# Official Journal C 10/14 J

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 10 |
| | |
| English edition | Information and Notices | Volume 4914 January 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 10

English edition

Information and Notices

Volume 4914 January 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 010/1 | Judgment of the Court (Grand Chamber) of 8 November 2005 in Case C-293/02: Reference for a preliminary ruling from the Royal Court of Jersey Jersey Produce Marketing Organisation Ltd v States of Jersey and Others (Legislation on the export of potatoes from Jersey to the United Kingdom — 1972 Act of Accession — Protocol No 3 on the Channel Islands and the Isle of Man — Regulation No 706/73 — Articles 23 EC, 25 EC and 29 EC — Charges having an effect equivalent to customs duties — Measures having an effect equivalent to quantitative restrictions) | 1 |
| 2006/C 010/2 | Judgment of the Court (First Chamber) of 10 November 2005 in Case C-307/03: Italian Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Decision 2003/364/EC — Arable crops — Spot checks — Repayment of aid in respect of non-eligible areas — False declarations) | 2 |
| 2006/C 010/3 | Judgment of the Court (First Chamber) of 10 November 2005 in Case C-432/03: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 28 EC and 30 EC — Directive 89/106/EEC — Decision 3052/95/EC — National approval procedure — Failure to take account of approval certificates drawn up in other Member States — Construction products) | 2 |
| 2006/C 010/4 | Judgment of the Court (Grand Chamber) of 8 November 2005 in Case C-443/03, Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) Götz Leffler v Berlin Chemie AG (Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — No translation of the document — Consequences) | 2 |
| 2006/C 010/5 | Judgment of the Court (First Chamber) of 10 November 2005 in Case C-29/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Articles 8, 11(1) and 15(2) of Directive 92/50/EEC — Procedure for the award of public service contracts — Contract relating to waste disposal — Absence of call for tenders) | 3 |
| 2006/C 010/6 | Judgment of the Court (First Chamber) of 10 November 2005 in Case C-197/04: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Tax on the consumption of manufactured tobacco — Separate taxation of cigarettes and rolls of tobacco West Single Packs) | 3 |
| 2006/C 010/7 | Judgment of the Court (Second Chamber) of 10 November 2005 in Case C-316/04, Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) Stichting Zuid-Hollandse Milieufederatie v College voor de toelating van bestrijdingsmiddelen (Authorisation for the placing of plant protection and biocidal products on the market — Directive 91/414/EEC — Article 8 — Directive 98/8/EC — Article 16 — Power of Member States during the transitional period) | 4 |
| 2006/C 010/8 | Judgment of the Court (Fourth Chamber) of 10 November 2005 in Case C-385/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2001/16/EC — Trans-European Networks — Interoperability of the trans-European conventional rail system — Failure to transpose within the period prescribed) | 4 |
| 2006/C 010/9 | Order of the Court (Sixth Chamber) of 15 September 2005 in Case C-112/04 P: Marlines SA v Commission of the European Communities (Appeal — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Competition — Agreements, decisions and concerted practices — Agreements between undertakings — Proof of an undertaking's participation in business meetings with an anti-competitive purpose) | 5 |
| 2006/C 010/0 | Order of the Court (Fourth Chamber) of 6 October 2005 in Case C-328/04: reference for a preliminary ruling from the Fővárosi Bíróság in the criminal proceedings against Attila Vajnai (Reference for a preliminary ruling — Interpretation of the principle of non-discrimination — National provision prohibiting, on pain of criminal prosecution, the use in public of a symbol consisting of a five-point red star — Lack of jurisdiction of the Court) | 5 |
| 2006/C 010/1 | Order of the Court (Fifth Chamber) of 16 September 2005 in Case C-342/04 P: Jürgen Schmoldt and Others v Commission of the European Communities (Appeal — Construction products — Harmonised standards and technical regulations — Thermal insulation standards) | 5 |
| 2006/C 010/2 | Order of the Court (Third Chamber) of 13 October 2005 in Case C-2/05 SA: Names BV v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities) | 6 |
| 2006/C 010/3 | Order of the Court (Third Chamber) of 13 October 2005 in Case C-3/05 SA: Statistical Agency of the Republic of Kazakhstan v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities) | 6 |
| 2006/C 010/4 | Order of the Court (Third Chamber) of 13 October 2005 in Case C-4/05 SA: Alt Ylmy – Ömümcilik Paydarlar Jemgyyeti v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities) | 7 |
| 2006/C 010/5 | Order of the Court (Fifth Chamber) of 6 October 2005 in Case C-256/05: reference for a preliminary ruling from the Telekom-Control-Kommission in Telekom Austria AG, formerly Post & Telekom Austria AG (Questions referred for a preliminary ruling — Jurisdiction of the Court — Reference to the Court — Electronic communications — Networks and services — Common regulatory framework — Market for transit services) | 7 |
| 2006/C 010/6 | Case C-368/05 P: Appeal brought on 5 October 2005 by Polyelectrolyte Producers Group against the order made on 22 July 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-376/04 between Polyelectrolyte Producers Group and Council of the European Union and Commission of the European Communities | 7 |
| 2006/C 010/7 | Case C-371/05: Action brought on 7 October 2005 by the Commission of the European Communities against the Italian Republic | 8 |
| 2006/C 010/8 | Case C-376/05: Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of 26 July 2005 in A Brünsteiner GmbH v Bayerische Motorenwerke AG | 8 |
| 2006/C 010/9 | Case C-380/05: Reference for a preliminary ruling from the Consiglio di Stato by order of that court of 19 April 2005 in Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni | 9 |
| 2006/C 010/0 | Case C-381/05: Reference for a preliminary ruling from the Cour d'appel de Bruxelles by judgment of that court of 13 October 2005 in De Lantsheer Emmanuel v Comite Interprofessionnel du vin de Champagne (CIVC) and Veuve Clicquot Ponsardin | 10 |
| 2006/C 010/1 | Case C-383/05: Reference for a preliminary ruling from the Cour de cassation de Belgique by judgment of that court of 7 October 2005 in Raffaele Talotta v État belge | 11 |
| 2006/C 010/2 | Case C-386/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 28 September 2005 in Color Drack GmbH v Lexx International Vertriebs GmbH | 11 |
| 2006/C 010/3 | Case C-389/05: Action brought on 27 October 2005 by the Commission of the European Communities against the French Republic | 12 |
| 2006/C 010/4 | Case C-391/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 30 August 2005 in Jan de Nul N.V. v Hauptzollamt Oldenburg | 12 |
| 2006/C 010/5 | Case C-392/05: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) by judgment of that court of 30 June 2005 in proceedings between Georgios Alevizos and the Minister for Economic Affairs | 13 |
| 2006/C 010/6 | Case C-393/05: Action brought on 4 November 2005 by the Commission of the European Communities against the Republic of Austria | 13 |
| 2006/C 010/7 | Case C-395/05: Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 25 October 2005 in criminal proceedings against Antonello D'Antonio and Others | 14 |
| 2006/C 010/8 | Case C-397/05: Reference for a preliminary ruling from the Tribunale di Palermo by order of that court of 19 October 2005 in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola | 14 |
| 2006/C 010/9 | Case C-403/05: Action brought on 17 November 2005 by the European Parliament against the Commission of the European Communities | 14 |
| 2006/C 010/0 | Case C-404/05: Action brought on 17 November 2005 by the Commission of the European Communities against the Federal Republic of Germany | 15 |
| 2006/C 010/1 | Case C-409/05: Action brought on 21 November 2005 by the Commission of the European Communities against the Hellenic Republic | 16 |
| 2006/C 010/2 | Case C-414/05: Action brought on 23 November 2005 by the Commission of the European Communities against the French Republic | 16 |
| 2006/C 010/3 | Case C-416/05: Action brought on 24 November 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 17 |
| 2006/C 010/4 | Case C-417/05 P: Appeal brought on 24 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03 M.D. Fernández Gómez v Commission of the European Communities | 17 |
| 2006/C 010/5 | Case C-424/05 P: Appeal brought on 29 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-72/04 between S. Hosman-Chevalier and the Commission of the European Communities | 18 |
| | COURT OF FIRST INSTANCE |
| 2006/C 010/6 | Appeal chamber | 19 |
| 2006/C 010/7 | Case T-154/03: Judgment of the Court of First Instance of 17 November 2005 — Biofarma v OHIM (Community trade mark — Opposition proceedings — Earlier national word marks ARTEX — Application for Community word mark ALREX — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 19 |
| 2006/C 010/8 | Case T-275/03: Judgment of the Court of First Instance of 9 November 2005 — Focus Magazin Verlag GmbH v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark Hi-FOCuS — Earlier national word mark FOCUS — Scope of the examination conducted by the Board of Appeal — Assessment of evidence produced before the Board of Appeal) | 19 |
| 2006/C 010/9 | Case T-145/04: Judgment of the Court of First Instance of 15 November 2005 — Righini v Commission (Officials — Temporary staff — Classification in grade and in step — Classification in the higher career grade) | 20 |
| 2006/C 010/0 | Case T-28/02: Order of the Court of First Instance of 17 October 2005 — First Data Corp. and Others v Commission of the European Communities (Competition — Article 81 EC — Visa payment card scheme — The no-acquiring-without-issuing rule — Negative clearance — Rule abolished during the proceedings — Legal interest in bringing proceedings — No need to adjudicate) | 20 |
| 2006/C 010/1 | Case T-124/04: Order of the Court of First Instance of 26 October 2005 — Ouariachi v Commission (Action for damages — Non-contractual liability of the Community — Damage caused by a member of staff in the exercise of his functions — Absence of causal link) | 21 |
| 2006/C 010/2 | Case T-89/05: Order of the Court of First Instance of 27 October 2005 — GAEC Salat v Commission (Action for failure to act — Complaint concerning the protected designation of origin Salers — Regulation (EC) No 828/2003 — Definition of position by the Commission — Manifest inadmissibility) | 21 |
| 2006/C 010/3 | Case T-374/05: Action brought on 6 October 2005 — Schierhorst v Commission | 21 |
| 2006/C 010/4 | Case T-377/05: Action brought on 5 October 2005 — Seegmuller v Commission | 22 |
| 2006/C 010/5 | Case T-378/05: Action brought on 7 October 2005 — Marenco v Commission | 22 |
| 2006/C 010/6 | Case T-379/05: Action brought on 14 October 2005 — Zuffa/OHIM | 23 |
| 2006/C 010/7 | Case T-380/05: Action brought on 10 October 2005 — Buendía Sierra v Commission | 24 |
| 2006/C 010/8 | Case T-381/05: Action brought on 10 October 2005 — Di Bucci v Commission | 24 |
| 2006/C 010/9 | Case T-386/05: Action brought on 10 October 2005 — Wilms v Commission | 25 |
| 2006/C 010/0 | Case T-387/05: Action brought on 13 October 2005 — Chatziioannidou v Commission | 25 |
| 2006/C 010/1 | Case T-388/05: Action brought on 20 October 2005 — Grünheid v Commission | 26 |
| 2006/C 010/2 | Case T-389/05: Action brought on 20 October 2005 — Ole Eistrup v European Parliament | 26 |
| 2006/C 010/3 | Case T-393/05: Action brought on 17 October 2005 — Pickering v Commission | 27 |
| 2006/C 010/4 | Case T-394/05: Action brought on 17 October 2005 — Valero Jordana v Commission | 27 |
| 2006/C 010/5 | Case T-398/05: Action brought on 7 November 2005 — Tesoka v European Foundation for the Improvement of Living and Working Conditions | 28 |
| 2006/C 010/6 | Case T-399/05: Action brought on 21 October 2005 — Wils v European Parliament | 28 |
| 2006/C 010/7 | Case T-403/05: Action brought on 15 November 2005 — MyTravel/Commission | 29 |
| 2006/C 010/8 | Case T-406/05: Action brought on 9 November 2005 — Alessandro Cavallaro v Commission of the European Communities | 30 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 010/1

Judgment of the Court (Grand Chamber) of 8 November 2005 in Case C-293/02: Reference for a preliminary ruling from the Royal Court of Jersey Jersey Produce Marketing Organisation Ltd v States of Jersey and Others (Legislation on the export of potatoes from Jersey to the United Kingdom — 1972 Act of Accession — Protocol No 3 on the Channel Islands and the Isle of Man — Regulation No 706/73 — Articles 23 EC, 25 EC and 29 EC — Charges having an effect equivalent to customs duties — Measures having an effect equivalent to quantitative restrictions)

1

2006/C 010/2

Judgment of the Court (First Chamber) of 10 November 2005 in Case C-307/03: Italian Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Decision 2003/364/EC — Arable crops — Spot checks — Repayment of aid in respect of non-eligible areas — False declarations)

2

2006/C 010/3

Judgment of the Court (First Chamber) of 10 November 2005 in Case C-432/03: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 28 EC and 30 EC — Directive 89/106/EEC — Decision 3052/95/EC — National approval procedure — Failure to take account of approval certificates drawn up in other Member States — Construction products)

2

2006/C 010/4

Judgment of the Court (Grand Chamber) of 8 November 2005 in Case C-443/03, Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) Götz Leffler v Berlin Chemie AG (Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — No translation of the document — Consequences)

2

2006/C 010/5

Judgment of the Court (First Chamber) of 10 November 2005 in Case C-29/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Articles 8, 11(1) and 15(2) of Directive 92/50/EEC — Procedure for the award of public service contracts — Contract relating to waste disposal — Absence of call for tenders)

3

2006/C 010/6

Judgment of the Court (First Chamber) of 10 November 2005 in Case C-197/04: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Tax on the consumption of manufactured tobacco — Separate taxation of cigarettes and rolls of tobacco West Single Packs)

3

2006/C 010/7

Judgment of the Court (Second Chamber) of 10 November 2005 in Case C-316/04, Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) Stichting Zuid-Hollandse Milieufederatie v College voor de toelating van bestrijdingsmiddelen (Authorisation for the placing of plant protection and biocidal products on the market — Directive 91/414/EEC — Article 8 — Directive 98/8/EC — Article 16 — Power of Member States during the transitional period)

4

2006/C 010/8

Judgment of the Court (Fourth Chamber) of 10 November 2005 in Case C-385/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2001/16/EC — Trans-European Networks — Interoperability of the trans-European conventional rail system — Failure to transpose within the period prescribed)

4

2006/C 010/9

Order of the Court (Sixth Chamber) of 15 September 2005 in Case C-112/04 P: Marlines SA v Commission of the European Communities (Appeal — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Competition — Agreements, decisions and concerted practices — Agreements between undertakings — Proof of an undertaking's participation in business meetings with an anti-competitive purpose)

5

2006/C 010/0

Order of the Court (Fourth Chamber) of 6 October 2005 in Case C-328/04: reference for a preliminary ruling from the Fővárosi Bíróság in the criminal proceedings against Attila Vajnai (Reference for a preliminary ruling — Interpretation of the principle of non-discrimination — National provision prohibiting, on pain of criminal prosecution, the use in public of a symbol consisting of a five-point red star — Lack of jurisdiction of the Court)

5

2006/C 010/1

Order of the Court (Fifth Chamber) of 16 September 2005 in Case C-342/04 P: Jürgen Schmoldt and Others v Commission of the European Communities (Appeal — Construction products — Harmonised standards and technical regulations — Thermal insulation standards)

5

2006/C 010/2

Order of the Court (Third Chamber) of 13 October 2005 in Case C-2/05 SA: Names BV v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities)

6

2006/C 010/3

Order of the Court (Third Chamber) of 13 October 2005 in Case C-3/05 SA: Statistical Agency of the Republic of Kazakhstan v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities)

6

2006/C 010/4

Order of the Court (Third Chamber) of 13 October 2005 in Case C-4/05 SA: Alt Ylmy – Ömümcilik Paydarlar Jemgyyeti v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities)

7

2006/C 010/5

Order of the Court (Fifth Chamber) of 6 October 2005 in Case C-256/05: reference for a preliminary ruling from the Telekom-Control-Kommission in Telekom Austria AG, formerly Post & Telekom Austria AG (Questions referred for a preliminary ruling — Jurisdiction of the Court — Reference to the Court — Electronic communications — Networks and services — Common regulatory framework — Market for transit services)

7

2006/C 010/6

Case C-368/05 P: Appeal brought on 5 October 2005 by Polyelectrolyte Producers Group against the order made on 22 July 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-376/04 between Polyelectrolyte Producers Group and Council of the European Union and Commission of the European Communities

7

2006/C 010/7

Case C-371/05: Action brought on 7 October 2005 by the Commission of the European Communities against the Italian Republic

8

2006/C 010/8

Case C-376/05: Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of 26 July 2005 in A Brünsteiner GmbH v Bayerische Motorenwerke AG

8

2006/C 010/9

Case C-380/05: Reference for a preliminary ruling from the Consiglio di Stato by order of that court of 19 April 2005 in Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni

9

2006/C 010/0

Case C-381/05: Reference for a preliminary ruling from the Cour d'appel de Bruxelles by judgment of that court of 13 October 2005 in De Lantsheer Emmanuel v Comite Interprofessionnel du vin de Champagne (CIVC) and Veuve Clicquot Ponsardin

10

2006/C 010/1

Case C-383/05: Reference for a preliminary ruling from the Cour de cassation de Belgique by judgment of that court of 7 October 2005 in Raffaele Talotta v État belge

11

2006/C 010/2

Case C-386/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 28 September 2005 in Color Drack GmbH v Lexx International Vertriebs GmbH

