# Official Journal C 330/24 D

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 330 |
| | |
| English edition | Information and Notices | Volume 4824 December 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 330

English edition

Information and Notices

Volume 4824 December 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 330/1 | Judgment of the Court (Grand Chamber) of 15 November 2005 in Case C-392/02: Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Communities' own resources — Customs duties legally owing not subsequently recovered following an error by the national customs authorities — Financial liability of Member States) | 1 |
| 2005/C 330/2 | Judgment of the Court (Third Chamber) of 27 October 2005 in Case C-158/03: Commission of the European Communities v Kingdom of Spain (Freedom of establishment — Freedom to provide services — Calls for tender issued by the Instituto Nacional de Salud — Health services consisting of home respiratory treatments — Condition for tendering — Evaluation criteria — Principle of non-discrimination) | 1 |
| 2005/C 330/3 | Judgment of the Court (Third Chamber) of 27 October 2005 in Case C-175/03: Hellenic Republic v Commission of the European Communities (EAGGF — Decision 2003/102/EC — Expenditure excluded from Community financing — Aid for the preservation of olive groves in the minor islands of the Aegean Sea — Financial years 1999-2001) | 2 |
| 2005/C 330/4 | Judgment of the Court (First Chamber) of 27 October 2005 in Case C-329/03 Reference for a preliminary ruling from the Arios Pagos (Greece), Trapeza tis Ellados AE v Banque Artesia (Free movement of capital — First Council Directive of 11 May 1960 — Acquisition of bonds dealt in on a stock exchange — Repatriation of the proceeds of their liquidation) | 2 |
| 2005/C 330/5 | Judgment of the Court (First Chamber) of 20 October 2005 in Case C-334/03: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 90/388/EEC — Telecommunications — Article 4d — Rights of way — Lack of a guarantee of non-discrimination in the grant of rights of way — Non-transposition) | 3 |
| 2005/C 330/6 | Judgment of the Court (Fourth Chamber) of 27 October 2005 in Case C-387/03: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Financial years 1999 and 2000 — Decision 2003/536/EC — Wine, olive oil, beef and veal and sheepmeat) | 3 |
| 2005/C 330/7 | Judgment of the Court (First Chamber) of 27 October 2005 in Case C-437/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directives 78/686/EEC and 78/687/EEC — Dental practitioners) | 4 |
| 2005/C 330/8 | Judgment of the Court (Second Chamber) of 27 October 2005 in Case C-525/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — National rules ceasing to have any legal effect before the expiry of the period laid down in the reasoned opinion — Inadmissibility of the action) | 4 |
| 2005/C 330/9 | Judgment of the Court (Fifth Chamber) of 27 October 2005 in Case C-166/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Protection of wild birds and their habitats — Special protection areas — Messolongi Lagoon) | 5 |
| 2005/C 330/0 | Judgment of the Court (First Chamber) of 27 October 2005 in Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04: Reference for a preliminary ruling from the Tribunal des affaires de sécurité sociale de Saint-Étienne: Nazairdis SAS and Others v Caisse nationale de l'organisation autonome d'assurance vieillesse des travailleurs non salariés des professions industrielles et commerciales (Organic) (Concept of aid — Tax assessed on the basis of sales area — Hypothecation of the tax revenue) | 5 |
| 2005/C 330/1 | Judgment of the Court (Sixth Chamber) of 27 October 2005 in Case C-377/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 1999/92/EC — Protection of workers — Risk from explosive atmospheres — Failure to transpose within the prescribed period) | 6 |
| 2005/C 330/2 | Judgment of the Court (Sixth Chamber) of 27 October 2005 in Case C-23/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2000/34/EC — Working conditions — Organisation of working time — Failure to transpose within the prescribed period) | 6 |
| 2005/C 330/3 | Judgment of the Court (Fourth Chamber) of 27 October 2005 in Case C-165/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Free movement of persons — Workers — Spouses — Requirement of a work permit for spouses who are nationals of non-member countries) | 7 |
| 2005/C 330/4 | Case C-363/05: Reference for a preliminary ruling from the VAT and Duties Tribunals, London by Direction of that court of 19 September 2005 in 1) J.P. Morgan Fleming Claverhouse Investment Trust plc 2) The Association of Investment Trust Companies v Commissioners of HM Revenue and Customs | 7 |
| 2005/C 330/5 | Case C-366/05: Reference for a preliminary ruling from the Supremo Tribunal Administrativo by order of that court of 6 July 2005 in Optimus — Telecomunicações, S.A. v Fazenda Pública | 8 |
| 2005/C 330/6 | Case C-373/05 P: Appeal brought on 10 October 2005 by Bart Nijs against the order made on 26 May 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-377/04 between Bart Nijs and the Court of Auditors of the European Communities | 8 |
| 2005/C 330/7 | Case C-375/05: Reference for a preliminary ruling from the Bundesverwaltungsgericht by order of that court of 23 August 2005 in Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen | 9 |
| 2005/C 330/8 | Case C-378/05: Reference for a preliminary ruling from the Cour de cassation (Belgium) by judgment of that court of 9 September 2005 in Samotor SPRL v Belgian State | 9 |
| 2005/C 330/9 | Case C-384/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by order of that court of 14 October 2005 in Johan Piek v Netherlands State (Ministry of Agriculture, Nature and Food Quality, formerly Ministry of Agriculture, Nature Management and Fisheries) | 10 |
| 2005/C 330/0 | Case C-385/05: Reference for a preliminary ruling from the Conseil d'État (France) by decision of that court of 19 October 2005 in Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.) and Confédération Générale du Travail — Force Ouvrière v Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement | 10 |
| 2005/C 330/1 | Case C-390/05: Action brought on 27 October 2005 by the Commission of the European Communities against the Hellenic Republic | 11 |
| 2005/C 330/2 | Removal from the register of Case C-102/03 | 11 |
| 2005/C 330/3 | Removal from the register of Case C-389/04 | 11 |
| 2005/C 330/4 | Removal from the register of Case C-400/04 | 12 |
| 2005/C 330/5 | Removal from the register of Case C-402/04 | 12 |
| 2005/C 330/6 | Removal from the register of Case C-450/04 | 12 |
| 2005/C 330/7 | Removal from the register of Case C-472/04 | 12 |
| 2005/C 330/8 | Removal from the register of Case C-483/04 | 12 |
| 2005/C 330/9 | Removal from the register of Case C-485/04 | 12 |
| 2005/C 330/0 | Removal from the register of Case C-44/05 | 13 |
| 2005/C 330/1 | Removal from the register of Case C-55/05 | 13 |
