, the applicant is established in an eligible area, since there is no requirement in Action 215, Axis A concerning the recipient's registered office, and, since, in this case, the area concerned covers the whole of Area 5b, that is to say, ‘the rural and costal world’ of Brittany. Also, Action 215 lists individually the ‘economic development associations and bodies’, which shows that the two expressions cannot be mistaken; |
| --- | --- |

—

contrary to the defendant's statement, the applicant is established in an eligible area, since there is no requirement in Action 215, Axis A concerning the recipient's registered office, and, since, in this case, the area concerned covers the whole of Area 5b, that is to say, ‘the rural and costal world’ of Brittany. Also, Action 215 lists individually the ‘economic development associations and bodies’, which shows that the two expressions cannot be mistaken;

| — | the agreement granting subsidy signed between the applicant and the Prefecture on 31 December 2001 contained precise assurances which gave rise in the applicant's mind to expectations based on the continuity of the operation in question. Further, a European Union subsidy of EUR 10 976 was actually paid to the applicant in March 2002 under Programme 5b; |
| --- | --- |

—

the agreement granting subsidy signed between the applicant and the Prefecture on 31 December 2001 contained precise assurances which gave rise in the applicant's mind to expectations based on the continuity of the operation in question. Further, a European Union subsidy of EUR 10 976 was actually paid to the applicant in March 2002 under Programme 5b;

| — | the applicable Community legislation makes no reference either to possible withdrawal of a subsidy or to a demand for repayment thereof under the ERDF; |
| --- | --- |

—

the applicable Community legislation makes no reference either to possible withdrawal of a subsidy or to a demand for repayment thereof under the ERDF;

| — | the decision complained of confines itself to a gap-filling reference to the reservation issued by the Commission interministérielle de coordination des contrôles (the Interministerial Commission for Coordination of Controls), but contains no reasoned or sufficient explanation enabling the reasons why the Commission held the operation in question to be ineligible to be understood. |
| --- | --- |

—

the decision complained of confines itself to a gap-filling reference to the reservation issued by the Commission interministérielle de coordination des contrôles (the Interministerial Commission for Coordination of Controls), but contains no reasoned or sufficient explanation enabling the reasons why the Commission held the operation in question to be ineligible to be understood.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/32 |
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5.3.2005

EN

Official Journal of the European Union

C 57/32

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Action brought on 13 December 2004 by Christos Michail against the Commission of the European Communities

(Case T-486/04)

(2005/C 57/55)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 December 2004 by Christos Michail, residing in Brussels (Belgium), represented by Haralambos Meidanis, lawyer.

The applicant claims that the Court should:

| — | annul the defendant's Decisions of 20 March 2004, impliedly rejecting the application for assistance under Article 24 of the Staff Regulations made by the applicant on 20 November 2003, and of 13 September 2004, rejecting the complaint lodged by the applicant; |
| --- | --- |

—

annul the defendant's Decisions of 20 March 2004, impliedly rejecting the application for assistance under Article 24 of the Staff Regulations made by the applicant on 20 November 2003, and of 13 September 2004, rejecting the complaint lodged by the applicant;

| — | make an appropriate order as to costs. |
| --- | --- |

—

make an appropriate order as to costs.

Pleas in law and main arguments:

On 20 November 2003, the applicant, a Commission official, made an application for assistance under Article 24 of the Staff Regulations alleging that he was the victim of mental harassment on the part of the administration of his institution. By his action, he seeks the annulment of the implied decision rejecting that application and the decision rejecting his complaint submitted under Article 90(2) of the Staff Regulations.

The applicant claims that the defendant did not take action on his complaints regarding alleged irregularities in the verification and checking of Community joint financing but, on the contrary, precisely because of his complaints, adopted an attitude designed to intimidate him and to compromise his career. In support of his action, he relies on Articles 12a, 21a, 22b and 24 of the Staff Regulations, the provisions of the Financial Regulation, the principle of sound financial management and the protection of the financial interests of the Commission, the principle of fair and equal treatment of staff and a manifest error of assessment on the part of the Commission.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/33 |
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5.3.2005

EN

Official Journal of the European Union

C 57/33

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Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-487/04)

(2005/C 57/56)

Language in which the application was lodged: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 15 December 2004 by Falcon Sporting Goods AG, established in Zug (Switzerland), represented by Jörg Weigell, lawyer.