11

2006/C 010/3

Case C-389/05: Action brought on 27 October 2005 by the Commission of the European Communities against the French Republic

12

2006/C 010/4

Case C-391/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 30 August 2005 in Jan de Nul N.V. v Hauptzollamt Oldenburg

12

2006/C 010/5

Case C-392/05: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) by judgment of that court of 30 June 2005 in proceedings between Georgios Alevizos and the Minister for Economic Affairs

13

2006/C 010/6

Case C-393/05: Action brought on 4 November 2005 by the Commission of the European Communities against the Republic of Austria

13

2006/C 010/7

Case C-395/05: Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 25 October 2005 in criminal proceedings against Antonello D'Antonio and Others

14

2006/C 010/8

Case C-397/05: Reference for a preliminary ruling from the Tribunale di Palermo by order of that court of 19 October 2005 in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola

14

2006/C 010/9

Case C-403/05: Action brought on 17 November 2005 by the European Parliament against the Commission of the European Communities

14

2006/C 010/0

Case C-404/05: Action brought on 17 November 2005 by the Commission of the European Communities against the Federal Republic of Germany

15

2006/C 010/1

Case C-409/05: Action brought on 21 November 2005 by the Commission of the European Communities against the Hellenic Republic

16

2006/C 010/2

Case C-414/05: Action brought on 23 November 2005 by the Commission of the European Communities against the French Republic

16

2006/C 010/3

Case C-416/05: Action brought on 24 November 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

17

2006/C 010/4

Case C-417/05 P: Appeal brought on 24 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03 M.D. Fernández Gómez v Commission of the European Communities

M.D. Fernández Gómez

Commission of the European Communities

17

2006/C 010/5

Case C-424/05 P: Appeal brought on 29 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-72/04 between S. Hosman-Chevalier and the Commission of the European Communities

18

COURT OF FIRST INSTANCE

2006/C 010/6

Appeal chamber

19

2006/C 010/7

Case T-154/03: Judgment of the Court of First Instance of 17 November 2005 — Biofarma v OHIM (Community trade mark — Opposition proceedings — Earlier national word marks ARTEX — Application for Community word mark ALREX — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

19

2006/C 010/8

Case T-275/03: Judgment of the Court of First Instance of 9 November 2005 — Focus Magazin Verlag GmbH v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark Hi-FOCuS — Earlier national word mark FOCUS — Scope of the examination conducted by the Board of Appeal — Assessment of evidence produced before the Board of Appeal)

19

2006/C 010/9

Case T-145/04: Judgment of the Court of First Instance of 15 November 2005 — Righini v Commission (Officials — Temporary staff — Classification in grade and in step — Classification in the higher career grade)

20

2006/C 010/0

Case T-28/02: Order of the Court of First Instance of 17 October 2005 — First Data Corp. and Others v Commission of the European Communities (Competition — Article 81 EC — Visa payment card scheme — The no-acquiring-without-issuing rule — Negative clearance — Rule abolished during the proceedings — Legal interest in bringing proceedings — No need to adjudicate)

20

2006/C 010/1

Case T-124/04: Order of the Court of First Instance of 26 October 2005 — Ouariachi v Commission (Action for damages — Non-contractual liability of the Community — Damage caused by a member of staff in the exercise of his functions — Absence of causal link)

21

2006/C 010/2

Case T-89/05: Order of the Court of First Instance of 27 October 2005 — GAEC Salat v Commission (Action for failure to act — Complaint concerning the protected designation of origin Salers — Regulation (EC) No 828/2003 — Definition of position by the Commission — Manifest inadmissibility)

21

2006/C 010/3

Case T-374/05: Action brought on 6 October 2005 — Schierhorst v Commission

21

2006/C 010/4

Case T-377/05: Action brought on 5 October 2005 — Seegmuller v Commission

22

2006/C 010/5

Case T-378/05: Action brought on 7 October 2005 — Marenco v Commission

22

2006/C 010/6

Case T-379/05: Action brought on 14 October 2005 — Zuffa/OHIM

23

2006/C 010/7

Case T-380/05: Action brought on 10 October 2005 — Buendía Sierra v Commission

24

2006/C 010/8

Case T-381/05: Action brought on 10 October 2005 — Di Bucci v Commission

24

2006/C 010/9

Case T-386/05: Action brought on 10 October 2005 — Wilms v Commission

25

2006/C 010/0

Case T-387/05: Action brought on 13 October 2005 — Chatziioannidou v Commission

25

2006/C 010/1

Case T-388/05: Action brought on 20 October 2005 — Grünheid v Commission

26

2006/C 010/2

Case T-389/05: Action brought on 20 October 2005 — Ole Eistrup v European Parliament

26

2006/C 010/3

Case T-393/05: Action brought on 17 October 2005 — Pickering v Commission

27

2006/C 010/4

Case T-394/05: Action brought on 17 October 2005 — Valero Jordana v Commission

27

2006/C 010/5

Case T-398/05: Action brought on 7 November 2005 — Tesoka v European Foundation for the Improvement of Living and Working Conditions

28

2006/C 010/6

Case T-399/05: Action brought on 21 October 2005 — Wils v European Parliament

28

2006/C 010/7

Case T-403/05: Action brought on 15 November 2005 — MyTravel/Commission

29

2006/C 010/8

Case T-406/05: Action brought on 9 November 2005 — Alessandro Cavallaro v Commission of the European Communities

30

| | III   Notices |
| --- | --- |
| 2006/C 010/9 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 330, 24.12.2005 | 31 |

III   Notices

2006/C 010/9

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 330, 24.12.2005

Official Journal of the European Union

31

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 14.1.2006 | EN | Official Journal of the European Union | C 10/1 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/1

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 8 November 2005

in Case C-293/02: Reference for a preliminary ruling from the Royal Court of Jersey Jersey Produce Marketing Organisation Ltd v States of Jersey and Others (1)

(Legislation on the export of potatoes from Jersey to the United Kingdom - 1972 Act of Accession - Protocol No 3 on the Channel Islands and the Isle of Man - Regulation No 706/73 - Articles 23 EC, 25 EC and 29 EC - Charges having an effect equivalent to customs duties - Measures having an effect equivalent to quantitative restrictions)

(2006/C 10/01)

Language of the case: English

In Case C-293/02: Reference for a preliminary ruling under Article 234 EC from the Royal Court of Jersey (Channel Islands), made by decision of 5 August 2002, received at the Court on 13 August 2002, in the proceedings between Jersey Produce Marketing Organisation Ltd and States of Jersey, Jersey Potato Export Marketing Board, and Top Produce Ltd, Fairview Farm Ltd, interveners — the Court (Grand Chamber), composed of V. Skouris, President, C.W.A. Timmermans, A. Rosas, J. Malenovský, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric (Rapporteur), S. von Bahr, G. Arestis, A. Borg Barthet, M. Ilešič, J. Klučka and U. Lõhmus, Judges; P. Léger, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 8 November 2005, the operative part of which is as follows:

| 1. | The combined provisions of Article 29 EC and Article 1 of Protocol No 3 on the Channel Islands and the Isle of Man annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the Adjustments to the Treaties are to be interpreted as precluding legislation such as that at issue in the main proceedings which:






  — | on the one hand, prohibits, with penalties imposed for non-compliance, Jersey producers from offering for export or exporting their potatoes to the United Kingdom market unless they are registered with a body such as the Jersey Potato Export Marketing Board and have entered into a marketing agreement with it for the purpose of determining, in particular, the areas which may be planted with crops for export as well as the identity of those authorised to acquire those crops, and, |
| --- | --- | --- |

1.

The combined provisions of Article 29 EC and Article 1 of Protocol No 3 on the Channel Islands and the Isle of Man annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the Adjustments to the Treaties are to be interpreted as precluding legislation such as that at issue in the main proceedings which:

—

on the one hand, prohibits, with penalties imposed for non-compliance, Jersey producers from offering for export or exporting their potatoes to the United Kingdom market unless they are registered with a body such as the Jersey Potato Export Marketing Board and have entered into a marketing agreement with it for the purpose of determining, in particular, the areas which may be planted with crops for export as well as the identity of those authorised to acquire those crops, and,

| — | on the other hand, prohibits, also with penalties imposed for non-compliance, all marketing organisations from effecting such exports unless they are party to a management agreement with that same body for the purpose of determining, in particular, the identity of the sellers from whom it is permissible for them to obtain their supplies. |
| --- | --- |

—

on the other hand, prohibits, also with penalties imposed for non-compliance, all marketing organisations from effecting such exports unless they are party to a management agreement with that same body for the purpose of determining, in particular, the identity of the sellers from whom it is permissible for them to obtain their supplies.

| 2. | The combined provisions of Articles 23 EC and 25 EC and Article 1 of Protocol No 3 are to be interpreted as precluding legislation such as that at issue in the main proceedings which confers on a body such as the Jersey Potato Export Marketing Board the power to impose on Jersey potato producers a contribution, the amount of which is fixed by reference to the quantities of potatoes produced by the parties concerned and exported to the United Kingdom. |
| --- | --- |

2.

The combined provisions of Articles 23 EC and 25 EC and Article 1 of Protocol No 3 are to be interpreted as precluding legislation such as that at issue in the main proceedings which confers on a body such as the Jersey Potato Export Marketing Board the power to impose on Jersey potato producers a contribution, the amount of which is fixed by reference to the quantities of potatoes produced by the parties concerned and exported to the United Kingdom.

| 3. | Community law precludes a contribution levied under the same conditions, the amount of which, however, is fixed by such a body by reference to the agricultural area used by the parties concerned for growing potatoes, to the extent to which the income therefrom serves to finance activities undertaken by that body contrary to Article 29 EC. |
| --- | --- |

3.

Community law precludes a contribution levied under the same conditions, the amount of which, however, is fixed by such a body by reference to the agricultural area used by the parties concerned for growing potatoes, to the extent to which the income therefrom serves to finance activities undertaken by that body contrary to Article 29 EC.

---

(1)  OJ C 247, 12.10.2002.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/2 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/2

---

JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-307/03: Italian Republic v Commission of the European Communities (1)

(EAGGF - Clearance of accounts - Decision 2003/364/EC - Arable crops - Spot checks - Repayment of aid in respect of non-eligible areas - False declarations)

(2006/C 10/02)

Language of the case: Italian

In Case C-307/03 Italian Republic (Agents: I.M. Braguglia and M. Fiorilli) v Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio) — action for annulment under Article 230 EC, brought on 18 July 2003 — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, J.N. Cunha Rodrigues, K. Lenaerts, E. Juhász and M. Ilešič, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 10 November 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 226 of 20.9.2003.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/2 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/2

---

JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-432/03: Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations - Articles 28 EC and 30 EC - Directive 89/106/EEC - Decision 3052/95/EC - National approval procedure - Failure to take account of approval certificates drawn up in other Member States - Construction products)

(2006/C 10/03)

Language of the case: Portuguese

In Case C-432/03, Commission of the European Communities (Agent: A. Caeiros) v Portuguese Republic (Agents: L. Fernandes and N. Ruiz, advogado) — Action under Article 226 EC for failure to fulfil obligations, brought on 10 October 2003 — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, K. Lenaerts (Rapporteur) and E. Juhász, Judges; L.A. Geelhoed, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 10 November 2005, in which it:

| 1. | Declares that, by failing to take account of approval certificates issued by other Member States in a procedure, under Article 17 of the General Law on Urban Construction, adopted by Decree-Law No 38/382 of 7 August 1951, for approval of polyethylene pipes imported from those other Member States, and by not informing the Commission of such a measure, the Portuguese Republic has failed to fulfil its obligations under Articles 28 EC and 30 EC and under Articles 1 and 4(2) of Decision No 3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community; |
| --- | --- |

1.

Declares that, by failing to take account of approval certificates issued by other Member States in a procedure, under Article 17 of the General Law on Urban Construction, adopted by Decree-Law No 38/382 of 7 August 1951, for approval of polyethylene pipes imported from those other Member States, and by not informing the Commission of such a measure, the Portuguese Republic has failed to fulfil its obligations under Articles 28 EC and 30 EC and under Articles 1 and 4(2) of Decision No 3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community;

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

2.

Orders the Portuguese Republic to pay the costs.

---

(1)  OJ C 304, 13.12.2003.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/2 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/2

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 8 November 2005

in Case C-443/03, Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) Götz Leffler v Berlin Chemie AG (1)

(Judicial cooperation in civil matters - Service of judicial and extrajudicial documents - No translation of the document - Consequences)

(2006/C 10/04)

Language of the case: Dutch

In Case C-443/03: reference for a preliminary ruling under Articles 68 EC and 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 17 October 2003, received at the Court on 20 October 2003, in the proceedings between Götz Leffler and Berlin Chemie AG — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas (Rapporteur) and J. Malenovský, Presidents of Chambers, S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, E. Juhász, G. Arestis, A. Borg Barthet and M. Ilešič, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 8 November 2005, the operative part of which is as follows:

| 1. | On a proper construction of Article 8(1) of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, it is possible for the sender to remedy that by sending the translation requested. |
| --- | --- |

1.

On a proper construction of Article 8(1) of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, it is possible for the sender to remedy that by sending the translation requested.

| 2. | On a proper construction of Article 8 of Regulation No 1348/2000, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, that situation may be remedied by sending the translation of the document in accordance with the procedure laid down by Regulation No 1348/2000 and as soon as possible.
  In order to resolve problems connected with the way in which the lack of translation should be remedied that are not envisaged by Regulation No 1348/2000 as interpreted by the Court, it is incumbent on the national court to apply national procedural law while taking care to ensure the full effectiveness of that regulation, in compliance with its objective. |
| --- | --- |

2.

On a proper construction of Article 8 of Regulation No 1348/2000, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, that situation may be remedied by sending the translation of the document in accordance with the procedure laid down by Regulation No 1348/2000 and as soon as possible.

In order to resolve problems connected with the way in which the lack of translation should be remedied that are not envisaged by Regulation No 1348/2000 as interpreted by the Court, it is incumbent on the national court to apply national procedural law while taking care to ensure the full effectiveness of that regulation, in compliance with its objective.

---

(1)  OJ C 304, 13.12.2003.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/3 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/3

---

JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-29/04: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Articles 8, 11(1) and 15(2) of Directive 92/50/EEC - Procedure for the award of public service contracts - Contract relating to waste disposal - Absence of call for tenders)

(2006/C 10/05)

Language of the case: German

In Case C-29/04: Commission of the European Communities (Agent: K. Wiedner) v Republic of Austria (Agent: M. Fruhmann) — action under Article 226 EC for failure to fulfil obligations, brought on 28 January 2004 — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), J.N. Cunha Rodrigues, K. Lenaerts and M. Ilešič, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 10 November 2005, in which it:

| 1. | Declares that, in that the contract for the disposal of the town of Mödling's waste was entered into without complying with the procedural and advertising rules laid down by Article 8, in conjunction with Articles 11(1) and 15(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, in that the contract for the disposal of the town of Mödling's waste was entered into without complying with the procedural and advertising rules laid down by Article 8, in conjunction with Articles 11(1) and 15(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, the Republic of Austria has failed to fulfil its obligations under that directive;

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

2.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 71 of 20.3.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/3 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/3

---

JUDGMENT OF THE COURT

(First Chamber)

of 10 November 2005

in Case C-197/04: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations - Tax on the consumption of manufactured tobacco - Separate taxation of cigarettes and rolls of tobacco ‘West Single Packs’)

(2006/C 10/06)

Language of the case: German

In Case C-197/04, Commission of the European Communities (Agent: K. Gross) v Federal Republic of Germany (Agents: C.-D. Quassowski, A. Tiemann and U. Forsthoff) — Action under Article 226 EC for failure to fulfil obligations, brought on 30 April 2004, — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, E. Juhász, M. Ilešič and E. Levits (Rapporteur), Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the, Registrar, gave a judgment on 10 November 2005, in which it:

| 1. | Declares that, by applying the tax rate for fine-cut tobacco for self-rolled cigarettes to rolls of tobacco sold under the name ‘West Single Packs’, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, and the first paragraph of Article 2 of Council Directive 92/79/EEC of 19 October 1992 on the approximation of taxes on cigarettes; |
| --- | --- |

1.

Declares that, by applying the tax rate for fine-cut tobacco for self-rolled cigarettes to rolls of tobacco sold under the name ‘West Single Packs’, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, and the first paragraph of Article 2 of Council Directive 92/79/EEC of 19 October 1992 on the approximation of taxes on cigarettes;

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

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 168, 26.6.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/4 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/4

---

JUDGMENT OF THE COURT

(Second Chamber)

of 10 November 2005

in Case C-316/04, Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) Stichting Zuid-Hollandse Milieufederatie v College voor de toelating van bestrijdingsmiddelen (1)

(Authorisation for the placing of plant protection and biocidal products on the market - Directive 91/414/EEC - Article 8 - Directive 98/8/EC - Article 16 - Power of Member States during the transitional period)

(2006/C 10/07)

Language of the case: Dutch

In Case C-316/04: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 22 July 2004, received at the Court on 26 July 2004, in the proceedings between Stichting Zuid-Hollandse Milieufederatie and College voor de toelating van bestrijdingsmiddelen, in the presence of 3M Nederland BV and Others — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J. Makarczyk, R. Schintgen, G. Arestis and J. Klučka (Rapporteur), Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 10 November 2005, in which it ruled:

| 1. | Article 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market must be interpreted as meaning that it does not constitute a 'standstill' obligation. However, the second paragraph of Article 10 EC and the third paragraph of Article 249 EC, and Directive 98/8, require that during the transitional period prescribed in Article 16(1) of that directive the Member States refrain from adopting any measures liable seriously to compromise the result prescribed by that directive. |
| --- | --- |

1.