| 2005/C 330/2 | Removal from the register of Case C-84/05 | 13 |
| 2005/C 330/3 | Removal from the register of Case C-86/05 | 13 |
| 2005/C 330/4 | Removal from the register of Case C-95/05 | 13 |
| 2005/C 330/5 | Removal from the register of Case C-123/05 | 13 |
| 2005/C 330/6 | Removal from the register of Case C-156/05 | 14 |
| 2005/C 330/7 | Removal from the register of Case C-160/05 | 14 |
| | COURT OF FIRST INSTANCE |
| 2005/C 330/8 | Case T-318/00: Judgment of the Court of First Instance of 19 October 2005 — Freistaat Thüringen v Commission (State aid — Misuse of aid — Likelihood of circumventing the recovery order — Recovery of aid from the companies which acquired the current assets from the initial recipient) | 15 |
| 2005/C 330/9 | Case T-324/00: Judgment of the Court of First Instance of 19 October 2005 — CDA Datenträger Albrechts v Commission (State aid — Misuse of aid — Risk of circumvention of the order for recovery — Recovery of aid from the companies which acquired the operating assets from the original beneficiary) | 15 |
| 2005/C 330/0 | Case T-38/02: Judgment of the Court of First Instance of 25 October 2005 — Groupe Danone v Commission (Competition — Agreements and concreted practices — Fines — Guidelines for the calculation of the amount of fines — Communication on cooperation) | 16 |
| 2005/C 330/1 | Case T-205/02: Judgment of the Court of First Instance of 25 October 2005 — Salvador García v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State or for an international organisation — Meaning of habitually reside — Statement of reasons) | 16 |
| 2005/C 330/2 | Case T-298/02: Judgment of the Court of First Instance of 25 October 2005 — Herrero Romeu v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitual residence — Statement of grounds — Principle of equal treatment) | 17 |
| 2005/C 330/3 | Case T-299/02: Judgment of the Court of First Instance of 25 October 2005 — Dedeu i Fontcuberta v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitual residence) | 17 |
| 2005/C 330/4 | Case T-60/03: Judgment of the Court of First Instance of 18 October 2005 — Regione Siciliana v Commission (Action for annulment — Admissibility — Fourth paragraph of Article 230 EC — Natural or legal persons — Act of direct concern to them — European Regional Development Fund (ERDF) — Commission's decision cancelling and requiring repayment of financial assistance — Article 24 of Regulation (EEC) No 4253/88 — Manifest error of assessment) | 18 |
| 2005/C 330/5 | Case T-83/03: Judgment of the Court of First Instance of 25 October 2005 — Salazar Brier v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitual residence — Statement of grounds — Principle of equal treatment) | 18 |
| 2005/C 330/6 | Case T-336/03: Judgment of the Court of First Instance of 27 October 2005 — Les Éditions Albert René v OHIM (Community trade mark — Opposition proceedings — Earlier Community and national word mark OBELIX — Application for Community word mark MOBILIX — Article 8(1)(b) and (2) of Regulation (EC) No 40/94) | 19 |
| 2005/C 330/7 | Case T-368/03: Judgment of the Court of First Instance of 25 October 2005 — De Bustamante Tello v Council of the European Union (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitually reside — Principle of equal treatment) | 19 |
| 2005/C 330/8 | Case T-379/03: Judgment of the Court of First Instance of 25 October 2005 — Peek & Cloppenburg KG v OHIM (Community trade mark — Word mark Cloppenburg — Absolute grounds for refusal to register — Descriptive character — Geographical origin — Article 7(1)(c) of Regulation (EC) No 40/94) | 19 |
| 2005/C 330/9 | Case T-415/03: Judgment of the Court of First Instance of 19 October 2005 — Cofradía de pescadores de San Pedro de Bermeo and Others v Council (Fisheries — Conservation of the resources of the sea — Relative stability of the fishing activities of each Member State — Fishing quota exchanges — Transfer to the French Republic of part of the fishing quota for anchovy allocated to the Portuguese Republic — Annulment of the provisions authorising that transfer — Reduction, for the Kingdom of Spain, of the effective fishing possibilities — Non-contractual liability of the Community — Rule of law conferring rights on individuals — Actual damage) | 20 |
| 2005/C 330/0 | Case T-43/04: Judgment of the Court of First Instance of 25 October 2005 — Fardoom and Reinard v Commission (Officials — Career development report — Evaluation exercise 2001-2002) | 20 |
| 2005/C 330/1 | Case T-50/04: Judgment of the Court of First Instance of 25 October 2005 — Micha v Commission (Officials — Reporting procedure for 1999/2001 — Staff report — Action for annulment — Obligation to state reasons — Manifest error of assessment — Delay in drawing up staff report) | 21 |
| 2005/C 330/2 | Case T-51/04: Judgment of the Court of First Instance of 18 October 2005 — Leite Mateus v Commission (Officials — Career development report — Assessment period 2001/2002) | 21 |
| 2005/C 330/3 | Case T-96/04: Judgment of the Court of First Instance of 25 October 2005 — Cwik v Commission (Officials — Evaluation exercise 2001/2002 — Career development report — Application for annulment — Plea of illegality — Manifest errors of assessment — Errors of fact — Psychological harassment — Compensation for damage suffered — Non-material damage) | 21 |
| 2005/C 330/4 | Case T-305/04: Judgment of the Court of First Instance of 27 October 2005 — Eden v OHIM (Community trade mark — Olfactory mark: Smell of ripe strawberries — Absolute ground for refusal — Sign not capable of being represented graphically — Article 7(1)(a) of Regulation (EC) No 40/94) | 22 |
| 2005/C 330/5 | Case T-258/99: Order of the Court of First Instance of 20 September 2005 — Makro Cash & Carry Nederland v Commission (State aid — Commission notice on the de minimis rule for State aid — Service stations — Risk of cumulation of aid — Aid covered by the notice — Legal interest in bringing proceedings) | 22 |
| 2005/C 330/6 | Case T-321/04: Order of the Court of First Instance of 19 September 2005 — Air Bourbon v Commission (State aid — Decision to raise no objections — Action for annulment — Time-limit for bringing an action — Publication of a summary notice — Not admissible) | 23 |
| 2005/C 330/7 | Case T-366/05: Action brought on 26 September 2005 — Anheuser-Busch/OHIM | 23 |
| 2005/C 330/8 | Case T-384/05: Action brought on 19 October 2005 — I.R.I.P.A. Abruzzo v Commission | 23 |
| 2005/C 330/9 | Case T-385/05: Action brought on 21 October 2005 — Transnáutica/Commission | 24 |
| 2005/C 330/0 | Case T-391/05: Action brought on 24 October 2005 — Commission/Reagecon Diagnostics | 25 |
| 2005/C 330/1 | Case T-265/00: Order of the Court of First Instance of 20 October 2005 — Comitato Venezia Vuole Vivere v Commission | 25 |
| 2005/C 330/2 | Case T-410/04: Order of the Court of First Instance of 27 October 2005 — Italy v Commission | 25 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 330/1