The applicant claims that the Court should:

| — | annul Decision R 176/2004-2 of the Second Board of Appeal of OHIM of 29 September 2004; |
| --- | --- |

—

annul Decision R 176/2004-2 of the Second Board of Appeal of OHIM of 29 September 2004;

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

—

order OHIM to pay all the costs.

Pleas in law and main arguments

| Community trade mark sought: | Word mark ‘BIN LADIN’ for goods and services in Classes 9, 12, 14, 18, 25, 28, 35 and 41 – Application No 2 223 907. |
| --- | --- |
| 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)(f) of Council Regulation No 40/94. The applicant claims that registration of the mark in question would not be contrary to either public policy or accepted principles of morality. |

Community trade mark sought:

Word mark ‘BIN LADIN’ for goods and services in Classes 9, 12, 14, 18, 25, 28, 35 and 41 – Application No 2 223 907.

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)(f) of Council Regulation No 40/94. The applicant claims that registration of the mark in question would not be contrary to either public policy or accepted principles of morality.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/33 |
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5.3.2005

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Official Journal of the European Union

C 57/33

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Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-488/04)

(2005/C 57/57)

Language in which the application was lodged: French

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 15 December 2004 by Falcon Sporting Goods AG, established in Zug (Switzerland), represented by Jörg Weigell, lawyer.

The applicant claims that the Court should:

| — | annul Decision R 177/2004-2of the Second Board of Appeal of OHIM of 29 September 2004; |
| --- | --- |

—

annul Decision R 177/2004-2of the Second Board of Appeal of OHIM of 29 September 2004;

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

—

order OHIM to pay all the costs.

Pleas in law and main arguments

| Community trade mark sought: | Figurative mark ‘BIN LADIN’ in Arabic characters for goods and services in Classes 9, 12, 14, 18, 25, 28, 35 and 41 – Application No 2 224 160. |
| --- | --- |
| 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)(f) of Council Regulation No 40/94. The applicant claims that registration of the mark in question would not be contrary to either public policy or accepted principles of morality. |

Community trade mark sought:

Figurative mark ‘BIN LADIN’ in Arabic characters for goods and services in Classes 9, 12, 14, 18, 25, 28, 35 and 41 – Application No 2 224 160.

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)(f) of Council Regulation No 40/94. The applicant claims that registration of the mark in question would not be contrary to either public policy or accepted principles of morality.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/34 |
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5.3.2005

EN

Official Journal of the European Union

C 57/34

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Action brought on 22 December 2004 by Wineke Neirinck against the Commission of the European Communities

(Case T-494/04)

(2005/C 57/58)

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 22 December 2004 by Wineke Neirinck, residing in Brussels (Belgium), represented by Georges Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.

The applicant claims that the Court should:

| — | annul the decision of which the applicant became aware at the meeting of the OIB.1 unit (Office for Infrastructure and Logistics – Brussels – implementation of buildings policy) of 4 March 2004, by which another candidate had been selected for the post of lawyer in the sector of buildings policy in the OIB for which the applicant had applied; |
| --- | --- |

—

annul the decision of which the applicant became aware at the meeting of the OIB.1 unit (Office for Infrastructure and Logistics – Brussels – implementation of buildings policy) of 4 March 2004, by which another candidate had been selected for the post of lawyer in the sector of buildings policy in the OIB for which the applicant had applied;

| — | annul the confirmatory decision of 9 March 2004 informing the applicant that her application had been rejected; |
| --- | --- |

—

annul the confirmatory decision of 9 March 2004 informing the applicant that her application had been rejected;

| — | annul the subsequent decision of 27 April 2004 informing the applicant that she had not passed the oral test and thus confirming the appointment of another person; |
| --- | --- |

—

annul the subsequent decision of 27 April 2004 informing the applicant that she had not passed the oral test and thus confirming the appointment of another person;

| — | in any event, award EUR 30 000 in respect of compensation for the non-material and material damage suffered by the applicant, that sum being provisionally assessed on an equitable basis; |
| --- | --- |

—

in any event, award EUR 30 000 in respect of compensation for the non-material and material damage suffered by the applicant, that sum being provisionally assessed on an equitable basis;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments:

The applicant, at the time a temporary agent at the Commission in the Office for Infrastructure and Logistics – Brussels (OIB), applied for the post of lawyer in the sector of buildings policy in the OIB. By her action, she seeks annulment of the decisions rejecting her application and appointing another person to the post in question and compensation for the alleged non-material and material damage she suffered.