Article 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market must be interpreted as meaning that it does not constitute a 'standstill' obligation. However, the second paragraph of Article 10 EC and the third paragraph of Article 249 EC, and Directive 98/8, require that during the transitional period prescribed in Article 16(1) of that directive the Member States refrain from adopting any measures liable seriously to compromise the result prescribed by that directive.

| 2. | Article 8(2) of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market is to be interpreted as meaning that if a Member State authorises the placing on the market on its territory of plant protection products containing active substances not referred to in Annex I to that directive that were already on the market two years after the date of notification of the directive, it is not required to comply with the provisions of Article 4 or Article 8(3) of that directive. |
| --- | --- |

2.

Article 8(2) of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market is to be interpreted as meaning that if a Member State authorises the placing on the market on its territory of plant protection products containing active substances not referred to in Annex I to that directive that were already on the market two years after the date of notification of the directive, it is not required to comply with the provisions of Article 4 or Article 8(3) of that directive.

| 3. | Article 16(1) of Directive 98/8 has the same meaning as Article 8(2) of Directive 91/414. |
| --- | --- |

3.

Article 16(1) of Directive 98/8 has the same meaning as Article 8(2) of Directive 91/414.

| 4. | It is for the national court to assess whether the evaluation provided for in Article 25d(2) of the Law on pesticides of 1962 (Bestrijdingsmiddelenwet) corresponds to all the characteristics of a 'review' within the meaning of Article 8(3) of Directive 91/414. |
| --- | --- |

4.

It is for the national court to assess whether the evaluation provided for in Article 25d(2) of the Law on pesticides of 1962 (Bestrijdingsmiddelenwet) corresponds to all the characteristics of a 'review' within the meaning of Article 8(3) of Directive 91/414.

| 5. | Article 8(3) of Directive 91/414 must be interpreted as meaning that it contains only provisions relating to the provision of data prior to a review. |
| --- | --- |

5.

Article 8(3) of Directive 91/414 must be interpreted as meaning that it contains only provisions relating to the provision of data prior to a review.

| 6. | There is no need to answer Question 1. |
| --- | --- |

6.

There is no need to answer Question 1.

---

(1)  OJ C 239 of 25.09.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/4 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/4

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 10 November 2005

in Case C-385/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

(Failure of a Member State to fulfil obligations - Directive 2001/16/EC - Trans-European Networks - Interoperability of the trans-European conventional rail system - Failure to transpose within the period prescribed)

(2006/C 10/08)

Language of the case: English

In Case C-385/04, Commission of the European Communities (Agent: W. Wils) v United Kingdom of Great Britain and Northern Ireland (Agent: C. White) — action under Article 226 EC for failure to fulfil obligations, brought on 7 September 2004 — the Court (Fourth Chamber), composed of K. Schiemann, President of the Chamber, K. Lenaerts and E. Levits (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 10 November 2005, in which it:

| 1. | Declares that, by failing to adopt within the period prescribed all the laws, regulations and administrative provisions necessary to comply with Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt within the period prescribed all the laws, regulations and administrative provisions necessary to comply with Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

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

2.

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

---

(1)  OJ C 262, 23.10.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/5 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/5

---

ORDER OF THE COURT

(Sixth Chamber)

of 15 September 2005

in Case C-112/04 P: Marlines SA v Commission of the European Communities (1)

(Appeal - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Proof of an undertaking's participation in business meetings with an anti-competitive purpose)

(2006/C 10/09)

Language of the case: Greek

In Case C-112/04 P: Marlines SA (lawyers: D. Papatheofanous and A. Anagnostou) against the Commission of the European Communities (Agents: R. Lyal and T. Christoforou) — an appeal under Article 56 of the Statute of the Court of Justice brought on 3 March 2004, the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, A. La Pergola and J.-P Puissochet (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 15 September 2005, the operative part of which is as follows:

| 1. | The appeal is dismissed as being in part clearly unfounded and in part clearly inadmissible. |
| --- | --- |

1.

The appeal is dismissed as being in part clearly unfounded and in part clearly inadmissible.

| 2. | Marlines SA is ordered to pay the costs. |
| --- | --- |

2.

Marlines SA is ordered to pay the costs.

---

(1)  OJ C 106, 30.04.2004

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/5 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/5

---

ORDER OF THE COURT

(Fourth Chamber)

of 6 October 2005

in Case C-328/04: reference for a preliminary ruling from the Fővárosi Bíróság in the criminal proceedings against Attila Vajnai (1)

(Reference for a preliminary ruling - Interpretation of the principle of non-discrimination - National provision prohibiting, on pain of criminal prosecution, the use in public of a symbol consisting of a five-point red star - Lack of jurisdiction of the Court)

(2006/C 10/10)

Language of the case: Hungarian

In Case C-328/04: reference for a preliminary ruling under Article 234 EC from the Fővárosi Bíróság (Hungary), made by decision of 24 June 2004, received at the Court on 28 July 2004, in the criminal proceedings against Attila Vajnai — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, K. Schiemann (Rapporteur) and E. Juhász, Judges; C. Stix Hackl, Advocate General; R. Grass, Registrar, made an order on 6 October 2005, the operative part of which is as follows:

The Court of Justice of the European Communities clearly has no jurisdiction to answer the question referred by the Fővárosi Bíróság (Hungary) by decision of 24 June 2004.

---

(1)  OJ C 262, 23.10.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/5 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/5

---

ORDER OF THE COURT

(Fifth Chamber)

of 16 September 2005

in Case C-342/04 P: Jürgen Schmoldt and Others v Commission of the European Communities (1)

(Appeal - Construction products - Harmonised standards and technical regulations - Thermal insulation standards)

(2006/C 10/11)

Language of the case: German

In Case C-342/04 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 10 August 2004 by Jürgen Schmoldt, residing in Dallgow-Döberitz (Germany), Hauptverband der Deutschen Bauindustrie e.V., established in Berlin (Germany), Kaefer Isoliertechnik GmbH & Co. KG, established in Bremen (Germany) (lawyer: H.-P. Schneider), the other party to the proceedings being the Commission of the European Communities (Agent: B. Schima assisted by A. Böhlke, lawyer) — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk (Rapporteur) and P. Kūris, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, made an order on 16 September 2005, the operative part of which is as follows

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

1.

The appeal is dismissed.

| 2. | Mr Schmoldt, the Hauptverband der Deutschen Bauindustrie e.V. and Kaefer Isoliertechnik GmbH & Co. KG shall pay the costs. |
| --- | --- |

2.

Mr Schmoldt, the Hauptverband der Deutschen Bauindustrie e.V. and Kaefer Isoliertechnik GmbH & Co. KG shall pay the costs.

---

(1)  OJ C 262 of 23.10.2004

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/6 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/6

---

ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-2/05 SA: Names BV v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 10/12)

Language of the case: French

In Case C-2/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 28 January 2005 by Names BV, established in Hazerswoude-Rijndijk (Netherlands) (lawyer: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

| 1. | There is no need to adjudicate on this case. |
| --- | --- |

1.

There is no need to adjudicate on this case.

| 2. | Each party is to bear its own costs. |
| --- | --- |

2.

Each party is to bear its own costs.

---

(1)  OJ C 82 of 02.04.2005

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/6 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/6

---

ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-3/05 SA: Statistical Agency of the Republic of Kazakhstan v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 10/13)

Language of the case: French

In Case C-3/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 28 January 2005 by Statistical Agency of the Republic of Kazakhstan, established in Almaty (Kazakhstan) (lawyer: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

| 1. | There is no need to adjudicate on this case. |
| --- | --- |

1.

There is no need to adjudicate on this case.

| 2. | Each party is to bear its own costs. |
| --- | --- |

2.

Each party is to bear its own costs.

---

(1)  OJ C 82 of 02.04.2005

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/7 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/7

---

ORDER OF THE COURT

(Third Chamber)

of 13 October 2005

in Case C-4/05 SA: Alt Ylmy – Ömümcilik Paydarlar Jemgyyeti v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2006/C 10/14)

Language of the case: French

In Case C-4/05 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 9 March 2005 by Alt Ylmy — Ömümcilik Paydarlar Jemgyyeti, established in Ashgabat (Turkmenistan) (lawyer: R. Nathan) against Commission of the European Communities (Agents: J-F. Pasquier and E. Manhaeve) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, J.-P. Puissochet and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 13 October 2005, the operative part of which is as follows

| 1. | There is no need to adjudicate on this case. |
| --- | --- |

1.

There is no need to adjudicate on this case.

| 2. | Each party is to bear its own costs. |
| --- | --- |

2.

Each party is to bear its own costs.

---

(1)  OJ C 106 of 30.04.2005

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/7 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/7

---

ORDER OF THE COURT

(Fifth Chamber)

of 6 October 2005

in Case C-256/05: reference for a preliminary ruling from the Telekom-Control-Kommission in Telekom Austria AG, formerly Post & Telekom Austria AG (1)

(Questions referred for a preliminary ruling - Jurisdiction of the Court - Reference to the Court - Electronic communications - Networks and services - Common regulatory framework - Market for transit services)

(2006/C 10/15)

Language of the case: German

In Case C-256/05: reference for a preliminary ruling under Article 234 EC from the Telekom-Control-Kommission (Austria), made by decision of 13 June 2005, received at the Court on 17 June 2005, in the proceedings concerning Telekom Austria AG, formerly Post & Telekom Austria AG — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, P. Kūris (Rapporteur) and G. Arestis, Judges; J. Kokott, Advocate General; R. Grass, Registrar, made an order on 6 October 2005, the operative part of which is as follows:

The Court of Justice of the European Communities clearly has no jurisdiction to answer the question referred by the Telekom-Control-Kommission in its decision of 13 June 2005.

---

(1)  OJ C 205 of 20.08.2005

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/7 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/7

---

Appeal brought on 5 October 2005 by Polyelectrolyte Producers Group against the order made on 22 July 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-376/04 between Polyelectrolyte Producers Group and Council of the European Union and Commission of the European Communities

(Case C-368/05 P)

(2006/C 10/16)

Language of the case: English

An appeal against the order made on 22 July 2005 by the Second Chamber of the Court of First Instance of the European Communities in case T-376/04 between Polyelectrolyte Producers Group and Council of the European Union and Commission of the European Communities was brought before the Court of Justice of the European Communities on 5 October 2005 by Polyelectrolyte Producers Group, established in Brussels (Belgium), represented by Messrs Koen Van Maldegem and Claudio Mereu, avocats.

The Appellant claims that the Court should:

| — | declare the present appeal admissible and well-founded; |
| --- | --- |

—

declare the present appeal admissible and well-founded;

| — | set aside the order of the Court of First Instance of 22 July 2005 in Case T-376/04; |
| --- | --- |

—

set aside the order of the Court of First Instance of 22 July 2005 in Case T-376/04;

| — | declare the Appellant's requests in Case T-376/04 admissible; |
| --- | --- |

—

declare the Appellant's requests in Case T-376/04 admissible;

| — | rule on the merits or, in the alternative, refer the case to the Court of First Instance to rule on the merits; and |
| --- | --- |

—

rule on the merits or, in the alternative, refer the case to the Court of First Instance to rule on the merits; and

| — | order the Council of the European Union and the Commission of the European Communities to bear all costs and expenses of both proceedings. |
| --- | --- |

—

order the Council of the European Union and the Commission of the European Communities to bear all costs and expenses of both proceedings.

Pleas in law and main arguments:

The Appellant submits that the Order of the Court of First Instance dismissing its application as inadmissible should be set aside on the following grounds:

| (a) | the Order infringes the Court's duty to state reasons; |
| --- | --- |

(a)

the Order infringes the Court's duty to state reasons;

| (b) | the Court of First Instance has erred in its legal assessment of the facts of the case; |
| --- | --- |

(b)

the Court of First Instance has erred in its legal assessment of the facts of the case;

| (c) | the Order infringes the right to complete and effective judicial protection, and the right to a fair hearing. |
| --- | --- |

(c)

the Order infringes the right to complete and effective judicial protection, and the right to a fair hearing.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/8 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/8

---

Action brought on 7 October 2005 by the Commission of the European Communities against the Italian Republic

(Case C-371/05)

(2006/C 10/17)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 7 October 2005 by the Commission of the European Communities, represented by X. Lewis and L. Visaggio, acting as Agents.

The applicant claims that the Court should:

| — | Declare that by virtue of the fact that the Comune di Mantova awarded, directly and without prior publication of the appropriate contract notice in the Official Journal of the European Communities, the contract for the management, maintenance and development of the in-house IT services to the company A.S.I. S.p.A., the Italian Republic has failed to fulfil its obligations under Directive 92/50/EEC, in particular Articles 11 and 15(2) thereof; |
| --- | --- |

—

Declare that by virtue of the fact that the Comune di Mantova awarded, directly and without prior publication of the appropriate contract notice in the Official Journal of the European Communities, the contract for the management, maintenance and development of the in-house IT services to the company A.S.I. S.p.A., the Italian Republic has failed to fulfil its obligations under Directive 92/50/EEC, in particular Articles 11 and 15(2) thereof;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

| 1. | Following a complaint, the Commission became aware of the contract concluded on 2 December 1997, by which the Comune di Mantova (municipality of Mantova) awarded, directly and without prior publication of the appropriate contract notice, the contract for the management, maintenance and development of its in-house IT services to a company in which it holds an interest, Azienda Servizi Informativi (‘A.S.I.’) S.p.A. The award was for a period of 15 years, ending on 31 December 2012. |
| --- | --- |

1.

Following a complaint, the Commission became aware of the contract concluded on 2 December 1997, by which the Comune di Mantova (municipality of Mantova) awarded, directly and without prior publication of the appropriate contract notice, the contract for the management, maintenance and development of its in-house IT services to a company in which it holds an interest, Azienda Servizi Informativi (‘A.S.I.’) S.p.A. The award was for a period of 15 years, ending on 31 December 2012.

| 2. | The Commission takes the view that the award to the company A.S.I. S.p.A. of the contract for the Comune di Mantova's IT services constitutes a public service contract subject to the application of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts. (1) For that reason in was necessary in this case to follow the competition procedure in accordance with the provisions of that directive, in particular the publication of the appropriate contract notice in the Official Journal of the European Communities within the meaning of Article 11 and Article 15(2) of that directive. |
| --- | --- |

2.

The Commission takes the view that the award to the company A.S.I. S.p.A. of the contract for the Comune di Mantova's IT services constitutes a public service contract subject to the application of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts. (1) For that reason in was necessary in this case to follow the competition procedure in accordance with the provisions of that directive, in particular the publication of the appropriate contract notice in the Official Journal of the European Communities within the meaning of Article 11 and Article 15(2) of that directive.

| 3. | Moreover, according to the applicant, the Italian authorities did not provide sufficient information to allow it to be considered that, given the overall arrangement of the legal relationships existing between the Comune and the company which received the contract, as well as the activities of that company, the awarding of the contract in question here relates solely to in-house providing and is therefore outside the scope of application of the Community directives governing the award of public contracts. |
| --- | --- |

3.

Moreover, according to the applicant, the Italian authorities did not provide sufficient information to allow it to be considered that, given the overall arrangement of the legal relationships existing between the Comune and the company which received the contract, as well as the activities of that company, the awarding of the contract in question here relates solely to in-house providing and is therefore outside the scope of application of the Community directives governing the award of public contracts.

---

(1)  OJ L 209, p. 1.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/8 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/8

---

Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of 26 July 2005 in A Brünsteiner GmbH v Bayerische Motorenwerke AG

(Case C-376/05)

(2006/C 10/18)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof, Germany, of 26 July 2005, received at the Court Registry on 12 October 2005, for a preliminary ruling in the proceedings between A Brünsteiner GmbH and Bayerische Motorenwerke AG on the following questions:

| 1. | Is the first indent of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 (1) on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted so that the need to re-organise the whole or a substantial part of the network and the resulting right of the supplier to terminate agreements with dealers in its distribution network, on one year's notice, can also arise because the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 (2) on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) required far-reaching changes to the distribution systems previously used by suppliers and their dealers under Regulation (EC) No 1475/95 which were exempted under that regulation? |
| --- | --- |

1.

Is the first indent of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 (1) on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted so that the need to re-organise the whole or a substantial part of the network and the resulting right of the supplier to terminate agreements with dealers in its distribution network, on one year's notice, can also arise because the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 (2) on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) required far-reaching changes to the distribution systems previously used by suppliers and their dealers under Regulation (EC) No 1475/95 which were exempted under that regulation?

| 2. | If the first question is to be answered in the negative: | Is Article 4 of Regulation (EC) No 1400/2002 to be interpreted so that, exceptionally, the existence of agreements which are restrictive of competition in a motor vehicle dealership agreement which constitute hardcore restrictions (‘grey clauses’) under that regulation did not, on expiry of the one-year transitional period on 30 September 2003, laid down in Article 10 of the Regulation, preclude the application of the exemption from the prohibition under Article 81(1) EC for all agreements restrictive of competition in the dealership agreement, if that agreement was concluded when Regulation (EC) No 1475/95 was still applicable, adapted to the requirements of that regulation and exempted by that regulation? |
| --- | --- | --- |

2.