Judgment of the Court (Grand Chamber) of 15 November 2005 in Case C-392/02: Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Communities' own resources — Customs duties legally owing not subsequently recovered following an error by the national customs authorities — Financial liability of Member States)

1

2005/C 330/2

Judgment of the Court (Third Chamber) of 27 October 2005 in Case C-158/03: Commission of the European Communities v Kingdom of Spain (Freedom of establishment — Freedom to provide services — Calls for tender issued by the Instituto Nacional de Salud — Health services consisting of home respiratory treatments — Condition for tendering — Evaluation criteria — Principle of non-discrimination)

1

2005/C 330/3

Judgment of the Court (Third Chamber) of 27 October 2005 in Case C-175/03: Hellenic Republic v Commission of the European Communities (EAGGF — Decision 2003/102/EC — Expenditure excluded from Community financing — Aid for the preservation of olive groves in the minor islands of the Aegean Sea — Financial years 1999-2001)

2

2005/C 330/4

Judgment of the Court (First Chamber) of 27 October 2005 in Case C-329/03 Reference for a preliminary ruling from the Arios Pagos (Greece), Trapeza tis Ellados AE v Banque Artesia (Free movement of capital — First Council Directive of 11 May 1960 — Acquisition of bonds dealt in on a stock exchange — Repatriation of the proceeds of their liquidation)

2

2005/C 330/5

Judgment of the Court (First Chamber) of 20 October 2005 in Case C-334/03: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 90/388/EEC — Telecommunications — Article 4d — Rights of way — Lack of a guarantee of non-discrimination in the grant of rights of way — Non-transposition)

3

2005/C 330/6

Judgment of the Court (Fourth Chamber) of 27 October 2005 in Case C-387/03: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Financial years 1999 and 2000 — Decision 2003/536/EC — Wine, olive oil, beef and veal and sheepmeat)

3

2005/C 330/7

Judgment of the Court (First Chamber) of 27 October 2005 in Case C-437/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directives 78/686/EEC and 78/687/EEC — Dental practitioners)

4

2005/C 330/8

Judgment of the Court (Second Chamber) of 27 October 2005 in Case C-525/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — National rules ceasing to have any legal effect before the expiry of the period laid down in the reasoned opinion — Inadmissibility of the action)

4

2005/C 330/9

Judgment of the Court (Fifth Chamber) of 27 October 2005 in Case C-166/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Protection of wild birds and their habitats — Special protection areas — Messolongi Lagoon)

5

2005/C 330/0

Judgment of the Court (First Chamber) of 27 October 2005 in Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04: Reference for a preliminary ruling from the Tribunal des affaires de sécurité sociale de Saint-Étienne: Nazairdis SAS and Others v Caisse nationale de l'organisation autonome d'assurance vieillesse des travailleurs non salariés des professions industrielles et commerciales (Organic) (Concept of aid — Tax assessed on the basis of sales area — Hypothecation of the tax revenue)

5

2005/C 330/1

Judgment of the Court (Sixth Chamber) of 27 October 2005 in Case C-377/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 1999/92/EC — Protection of workers — Risk from explosive atmospheres — Failure to transpose within the prescribed period)