In support of her action, the applicant relies on the failure to have regard for the interests of the service and infringement of the general principles of impartiality, objectivity, non-discrimination, transparency and the obligation to give reasons and an abuse of due process. The applicant submits that the selection of the person appointed to the post in question was decided without any statutory procedure and without being preceded by any comparative examination of the merits of that person with those of the applicant. In the same context, the applicant alleges a manifest error of assessment and infringement of the duty to have regard for the interests of officials and good administration. The applicant also alleges infringement of the general principle of equal treatment by reference to the fact that all the temporary and auxiliary agents of OIB, whose contracts expired on 1 May 2004, remained in OIB beyond that date with the exception of the applicant.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/34 |
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5.3.2005

EN

Official Journal of the European Union

C 57/34

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Action brought on 23 December 2004 by Belfass against the Council of the European Union

(Case T-495/04)

(2005/C 57/59)

Language of the case: French

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 23 December 2004 by Belfass, established in Brussels (Belgium), represented by Lucas Vogel, lawyer.

The applicant claims that the Court should:

| — | annul the decision adopted by the General Secretariat of the Council of the European Union rejecting the two tenders entered by the applicant under call for tenders UCA 033/04 for the award of a contract for cleaning and maintenance services of two office buildings in Brussels; |
| --- | --- |

—

annul the decision adopted by the General Secretariat of the Council of the European Union rejecting the two tenders entered by the applicant under call for tenders UCA 033/04 for the award of a contract for cleaning and maintenance services of two office buildings in Brussels;

| — | order the defendant to pay the sum of EUR 1 481 317.65 together with interest, calculated at the rate of 7 % per annum, from the date on which the present action was brought, expressly subject to future increase, reduction or determination; |
| --- | --- |

—

order the defendant to pay the sum of EUR 1 481 317.65 together with interest, calculated at the rate of 7 % per annum, from the date on which the present action was brought, expressly subject to future increase, reduction or determination;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments:

The applicant in the present case, a company specialising in the cleaning of offices which has been responsible since 1 January 1998 for the cleaning of certain offices of the General Secretariat of the Council, challenges the rejection by the defendant of two tenders submitted by the applicant in respect of a tender relating to the conclusion of a contract for cleaning and general services to be performed in the ‘Woluwe Heights’ (lot 1) and ‘Frère Orban’ (lot 2) buildings.

In support of its claims, the applicant alleges:

| — | the existence in the present case of a manifest error of assessment in that, in order to reject the tender relating to lot 1, the defendant claims that the average hourly rate under that tender is less than the minimum wage laid down by the Union générale belge du nettoyage (Belgian General Cleaning Union) for category 1A, on 1 July 2004, whereas a precise analysis of the figures in the applicant's tender shows that the average hourly rate thereunder is above the minimum figure set by the Union générale belge du nettoyage; |
| --- | --- |

—

the existence in the present case of a manifest error of assessment in that, in order to reject the tender relating to lot 1, the defendant claims that the average hourly rate under that tender is less than the minimum wage laid down by the Union générale belge du nettoyage (Belgian General Cleaning Union) for category 1A, on 1 July 2004, whereas a precise analysis of the figures in the applicant's tender shows that the average hourly rate thereunder is above the minimum figure set by the Union générale belge du nettoyage;

| — | infringement of the principles of sound administration and non-discrimination and the existence in the present case of a manifest error of assessment in that the tender relating to lot 2 was rejected, without further consideration, on the sole ground that the total number of hours of work under that tender was less by more than 12.5 % than the average number of hours under the other tenders received for the contract in question, whereas by using that criterion the contested decision favours the most expensive tenders providing for invoicing of an elevated number of hours, without any objective purpose. |
| --- | --- |

—

infringement of the principles of sound administration and non-discrimination and the existence in the present case of a manifest error of assessment in that the tender relating to lot 2 was rejected, without further consideration, on the sole ground that the total number of hours of work under that tender was less by more than 12.5 % than the average number of hours under the other tenders received for the contract in question, whereas by using that criterion the contested decision favours the most expensive tenders providing for invoicing of an elevated number of hours, without any objective purpose.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/35 |
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5.3.2005

EN

Official Journal of the European Union

C 57/35

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Action brought on 23 December 2004 by Zhejiang Xinan Chemical Industrial Group Co., Ltd against the Council of the European Union

(Case T-498/04)

(2005/C 57/60)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 23 December 2004 by Zhejiang Xinan Chemical Industrial Group Co., Ltd, Jiande City (People's Republic of China), represented by D. Horovitz, lawyer with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Article 1 of the contested Regulation in so far as it concerns the applicant; |
| --- | --- |

—

annul Article 1 of the contested Regulation in so far as it concerns the applicant;

| — | order the Council to pay the costs of the applicant in the present proceeding. |
| --- | --- |

—

order the Council to pay the costs of the applicant in the present proceeding.