If the first question is to be answered in the negative:

Is Article 4 of Regulation (EC) No 1400/2002 to be interpreted so that, exceptionally, the existence of agreements which are restrictive of competition in a motor vehicle dealership agreement which constitute hardcore restrictions (‘grey clauses’) under that regulation did not, on expiry of the one-year transitional period on 30 September 2003, laid down in Article 10 of the Regulation, preclude the application of the exemption from the prohibition under Article 81(1) EC for all agreements restrictive of competition in the dealership agreement, if that agreement was concluded when Regulation (EC) No 1475/95 was still applicable, adapted to the requirements of that regulation and exempted by that regulation?

| | Is this still the case where the result under Community law is the invalidity of all contractual provisions restrictive of competition, whereas under national law, the result is that the entire dealership agreement is invalid? |
| --- | --- |

Is this still the case where the result under Community law is the invalidity of all contractual provisions restrictive of competition, whereas under national law, the result is that the entire dealership agreement is invalid?

---

(1)  OJ L 145, 29.6.1995, p. 25

(2)  OJ L 203, 1.8.2002, p. 30

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/9 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/9

---

Reference for a preliminary ruling from the Consiglio di Stato by order of that court of 19 April 2005 in Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni

(Case C-380/05)

(2006/C 10/19)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato of 19 April 2005, received at the Court Registry on 18 October 2005, for a preliminary ruling in the proceedings between Centro Europa 7 Srl and Ministero delle Comunicazioni (Ministry of Communications) e Autorità per le Garanzie nelle Comunicazioni, (Authority for Security of Communications) Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni (Directorate General for Authorisations and Concessions in the Ministry for Communications) on the following questions:

| 1. | Does Article 10 of the ECHR, as referred to in Article 6 of the Treaty on European Union, guarantee pluralism in the broadcasting sector, thus requiring the Member States to secure pluralism and competition in the sector based on an antitrust system which, in relation to technological development, secures network access and multiplicity of operators and renders duopolistic market behaviours unlawful? |
| --- | --- |

1.

Does Article 10 of the ECHR, as referred to in Article 6 of the Treaty on European Union, guarantee pluralism in the broadcasting sector, thus requiring the Member States to secure pluralism and competition in the sector based on an antitrust system which, in relation to technological development, secures network access and multiplicity of operators and renders duopolistic market behaviours unlawful?

| 2. | Do the provisions of the EC Treaty which secure freedom to provide services and competition, on the interpretation provided by the Commission in the interpretative communication of 29 April 2000 on grants of rights under Community law, require the principles governing that matter to be capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individuals; and are those provisions and principles of the Treaty infringed by Article 3(7) of Italian law no 249/1997, and by Article 1 of decree-law no 352 of 24 December 2003 converted into Law no 112/2004 (Gasparri law), inasmuch as those provisions enabled individuals operating networks in breach of the limits laid down by competition law to continue to operate, thereby excluding operators, such as the appellant undertaking, which, though in possession of the relevant rights granted following a regular competitive procedure, were unable to carry on the activity in respect of which such rights were granted because of a failure to allocate frequencies (owing to their insufficient number or scarcity as a result of the continued exercise of rights by the owners of networks in breach of the limits on concentrations under antitrust law). |
| --- | --- |

2.

Do the provisions of the EC Treaty which secure freedom to provide services and competition, on the interpretation provided by the Commission in the interpretative communication of 29 April 2000 on grants of rights under Community law, require the principles governing that matter to be capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individuals; and are those provisions and principles of the Treaty infringed by Article 3(7) of Italian law no 249/1997, and by Article 1 of decree-law no 352 of 24 December 2003 converted into Law no 112/2004 (Gasparri law), inasmuch as those provisions enabled individuals operating networks in breach of the limits laid down by competition law to continue to operate, thereby excluding operators, such as the appellant undertaking, which, though in possession of the relevant rights granted following a regular competitive procedure, were unable to carry on the activity in respect of which such rights were granted because of a failure to allocate frequencies (owing to their insufficient number or scarcity as a result of the continued exercise of rights by the owners of networks in breach of the limits on concentrations under antitrust law).

| 3. | With effect from 25 July 2003, does Article 17 of Directive 2002/20/EC (1) (authorisation directive) render that directive directly effective in the internal legal order and oblige a Member State which has granted broadcasting rights (right to install networks or provide electronic communication services or the right to use frequencies) to bring them into line with Community rules; and does that entail the need actually to allocate the frequencies necessary for carrying on the activity in question. |
| --- | --- |

3.

With effect from 25 July 2003, does Article 17 of Directive 2002/20/EC (1) (authorisation directive) render that directive directly effective in the internal legal order and oblige a Member State which has granted broadcasting rights (right to install networks or provide electronic communication services or the right to use frequencies) to bring them into line with Community rules; and does that entail the need actually to allocate the frequencies necessary for carrying on the activity in question.

| 4. | Do Article 9 of framework directive 2002/21/EC (2) and Article 5 of the authorisation directive providing for transparent and non-discriminatory public procedures (Article 5) conducted on the basis of objective, transparent, non-discriminatory and proportionate criteria (Article 9) preclude a system providing for general authorisation under national law (Article 23(5) of law no 112/2004); by permitting the continued operation, under that system of networks in breach of limits and not selected under a competitive procedure, do those provisions ultimately impinge on the Community-law rights under (Article 17(2) of Directive 2002/20/EC) of other undertakings which are prevented from operating even though they have been successful in competitive procedures. |
| --- | --- |

4.

Do Article 9 of framework directive 2002/21/EC (2) and Article 5 of the authorisation directive providing for transparent and non-discriminatory public procedures (Article 5) conducted on the basis of objective, transparent, non-discriminatory and proportionate criteria (Article 9) preclude a system providing for general authorisation under national law (Article 23(5) of law no 112/2004); by permitting the continued operation, under that system of networks in breach of limits and not selected under a competitive procedure, do those provisions ultimately impinge on the Community-law rights under (Article 17(2) of Directive 2002/20/EC) of other undertakings which are prevented from operating even though they have been successful in competitive procedures.

| 5. | Do Article 9 of Directive 2002/21/EC (framework directive), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20/EC (authorisation directive), and Article 4 of Directive 2002/77/EC (3), require the Member States to arrange for the cessation, at least as from 25 July 2003 (see Article 17 of the authorisation directive), of a situation in which frequencies are actually occupied (use of facilities without grant of rights or authorisations issued following a comparison of the applicants); thus, with regard to the broadcasting system operated, is the conduct of broadcasting precluded where there is no proper planning in regard to matters concerning the airwaves and no logical increase in pluralism and contradictions with rights actually awarded by the Member State following a public procedure. |
| --- | --- |

5.

Do Article 9 of Directive 2002/21/EC (framework directive), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20/EC (authorisation directive), and Article 4 of Directive 2002/77/EC (3), require the Member States to arrange for the cessation, at least as from 25 July 2003 (see Article 17 of the authorisation directive), of a situation in which frequencies are actually occupied (use of facilities without grant of rights or authorisations issued following a comparison of the applicants); thus, with regard to the broadcasting system operated, is the conduct of broadcasting precluded where there is no proper planning in regard to matters concerning the airwaves and no logical increase in pluralism and contradictions with rights actually awarded by the Member State following a public procedure.

| 6. | Is the derogation in the second subparagraph of Article 5(2) of Directive 2002/20/EC (authorisation directive), and in Article 4 of Directive 2002/77/EC, available to be relied on by the Member State solely in order to protect pluralism of information and to guarantee the protection of cultural or linguistic diversity and not in favour of operators of networks in breach of the limits laid down in national competition legislation. |
| --- | --- |

6.

Is the derogation in the second subparagraph of Article 5(2) of Directive 2002/20/EC (authorisation directive), and in Article 4 of Directive 2002/77/EC, available to be relied on by the Member State solely in order to protect pluralism of information and to guarantee the protection of cultural or linguistic diversity and not in favour of operators of networks in breach of the limits laid down in national competition legislation.

| 7. | In order to benefit from the derogation under Article 5 of Directive 2002/20/EC, does the Member State have to indicate the objectives actually pursued by the national derogatory rules. |
| --- | --- |

7.

In order to benefit from the derogation under Article 5 of Directive 2002/20/EC, does the Member State have to indicate the objectives actually pursued by the national derogatory rules.

| 8. | May that derogation be applied, in addition to the case of the concessionary of the public broadcasting service (RAI in Italy), in favour also of private operators not successful in competitive procedures and to the detriment of undertakings who may have duly been granted rights following a competitive procedure? |
| --- | --- |

8.

May that derogation be applied, in addition to the case of the concessionary of the public broadcasting service (RAI in Italy), in favour also of private operators not successful in competitive procedures and to the detriment of undertakings who may have duly been granted rights following a competitive procedure?

| 9. | Under Community rules (primary and secondary legislation) on workable competition in the broadcasting sector, ought the national legislature to have avoided extending the old transitory analogue system on the advent of the terrestrial digital system (and the attendant generalised transition to digital)? Only if analogue broadcasting is ended and replaced by the switch to digital will it be possible to reallocate frequencies freed for various uses. If terrestrial digital is merely operated alongside analogue, there will be an attendant accentuating of the scarcity of available frequencies owing to the existence of analogue and digital transmission in parallel (simulcast). |
| --- | --- |

9.

Under Community rules (primary and secondary legislation) on workable competition in the broadcasting sector, ought the national legislature to have avoided extending the old transitory analogue system on the advent of the terrestrial digital system (and the attendant generalised transition to digital)? Only if analogue broadcasting is ended and replaced by the switch to digital will it be possible to reallocate frequencies freed for various uses. If terrestrial digital is merely operated alongside analogue, there will be an attendant accentuating of the scarcity of available frequencies owing to the existence of analogue and digital transmission in parallel (simulcast).

| 10. | Lastly, is the pluralism of sources of information and of competition in the broadcasting sector, which is guaranteed by European law, secured by national rules, such as law no 112/2004 providing for a new limit of 20 percent of resources linked to a new very wide criterion (the ICS — integrated communications system — Article 2(g) and Article 15 of law no 112/2004). This criterion also brings in activities which do not affect media pluralism, whereas under antitrust law the ‘relevant market’ is constructed normally by differentiating the markets in the broadcasting sector by drawing a distinction between pay/TV and non-pay TV operating via the airwaves (reference is made inter alia to the Commission cases COMP/JV. 37-BSKYB/Kirch Pay TV Regulation (EEC) No 4064/89 Merger Procedure 21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regulation (EEC) No 4064/89 Merger Procedure 2/04/2003. |
| --- | --- |

10.

Lastly, is the pluralism of sources of information and of competition in the broadcasting sector, which is guaranteed by European law, secured by national rules, such as law no 112/2004 providing for a new limit of 20 percent of resources linked to a new very wide criterion (the ICS — integrated communications system — Article 2(g) and Article 15 of law no 112/2004). This criterion also brings in activities which do not affect media pluralism, whereas under antitrust law the ‘relevant market’ is constructed normally by differentiating the markets in the broadcasting sector by drawing a distinction between pay/TV and non-pay TV operating via the airwaves (reference is made inter alia to the Commission cases COMP/JV. 37-BSKYB/Kirch Pay TV Regulation (EEC) No 4064/89 Merger Procedure 21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regulation (EEC) No 4064/89 Merger Procedure 2/04/2003.

---

(1)  OJ L 108, de 24.4.2002, p. 21.

(2)  OJ L 108, de 24.4.2002, p. 33.

(3)  OJ L 249, de 17.9.2002, p. 21.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/10 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/10

---

Reference for a preliminary ruling from the Cour d'appel de Bruxelles by judgment of that court of 13 October 2005 in De Lantsheer Emmanuel v Comite Interprofessionnel du vin de Champagne (‘CIVC’) and Veuve Clicquot Ponsardin

(Case C-381/05)

(2006/C 10/20)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour d'appel de Bruxelles (Brussels Court of Appeal) of 13 October 2005, received at the Court Registry on 19 October 2005, for a preliminary ruling in the proceedings between De Lantsheer Emmanuel and Comite Interprofessionnel du vin de Champagne (‘CIVC’) and Veuve Clicquot Ponsardin on the following questions:

| 1. | Does the definition of comparative advertising cover advertisements in which the advertiser refers only to a type of product, so that in those circumstances such advertisements must be regarded as referring to all undertakings which offer that type of product, and each of them can claim to have been identified? |
| --- | --- |

1.

Does the definition of comparative advertising cover advertisements in which the advertiser refers only to a type of product, so that in those circumstances such advertisements must be regarded as referring to all undertakings which offer that type of product, and each of them can claim to have been identified?

| 2. | With a view to determining whether there is a competitive relationship between the advertiser and the undertaking to which reference is made within the meaning of Article 2a of Directive 84/450:






  (a) | On the basis in particular of a comparison of Article 2a with paragraph (b) of Article 3a, should any undertaking which can be identified in the advertising be regarded as a competitor within the meaning of Article 2a, whatever the goods or services it offers? |
| --- | --- | --- |

2.

With a view to determining whether there is a competitive relationship between the advertiser and the undertaking to which reference is made within the meaning of Article 2a of Directive 84/450:

(a)

On the basis in particular of a comparison of Article 2a with paragraph (b) of Article 3a, should any undertaking which can be identified in the advertising be regarded as a competitor within the meaning of Article 2a, whatever the goods or services it offers?

| (b) | In the event of a negative response to that question and if other conditions are required in order for a competitive relationship to be established, is it necessary to consider the current state of the market and drinking habits in the Community or is it necessary also to consider how those habits might evolve? |
| --- | --- |

(b)

In the event of a negative response to that question and if other conditions are required in order for a competitive relationship to be established, is it necessary to consider the current state of the market and drinking habits in the Community or is it necessary also to consider how those habits might evolve?

| (c) | Must any investigation be confined to that part of the Community territory in which the advertising is disseminated? |
| --- | --- |

(c)

Must any investigation be confined to that part of the Community territory in which the advertising is disseminated?

| (d) | Is it necessary to consider the competitive relationship in relation to the types of products being compared and the way in which those types of products are generally perceived, or is it necessary, in order to assess the degree of substitution possible, to take into account also the particular characteristics of the product which the advertiser intends to promote in the advertising concerned and of the image he intends to give it? |
| --- | --- |

(d)

Is it necessary to consider the competitive relationship in relation to the types of products being compared and the way in which those types of products are generally perceived, or is it necessary, in order to assess the degree of substitution possible, to take into account also the particular characteristics of the product which the advertiser intends to promote in the advertising concerned and of the image he intends to give it?

| (e) | Are the criteria by which a competitive relationship within the meaning of Article 2(2a) can be established identical to the criteria for verifying whether the comparison satisfies the condition referred to in paragraph (b) of Article 3a? |
| --- | --- |

(e)

Are the criteria by which a competitive relationship within the meaning of Article 2(2a) can be established identical to the criteria for verifying whether the comparison satisfies the condition referred to in paragraph (b) of Article 3a?

| 3. | Does a comparison of Article 2(2a) of Directive 84/450 (1) with Article 3a of that directive mean that






  (a) | either any comparative advertising is unlawful which enables a type of product to be identified where a competitor or the goods offered by him cannot be identified from the wording? |
| --- | --- | --- |

3.

Does a comparison of Article 2(2a) of Directive 84/450 (1) with Article 3a of that directive mean that

(a)

either any comparative advertising is unlawful which enables a type of product to be identified where a competitor or the goods offered by him cannot be identified from the wording?

| (b) | or the lawfulness of the comparison must be considered in the light only of national legislation other than that by which the provisions of the directive on comparative advertising are transposed, which could lead to reduced protection for consumers or undertakings offering the type of product being compared with the product offered by the advertiser? |
| --- | --- |

(b)

or the lawfulness of the comparison must be considered in the light only of national legislation other than that by which the provisions of the directive on comparative advertising are transposed, which could lead to reduced protection for consumers or undertakings offering the type of product being compared with the product offered by the advertiser?

| 4. | If it should be concluded that there has been comparative advertising within the meaning of Article 2(2a), must it be inferred from Article 3a(1)(f) of the Directive that any comparison is unlawful which, in respect of products without designation of origin, relates to products with designation of origin? |
| --- | --- |

4.

If it should be concluded that there has been comparative advertising within the meaning of Article 2(2a), must it be inferred from Article 3a(1)(f) of the Directive that any comparison is unlawful which, in respect of products without designation of origin, relates to products with designation of origin?

---

(1)  Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17), as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 290, p. 18)

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/11 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/11

---

Reference for a preliminary ruling from the Cour de cassation de Belgique by judgment of that court of 7 October 2005 in Raffaele Talotta v État belge

(Case C-383/05)

(2006/C 10/21)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour de cassation de Belgique (Belgian Court of Cassation) of 7 October 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Raffaele Talotta and the État belge on the following question:

Is Article 43 (formerly Article 52) of the EC Treaty to be interpreted as prohibiting a provision of national law, such as Article 182 of the [Belgian] Royal Decree of 27 August 1993 implementing Article 342(2) of the Income Tax Code 1992, whereby minimum tax bases are applied only in the case of non-residents?

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/11 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/11

---

Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 28 September 2005 in Color Drack GmbH v Lexx International Vertriebs GmbH

(Case C-386/05)

(2006/C 10/22)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Oberster Gerichtshof (Austria) of 28 September 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Color Drack GmbH and Lexx International Vertriebs GmbH on the following question:

Is Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) to be interpreted as meaning that a seller of goods domiciled in one Member State who, as agreed, has delivered the goods to the purchaser, domiciled in another Member State, at various places within that other Member State, can be sued by the purchaser regarding a claim under the contract relating to all the (part) deliveries — if need be, at the plaintiff's choice — before the court of one of those places (of performance)?