6

2005/C 330/2

Judgment of the Court (Sixth Chamber) of 27 October 2005 in Case C-23/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2000/34/EC — Working conditions — Organisation of working time — Failure to transpose within the prescribed period)

6

2005/C 330/3

Judgment of the Court (Fourth Chamber) of 27 October 2005 in Case C-165/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Free movement of persons — Workers — Spouses — Requirement of a work permit for spouses who are nationals of non-member countries)

7

2005/C 330/4

Case C-363/05: Reference for a preliminary ruling from the VAT and Duties Tribunals, London by Direction of that court of 19 September 2005 in 1) J.P. Morgan Fleming Claverhouse Investment Trust plc 2) The Association of Investment Trust Companies v Commissioners of HM Revenue and Customs

7

2005/C 330/5

Case C-366/05: Reference for a preliminary ruling from the Supremo Tribunal Administrativo by order of that court of 6 July 2005 in Optimus — Telecomunicações, S.A. v Fazenda Pública

8

2005/C 330/6

Case C-373/05 P: Appeal brought on 10 October 2005 by Bart Nijs against the order made on 26 May 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-377/04 between Bart Nijs and the Court of Auditors of the European Communities

8

2005/C 330/7

Case C-375/05: Reference for a preliminary ruling from the Bundesverwaltungsgericht by order of that court of 23 August 2005 in Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen

9

2005/C 330/8

Case C-378/05: Reference for a preliminary ruling from the Cour de cassation (Belgium) by judgment of that court of 9 September 2005 in Samotor SPRL v Belgian State

9

2005/C 330/9

Case C-384/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by order of that court of 14 October 2005 in Johan Piek v Netherlands State (Ministry of Agriculture, Nature and Food Quality, formerly Ministry of Agriculture, Nature Management and Fisheries)

10

2005/C 330/0

Case C-385/05: Reference for a preliminary ruling from the Conseil d'État (France) by decision of that court of 19 October 2005 in Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.) and Confédération Générale du Travail — Force Ouvrière v Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement

10

2005/C 330/1

Case C-390/05: Action brought on 27 October 2005 by the Commission of the European Communities against the Hellenic Republic

11

2005/C 330/2

Removal from the register of Case C-102/03

11

2005/C 330/3

Removal from the register of Case C-389/04

11

2005/C 330/4

Removal from the register of Case C-400/04

12

2005/C 330/5

Removal from the register of Case C-402/04

12

2005/C 330/6

Removal from the register of Case C-450/04

12

2005/C 330/7

Removal from the register of Case C-472/04

12

2005/C 330/8

Removal from the register of Case C-483/04

12

2005/C 330/9

Removal from the register of Case C-485/04

12

2005/C 330/0

Removal from the register of Case C-44/05

13

2005/C 330/1

Removal from the register of Case C-55/05

13

2005/C 330/2

Removal from the register of Case C-84/05

13

2005/C 330/3

Removal from the register of Case C-86/05

13

2005/C 330/4

Removal from the register of Case C-95/05

13

2005/C 330/5

Removal from the register of Case C-123/05

13

2005/C 330/6

Removal from the register of Case C-156/05

14

2005/C 330/7

Removal from the register of Case C-160/05

14

COURT OF FIRST INSTANCE

2005/C 330/8

Case T-318/00: Judgment of the Court of First Instance of 19 October 2005 — Freistaat Thüringen v Commission (State aid — Misuse of aid — Likelihood of circumventing the recovery order — Recovery of aid from the companies which acquired the current assets from the initial recipient)

15

2005/C 330/9

Case T-324/00: Judgment of the Court of First Instance of 19 October 2005 — CDA Datenträger Albrechts v Commission (State aid — Misuse of aid — Risk of circumvention of the order for recovery — Recovery of aid from the companies which acquired the operating assets from the original beneficiary)

15

2005/C 330/0

Case T-38/02: Judgment of the Court of First Instance of 25 October 2005 — Groupe Danone v Commission (Competition — Agreements and concreted practices — Fines — Guidelines for the calculation of the amount of fines — Communication on cooperation)

16

2005/C 330/1

Case T-205/02: Judgment of the Court of First Instance of 25 October 2005 — Salvador García v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State or for an international organisation — Meaning of habitually reside — Statement of reasons)

16

2005/C 330/2

Case T-298/02: Judgment of the Court of First Instance of 25 October 2005 — Herrero Romeu v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitual residence — Statement of grounds — Principle of equal treatment)

17

2005/C 330/3

Case T-299/02: Judgment of the Court of First Instance of 25 October 2005 — Dedeu i Fontcuberta v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitual residence)

17

2005/C 330/4

Case T-60/03: Judgment of the Court of First Instance of 18 October 2005 — Regione Siciliana v Commission (Action for annulment — Admissibility — Fourth paragraph of Article 230 EC — Natural or legal persons — Act of direct concern to them — European Regional Development Fund (ERDF) — Commission's decision cancelling and requiring repayment of financial assistance — Article 24 of Regulation (EEC) No 4253/88 — Manifest error of assessment)

18

2005/C 330/5

Case T-83/03: Judgment of the Court of First Instance of 25 October 2005 — Salazar Brier v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitual residence — Statement of grounds — Principle of equal treatment)

18

2005/C 330/6

Case T-336/03: Judgment of the Court of First Instance of 27 October 2005 — Les Éditions Albert René v OHIM (Community trade mark — Opposition proceedings — Earlier Community and national word mark OBELIX — Application for Community word mark MOBILIX — Article 8(1)(b) and (2) of Regulation (EC) No 40/94)