Pleas in law and main arguments

The applicant seeks the annulment of Council Regulation (EC) No 1683/2004 of 24 September 2004 imposing a definitive anti-dumping duty on imports of glyphosate originating in the People's Republic of China (1), insofar as it concerns the applicant. The applicant submits that the Community institutions failed to apply properly the market economy treatment test to it.

In support of its application, the applicant invokes a manifest error of assessment in the application of Article 2(7)(c) of Regulation No 384/96 (2), as amended.

The applicant claims that the Council did not state in the contested regulation that there has been significant state interference in the applicant's business decisions. Also, the Council did not apply, according to the applicant, the right threshold to assess whether the criteria set in Article 2(7)(c) were fulfilled. The applicant contests that the alleged right of the state to intervene in the company's business decisions, without any materialisation or exercise of that alleged right, was a factor from which it could be inferred that the first criterion of Article 2(7)(c) was not fulfilled. The applicant submits furthermore that the evidence supplied clearly established that the applicant's decisions on prices, costs and inputs responded to market signals reflecting supply and demand, and that there was no state interference in this regard.

Second, the applicant invokes the failure to comply with paragraph 6 of annex II of the WTO's anti-dumping agreement and with Article 18(4) of Regulation No 384/96, as well as with the obligation to protect the applicant's legal rights. The applicant claims that its legal and procedural rights were infringed by not informing it of the reasons for the rejection of its evidence, by failing to grant it an opportunity to provide further information and by failing to publish the reasons for the rejection of the representations that the applicant made.

Finally, the applicant invokes a violation of its legitimate expectations in that the Community institutions failed to come to an expeditious conclusion on the claim for market economy status of the applicant.

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(1)  OJ L 303, p. 1

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

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/36 |
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5.3.2005

EN

Official Journal of the European Union

C 57/36

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Action brought on 23 December 2004 by Hammarplast AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-499/04)

(2005/C 57/61)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 23 December 2004 by Hammarplast, established in Tingsryd (Sweden), represented by R. Almaraz Palmero, lawyer.

Steninge Slott AB, established in Märsta (Sweden), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| 1. | annul the Decision of the Second Board of Appeal of the OHIM of 25 October 2004 in case R 394/2003-2; |
| --- | --- |

1.

annul the Decision of the Second Board of Appeal of the OHIM of 25 October 2004 in case R 394/2003-2;

| 2. | order the office to refuse the registration of the term STENINGE SLOTT as a Community trade mark in respect of the goods in class 21 for which registration has been accepted; |
| --- | --- |

2.

order the office to refuse the registration of the term STENINGE SLOTT as a Community trade mark in respect of the goods in class 21 for which registration has been accepted;

| 3. | order the office and the intervening party, Steninge Slott AB, to pay all the costs of the dispute before the Court of First Instance, including those relating to the procedure before the Second Board of Appeal. |
| --- | --- |

3.

order the office and the intervening party, Steninge Slott AB, to pay all the costs of the dispute before the Court of First Instance, including those relating to the procedure before the Second Board of Appeal.

Pleas in law and main arguments

| Applicant for Community trade mark: | Steninge Slott AB |
| --- | --- |
| Community trade mark concerned: | Word mark ‘STENINGE SLOTT’ for products in class 21 (design products of glass etc.) |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Trade mark or sign cited in opposition: | National mark ‘STENINGE KERAMIK’ for products in the same class |
| Decision of the Opposition Division: | Refusal of registration |
| Decision of the Board of Appeal: | Appeal allowed |
| Pleas in law: | Violation of Article 8 paragraph 1 b) of Regulation 40/94 (1) |

Applicant for Community trade mark:

Steninge Slott AB

Community trade mark concerned:

Word mark ‘STENINGE SLOTT’ for products in class 21 (design products of glass etc.)