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/12 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/12

---

Action brought on 27 October 2005 by the Commission of the European Communities against the French Republic

(Case C-389/05)

(2006/C 10/23)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2005 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by allowing only ‘centres de mise en place’ authorised in France to carry out activities related to the artificial insemination of cattle, the French Republic has failed to fulfil its obligations under Articles 43 and 49 EC; |
| --- | --- |

1.

declare that, by allowing only ‘centres de mise en place’ authorised in France to carry out activities related to the artificial insemination of cattle, the French Republic has failed to fulfil its obligations under Articles 43 and 49 EC;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

Articles 43 and 49 EC respectively lay down the right of establishment and freedom to provide services. Article 46 also provides that the provisions of those Articles and the measures taken in pursuance thereof shall not prejudice the applicability of the domestic provisions of a Member State providing for special treatment for foreign nationals on grounds of public policy, public security, or public health. However, that latter provision is not at issue here, as the Commission's challenge does not concern special treatment for foreign nationals who wish to provide artificial insemination services in France, but the impossibility, in law and in fact, of Community nationals performing that activity because of the monopoly granted in France to ‘insemination centres’ by means of, inter alia, two provisions of French legislation.

Artificial insemination services in France, in fact and in law, are subject to a monopoly in favour of ‘centres de mise en place’, which prevents providers of those services from other Member States from performing those activities, either by means of the right of establishment or by that of freedom to provide services. The French authorities put forward health considerations which, they submit, may justify adopting or retaining domestic measures so restrictive as to nullify those two Treaty freedoms for practical purposes. The Commission disputes the validity of those justifications, however, considering that, by their very nature, those restrictions are in any event disproportionate to the health and safety objectives put forward as the main grounds for them.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/12 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/12

---

Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 30 August 2005 in Jan de Nul N.V. v Hauptzollamt Oldenburg

(Case C-391/05)

(2006/C 10/24)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg of 30 August 2005, received at the Court Registry on 21 October 2005, for a preliminary ruling in the proceedings between Jan de Nul N.V. and Hauptzollamt Oldenburg on the following questions:

| 1. | What interpretation should be given to the term ‘Community waters’ in the first paragraph of Article 8(1)(c) of Directive 92/81 in contrast to the term ‘inland waterways’ for the purposes of the first paragraph of Article 8(2)(b) of Directive 92/81 (1)? |
| --- | --- |

1.

What interpretation should be given to the term ‘Community waters’ in the first paragraph of Article 8(1)(c) of Directive 92/81 in contrast to the term ‘inland waterways’ for the purposes of the first paragraph of Article 8(2)(b) of Directive 92/81 (1)?

| 2. | Should the operation of a suction and holding vessel (so-called ‘hopper dredger’) in Community waters always be regarded as navigation within the meaning of the first paragraph of Article 8(1)(c) of Directive 92/81 or is it necessary to draw a distinction between the various forms of activity during the course of its use? |
| --- | --- |

2.

Should the operation of a suction and holding vessel (so-called ‘hopper dredger’) in Community waters always be regarded as navigation within the meaning of the first paragraph of Article 8(1)(c) of Directive 92/81 or is it necessary to draw a distinction between the various forms of activity during the course of its use?

---

(1)  OJ 1992 L 316, p. 12.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/13 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/13

---

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) by judgment of that court of 30 June 2005 in proceedings between Georgios Alevizos and the Minister for Economic Affairs

(Case C-392/05)

(2006/C 10/25)

Language of the case: Greek

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias of 30 June 2005, received at the Court Registry on 31 October 2005, for a preliminary ruling in the proceedings between Georgios Alevizos and Minister for Economic Affairs on the following question:

Are civil servants and officers, non-commissioned officers and other ranks of the armed forces, the public security forces and the harbour police corps covered, like other workers, by Article 6 of Council Directive 83/183/EEC and capable of acquiring ‘normal residence’ in another country where they live for at least 185 days in each calendar year in order to carry out an official task of a definite duration, or do they continue, even during the period of their assignment in the other country, to have their normal residence in Greece, irrespective of whether they have transferred their personal and occupational ties to the other country?

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/13 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/13

---

Action brought on 4 November 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-393/05)

(2006/C 10/26)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 4 November 2005 by the Commission of the European Communities, represented by Enrico Traversa and Gerald Braun, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that the Republic of Austria has failed to fulfil it obligations under Article 49 EC in requiring that private inspection bodies in the field of organic production of agricultural products, which have a registered office in and are approved in another Member State, must maintain a place of business or other permanent infrastructure in Austria in order to be able to carry out their activities there; |
| --- | --- |

1.

declare that the Republic of Austria has failed to fulfil it obligations under Article 49 EC in requiring that private inspection bodies in the field of organic production of agricultural products, which have a registered office in and are approved in another Member State, must maintain a place of business or other permanent infrastructure in Austria in order to be able to carry out their activities there;

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

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Austrian authorities require of every inspection body in the field of organic production of agricultural products having a registered office in and approved in another Member State that it must also maintain a registered office or place of business in Austria in order to be allowed to carry out business activities in Austria. This requirement is contrary to the principle of freedom to provide services as it renders impossible the supply of services in Austria by companies with an establishment in other Member States.

Under Article 49 freedom to provide services is to be understood as the right, without hindrance, from a base in one Member State, to provide individual services in another Member State without maintaining a permanent establishment there. According to the settled case-law of the Court, the guarantee of freedom to provide services requires not only the removal of all discrimination on the basis of nationality but also the abolition of all restrictions which lend themselves to prohibiting, hindering or rendering less attractive the activities of a services provider who has an establishment in another Member State and regularly renders similar services there. Article 49 therefore precludes the application of a national regulation or administrative practice which, without objective justification, restricts the opportunity for a services provider to actually make use of the freedom to provide services.

The reasons given by the Republic of Austria — the alleged exercise of official authority by the inspection bodies and the public interest — are not such as to justify that restriction on the freedom to provide services. Reference to the exercise of official authority as a justification for the present restriction on the freedom to provide services would only be lawful and acceptable if the activity in question were one which constitutes direct and specific participation in the exercise of official authority. However, the inspection bodies are not public authorities: they cannot compulsorily enforce sanctions, they issue no public documents and the legal relationship between an inspection body and a producer is governed purely by private law.

The fact that an inspection body has no place of business in Austria does not jeopardise the public interest as the real control according to Community law criteria takes place when the inspection body in question is approved and examined by the public authorities of the approving Member State. In the present case Community coordination measures and harmonisation provisions also exist, which ensure that the interest which the Republic of Austria is putting forward is also pursued according to the same standards in other Member States.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/14 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/14

---

Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 25 October 2005 in criminal proceedings against Antonello D'Antonio and Others

(Case C-395/05)

(2006/C 10/27)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Viterbo (Italy) of 25 October 2005, received at the Court Registry on 10 November 2005, for a preliminary ruling in the criminal proccedings against Antonello D'Antonio and Others on the following question:

| — | whether Articles 4(1) and 4 bis of Law No 401/89, as amended, which at present allow only Italian public service concessionaires, and not foreign intermediaries (bookmakers), to engage in the business of betting are in breach of the principles of freedom of competition, freedom to provide services and the right of establishment, as provided for by Articles 31, 86, 43 and 48 of the EC Treaty. |
| --- | --- |

—

whether Articles 4(1) and 4 bis of Law No 401/89, as amended, which at present allow only Italian public service concessionaires, and not foreign intermediaries (bookmakers), to engage in the business of betting are in breach of the principles of freedom of competition, freedom to provide services and the right of establishment, as provided for by Articles 31, 86, 43 and 48 of the EC Treaty.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/14 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/14

---

Reference for a preliminary ruling from the Tribunale di Palermo by order of that court of 19 October 2005 in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola

(Case C-397/05)

(2006/C 10/28)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Palermo (Palermo District Court) of 19 October 2005, received at the Court Registry on 14 November 2005, for a preliminary ruling in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola on the following questions:

| (1) | Does a national provision containing a prohibition on carrying on the activity of taking bets without a police authorisation, which is punishable as a criminal offence, constitute a restriction of the freedom of establishment laid down in Article 43 of the EC Treaty and of the freedom to provide services laid down in Article 49 of the EC Treaty? |
| --- | --- |

(1)

Does a national provision containing a prohibition on carrying on the activity of taking bets without a police authorisation, which is punishable as a criminal offence, constitute a restriction of the freedom of establishment laid down in Article 43 of the EC Treaty and of the freedom to provide services laid down in Article 49 of the EC Treaty?

| (2) | Does the police authorisation referred to in Article 88 of the Italian Consolidated Law on Public Security (TULPS) satisfy all the conditions of the Court of Justice for justifying a restriction of the right of establishment? |
| --- | --- |

(2)

Does the police authorisation referred to in Article 88 of the Italian Consolidated Law on Public Security (TULPS) satisfy all the conditions of the Court of Justice for justifying a restriction of the right of establishment?

| (3) | Is the criminal sanction laid down in Article 4(4 bis) of Law No 401/89 appropriate, proportionate and, above all, non-discriminatory as regards the proprietors of the Centri di Trasmissione Dati operating in Italy and associated with the bookmaker Stanley Ltd, established in Liverpool, despite the fact that the controls to which the latter are subject appear to be materially identical to those for Italian concessionaires, subject as they are to the requirement that they obtain the police licence, which, according to the Corte di Cassazione, is directed at preventing criminal infiltration of the sector of the supply and demand of gambling? |
| --- | --- |

(3)

Is the criminal sanction laid down in Article 4(4 bis) of Law No 401/89 appropriate, proportionate and, above all, non-discriminatory as regards the proprietors of the Centri di Trasmissione Dati operating in Italy and associated with the bookmaker Stanley Ltd, established in Liverpool, despite the fact that the controls to which the latter are subject appear to be materially identical to those for Italian concessionaires, subject as they are to the requirement that they obtain the police licence, which, according to the Corte di Cassazione, is directed at preventing criminal infiltration of the sector of the supply and demand of gambling?

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/14 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/14

---

Action brought on 17 November 2005 by the European Parliament against the Commission of the European Communities

(Case C-403/05)

(2006/C 10/29)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 17 November 2005 by the European Parliament, represented by R. Passos, E. Waldherr, and K. Lindahl, acting as Agents.

The European Parliament claims that the Court should:

| 1. | annul the decision approving a project on the security of the borders of the Philippines, to be financed by budgetary line 19 10 02 of the general budget of the European Communities (Philippine Border Management Project; No ASIA/2004/016-924), adopted in compliance with Regulation (EEC) No 443/92 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America (1); |
| --- | --- |

1.

annul the decision approving a project on the security of the borders of the Philippines, to be financed by budgetary line 19 10 02 of the general budget of the European Communities (Philippine Border Management Project; No ASIA/2004/016-924), adopted in compliance with Regulation (EEC) No 443/92 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America (1);

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

2.

order the Commission to pay the costs.

Pleas in law and main arguments

The European Parliament requests the annulment of the Commission's decision on the grounds that the Commission has exceeded its powers.

The main aim of the contested decision is to combat terrorism by implementing United Nations Security Council Resolution 1373 (2001) on the fight against terrorism. By contrast, the aim of Regulation No 443/92 is to aid development by means of financial, technical and economic cooperation. The powers of execution delegated by that basic act give the Commission responsibility for ensuring the management of the financial and technical assistance, and for economic cooperation. A measure intended to help the government of the Philippines make its borders more secure, with the aim of combating terrorism, exceeds the powers of execution provided for in the basic act and is therefore illegal.

The contested decision has not been published in the Official Journal. The European Parliament did not receive notice of its full text until 9 September 2005.

---

(1)  OJ L 52, 27.02.1992, p. 1

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/15 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/15

---

Action brought on 17 November 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-404/05)

(2006/C 10/30)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 17 November 2005 by the Commission of the European Communities, represented by Enrico Traversa and Gerald Braun, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that the Federal Republic of Germany has failed to fulfil it obligations under Article 49 EC in requiring that private inspection bodies in the field of organic production of agricultural products, which have a registered office in and are approved in another Member State, must maintain a place of business or other permanent infrastructure in Germany in order to be able to carry out their activities there; |
| --- | --- |

1.

declare that the Federal Republic of Germany has failed to fulfil it obligations under Article 49 EC in requiring that private inspection bodies in the field of organic production of agricultural products, which have a registered office in and are approved in another Member State, must maintain a place of business or other permanent infrastructure in Germany in order to be able to carry out their activities there;

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

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The German authorities require of every inspection body in the field of organic production of agricultural products having a registered office in and approved in another Member State that it must also maintain a registered office or place of business in Germany in order to be allowed to carry out business activities in Germany. This requirement is contrary to the principle of freedom to provide services as it renders impossible the supply of services in Germany by companies with an establishment in other Member States.

Under Article 49 freedom to provide services is to be understood as the right, without hindrance, from a base in one Member State, to provide individual services in another Member State without maintaining a permanent establishment there. According to the settled case-law of the Court, the guarantee of freedom to provide services requires not only the removal of all discrimination on the basis of nationality but also the abolition of all restrictions which lend themselves to prohibiting, hindering or rendering less attractive the activities of a services provider who has an establishment in another Member State and regularly renders similar services there. Article 49 therefore precludes the application of a national regulation or administrative practice which, without objective justification, restricts the opportunity for a services provider to actually make use of the freedom to provide services.

The reasons given by the Federal Government — the alleged exercise of official authority by the inspection bodies and the public interest — are not such as to justify that restriction on the freedom to provide services. Reference to the exercise of official authority as a justification for the present restriction on the freedom to provide services would only be lawful and acceptable if the activity in question were one which constitutes direct and specific participation in the exercise of official authority. It is true that the inspection bodies of the Länder are also entrusted with official tasks and would furthermore have the opportunity to compulsorily enforce the sanctions provided for in the Regulation, but that is irrelevant as regards Community law and does not alter the fact that the activities of an inspection body governed by Community law can also be carried out in Germany, in the context of freedom to provide services, by any inspection body approved in another Member State on that legal basis.

The fact that an inspection body has no place of business in Germany does not jeopardise the public interest as the real control according to Community law criteria takes place when the inspection body in question is approved and examined by the public authorities of the approving Member State. In the present case Community coordination measures and harmonisation provisions also exist, which ensure that the interest which the Federal Government is putting forward is also pursued according to the same standards in other Member States.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/16 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/16

---

Action brought on 21 November 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-409/05)

(2006/C 10/31)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 21 November 2005 by the Commission of the European Communities, represented by D. Triandafilou. Legal adviser, and G. Wilms, of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Declare that, by refusing to account for and to pay own resources evaded owing to the customs-free importation of war material and by refusing to pay interest on late payment arising out of the non-payment thereof to the Commission, the Hellenic Republic has failed to fulfil its obligations under Articles 2, 9, 10 and 11 of Council Regulation (EC) No 1552/1989 of 17 May 1989 (1) until 31 May 2000 and, thereafter, under Regulation No 1150/2000 (2) |
| --- | --- |

—

Declare that, by refusing to account for and to pay own resources evaded owing to the customs-free importation of war material and by refusing to pay interest on late payment arising out of the non-payment thereof to the Commission, the Hellenic Republic has failed to fulfil its obligations under Articles 2, 9, 10 and 11 of Council Regulation (EC) No 1552/1989 of 17 May 1989 (1) until 31 May 2000 and, thereafter, under Regulation No 1150/2000 (2)

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

—

Order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| — | The defendant has not demonstrated that the payment of duties at low (or nil) rates would substantially harm the defence of the country within the meaning of Article 296. |
| --- | --- |

—

The defendant has not demonstrated that the payment of duties at low (or nil) rates would substantially harm the defence of the country within the meaning of Article 296.

| — | Military secrecy does not afford exemption from the obligation as a matter of principle of calculating and paying the relevant duties. |
| --- | --- |

—

Military secrecy does not afford exemption from the obligation as a matter of principle of calculating and paying the relevant duties.

| — | The defendant cannot invoke the principle of protection of legitimate expectations on the basis of the delay in initiating proceedings. |
| --- | --- |

—

The defendant cannot invoke the principle of protection of legitimate expectations on the basis of the delay in initiating proceedings.

| — | Non-fulfilment of financial obligations to the Community imposes an undue burden on the other Member States. |
| --- | --- |

—

Non-fulfilment of financial obligations to the Community imposes an undue burden on the other Member States.

---

(1)  OJ 1989 L 155, p. 1

(2)  OJ 2000 L 130, p. 1

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/16 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/16

---

Action brought on 23 November 2005 by the Commission of the European Communities against the French Republic

(Case C-414/05)

(2006/C 10/32)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 23 November 2005 by the Commission of the European Communities, represented by B. Stromsky, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to take the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2003/94/EC of 8 October 2003 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use (1), the French Republic has failed to fulfil its obligations under that directive,
  and |
| --- | --- |

1.

declare that, by failing to take the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2003/94/EC of 8 October 2003 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use (1), the French Republic has failed to fulfil its obligations under that directive,

and

| 2. | declare that, in any event, by failing to communicate to the Commission the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2003/94/EC of 8 October 2003 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use, the French Republic has failed to fulfil its obligations under that directive, |
| --- | --- |

2.

declare that, in any event, by failing to communicate to the Commission the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2003/94/EC of 8 October 2003 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use, the French Republic has failed to fulfil its obligations under that directive,

| 3. | order the French Republic to pay the costs. |
| --- | --- |

3.

order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission points out that the period for transposing that directive expired on 30 April 2004.