19

2005/C 330/7

Case T-368/03: Judgment of the Court of First Instance of 25 October 2005 — De Bustamante Tello v Council of the European Union (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Work done for another State — Meaning of habitually reside — Principle of equal treatment)

19

2005/C 330/8

Case T-379/03: Judgment of the Court of First Instance of 25 October 2005 — Peek & Cloppenburg KG v OHIM (Community trade mark — Word mark Cloppenburg — Absolute grounds for refusal to register — Descriptive character — Geographical origin — Article 7(1)(c) of Regulation (EC) No 40/94)

19

2005/C 330/9

Case T-415/03: Judgment of the Court of First Instance of 19 October 2005 — Cofradía de pescadores de San Pedro de Bermeo and Others v Council (Fisheries — Conservation of the resources of the sea — Relative stability of the fishing activities of each Member State — Fishing quota exchanges — Transfer to the French Republic of part of the fishing quota for anchovy allocated to the Portuguese Republic — Annulment of the provisions authorising that transfer — Reduction, for the Kingdom of Spain, of the effective fishing possibilities — Non-contractual liability of the Community — Rule of law conferring rights on individuals — Actual damage)

20

2005/C 330/0

Case T-43/04: Judgment of the Court of First Instance of 25 October 2005 — Fardoom and Reinard v Commission (Officials — Career development report — Evaluation exercise 2001-2002)

20

2005/C 330/1

Case T-50/04: Judgment of the Court of First Instance of 25 October 2005 — Micha v Commission (Officials — Reporting procedure for 1999/2001 — Staff report — Action for annulment — Obligation to state reasons — Manifest error of assessment — Delay in drawing up staff report)

21

2005/C 330/2

Case T-51/04: Judgment of the Court of First Instance of 18 October 2005 — Leite Mateus v Commission (Officials — Career development report — Assessment period 2001/2002)

21

2005/C 330/3

Case T-96/04: Judgment of the Court of First Instance of 25 October 2005 — Cwik v Commission (Officials — Evaluation exercise 2001/2002 — Career development report — Application for annulment — Plea of illegality — Manifest errors of assessment — Errors of fact — Psychological harassment — Compensation for damage suffered — Non-material damage)

21

2005/C 330/4

Case T-305/04: Judgment of the Court of First Instance of 27 October 2005 — Eden v OHIM (Community trade mark — Olfactory mark: Smell of ripe strawberries — Absolute ground for refusal — Sign not capable of being represented graphically — Article 7(1)(a) of Regulation (EC) No 40/94)

22

2005/C 330/5

Case T-258/99: Order of the Court of First Instance of 20 September 2005 — Makro Cash & Carry Nederland v Commission (State aid — Commission notice on the de minimis rule for State aid — Service stations — Risk of cumulation of aid — Aid covered by the notice — Legal interest in bringing proceedings)

22

2005/C 330/6

Case T-321/04: Order of the Court of First Instance of 19 September 2005 — Air Bourbon v Commission (State aid — Decision to raise no objections — Action for annulment — Time-limit for bringing an action — Publication of a summary notice — Not admissible)

23

2005/C 330/7

Case T-366/05: Action brought on 26 September 2005 — Anheuser-Busch/OHIM

23

2005/C 330/8

Case T-384/05: Action brought on 19 October 2005 — I.R.I.P.A. Abruzzo v Commission

23

2005/C 330/9

Case T-385/05: Action brought on 21 October 2005 — Transnáutica/Commission

24

2005/C 330/0

Case T-391/05: Action brought on 24 October 2005 — Commission/Reagecon Diagnostics

25

2005/C 330/1

Case T-265/00: Order of the Court of First Instance of 20 October 2005 — Comitato Venezia Vuole Vivere v Commission

25

2005/C 330/2

Case T-410/04: Order of the Court of First Instance of 27 October 2005 — Italy v Commission

25

| | III   Notices |
| --- | --- |
| 2005/C 330/3 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 315, 10.12.2005 | 26 |

III   Notices

2005/C 330/3

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 315, 10.12.2005

Official Journal of the European Union

26

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 24.12.2005 | EN | Official Journal of the European Union | C 330/1 |
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24.12.2005

EN

Official Journal of the European Union

C 330/1

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JUDGMENT OF THE COURT

(Grand Chamber)

of 15 November 2005

in Case C-392/02: Commission of the European Communities v Kingdom of Denmark (1)

(Failure of a Member State to fulfil obligations - Communities' own resources - Customs duties legally owing not subsequently recovered following an error by the national customs authorities - Financial liability of Member States)

(2005/C 330/01)

Language of the case: Danish

In Case C-392/02, Commission of the European Communities (Agent: H.-P. Hartvig and G. Wilms) v Kingdom of Denmark, (Agent: J. Molde), supported by Kingdom of Belgium, (Agent: A. Snoecx), Federal Republic of Germany (Agent: W.-D. Plessing, assisted by D. Sellner and U. Karpenstein, Rechtsanwälte), Italian Republic (Agent: I.M. Braguglia, assisted by G. de Bellis, avvocato dello Stato), Kingdom of the Netherlands (represented by H.G. Sevenster and J. van Bakel), Portuguese Republic, (Agents: L. Fernandes, Â. Seiça Neves and J.A. dos Anjos), Kingdom of Sweden, (Agents: A. Kruse, K. Wistrand and A. Falk), — action under Article 226 EC for failure to fulfil obligations, brought on 7 November 2002 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Makarczyk, Presidents of Chambers, C. Gulmann, A. La Pergola, J.-P. Puissochet, S. von Bahr (Rapporteur), P. Kūris, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges; L.A. Geelhoed, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 15 November 2005, in which it:

| 1. | Declares that, by failing to make available to the Commission of the European Communities an amount of DKK 140 409.60 in own resources, together with default interest thereon calculated as from 20 December 1999, the Kingdom of Denmark has failed to fulfil its obligations under Community law and, in particular, under Articles 2 and 8 of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources; |
| --- | --- |

1.