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Trade mark or sign cited in opposition:

National mark ‘STENINGE KERAMIK’ for products in the same class

Decision of the Opposition Division:

Refusal of registration

Decision of the Board of Appeal:

Appeal allowed

Pleas in law:

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

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

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/36 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/36

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Action brought on 24 December 2004 by Stéphane Lopparelli against Commission of the European Communities

(Case T-502/04)

(2005/C 57/62)

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 24 December 2004 by Stéphane Lopparelli, residing in Brussels, represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision on the award to the applicant of priority points for the 2003 promotion procedure and the decision not to include his name on the list of officials promoted to Grade A5 in that procedure; |
| --- | --- |

—

annul the decision on the award to the applicant of priority points for the 2003 promotion procedure and the decision not to include his name on the list of officials promoted to Grade A5 in that procedure;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant relies, first, on breach of Articles 5, 7, 26, 43 and 45 of the Staff Regulations, and breach of the principle of correspondence between the grade and the post and the principle that officials should have reasonable career prospects. Secondly, the applicant pleads that no consideration of the comparative merits of all the officials of the same grade was carried out on a basis of equality, in breach of Articles 5, 7, 43 and 45 of the Staff Regulations and of the principle that officials should have reasonable career prospects.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/37 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/37

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Action brought on 27 December 2004 by José Pedro Pessoa e Costa against the Commission of the European Communities

(Case T-503/04)

(2005/C 57/63)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 December 2004 by José Pedro Pessoa e Costa, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission's decision of 9 October 2003 refusing to transfer him to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA); |
| --- | --- |

—

annul the Commission's decision of 9 October 2003 refusing to transfer him to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, who is a Commission official, applied for a transfer to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). His application having been rejected, the applicant brought an action before the Court (1) which resulted in annulment of the contested measure. (2) Following that annulment, the defendant took a fresh decision on the applicant's application and rejected it again by the decision contested by the present action.

In support of his action, the applicant alleges infringement of Article 233 EC, of the principle of proportionality and of the duty to state reasons, as well as an error in law. The applicant submits that the contested decision merely repeats the arguments put forward in the first decision to reject his application, which was annulled by the Court, and does not contain any explanation making it possible to ascertain whether the rejection of the applicant's application is based on an assessment of the various interests involved, as was required by the Court in its judgment. Moreover, the Commission wrongly took the view that the applicant's transfer would result in the closure of a disciplinary procedure against him. Finally, the applicant submits that the contested decision is unlawful because the Commission took on the role of exercising the discretion of the EMCDDA Selection Board by claiming, in its reply to his complaint, that it could not be ruled out that the result of the EMCDDA's selection procedure would have been different if the Selection Board had been informed of the accusations against the applicant.

---

(1)  Case T-166/02 (OJ C 180 of 27.7.2002, p. 32).

(2)  Judgment of the Court of 13 March 2003 (OJ C 124 of 24.5.2003, p. 20).

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/37 |
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5.3.2005

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Official Journal of the European Union

C 57/37

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Action brought on 29 December 2004 by Navigazione Libera del Golfo S.p.A. against the Commission of the European Communities

(Case T-504/04)

(2005/C 57/64)

Language of the case: Italian

An action against the European Commission for the annulment of the decision adopted on 16 March 2004 (1), pursuant to the first paragraph of Article 88(2) EC and Article 86(2) EC, relating to the authorisation of the aid scheme paid by Italy to the public maritime transport undertaking Caremar (Gruppo Tirrenia) was brought before the Court of First Instance of the European Communities on 29 December 2004 by Navigazione Libera del Golfo S.p.A. (NLG), established in Naples, represented by S. Ravenna, lawyer.

The applicant claims that the Court should:

| 1. | annul Article 3(1) of that decision in so far as it authorises aid paid to Caremar for the passenger transport services by ship on the Naples Beverello – Capri route with effect from 1 January 1992, and order repayment of the aid unlawfully received from 6 August 1989; |
| --- | --- |

1.

annul Article 3(1) of that decision in so far as it authorises aid paid to Caremar for the passenger transport services by ship on the Naples Beverello – Capri route with effect from 1 January 1992, and order repayment of the aid unlawfully received from 6 August 1989;

| 2. | annul Article 3(2)(a) of the decision in so far as it orders the annulment of the aid for scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route with effect from 1 September 2004 instead of 6 August 1989 and at the same time ordering reimbursement of the aid unlawfully received by Caremar since the latter date; |
| --- | --- |

2.

annul Article 3(2)(a) of the decision in so far as it orders the annulment of the aid for scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route with effect from 1 September 2004 instead of 6 August 1989 and at the same time ordering reimbursement of the aid unlawfully received by Caremar since the latter date;

| 3. | order performance of the obligation to reduce Caremar's ‘fast’ passenger transport capacity, by ordering cessation of the relevant services with effect from 1 January 2005; |
| --- | --- |