---

(1)  OJ L 262, 14.10.2003, p. 22

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/17 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/17

---

Action brought on 24 November 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-416/05)

(2006/C 10/33)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 24 November 2005 by the Commission of the European Communities, represented by C.F. Durand and F.Simonetti, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 2 October 2003 in Case C-89/03 concerning the failure to transpose Directive 93/15/EEC (1) into Luxembourg law, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community; |
| --- | --- |

1.

declare that, by failing to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 2 October 2003 in Case C-89/03 concerning the failure to transpose Directive 93/15/EEC (1) into Luxembourg law, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community;

| 2. | order the Grand Duchy of Luxembourg to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of EUR 9 000 for each day of delay in complying with the judgment in Case C-89/03 from the day on which judgment is delivered in the present case until the day on which the judgment in Case C-89/03 is complied with; |
| --- | --- |

2.

order the Grand Duchy of Luxembourg to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of EUR 9 000 for each day of delay in complying with the judgment in Case C-89/03 from the day on which judgment is delivered in the present case until the day on which the judgment in Case C-89/03 is complied with;

| 3. | order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

3.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments:

In its judgment of 2 October in Case C-89/03 Commission of the European Communities v Grand Duchy of Luxembourg, the Court declared that: 'By failing to bring into force the laws, regulations and administrative provisions necessary to comply with Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.'

By letter of 7 November 2003, the Commission drew the attention of the Luxembourg authorities to the judgment of 2 October 2003 and requested that the measures adopted in order to comply with this judgment be communicated to it.

The Luxembourg authorities indicated, in reply, that a draft Grand Ducal regulation could be finalised at the latest by November 2004.

On 14 December 2004, the Commission delivered a reasoned opinion calling on the Grand Duchy of Luxembourg to take the measures necessary to comply with it within a period of two months.

In a letter of 19 September 2005, the Luxembourg authorities referred to the fact that the Conseil d'État (Council of State), in an opinion of 12 October 2004, considered that the scope of the draft regulation was, in accordance with the Constitution, a matter for loi (legislative provision).

According to the information available to the Commission, the Grand Duchy of Luxembourg has still not transposed the directive at issue.

In accordance with the second sentence of the second subparagraph of Article 228(2) EC, the Commission is to specify in its application the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty payment of EUR 9 000 a day fits the seriousness and duration of the infringement and takes into consideration the need to give this penalty payment the required deterrent effect.

---

(1)  Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses (OJ L 121, 15.5.1993, p. 20).

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/17 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/17

---

Appeal brought on 24 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03 M.D. Fernández Gómez v Commission of the European Communities

(Case C-417/05 P)

(2006/C 10/34)

Language of the case: French

An appeal against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03 M.D. Fernández Gómez v Commission of the European Communities was brought before the Court of Justice of the European Communities on 24 November 2005 by the Commission of the European Communities, represented by D. Martin and L. Lozano Palacios, acting as Agents.

The appellant claims that the Court should:

| — | set aside the judgment under appeal; |
| --- | --- |

—

set aside the judgment under appeal;

| — | pass final judgment on the dispute, allowing the claims submitted by the defendant at first instance and, consequently, dismissing the application in Case T-272/03; |
| --- | --- |

—

pass final judgment on the dispute, allowing the claims submitted by the defendant at first instance and, consequently, dismissing the application in Case T-272/03;

| — | in the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

—

in the alternative, refer the case back to the Court of First Instance;

| — | order Ms Fernández Gómez to pay the costs of the proceedings, including her own costs in the proceedings before the Court of First Instance. |
| --- | --- |

—

order Ms Fernández Gómez to pay the costs of the proceedings, including her own costs in the proceedings before the Court of First Instance.

Pleas in law and main arguments:

In its appeal, the Commission relies on three pleas:

| 1. | The first plea alleges that the Court of First Instance erred in law in holding the action to be admissible on the ground that the letter of 19 January 2001 did not amount to a decision, and that the measure contested at first instance, that is the electronic mail of 12 May 2003, was not merely confirmatory but contained a new element in relation to the contract of 17 January 2001 and the letter of 19 January 2001. The Commission considers that the action is inadmissible inasmuch as the letter of 19 January 2001 and the contract of 17 January 2001 define the administration's final position with regard to the applicant. These are therefore the measures which the applicant should have challenged. The Commission submits that the electronic mail of 12 May 2003 neither constitutes a decision nor contains the slightest new element in relation to the previous measures. The Court should thus dismiss the action as inadmissible. |
| --- | --- |

1.

The first plea alleges that the Court of First Instance erred in law in holding the action to be admissible on the ground that the letter of 19 January 2001 did not amount to a decision, and that the measure contested at first instance, that is the electronic mail of 12 May 2003, was not merely confirmatory but contained a new element in relation to the contract of 17 January 2001 and the letter of 19 January 2001. The Commission considers that the action is inadmissible inasmuch as the letter of 19 January 2001 and the contract of 17 January 2001 define the administration's final position with regard to the applicant. These are therefore the measures which the applicant should have challenged. The Commission submits that the electronic mail of 12 May 2003 neither constitutes a decision nor contains the slightest new element in relation to the previous measures. The Court should thus dismiss the action as inadmissible.

| 2. | The second plea alleges an error of law in the interpretation of the decision of 13 November 1996, in particular the concept of 'staff not governed by the Staff Regulations'. According to the Commission, it is apparent from its objective and its very wording, as well as from the context in which it was taken, that the decision covered all the 'administrative positions or contracts with the Commission' of all the staff at the Commission that are not officials. In the alternative, the Commission maintains that the Court of First Instance ruled ultra petita and misinterpreted Article 8 of the Conditions of Employment of Other Servants of the European Communities. Where, as in the present case, a provision in the Staff Regulations provides the appointing authority with a mere option, the exercise of that option falls within its wide discretionary power. |
| --- | --- |

2.

The second plea alleges an error of law in the interpretation of the decision of 13 November 1996, in particular the concept of 'staff not governed by the Staff Regulations'. According to the Commission, it is apparent from its objective and its very wording, as well as from the context in which it was taken, that the decision covered all the 'administrative positions or contracts with the Commission' of all the staff at the Commission that are not officials. In the alternative, the Commission maintains that the Court of First Instance ruled ultra petita and misinterpreted Article 8 of the Conditions of Employment of Other Servants of the European Communities. Where, as in the present case, a provision in the Staff Regulations provides the appointing authority with a mere option, the exercise of that option falls within its wide discretionary power.

| 3. | The third plea alleges a breach of Community law by awarding compensation for alleged material loss that is neither actual nor quantifiable. It alleges, in the alternative, a failure to comply with the duty to provide reasons when calculating the damage, thereby preventing the Court from reviewing whether the principle of proportionality has been observed. |
| --- | --- |

3.

The third plea alleges a breach of Community law by awarding compensation for alleged material loss that is neither actual nor quantifiable. It alleges, in the alternative, a failure to comply with the duty to provide reasons when calculating the damage, thereby preventing the Court from reviewing whether the principle of proportionality has been observed.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/18 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/18

---

Appeal brought on 29 November 2005 by the Commission of the European Communities against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-72/04 between S. Hosman-Chevalier and the Commission of the European Communities

(Case C-424/05 P)

(2006/C 10/35)

Language of the case: French

An appeal against the judgment delivered on 13 September 2005 by the Court of First Instance of the European Communities (First Chamber) in Case T-72/04 between S. Hosman-Chevalier and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 29 November 2005 by the Commission of the European Communities, represented by H. Kraemer and M. Velardo, acting as Agents.

The appellant claims that the Court should:

| — | set aside the judgment under appeal and refer the case back to the Court of First Instance; |
| --- | --- |

—

set aside the judgment under appeal and refer the case back to the Court of First Instance;

| — | order the applicant at first instance to pay the costs of the proceedings, including her own costs in the proceedings before the Court of First Instance. |
| --- | --- |

—

order the applicant at first instance to pay the costs of the proceedings, including her own costs in the proceedings before the Court of First Instance.

Pleas in law and main arguments

The Commission submits a single plea against the judgment under appeal alleging breach of Community law in paragraphs 31 to 36 and 42 of that judgment. More precisely, it considers that the Court of First Instance misinterpreted the condition relating to ‘work done for another State’ laid down at the end of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations.

---

COURT OF FIRST INSTANCE

| 14.1.2006 | EN | Official Journal of the European Union | C 10/19 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/19

---

Appeal chamber

(2006/C 10/36)

On 6 December 2005 the Court of First Instance decided, in accordance with Article 12 of its Rules of Procedure, that for the period from 12 December 2005 to 31 August 2007 appeals brought against decisions of the Civil Service Tribunal are to be assigned, as soon as the application initiating proceedings has been lodged and without prejudice to subsequent application of Articles 14 and 51 of the Rules of Procedure, to an appeal chamber.

The appeal chamber is to be composed of the President of the Court of First Instance and of the Presidents of the Second, Third, Fourth and Fifth Chambers (all Extended Composition).

For the period from 12 December 2005 to 31 August 2007 the following are in consequence attached to the appeal chamber sitting with five Judges:

Mr Vesterdorf, President, and Messrs Jaeger, Pirrung, Vilaras and Legal, Judges.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/19 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/19

---

Judgment of the Court of First Instance of 17 November 2005 — Biofarma v OHIM

(Case T-154/03) (1)

(Community trade mark - Opposition proceedings - Earlier national word marks ARTEX - Application for Community word mark ALREX - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 10/37)

Language of the case: Dutch

Parties

Applicant(s): Biofarma SA (Neuilly-sur-Seine, France) (represented by V. Gil Vega, A. Ruiz López and D. Gonzalez Maroto, lawyers)

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

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Bausch & Lomb Pharmaceuticals, Inc. (Tampa, Florida, United States) (represented by S. Klos, lawyer)

Action

brought against the decision of the Third Board of Appeal of OHIM of 5 February 2003 (Case R 370/2002 3), concerning opposition proceedings between Biofarma SA and Bausch & Lomb Pharmaceuticals, Inc.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 February 2003 (Case R 370/2002-3); |
| --- | --- |

1.

Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 February 2003 (Case R 370/2002-3);

| 2. | Orders OHIM to bear its own costs and to pay those incurred by the applicant; |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by the applicant;

| 3. | Orders the intervener to bear its own costs. |
| --- | --- |

3.

Orders the intervener to bear its own costs.

---

(1)  OJ C 158, 5.7.2003.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/19 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/19

---

Judgment of the Court of First Instance of 9 November 2005 — Focus Magazin Verlag GmbH v OHIM

(Case T-275/03) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Hi-FOCuS - Earlier national word mark FOCUS - Scope of the examination conducted by the Board of Appeal - Assessment of evidence produced before the Board of Appeal)

(2006/C 10/38)

Language of the case: German

Parties

Applicant(s): Focus Magazin Verlag GmbH (Munich, Germany) (represented by: U. Gürtler, lawyer)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. von Mühlendahl, B. Müller and G. Schneider, acting as Agents)

Other party or parties to the proceedings before the Board of Appeal of OHIM: ECI Telecom Ltd (Petah Tikva, Israel)

Application for

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 30 April 2003 (Case R 913/2001-4) concerning opposition proceedings between Focus Magazin Verlag GmbH and ECI Telecom Ltd,

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 April 2003 (Case R 913/2001-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 April 2003 (Case R 913/2001-4);

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

2.

Orders the defendant to pay the costs.

---

(1)  OJ C 251, 18.10.2003.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/20 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/20

---

Judgment of the Court of First Instance of 15 November 2005 — Righini v Commission

(Case T-145/04) (1)

(Officials - Temporary staff - Classification in grade and in step - Classification in the higher career grade)

(2006/C 10/39)

Language of the case: French

Parties

Applicant: Elisabetta Righini (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Defendant: Commission of the European Communities (represented by: V. Joris and C. Berardis-Kayser, Agents, assisted by D. Waelbroeck, lawyer)

Application for

annulment of the Commission's decisions to classify the applicant on her entry into service in Grade A7, step 3, whether as a member of the temporary staff or as a probationary official, and, in so far as is necessary, annulment of the decision of 21 January 2004 rejecting the applicant's complaint

Operative part of the judgment

The Court:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

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

2)

Orders each party to bear its own costs.

---

(1)  OJ C 179 of 10.7.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/20 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/20

---

Order of the Court of First Instance of 17 October 2005 — First Data Corp. and Others v Commission of the European Communities

(Case T-28/02) (1)

(Competition - Article 81 EC - Visa payment card scheme - The ‘no-acquiring-without-issuing’ rule - Negative clearance - Rule abolished during the proceedings - Legal interest in bringing proceedings - No need to adjudicate)

(2006/C 10/40)

Language of the case: English

Parties

Applicants: First Data Corp. (Wilmington, Delaware, USA), FDR Ltd (Dover, Delaware, United States), and First Data Merchant Services Corp. (Sunrise, Florida, USA) (represented by: initially, P. Bos and M. Nissen, then P. Bos, lawyers)

Defendant: Commission of the European Communities (represented by: initially, R. Wainwright, W. Wils and V. Superti, then R. Wainwright and T. Christoforou, Agents)

Application for

annulment of the fifth indent of Article 1 of Commission Decision 2001/782/EC of 9 August 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No COMP/29.373 — Visa International) (OJ 2001 L 293, p. 24)

Operative part of the Order

| 1. | There is no need to adjudicate on this case. |
| --- | --- |

1.

There is no need to adjudicate on this case.

| 2. | The applicants and the Commission shall bear their own costs. |
| --- | --- |

2.

The applicants and the Commission shall bear their own costs.

---

(1)  OJ C 109, 4.5.2002.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/21 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/21

---

Order of the Court of First Instance of 26 October 2005 — Ouariachi v Commission

(Case T-124/04) (1)

(Action for damages - Non-contractual liability of the Community - Damage caused by a member of staff in the exercise of his functions - Absence of causal link)

(2006/C 10/41)

Language of the case: French

Parties

Applicant: Jamal Ouariachi (Rabat, Morocco) (represented by: F. Blanmailland and C. Verbrouck, lawyers)

Defendant: Commission of the European Communities (represented by: F. Dintilhac and G. Boudot, Agents)

Application for

damages to compensate for the loss allegedly suffered by the applicant following the alleged illegal conduct of a member of staff of the Commission delegation in Khartoum (Sudan)

Operative part of the Order

| 1. | The application is dismissed as being manifestly unfounded. |
| --- | --- |

1.

The application is dismissed as being manifestly unfounded.

| 2. | The applicant shall pay the costs. |
| --- | --- |

2.

The applicant shall pay the costs.

---

(1)  OJ C 118 of 30.4.2004.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/21 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/21

---

Order of the Court of First Instance of 27 October 2005 — GAEC Salat v Commission

(Case T-89/05) (1)

(Action for failure to act - Complaint concerning the protected designation of origin ‘Salers’ - Regulation (EC) No 828/2003 - Definition of position by the Commission - Manifest inadmissibility)

(2006/C 10/42)

Language of the case: French

Parties

Applicant: GAEC Salat (Farges, France) (represented by: F. Delpeuch, lawyer)

Defendant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart, Agent)

Application for

declaration of failure to act in that the Commission failed to adopt a decision on the applicant's complaint against the French Republic

Operative part of the Order

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

1.

The application is dismissed as manifestly inadmissible.

| 2. | The applicant shall pay the costs. |
| --- | --- |

2.

The applicant shall pay the costs.

---

(1)  OJ C 106 of 30.4.2005

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/21 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/21

---

Action brought on 6 October 2005 — Schierhorst v Commission

(Case T-374/05)

(2006/C 10/43)

Language of the case: French

Parties

Applicant: Rainer Johannes Schierhorst (Georgetown, Guyana) (represented by: S. Rodrigues, A. Jaume, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Appointing Authority rejecting the applicant's complaint, taken together with the decision appointing the applicant adopted by the Appointing Authority on 5 January 2005, in that it fixes his grade by application of Article 12(3) of Annex XIII to the Staff Regulations and his step pursuant to the current Article 32 of the Staff Regulations; |
| --- | --- |

—

annul the decision of the Appointing Authority rejecting the applicant's complaint, taken together with the decision appointing the applicant adopted by the Appointing Authority on 5 January 2005, in that it fixes his grade by application of Article 12(3) of Annex XIII to the Staff Regulations and his step pursuant to the current Article 32 of the Staff Regulations;

| — | indicate to the Appointing Authority the effects of annulling the contested decisions, in particular the regrading of the applicant at grade A*10, step 4, with retrospective effect from 1 February 2005, the date on which the decision of 11 October 2004 appointing the applicant took effect; |
| --- | --- |

—

indicate to the Appointing Authority the effects of annulling the contested decisions, in particular the regrading of the applicant at grade A*10, step 4, with retrospective effect from 1 February 2005, the date on which the decision of 11 October 2004 appointing the applicant took effect;

| — | in the alternative, order the Commission to make good the loss suffered by the applicant because he was not graded at grade A*10, step 4, from 1 February 2005, the date on which the decision of 5 January 2005 appointing the applicant took effect; |
| --- | --- |

—

in the alternative, order the Commission to make good the loss suffered by the applicant because he was not graded at grade A*10, step 4, from 1 February 2005, the date on which the decision of 5 January 2005 appointing the applicant took effect;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who was successful in Open Competition COM/A/1/02 for administrators of grade A7/A6 in the agricultural sector, was appointed an official by the contested decision of 5 January 2005. By application of Article 12 of Annex XIII to the Staff Regulations, he was graded at the new grade A*6, lower than the former grades A7/A6 which correspond to grades A*8/A*10 under the new system.