Declares that, by failing to make available to the Commission of the European Communities an amount of DKK 140 409.60 in own resources, together with default interest thereon calculated as from 20 December 1999, the Kingdom of Denmark has failed to fulfil its obligations under Community law and, in particular, under Articles 2 and 8 of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources;

| 2. | Orders the Kingdom of Denmark to pay the costs; |
| --- | --- |

2.

Orders the Kingdom of Denmark to pay the costs;

| 3. | Orders the Kingdom of Belgium, the Federal Republic of Germany, the Italian Republic, the Kingdom of the Netherlands, the Portuguese Republic and the Kingdom of Sweden to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Belgium, the Federal Republic of Germany, the Italian Republic, the Kingdom of the Netherlands, the Portuguese Republic and the Kingdom of Sweden to bear their own costs.

---

(1)  OJ C 31,8.2.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/1 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/1

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JUDGMENT OF THE COURT

(Third Chamber)

of 27 October 2005

in Case C-158/03: Commission of the European Communities v Kingdom of Spain (1)

(Freedom of establishment - Freedom to provide services - Calls for tender issued by the Instituto Nacional de Salud - Health services consisting of home respiratory treatments - Condition for tendering - Evaluation criteria - Principle of non-discrimination)

(2005/C 330/02)

Language of the case: Spanish

In Case C-158/03 Commission of the European Communities (Agents: G. Valero Jordana and K. Wiedner) v Kingdom of Spain (Agent: S. Ortiz Vaamonde) — action under Article 226 EC for failure to fulfil its obligations, brought on 7 April 2003 — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J. Malenovský, J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by including in the tendering specifications for a public contract for health services consisting of home respiratory treatments and other assisted breathing techniques, first, a tendering condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the province or, as the case may be, the capital of the province where the service is to be supplied and, second, tender evaluation criteria which reward, by awarding extra points, the existence, at the time the tender is submitted, of oxygen production, conditioning and bottling plants situated, as the case may be, in Spain or less than 1 000 kilometres from the province in question or of offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favour the undertaking which has previously provided the service concerned, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC; |
| --- | --- |

1.

Declares that, by including in the tendering specifications for a public contract for health services consisting of home respiratory treatments and other assisted breathing techniques, first, a tendering condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the province or, as the case may be, the capital of the province where the service is to be supplied and, second, tender evaluation criteria which reward, by awarding extra points, the existence, at the time the tender is submitted, of oxygen production, conditioning and bottling plants situated, as the case may be, in Spain or less than 1 000 kilometres from the province in question or of offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favour the undertaking which has previously provided the service concerned, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC;

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

2.

Dismisses the remainder of the application;

| 3. | Orders the Kingdom of Spain to pay the costs. |
| --- | --- |

3.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 135 of 07.06.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/2 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/2

---

JUDGMENT OF THE COURT

(Third Chamber)

of 27 October 2005

in Case C-175/03: Hellenic Republic v Commission of the European Communities (1)

(EAGGF - Decision 2003/102/EC - Expenditure excluded from Community financing - Aid for the preservation of olive groves in the minor islands of the Aegean Sea - Financial years 1999-2001)

(2005/C 330/03)

Language of the case: Greek

In Case C-175/03 Hellenic Republic (Agents: V. Kontolaimos and S. Charitaki) v Commission of the European Communities (Agent: M. Condou-Durande, assisted by N. Korogiannakis, avocat) — action for annulment under Article 230 EC, brought on 10 April 2003 — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet (Rapporteur), S. von Bahr, J. Malenovský and U. Lõhmus, Judges; F. G. Jacobs, Advocate General; Lynn Hewlett, Principal Administrator, for the Registrar, gave a judgment on 27 October 2005, the operative part of which is as follows:

| 1. | Commission Decision 2003/102/EC of 14 February 2003 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) is annulled insofar as it imposed on the Hellenic Republic a flat-rate correction of 25 % for the financial years 1999-2001 (public storage sector) in the sum of Euro 9 926 005,21. |
| --- | --- |

1.

Commission Decision 2003/102/EC of 14 February 2003 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) is annulled insofar as it imposed on the Hellenic Republic a flat-rate correction of 25 % for the financial years 1999-2001 (public storage sector) in the sum of Euro 9 926 005,21.

| 2. | The Commission of the European Communities is ordered to pay the costs. |
| --- | --- |

2.

The Commission of the European Communities is ordered to pay the costs.

---

(1)  OJ C 171 of 19.07.2003

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/2 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/2

---

JUDGMENT OF THE COURT

(First Chamber)

of 27 October 2005

in Case C-329/03 Reference for a preliminary ruling from the Arios Pagos (Greece), Trapeza tis Ellados AE v Banque Artesia (1)

(Free movement of capital - First Council Directive of 11 May 1960 - Acquisition of bonds dealt in on a stock exchange - Repatriation of the proceeds of their liquidation)

(2005/C 330/04)

Language of the case: Greek

In Case C-329/03: reference for a preliminary ruling under Article 234 EC from the Arios Pagos (Greece), made by decision of 31 March 2003, received at the Court on 28 July 2003, in the proceedings pending before that court between Trapeza tis Ellados AE and Banque Artesia — the Court (First Chamber), composed of: P. Jann, President of the Chamber, N. Colneric, K. Schiemann, E. Juhász and M. Ilešič (Rapporteur), Judges; F.G. Jacobs, Advocate General, L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 27 October 2005, the operative part of which is as follows:

| 1. | Bonds denominated in national currency for a term of one year from their issue, dealt in and quoted on a stock exchange, issued by a bank established in a Member State and belonging to that State, fall within List B, Item IV A of Annex I to the First Council Directive of 11 May 1960 for the implementation of Article 67 of the Treaty. Their acquisition and the proceeds of their liquidation are governed by Article 2 of that directive, which refers to List B of Annex I to the directive, which provides for the repatriation of those proceeds. |
| --- | --- |

1.