3.

order performance of the obligation to reduce Caremar's ‘fast’ passenger transport capacity, by ordering cessation of the relevant services with effect from 1 January 2005;

| 4. | in the alternative, in so far as the Court of First Instance does not annul Article 3(1) in the terms stated in 1. above:






  (a) | order repayment of the aid unlawfully received by Caremar in the 29 months from 6 August 1989 to 1 January 1992, the effective date of the authorisation; |
| --- | --- | --- |

4.

in the alternative, in so far as the Court of First Instance does not annul Article 3(1) in the terms stated in 1. above:

(a)

order repayment of the aid unlawfully received by Caremar in the 29 months from 6 August 1989 to 1 January 1992, the effective date of the authorisation;

| (b) | annul Article 3(2)(d) in so far as it fails to lay down a requirement to disclose the costs and associated losses occasioned by the PSO (public service obligations) imposed on Caremar, and the amount of the aid allocated annually; |
| --- | --- |

(b)

annul Article 3(2)(d) in so far as it fails to lay down a requirement to disclose the costs and associated losses occasioned by the PSO (public service obligations) imposed on Caremar, and the amount of the aid allocated annually;

| (c) | annul Article 5 in so far as it fails to lay down a requirement of prior notification of the aid connected to the alteration of the prices charged by Caremar, including group discounts; |
| --- | --- |

(c)

annul Article 5 in so far as it fails to lay down a requirement of prior notification of the aid connected to the alteration of the prices charged by Caremar, including group discounts;

| 5. | order the Commission to pay the costs of the proceedings, subsistence expenses and remuneration of agents, advisers or lawyers. |
| --- | --- |

5.

order the Commission to pay the costs of the proceedings, subsistence expenses and remuneration of agents, advisers or lawyers.

Pleas in law and main arguments

The applicant company, which, following the meeting of the Regione Campania of 14 December 2001, was charged with specific public service obligations (PSOs) without any compensation, challenges the Commission decision of 16 March 2004 relating to the State aid paid by Italy to the shipping companies Adriatica, Caremar, Siremar, Saremar and Toremar (Gruppo Tirrenia) (not published in the Official Journal of the European Union), as regards in particular the provisions affecting the Naples Molo Beverello – Capri route, laid down by Article 3(1) and 3(2)(a) of the contested decision.

Those provisions:

| — | authorise the aid granted to Caremar for passenger transport services by ship on the Naples Beverello – Capri route, with effect from 1 January 1992, and |
| --- | --- |

—

authorise the aid granted to Caremar for passenger transport services by ship on the Naples Beverello – Capri route, with effect from 1 January 1992, and

| — | annul aid in respect of scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route, but with effect from 1 December 2004. |
| --- | --- |

—

annul aid in respect of scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route, but with effect from 1 December 2004.

According to the applicant, the authorisation of the aid intended to compensate for the associated losses occasioned by the PSOs imposed on Caremar, a public company, is unlawful in so far as the conditions imposed by the rules are not satisfied in the present case. In that regard, it claims that there has been an infringement of Article 86(2) EC, Council Regulation (EEC) No 3577/1992 of 7 December 1992, the duty to provide a sufficient and consistent statement of reasons.

The applicant submits specifically that:

| — | on the Naples – Capri route there has always been competition from two private shipping lines (NLG and SNAV) which provide services which are very similar if not identical throughout the year; given the effect of free-market forces, the imposition of PSOs on Caremar is therefore wholly unnecessary; |
| --- | --- |

—

on the Naples – Capri route there has always been competition from two private shipping lines (NLG and SNAV) which provide services which are very similar if not identical throughout the year; given the effect of free-market forces, the imposition of PSOs on Caremar is therefore wholly unnecessary;

| — | notwithstanding that, the services provided by the two private companies have also been the subject of a contract governed by public law imposed by the Regione Campania for the purpose of imposing specific PSOs on the subject of times, prices, frequency, continuity, type of vessel and service quality, which are similar or even identical to the PSOs imposed on Caremar; |
| --- | --- |

—

notwithstanding that, the services provided by the two private companies have also been the subject of a contract governed by public law imposed by the Regione Campania for the purpose of imposing specific PSOs on the subject of times, prices, frequency, continuity, type of vessel and service quality, which are similar or even identical to the PSOs imposed on Caremar;

| — | in performing those services, Caremar incurs huge operating losses compensated, since 1974, by substantial aid defined as ‘annual financial balancing subsidies’ (pursuant to express decision of the Regione Campania, the private companies may not receive any subsidies); |
| --- | --- |