In support of his claims, the applicant relies on the pleas in law which are identical to those relied on by the applicant in Case T-207/05 (1).

---

(1)  OJ C 193, 6.8.2005, p. 36.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/22 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/22

---

Action brought on 5 October 2005 — Seegmuller v Commission

(Case T-377/05)

(2006/C 10/44)

Language of the case: French

Parties

Applicant: Magali Seegmuller (Uccle, Belgium) (represented by: K.H. Hagenaar, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the Decision of 5 July 2005 of the Appointing Authority of the European Commission which prevents the applicant from making her posting effective and from taking up her post in the Guinea Conakry delegation as head of administration of that delegation; |
| --- | --- |

—

annul the Decision of 5 July 2005 of the Appointing Authority of the European Commission which prevents the applicant from making her posting effective and from taking up her post in the Guinea Conakry delegation as head of administration of that delegation;

| — | grant in principle the applicant's claim for compensation, to be quantified at a later date, which arises from the material and non-material harm caused to her by the defendant; |
| --- | --- |

—

grant in principle the applicant's claim for compensation, to be quantified at a later date, which arises from the material and non-material harm caused to her by the defendant;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a member of temporary staff at the Commission, applied for the post of head of administration in Congo Brazzaville (Vacancy notice COM/2004/2982/F). On 5 January 2005, she was informed that she had passed the selection board. Asked by Commission DG RELEX whether she would accept another delegation, the applicant also agreed to be posted to Guinea Conakry.

As is the practice, the applicant underwent a medical examination with a view to her departure for the delegation in Guinea Conakry. By note of 17 March 2005, the Commission's medical officer stated that the applicant did not have the required physical aptitudes to carry out her functions in that delegation. Following that note, DG RELEX informed the applicant that she could not take up the post in Guinea Conakry. The applicant therefore submitted a complaint against that decision, which was rejected by the contested decision of 5 July 2005.

In support of her action, the applicant claims that it was not within the competence of the Director of DG RELEX to make the decision of 15 April 2005 and that there was a misuse of powers. Furthermore, she submits that there were alleged errors of assessment on the part of the Commission's medical officer, whose report of 17 March 2005 fails to establish, she alleges, any comprehensible link between the medical findings which it contains and the conclusions which he draws from them.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/22 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/22

---

Action brought on 7 October 2005 — Marenco v Commission

(Case T-378/05)

(2006/C 10/45)

Language of the case: French

Parties

Applicant: Giuliano Marenco (Brussels, Belgium) (represented by: A. Pappalardo, M. Merola, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the determination of the applicant's salary of January 2005 (last month of service),






  — | to the extent that that determination fails to take into account the increase in basic salary provided for in Article 7(4) of Annex XIII to the Staff Regulations, |
| --- | --- | --- |

—

annul the determination of the applicant's salary of January 2005 (last month of service),

—

to the extent that that determination fails to take into account the increase in basic salary provided for in Article 7(4) of Annex XIII to the Staff Regulations,

| — | to the extent that the multiplication factor is shown as 0.9982852 instead of 1; |
| --- | --- |

—

to the extent that the multiplication factor is shown as 0.9982852 instead of 1;

| — | annul the decision awarding and calculating the applicant's pension rights, adopted on 31 January 2005 by the Head of the Pensions unit of the Office for the Administration and Payment of Individual Entitlements,






  — | to the extent that it fails to take into account the increase in basic salary provided for in Article 7(4) of Annex XIII to the Staff Regulations, |
| --- | --- | --- |

—

annul the decision awarding and calculating the applicant's pension rights, adopted on 31 January 2005 by the Head of the Pensions unit of the Office for the Administration and Payment of Individual Entitlements,

—

to the extent that it fails to take into account the increase in basic salary provided for in Article 7(4) of Annex XIII to the Staff Regulations,

| — | to the extent that the figure 0.9982852 appears instead of 1 in the classification at the termination of service, |
| --- | --- |

—

to the extent that the figure 0.9982852 appears instead of 1 in the classification at the termination of service,

| — | to the extent that it establishes the pension classification as A*16/03, |
| --- | --- |

—

to the extent that it establishes the pension classification as A*16/03,

| — | annul the decision of 1 July 2005 adopted by the Director General of the Directorate for Personnel and Administration (ADMIN.B. 2 — SHS/amd — D (05)15121), which rejected both of the applicant's complaints (No R/266/05 and R/298/05), |
| --- | --- |

—

annul the decision of 1 July 2005 adopted by the Director General of the Directorate for Personnel and Administration (ADMIN.B. 2 — SHS/amd — D (05)15121), which rejected both of the applicant's complaints (No R/266/05 and R/298/05),

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, former Deputy Director-General of the Commission's Legal Service, who retired in February 2005, was classified, before leaving the service, at grade A*16 and benefited, until the end of 2004, from the increase in salary provided for in Article 7(4) of Annex XIII to the Staff Regulations. In accordance with the amendments to the Staff Regulations which entered into force on 1 May 2004, a multiplication factor of 0.9580274 was applicable to his basic salary, reflecting the difference between the basic salary laid down for his grade and step under the old and new Staff Regulations.

On 1 January 2005, the applicant reached the sixth step in his grade. Since the basic salaries laid down for that step under the old and new Staff Regulations are the same, the applicant takes the view that the applicable multiplication factor should from then on be ‘1’. However, a multiplication factor of 0.9982852 appeared, from that month onwards, both on his last salary slip and in the decision awarding and calculating his pension rights. In addition, the increase in salary provided for in Article 7(4) of Annex XIII to the Staff Regulations was not included in his salary for the month of January 2005 and, consequently, was not taken into account when determining his pension rights, which were calculated on the basis of his salary for that month. Finally, the decision determining the pension rights classified the applicant at step 3, instead of step 6, in his grade.

In support of his action, the applicant claims infringement of Article 2(2), of Article 7(4), and of Article 8(2) of Annex XIII to the Staff Regulations. He also pleads infringement of his legitimate expectations, allegedly arising from the result of an indicative calculation of his pension rights which he carried out with the assistance of an IT tool (‘calculette’), which the Commission provided to staff. According to the applicant, the ‘calculette’ envisaged that the increase in question would be taken into account when determining the pension.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/23 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/23

---

Action brought on 14 October 2005 — Zuffa/OHIM

(Case T-379/05)

(2006/C 10/46)

Language of the case: English

Parties

Applicant(s): Zuffa, LLC (Las Vegas, USA) [represented by: S. Malynicz, Barrister, M. Blair, Solicitor]

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

Form of order sought

| — | The decision of the First Board of Appeal dated 8 August 2005 in Case R 24/2005-1 shall be annulled; |
| --- | --- |

—

The decision of the First Board of Appeal dated 8 August 2005 in Case R 24/2005-1 shall be annulled;

| — | the Office shall bear its own costs and pay those of the applicant. |
| --- | --- |

—

the Office shall bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘ULTIMATE FIGHTING’ for goods and services in classes 9, 16, 25, 28 and 41 — application No 2 766 590

Decision of the examiner: Refusal of the application in respect of all goods and services applied for

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The term ULTIMATE FIGHTING, taken as a whole, is not a generic or usual name in relation to all the claimed goods and services. The Board of Appeal failed to adequately analyse the whole mark in relation to all the goods and services applied for.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/24 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/24

---

Action brought on 10 October 2005 — Buendía Sierra v Commission

(Case T-380/05)

(2006/C 10/47)

Language of the case: French

Parties

Applicant: José Buendía Sierra (Brussels, Belgium) (represented by: M. van der Woude, V. Landes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Director General of the Legal Service to award him only four Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the decision of the Appointing Authority rejecting his internal appeal; |
| --- | --- |

—

annul the decision of the Director General of the Legal Service to award him only four Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the decision of the Appointing Authority rejecting his internal appeal;

| — | annul the Appointing Authority's decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2004 promotion exercise; |
| --- | --- |

—

annul the Appointing Authority's decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2004 promotion exercise;

| — | annul the Appointing Authority's decision to award him a total of 20 points for the 2004 promotion exercise and a total of 40 points for the purpose of promotion to Grade A4 during that exercise; the merit list of Grade A5 officials for the 2004 promotion exercise, the list of officials promoted to Grade A4 in the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists; |
| --- | --- |

—

annul the Appointing Authority's decision to award him a total of 20 points for the 2004 promotion exercise and a total of 40 points for the purpose of promotion to Grade A4 during that exercise; the merit list of Grade A5 officials for the 2004 promotion exercise, the list of officials promoted to Grade A4 in the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists;

| — | annul, so far as may be necessary, the decision rejecting his complaint; |
| --- | --- |

—

annul, so far as may be necessary, the decision rejecting his complaint;

| — | 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 advances pleas similar to those he advanced previously in Case T-311/04 (1), an action also brought by him.

---

(1)  OJ C 262, 23.10.2004, p. 44

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/24 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/24

---

Action brought on 10 October 2005 — Di Bucci v Commission

(Case T-381/05)

(2006/C 10/48)

Language of the case: French

Parties

Applicant: Vittorio Di Bucci (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the formal proposal of the Director General of the Legal Service to award him only four Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the Director General's decision rejecting his internal appeal; |
| --- | --- |

—

annul the formal proposal of the Director General of the Legal Service to award him only four Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the Director General's decision rejecting his internal appeal;

| — | annul the decision of the Director General of Personnel and Administration not to award him any ‘Promotion Committee for work done in the interests of the institution’ special priority points (‘PPCPs’) for the 2004 promotion exercise; |
| --- | --- |

—

annul the decision of the Director General of Personnel and Administration not to award him any ‘Promotion Committee for work done in the interests of the institution’ special priority points (‘PPCPs’) for the 2004 promotion exercise;

| — | annul the decisions of the Director General of Personnel and Administration to award him a total of 20 points for the 2004 promotion exercise and a total of 40 points for the purpose of promotion to Grade A4 during that exercise; the list of officials granted PPCPs; the merit list of Grade A5 officials for the 2004 promotion exercise after Promotion Committees; the list of officials promoted to Grade A4 in the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists; |
| --- | --- |

—

annul the decisions of the Director General of Personnel and Administration to award him a total of 20 points for the 2004 promotion exercise and a total of 40 points for the purpose of promotion to Grade A4 during that exercise; the list of officials granted PPCPs; the merit list of Grade A5 officials for the 2004 promotion exercise after Promotion Committees; the list of officials promoted to Grade A4 in the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists;

| — | annul, so far as may be necessary, the decision rejecting his complaint; |
| --- | --- |

—

annul, so far as may be necessary, the decision rejecting his complaint;

| — | 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 advances pleas similar to those advanced in Case T-311/04 (1).

---

(1)  OJ C 262, 23.10.2004, p. 44

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/25 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/25

---

Action brought on 10 October 2005 — Wilms v Commission

(Case T-386/05)

(2006/C 10/49)

Language of the case: French

Parties

Applicant: Günter Wilms (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the formal proposal of the Director General of the Legal Service to award the applicant two Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the decision of the Director General rejecting his internal appeal; |
| --- | --- |

—

annul the formal proposal of the Director General of the Legal Service to award the applicant two Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the decision of the Director General rejecting his internal appeal;

| — | annul the decision of the Director General of Personnel and Administration not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ (‘PPCP’) special priority points for the 2004 promotion exercise; |
| --- | --- |

—

annul the decision of the Director General of Personnel and Administration not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ (‘PPCP’) special priority points for the 2004 promotion exercise;

| — | annul the decisions of the Director General of Personnel and Administration to award him a total of 17 points for the 2004 promotion exercise and a total of 36 points for the purpose of promotion to Grade A5 during that exercise; the list of officials who were awarded PPCPs; the merit list of Grade A6 officials for the 2004 promotion exercise after Promotion Committees; the list of officials promoted to Grade A5 for the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists |
| --- | --- |

—

annul the decisions of the Director General of Personnel and Administration to award him a total of 17 points for the 2004 promotion exercise and a total of 36 points for the purpose of promotion to Grade A5 during that exercise; the list of officials who were awarded PPCPs; the merit list of Grade A6 officials for the 2004 promotion exercise after Promotion Committees; the list of officials promoted to Grade A5 for the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists

| — | annul, so far as may be necessary, the decision rejecting his complaint; |
| --- | --- |

—

annul, so far as may be necessary, the decision rejecting his complaint;

| — | 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 advances similar pleas to those advanced in Case T-311/04 (1).

---

(1)  OJ C 262, 23.10.2004, p. 44

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/25 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/25

---

Action brought on 13 October 2005 — Chatziioannidou v Commission

(Case T-387/05)

(2006/C 10/50)

Language of the case: French

Parties

Applicant: Eleni Chatziioannidou (Auderghem, Belgium) (represented by: S.A. Pappas, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 8 July 2005 of the Appointing Authority rejecting the complaint brought by the applicant against a decision regarding the transfer of her pension rights to the Community scheme; |
| --- | --- |

—

annul the decision of 8 July 2005 of the Appointing Authority rejecting the complaint brought by the applicant against a decision regarding the transfer of her pension rights to the Community scheme;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of the Commission, applied for the transfer of her pension rights, acquired in Greece before she took up her post at the Commission, to the Community scheme. By her action, she criticises the method of calculation of the number of annuities to be taken into account according to the Community pension scheme, on the basis of the capital sum transferred. Specifically, the applicant submits that, before the introduction of the euro, the Commission converted the capital sum transferred in a currency other than the Belgian Franc not on the basis of the rate applicable on the date of calculation but at an average exchange rate which was intended to reflect the currency fluctuations over the period of payment of the contributions. However, following the transitional period for the definitive introduction of the euro, that is to say from 1 January 2002, the Commission no longer uses that method of calculation but takes into account the amount in euro transferred by the national funds.

The applicant states that the discontinuation of the average exchange rate method leads, in her case, to a considerable reduction in the number of annuities with which she was credited. On that basis, she claims breach of Council Regulation No 1103/97, which provides that the introduction of the euro is not to have the effect of altering any term of a legal instrument. She also claims breach of the principle of non-discrimination, since, depending on whether the transfer request was made before or after the introduction of the euro, officials in exactly the same position are not awarded the same number of annuities under the Community scheme.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/26 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/26

---

Action brought on 20 October 2005 — Grünheid v Commission

(Case T-388/05)

(2006/C 10/51)

Language of the case: French

Parties

Applicant: Sabine Grünheid (Overijse, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 6 October 2004, notified on 18 November 2004, inasmuch as it makes mention of the applicant's classification at grade A*8, and annul all consecutive and/or related measures; |
| --- | --- |

—

annul the decision of 6 October 2004, notified on 18 November 2004, inasmuch as it makes mention of the applicant's classification at grade A*8, and annul all consecutive and/or related measures;

| — | annul the corrected decision of 6 July 2005, notified on 12 July 2005, rejecting the applicant's complaint, which was registered on 18 February 2005 under reference R/162/05; |
| --- | --- |

—

annul the corrected decision of 6 July 2005, notified on 12 July 2005, rejecting the applicant's complaint, which was registered on 18 February 2005 under reference R/162/05;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By this action, the applicant, recruited as an official by the Commission in 2003, disputes her definitive classification at former grade A7, now grade A*8. She takes the view that, in the light of her professional experience acquired before her recruitment, allegedly of more than 12 years, she should have been classified at grade A6, now grade A*10.

In support of her action, the applicant alleges breach of Article 31(2) of the Staff Regulations, in the version in force before 1 May 2004, of the decisions of the Commission concerning the criteria applicable to appointment to a grade, of the administrative guide relating to the classification of new officials, and a manifest error of assessment. In addition, she alleges breach of the principle of equal treatment, since in the past the Commission has classified at the higher grade officials having qualities inferior or equal to those of the applicant. Finally, the applicant alleges breach of the principle of legitimate expectations and the duty to have regard to the welfare of officials.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/26 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/26

---

Action brought on 20 October 2005 — Ole Eistrup v European Parliament

(Case T-389/05)

(2006/C 10/52)

Language of the case: Danish

Parties

Applicant(s): Ole Eistrup (Knebel, Denmark) (represented by: S. E. Hjelmborg, advokat)

Defendant(s): European Parliament

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | annul the defendant's decision of 13 December 2004 and the defendant's reply of 12 July 2005; |
| --- | --- |

—

annul the defendant's decision of 13 December 2004 and the defendant's reply of 12 July 2005;

| — | order the defendant to pay the applicant compensation in the amount of EUR 203 357 for lost earnings in the period 1 June 1998 to 1 September 2002, together with interest; |
| --- | --- |

—

order the defendant to pay the applicant compensation in the amount of EUR 203 357 for lost earnings in the period 1 June 1998 to 1 September 2002, together with interest;

| — | order the defendant to pay the applicant EUR 200 000 for non-material damage, together with interest; |
| --- | --- |

—

order the defendant to pay the applicant EUR 200 000 for non-material damage, together with interest;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who is employed in the Parliament's Danish language translation division, wished to be reinstated in his post after taking leave on personal grounds from 1 August 1992 to 31 July 1996. This only became possible however from 1 October 2002, since the Parliament was not able to identify an available post corresponding to the applicant's category and qualifications before that date.

In support of his application the applicant states that he has fulfilled his obligation to mitigate his loss in connection with his claim for reimbursement of lost earnings.