Bonds denominated in national currency for a term of one year from their issue, dealt in and quoted on a stock exchange, issued by a bank established in a Member State and belonging to that State, fall within List B, Item IV A of Annex I to the First Council Directive of 11 May 1960 for the implementation of Article 67 of the Treaty. Their acquisition and the proceeds of their liquidation are governed by Article 2 of that directive, which refers to List B of Annex I to the directive, which provides for the repatriation of those proceeds.

| 2. | The fact that an acquisition of bonds falling within List B, Item IV A of Annex I to the First Directive was financed using balances on current or deposit account with a credit institution, even if falling within List D, Item IX of that annex, cannot have an influence on the classification of the capital movement in question under List B, Item IV A of that annex. |
| --- | --- |

2.

The fact that an acquisition of bonds falling within List B, Item IV A of Annex I to the First Directive was financed using balances on current or deposit account with a credit institution, even if falling within List D, Item IX of that annex, cannot have an influence on the classification of the capital movement in question under List B, Item IV A of that annex.

---

(1)  OJ C 239 of 04.10.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/3 |
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24.12.2005

EN

Official Journal of the European Union

C 330/3

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JUDGMENT OF THE COURT

(First Chamber)

of 20 October 2005

in Case C-334/03: Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations - Directive 90/388/EEC - Telecommunications - Article 4d - Rights of way - Lack of a guarantee of non-discrimination in the grant of rights of way - Non-transposition)

(2005/C 330/05)

Language of the case: Portuguese

In Case C-334/03 Commission of the European Communities (Agents: A. Alves Vieira, S. Rating and G. Braga da Cruz) v Portuguese Republic (Agents: L. Fernandes and P. de Pitta e Cunha) — action under Article 226 EC for failure to fulfil obligations, brought on 30 July 2003 — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric (Rapporteur), J.N. Cunha Rodrigues and E. Levits, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 20 October 2005, in which it:

| 1. | Declares that, by failing to ensure the transposition of Article 4d of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, as amended by Commission Directive 96/19/EC of 13 March 1996, the Portuguese Republic has failed to fulfil its obligations; |
| --- | --- |

1.

Declares that, by failing to ensure the transposition of Article 4d of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, as amended by Commission Directive 96/19/EC of 13 March 1996, the Portuguese Republic has failed to fulfil its obligations;

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

2.

Orders the Portuguese Republic to pay the costs.

---

(1)  OJ C 251, de 18.10.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/3 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/3

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 27 October 2005

in Case C-387/03: Hellenic Republic v Commission of the European Communities (1)

(EAGGF - Clearance of accounts - Financial years 1999 and 2000 - Decision 2003/536/EC - Wine, olive oil, beef and veal and sheepmeat)

(2005/C 330/06)

Language of the case: Greek

In Case C-387/03 Hellenic Republic (Agents: I. Chalkias and E. Svolopoulou) v Commission of the European Communities (Agent: M. Condou-Durande, assisted by N. Korogiannakis) — action for annulment under Article 230 EC, brought on 15 September 2003 — the Court (Fourth Chamber), composed of K. Lenaerts, acting as President of the Fourth Chamber (Rapporteur), E. Juhász and M. Ilešič, Judges; M. Poiares Maduro, Advocate General; H. von Holstein, Assistant Registrar, for the Registrar, gave a judgment on 27 October 2005, in which it:

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

1.

Dismisses the action;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 264, 1.11.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/4 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/4

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JUDGMENT OF THE COURT

(First Chamber)

of 27 October 2005

in Case C-437/03: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Directives 78/686/EEC and 78/687/EEC - Dental practitioners)

(2005/C 330/07)

Language of the case: German

In Case C-437/03, action under Article 226 EC for failure to fulfil obligations, brought on 16 October 2003, Commission of the European Communities (Agents: C. Schmidt, C. Tufvesson and A. Manville) v Republic of Austria (Agent: E. Riedl) — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, K. Lenaerts and E. Juhász, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by allowing dentists (‘Dentisten’) under Paragraphs 4(3) and 6 of the Law on Dentists (Dentistengesetz)






  — | to engage in their occupation under the title ‘Zahnarzt’ (dental practitioner) or ‘Zahnarzt (Dentist)’ (dental practitioner (dentist)), and |
| --- | --- | --- |

1.

Declares that, by allowing dentists (‘Dentisten’) under Paragraphs 4(3) and 6 of the Law on Dentists (Dentistengesetz)

—

to engage in their occupation under the title ‘Zahnarzt’ (dental practitioner) or ‘Zahnarzt (Dentist)’ (dental practitioner (dentist)), and

| — | to make use of the exception laid down in Article 19b of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001,
  although they do not meet the minimum requirements under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners, as amended by Directive 2001/19, to be covered by the rules under those directives, |
| --- | --- |

—

to make use of the exception laid down in Article 19b of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001,

although they do not meet the minimum requirements under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners, as amended by Directive 2001/19, to be covered by the rules under those directives,

the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of Directive 78/686 and Article 1 of Directive 78/687;

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

2.