—

in performing those services, Caremar incurs huge operating losses compensated, since 1974, by substantial aid defined as ‘annual financial balancing subsidies’ (pursuant to express decision of the Regione Campania, the private companies may not receive any subsidies);

| — | since the cost of the PSOs imposed on Caremar was not fixed on the basis of a public invitation to tender, in assessing the propriety of the subsidies paid to the public company, the Commission should have analysed the associated losses by referring to and taking into consideration the operating costs of a medium-sized company supplying similar services (for example, the costs borne by the private undertakings competing on the same Naples – Capri route). |
| --- | --- |

—

since the cost of the PSOs imposed on Caremar was not fixed on the basis of a public invitation to tender, in assessing the propriety of the subsidies paid to the public company, the Commission should have analysed the associated losses by referring to and taking into consideration the operating costs of a medium-sized company supplying similar services (for example, the costs borne by the private undertakings competing on the same Naples – Capri route).

Lastly, the applicant claims that the Commission has misused its powers, in so far as it introduced in the contested decision criteria for subdividing the market which, by making a temporal distinction between the services supplied by ship and those provided by fast vessel, achieved the objective of authorising an aid scheme in favour of transport services provided by ship by Caremar, a scheme which would never otherwise have been declared compatible, given the existence of competition from the private companies which operate in conditions to a certain extent comparable with the passenger transport services.

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(1)  Decision not yet published in the Official Journal.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/39 |
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C 57/39

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Action brought on 4 January 2005 by Guido Strack against the Commission of the European Communities

(Case T-4/05)

(2005/C 57/65)

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 4 January 2005 by Guido Strack, residing in Wasserliesch (Germany), represented by R. Schmitt, lawyer.

The applicant claims that the Court should:

| — | annul both the decision of 5 February 2004 to close the OLAF investigation OF/2002/0356 and the final case report on which that decision was based (NT/sr D(2003)-AC-19723-01687 of 5 February 2004); |
| --- | --- |

—

annul both the decision of 5 February 2004 to close the OLAF investigation OF/2002/0356 and the final case report on which that decision was based (NT/sr D(2003)-AC-19723-01687 of 5 February 2004);

| — | order the Commission to reopen the investigation, draw up a new final case report and pay all the costs of the judicial proceedings and all other expenses. |
| --- | --- |

—

order the Commission to reopen the investigation, draw up a new final case report and pay all the costs of the judicial proceedings and all other expenses.

Pleas in law and main arguments

The applicant, who is a Commission official, informed the Director General of the European Anti-Fraud Office (OLAF) that, while performing his duties at the Official Publications Office, he had become of aware of facts indicating the existence of serious irregularities. The investigation opened by OLAF on the basis of that information was closed by the contested decision.

The applicant submits, first of all, that his action is admissible because the contested decision has binding legal effect on him in that it deprives him of the status of ‘whistleblower’.

In support of his action, he submits that OLAF failed to investigate fully the facts of which it had been informed and adopted an arbitrary decision.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/39 |
| --- | --- | --- | --- |

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C 57/39

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Action brought on 11 January 2005 by the Commission of the European Communities against Parthenon A.E.

(Case T-7/05)

(2005/C 57/66)

Language of the Case: Greek

An action against Parthenon – Anonimos Etairia Ikodomikon – Touristikon – Viomikhanikon – Emporikon kai Exagogikon Ergasion was brought before the Court of First Instance of the European Communities on 11 January 2005 by the Commission of the European Communities, represented by Dimitrios Triantafillou, Legal Adviser, assisted by Nikolaos Korogiannakis, lawyer.

The applicant claims that the Court should:

| 1. | order the defendant to pay the sum of EUR 325 452,80, which corresponds to EUR 259 800 by way of principal sum and EUR 65 652,80 in default interest up to 10 January 2005; |
| --- | --- |

1.

order the defendant to pay the sum of EUR 325 452,80, which corresponds to EUR 259 800 by way of principal sum and EUR 65 652,80 in default interest up to 10 January 2005;

| 2. | order the defendant to pay in addition interest of EUR 71,18 per day until the debt has been settled in full; |
| --- | --- |

2.

order the defendant to pay in addition interest of EUR 71,18 per day until the debt has been settled in full;

| 3. | order the defendant to pay the costs. |
| --- | --- |

3.

order the defendant to pay the costs.