The applicant also claims that the defendant's alleged unlawful handling of the matter put the applicant in a state of uncertainty and anxiety, and that the defendant's conduct constitutes a clear breach of the applicant's rights and the confidence which every citizen must have in the Community's legal system.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/27 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/27

---

Action brought on 17 October 2005 — Pickering v Commission

(Case T-393/05)

(2006/C 10/53)

Language of the case: French

Parties

Applicant(s): Stephen Pickering (La Hulpe, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | Declare void the applicant's wage slips for the months of December 2004, January 2005 and February 2005, and all the subsequent wage slips, to the extent that they apply the illegal provisions of Regulation No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities, and Regulation No 856/2004 fixing the new correction coefficients and Regulation No 31/2005 adjusting them, |
| --- | --- |

—

Declare void the applicant's wage slips for the months of December 2004, January 2005 and February 2005, and all the subsequent wage slips, to the extent that they apply the illegal provisions of Regulation No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities, and Regulation No 856/2004 fixing the new correction coefficients and Regulation No 31/2005 adjusting them,

| — | As far as is necessary, annul the decision of the appointing authority of 4 July 2005, rejecting the applicant's complaint (R/299/05), |
| --- | --- |

—

As far as is necessary, annul the decision of the appointing authority of 4 July 2005, rejecting the applicant's complaint (R/299/05),

| — | Order the defendant to pay all the costs in the case. |
| --- | --- |

—

Order the defendant to pay all the costs in the case.

Pleas in law and main arguments

The applicant, a Commission official, is a national of the United Kingdom. Before the entry into force of Regulation No 723/2004 (1) amending the Staff Regulations, the applicant regularly made use of the possibility of transferring part of his remuneration to his country of origin. In accordance with the rules in force, the part transferred was increased by an amount resulting from the application of a ‘correction coefficient’, which was supposed to reflect the difference between the cost of living in the country of employment and in that of origin.

The new Staff Regulations lay down strict conditions for such transfers, in contrast to what was formerly the case. Moreover, the ‘correction coefficient’ applicable is no longer equal to that applicable to the remuneration of officials employed in the country to which the transfer is made. The latter benefit from a coefficient calculated on the basis of the cost of living in the country's capital, while the coefficient applicable to the transfers is calculated on the basis of the average cost of living in the country to which the transfer is made. Lastly, the new provisions abolish the application of the ‘correction coefficient’ to pensions.

In support of his action, the applicant submits a plea of the illegality of Regulation No 723/2004 to the extent that it concerns the transfer of remuneration to the country of origin, alleging, firstly, that the grounds on which that regulation is based are misconceived. Next, he alleges a breach of the principle of equal treatment, to the extent that the new system provides for the application of a different coefficient to officials carrying out their activities in the country to which the transfer is made. The applicant also alleges a breach of the principles of legitimate expectations, acquired rights and legal certainty, and of the duty to have regard for the interests of officials.

As regards the pensions scheme, in addition to the three pleas above, the applicant pleads that it infringes the former officials' freedom of establishment, to the extent that it favours their establishment, after their employment has ceased, in a country with a lower cost of living.

---

(1)  Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004, amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ L 124 of 27.4.2002, p. 1.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/27 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/27

---

Action brought on 17 October 2005 — Valero Jordana v Commission

(Case T-394/05)

(2006/C 10/54)

Language of the case: French

Parties

Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. Merola and I. van Schendel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should

| — | annul:






  (a) | the decision of the Director General of the Legal Service not to award him, for the 2004 promotion exercise, priority points under Article 5(2)(a) of the General Implementing Provisions of Article 45 of the Staff Regulations, as is apparent from the Sysper 2 computerised system, confirmed by the Appointing Authority's decision of 16 November 2004 rejecting the applicant's appeal lodged on 4 October 2004. |
| --- | --- | --- |

—

annul:

(a)

the decision of the Director General of the Legal Service not to award him, for the 2004 promotion exercise, priority points under Article 5(2)(a) of the General Implementing Provisions of Article 45 of the Staff Regulations, as is apparent from the Sysper 2 computerised system, confirmed by the Appointing Authority's decision of 16 November 2004 rejecting the applicant's appeal lodged on 4 October 2004.

| (b) | the award, in the 2004 promotion exercise, of points awarded on appeal for reasons other than a finding of merit in that period, priority points for work in the interest of the institution and transitional priority points; |
| --- | --- |

(b)

the award, in the 2004 promotion exercise, of points awarded on appeal for reasons other than a finding of merit in that period, priority points for work in the interest of the institution and transitional priority points;

| (c) | as regards the points in (b), the merit list of officials in Grade A5 for promotion exercise 2004, published in Administrative Notices No 114-2004 of 20 September 2004 and No 119-2004 of 27 September 2004, and the list of officials promoted to Grade A4 under the 2004 promotion exercise, published in Administrative Notice No 130-2004 of 30 November 2004; and the decision not to enter the applicant on those lists; |
| --- | --- |

(c)

as regards the points in (b), the merit list of officials in Grade A5 for promotion exercise 2004, published in Administrative Notices No 114-2004 of 20 September 2004 and No 119-2004 of 27 September 2004, and the list of officials promoted to Grade A4 under the 2004 promotion exercise, published in Administrative Notice No 130-2004 of 30 November 2004; and the decision not to enter the applicant on those lists;

| — | 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 advances similar pleas to those advanced in Case T-385/04 (1).

---

(1)  OJ C 284, 20.11.2004, p. 27.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/28 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/28

---

Action brought on 7 November 2005 — Tesoka v European Foundation for the Improvement of Living and Working Conditions

(Case T-398/05)

(2006/C 10/55)

Language of the case: French

Parties

Applicant: Sabrina Tesoka (Overijse, Belgium) (represented by: J.-L. Fagnart, lawyer)

Defendant: European Foundation for the Improvement of Living and Working Conditions

Form of order sought

The applicant claims that the Court should:

| — | Annul the explicit decision of rejection of 14 October 2005 |
| --- | --- |

—

Annul the explicit decision of rejection of 14 October 2005

| — | Rule that the applicant may receive all the allowances and benefits which she can claim by reason of her resignation of 2 August 2005 pursuant to the second subparagraph of Article 17(2) of Regulation No 1860/76 amended by Article 8 of Regulation (EC) No 1111/2005 of 24 June 2005; |
| --- | --- |

—

Rule that the applicant may receive all the allowances and benefits which she can claim by reason of her resignation of 2 August 2005 pursuant to the second subparagraph of Article 17(2) of Regulation No 1860/76 amended by Article 8 of Regulation (EC) No 1111/2005 of 24 June 2005;

| — | Order the defendant to pay the applicant fair compensation of EUR 35 000, together with interest for late payment at the rate of 7 % from 2 August 2005; |
| --- | --- |

—

Order the defendant to pay the applicant fair compensation of EUR 35 000, together with interest for late payment at the rate of 7 % from 2 August 2005;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a member of the defendant's staff since 2001, resigned on 2 August 2005 in order to receive the pecuniary benefits set out under Regulation No 1111/2005 for staff members who had resigned before 4 August 2005. In her action, the applicant argues that the defendant rejected her application for indemnities to which she was entitled, and for the documents which she needed to receive social protection in her country of residence, and claims annulment of that decision of refusal and compensation for the damage allegedly suffered.

In support of her action, she alleges infringement of the second subparagraph of Article 17(2) of Regulation No 1860/76 as amended by Article 8 of Regulation (EC) No 1111/2005, infringement of Article 28a of the Conditions of Employment of Other Servants of the European Communities, of the provisions of Commission Regulation 91/88 of 13 January 1988, and of her legitimate expectations.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/28 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/28

---

Action brought on 21 October 2005 — Wils v European Parliament

(Case T-399/05)

(2006/C 10/56)

Language of the case: French

Parties

Applicant: Dieter Wils (Altrier, Luxembourg) (represented by: G. Vandersanden and C. Ronzi, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | Annul the applicant's salary slip for January 2005 with retroactive effect from 1 July 2004, insofar as it increases the rate of contribution to the pension scheme to 9.75 %, and order repayment to the applicant of the percentage of the contribution corresponding to the increase in rate. Accordingly — in the earlier salary slips — restore the rate of contribution to the level set before 1 July 2004; |
| --- | --- |

—

Annul the applicant's salary slip for January 2005 with retroactive effect from 1 July 2004, insofar as it increases the rate of contribution to the pension scheme to 9.75 %, and order repayment to the applicant of the percentage of the contribution corresponding to the increase in rate. Accordingly — in the earlier salary slips — restore the rate of contribution to the level set before 1 July 2004;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of the Parliament, challenges the increase in the rate of contribution to the pension scheme to 9,75 %, introduced by Annex XIII to the Staff Regulations, which came into force on 1 May 2004. In support of his claims, he alleges the illegality of that annex, in the light of Article 83(4) of the Staff Regulations, in the version applicable prior to 1 May 2004. The effect of that latter provision was to allow the contribution at issue to be altered for the sole purpose of ensuring actuarial balance. However, the applicant submits that the increase in question was decided upon for other reasons, namely, to cover a pre-existing deficit in the Community pension scheme.

Furthermore, the applicant claims that the criteria used by Eurostat to calculate the actuarial balance are based on parameters which have led to miscalculations. He also pleads a breach of the principle of proportionality, in that the increase in question goes beyond what is strictly necessary to restore actuarial balance. Lastly, the applicant alleges infringement of his legitimate expectations, since the Parliament clearly let it be understood that it would not allow the rate of contribution to be altered otherwise than in strict compliance with the actuarial balance.

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/29 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/29

---

Action brought on 15 November 2005 — MyTravel/Commission

(Case T-403/05)

(2006/C 10/57)

Language of the case: English

Parties

Applicant(s): MyTravel Group plc (Rochdale, United Kingdom) [represented by: D. Pannick, QC, A. Lewis, Barrister, M. Nicholson, S. Cardell, B. McKenna, Solicitors]

Defendant(s): Commission of the European Communities

Form of order sought

| — | Annul, in its entirety or in the alternative in such part as the Court may determine, the Commission's decision, contained in two letters to the applicant's counsel dated 5 September 2005 and 12 October 2005, not to grant to the applicant access to the report prepared by the Commission following the judgment of the Court of First Instance, of 6 June 2002, in Case T-342/99, Airtours/Commission, as well as a number of drafts, working papers and notes, either relating to the preparation of that report or contained in the case file of the Commission's decision which was annulled by the aforementioned judgment; |
| --- | --- |

—

Annul, in its entirety or in the alternative in such part as the Court may determine, the Commission's decision, contained in two letters to the applicant's counsel dated 5 September 2005 and 12 October 2005, not to grant to the applicant access to the report prepared by the Commission following the judgment of the Court of First Instance, of 6 June 2002, in Case T-342/99, Airtours/Commission, as well as a number of drafts, working papers and notes, either relating to the preparation of that report or contained in the case file of the Commission's decision which was annulled by the aforementioned judgment;

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

—

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant, then named ‘Airtours plc.’, brought an application requesting the annulment of the Commission's decision regarding the applicant's merger with another company. By its judgment in Case T-342/99, Airtours/Commission, the Court annulled that decision, as requested by the applicant. The applicant then brought another application (Case T-212/03, MyTravel/Commission), for damages allegedly incurred by reason of the Commission's errors and breaches of Community law in its handling of the case leading to the annulment.

In the context of those second proceedings, the applicant, relying on Regulation 1049/2001 (1), requested the Commission to grant it access to the report prepared by the Commission's services following the judgment, as well as a number of drafts, working papers and notes, either relating to the preparation of that report or contained in the case file of the Commission's decision, which had been annulled. By the contested decision, the Commission rejected the applicant's request, considering that the exceptions in Article 4, paragraphs 2 and 3, of Regulation 1049/2001, relating to the protection of court proceedings and legal advice, of the purposes of inspections, investigations and audits or of the Commission's decision making process, should apply.

The applicant requests the annulment of this decision. It challenges in detail the Commission's assertions that certain documents should not be disclosed in order to protect court and legal proceedings, and considers that it should not be open to the Commission to rely on the need to protect historic court proceedings, such as the ones in Case T-342/99, already closed, in order to resist the disclosure of documents which are central to the achieving of a just result in separate, ongoing proceedings.

With regard to the protection of investigations, the applicant contends that the Commission's appraisal of a proposed merger is not an investigation for the purposes of the exception and that the exception does not apply to internal enquiries nor does it in any event apply to enquiries which are closed. Further, the applicant considers that disclosure would not undermine the purpose of investigations in similar merger procedures. The applicant also challenges the Commission's assertion that an internal audit aimed at modernising administrative procedures could not be independent if its recommendations and findings were made public.

Finally, the applicant considers that the Commission has not established that disclosure would seriously undermine its future decision-making process, since the report of which disclosure was requested does not relate to the way decisions will be taken in future but to the way in which they were wrongly taken in the past, transparency could not be equated to undue external pressure and the disclosure requested would have no impact on the stability of the Community legal order.

The applicant finally argues that there is an overriding public interest in the disclosure of the requested documents.

---

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

---

| 14.1.2006 | EN | Official Journal of the European Union | C 10/30 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/30

---

Action brought on 9 November 2005 — Alessandro Cavallaro v Commission of the European Communities

(Case T-406/05)

(2006/C 10/58)

Language of the case: Italian

Parties

Applicant: Alessandro Cavallaro (Rome, Italy) (represented by: Carlo Forte, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul decision ADMIN. B.2.-ABF/adm-D(05)18560 of the appointing authority (AIPN) of 10 August 2005; |
| --- | --- |

—

annul decision ADMIN. B.2.-ABF/adm-D(05)18560 of the appointing authority (AIPN) of 10 August 2005;

| — | in the alternative, order time to start running again for the purposes of bringing an action for annulment of decisions ADMIN-B-3 No 10577 of 27 February 2002 and No 53089 of 14 November 2002; |
| --- | --- |

—

in the alternative, order time to start running again for the purposes of bringing an action for annulment of decisions ADMIN-B-3 No 10577 of 27 February 2002 and No 53089 of 14 November 2002;

| — | in the further alternative, declare admissible the plea of unlawfulness seeking a declaration that decisions ADMIN-B-3 No 10577 of 27 February 2002 and No 53089 of 14 November 2002 are inapplicable, allowing the applicant the right to payment of the sums relating to the expatriation allowance from 1 December 2001 and for the entire period of service with the European Commission in Brussels, including arrears and interest; |
| --- | --- |

—

in the further alternative, declare admissible the plea of unlawfulness seeking a declaration that decisions ADMIN-B-3 No 10577 of 27 February 2002 and No 53089 of 14 November 2002 are inapplicable, allowing the applicant the right to payment of the sums relating to the expatriation allowance from 1 December 2001 and for the entire period of service with the European Commission in Brussels, including arrears and interest;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present case appeals against the decision of the appointing authority of 10 August 2005, in which he was refused the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations of the European Communities, and requests payment of the sums relating to such allowance to be allowed from 1 March 2005 and for the entire period of service with the Commission delegation in Rome.

It must be noted in that respect that back in 2002, immediately after being employed by the Commission, that authority refused the expatriation allowance of 16 % on the assumption that during the entire reference period for the calculation of the five years referred to in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, the applicant had exercised his professional activities in Brussels.

The applicant was subsequently transferred to the office of the Commission delegation in Rome, and again asked for the benefit of that allowance. The present action is brought against the adverse decision in respect of that new request.

In support of his claims, the applicant pleads:

| — | misapplication of Article 4(1)(b) of the Staff Regulations; |
| --- | --- |

—

misapplication of Article 4(1)(b) of the Staff Regulations;

| — | inconsistency of the statement of reasons and error in fact concerning the documentation supplied in respect of the 1990-1995 period. On that point, the applicant reiterates that he lived outside Italy from 1990 to 1995, and that he did not study in Italy between 1992 and 1995. In any event, the Commission's statements in the contested decision contradict the statements set out in the decisions of 2002; and |
| --- | --- |

—

inconsistency of the statement of reasons and error in fact concerning the documentation supplied in respect of the 1990-1995 period. On that point, the applicant reiterates that he lived outside Italy from 1990 to 1995, and that he did not study in Italy between 1992 and 1995. In any event, the Commission's statements in the contested decision contradict the statements set out in the decisions of 2002; and

| — | inconsistency of the statement of reasons concerning the presumption that from July 1990 to July 1995 the applicant lived in Italy. In that respect it is asserted that the mere declaration of the applicant, made at a time in which he was working as an auxiliary agent, that his place of recruitment was to be determined as Ariccia, in Italy, did not suffice to demonstrate his intention to remain living in that place uninterruptedly, developing normal social relations there. |
| --- | --- |

—

inconsistency of the statement of reasons concerning the presumption that from July 1990 to July 1995 the applicant lived in Italy. In that respect it is asserted that the mere declaration of the applicant, made at a time in which he was working as an auxiliary agent, that his place of recruitment was to be determined as Ariccia, in Italy, did not suffice to demonstrate his intention to remain living in that place uninterruptedly, developing normal social relations there.

---

III Notices

| 14.1.2006 | EN | Official Journal of the European Union | C 10/31 |
| --- | --- | --- | --- |

14.1.2006

EN

Official Journal of the European Union

C 10/31

---

(2006/C 10/59)

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

OJ C 330, 24.12.2005

Past publications

OJ C 315, 10.12.2005

OJ C 296, 26.11.2005

OJ C 281, 12.11.2005

OJ C 271, 29.10.2005

OJ C 257, 15.10.2005

OJ C 243, 1.10.2005

These texts are available on:

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

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

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

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

---