Pleas in law and main arguments

The European Community, represented by the European Commission, concluded with the defendant, as coordinator and member of a joint venture, a contract that formed part of implementation of the provisions of the specific programme of ‘research, technological development and demonstration in the field of agriculture and fisheries’. More specifically, the contract was concerned with the carrying out of a project entitled ‘development of a new process in fruit cleansing and peeling’ and was to be performed within a period of 24 months from 1 September 1998. Under the contract the Commission entered into the obligation to make a financial contribution towards the proper execution of the project amounting to 50 % of the allowable costs, the maximum contribution being ECU 433 000.

Since the work had not been completed on the prescribed date (31 August 2000) and the defendant had not lodged a scientific report and a cost statement, as stipulated by the contract, the Commission decided to terminate the contract with effect from 24 February 2001. The subsequent correspondence between the defendant and the Commission did not, in the Commission's view, reveal new matters which could alter the content of the Commission's decision.

By its action, the Commission seeks reimbursement of the sum of EUR 259 800, which it paid to the defendant as an advance in respect of its financial contribution to the performance of the work, and payment of the interest due on that sum, in accordance with the relevant provisions of Greek law which is applicable under the contract.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/40 |
| --- | --- | --- | --- |

5.3.2005

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Official Journal of the European Union

C 57/40

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Action brought on 18 January 2005 by Wim De Waele against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-15/05)

(2005/C 57/67)

Language of the case: Dutch

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 18 January 2005 by Wim De Waele, residing in Bruges (Belgium), represented by Paul Maeyaert and Samuel Granata.

The applicant claims that the Court should:

| — | alter the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 November 2004 (Case R 820/2004-1) and annul it in part, namely in so far as it concerns the goods ‘sausage casings for charcuterie’ in Class 18 or at least in so far as it concerns the goods ‘sausage casings for charcuterie intended for professional customers’; |
| --- | --- |

—

alter the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 November 2004 (Case R 820/2004-1) and annul it in part, namely in so far as it concerns the goods ‘sausage casings for charcuterie’ in Class 18 or at least in so far as it concerns the goods ‘sausage casings for charcuterie intended for professional customers’;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

| Community trade mark sought: | Three-dimensional mark in the shape of an oblong with grooves twisting to the left and to the right which create diamond-shaped geometrical patterns, for goods in Classes 18, 29 and 30 – Application No 3 050 531. |
| --- | --- |
| Decision of the examiner: | Refusal of the application. |
| Decision of the Board of Appeal: | Dismissal of the appeal. |
| Pleas in law: | Infringement of Article 7(1)(b) of Regulation (EC) No 40/94. |

Community trade mark sought:

Three-dimensional mark in the shape of an oblong with grooves twisting to the left and to the right which create diamond-shaped geometrical patterns, for goods in Classes 18, 29 and 30 – Application No 3 050 531.

Decision of the examiner:

Refusal of the application.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

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

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/40 |
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Removal from the Register of Case T-313/01 R (1)

(2005/C 57/68)

(Language of the case: Greek)

By order of 25 November 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-313/01 R. v Commission of the European Communities.

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(1)  OJ C 44 of 16.2.2002.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/40 |
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Removal from the Register of Case T-386/03 (1)

(2005/C 57/69)

(Language of the case: German)

By order of 15 December 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-386/03, Deutsche Telekom v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

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(1)  OJ C 35 of 7.2.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/41 |
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5.3.2005

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C 57/41

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Removal from the Register of Case T-103/04 (1)

(2005/C 57/70)

(Language of the case: French)

By order of 23 November 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-103/04, Peter Ritzmann v Commission of the European Communities.

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(1)  OJ C 106 of 30.4.2004.

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| 5.3.2005 | EN | Official Journal of the European Union | C 57/41 |
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5.3.2005

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Removal from the Register of Case T-324/04 R

(2005/C 57/71)

(Language of the case: French)

By order of 15 December 2004, the President of the Second Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-324/04 R, F v Commission of the European Communities.

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III Notices

| 5.3.2005 | EN | Official Journal of the European Union | C 57/42 |
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5.3.2005

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C 57/42

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(2005/C 57/72)

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

OJ C 45, 19.2.2005

Past publications

OJ C 31, 5.2.2005

OJ C 19, 22.1.2005

OJ C 6, 8.1.2005

OJ C 314, 18.12.2004

OJ C 300, 4.12.2004

OJ C 273, 6.11.2004

These texts are available on:

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

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

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

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

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