Dismisses the remainder of the application;

| 3. | Orders the Republic of Austria and the Commission of the European Communities to bear their own costs. |
| --- | --- |

3.

Orders the Republic of Austria and the Commission of the European Communities to bear their own costs.

---

(1)  OJ C 304 of 13. 12. 2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/4 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/4

---

JUDGMENT OF THE COURT

(Second Chamber)

of 27 October 2005

in Case C-525/03: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations - National rules ceasing to have any legal effect before the expiry of the period laid down in the reasoned opinion - Inadmissibility of the action)

(2005/C 330/08)

Language of the case: Italian

In Case C-525/03 Commission of the European Communities (Agents: X. Lewis, C. Loggi and K. Wiedner) v Italian Republic (Agent: I. M. Braguglia and G. Fiengo, lawyer) — action for failure to fulfil obligations under Article 226 EC, brought on 16 December 2003 — the Court (Second Chamber), composed of C. W. A. Timmermans, President of the Chamber, J. Makarczyk (Rapporteur), C. Gulmann, R. Schintgen and J. Klučka, Judges; F. G. Jacobs, Advocate General; L. Hewlett, Principal Administrator for the Registrar, gave a judgment on 27 October 2005, in which it:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders the Commission of the European Communities and the Italian Republic to bear their own costs. |
| --- | --- |

2.

Orders the Commission of the European Communities and the Italian Republic to bear their own costs.

---

(1)  OJ C 59 of 06.03.2004

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/5 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/5

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 October 2005

in Case C-166/04: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Protection of wild birds and their habitats - Special protection areas - Messolongi Lagoon)

(2005/C 330/09)

Language of the case: Greek

In Case C-166/04 Commission of the European Communities (Agents: M. Patakia and M. van Beek) v Hellenic Republic (Agent: E. Skandalou) — action under Article 226 EC for failure to fulfil obligations, brought on 2 April 2004 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, acting for the President of the Fifth Chamber, P. Kūris (Rapporteur) and J. Klučka, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by failing to take all the measures necessary for establishing and implementing a cohesive, specific and comprehensive legal regime capable of ensuring sustainable management and effective protection of the special protection area of the Messalongi Lagoon, having regard to the conservation objectives laid down by Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of that directive; |
| --- | --- |

1.

Declares that, by failing to take all the measures necessary for establishing and implementing a cohesive, specific and comprehensive legal regime capable of ensuring sustainable management and effective protection of the special protection area of the Messalongi Lagoon, having regard to the conservation objectives laid down by Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of that directive;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 156 of 12.06.2004

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/5 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/5

---

JUDGMENT OF THE COURT

(First Chamber)

of 27 October 2005

in Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04: Reference for a preliminary ruling from the Tribunal des affaires de sécurité sociale de Saint-Étienne: Nazairdis SAS and Others v Caisse nationale de l'organisation autonome d'assurance vieillesse des travailleurs non salariés des professions industrielles et commerciales (Organic) (1)

(Concept of aid - Tax assessed on the basis of sales area - Hypothecation of the tax revenue)

(2005/C 330/10)

Language of the case: French

In Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04: references for a preliminary ruling under Article 234 EC from the Tribunal des affaires de sécurité sociale de Saint-Étienne (Cases C-266/04 to C-270/04 and Case C-276/04) and the Cour d'appel de Lyon (Cases C-321/04 to C-325/04) (France), made by Decisions of 5 April and 24 February 2004, received at the Court on 24, 25 and 29 June and 27 July 2004, in the proceedings pending before those courts between Distribution Casino France SAS, formerly Nazairdis SAS (Case C-266/04), Jaceli SA (Case C-267/04), Komogo SA (Case C-268/04 and Case C-324/04), Tout pour la maison SARL (Case C-269/04 and Case C-325/04), Distribution Casino France SAS (Case C-270/04), Bricorama France SAS (Case C-276/04), Distribution Casino France 3 SAS (Case C-321/04), Société Casino France, successor to IMQEF SA, successor to JUDIS SA (Case C-322/04), Dechrist Holding SA (Case C-323/04) and Caisse nationale de l'organisation autonome d'assurance vieillesse des travailleurs non salariés des professions industrielles et commerciales (Organic) — the Court: (First Chamber) composed of K. Schiemann, President of the Fourth Chamber, acting for the President of the First Chamber, J.N. Cunha Rodrigues, K. Lenaerts (Rapporteur), E. Juhász and M. Ilešič, Judges; C. Stix-Hackl, Advocate General, L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 27 October 2005, in which it ruled:

Articles 87(1) EC and 88(3) EC are to be interpreted as not precluding the levy of a tax such as the French tax to support the trade and craft sectors.

---

(1)  OJ C 228 of 11.09.2004.

OJ C 201 of 07.08.2004.

OJ C 239 of 25.09.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/6 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/6

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 October 2005

in Case C-377/04: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Directive 1999/92/EC - Protection of workers - Risk from explosive atmospheres - Failure to transpose within the prescribed period)

(2005/C 330/11)

Language of the case: German

In Case C-377/04 Commission of the European Communities (Agents: D. Martin and V. Kreuschitz) v Republic of Austria (Agent: C. Pesendorfer) — action under Article 226 EC for failure to fulfil obligations, brought on 2 September 2004 — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, A. Borg Barthet (Rapporteur) and U. Lõhmus, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to implement fully Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (15th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to implement fully Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (15th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), 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 262 of 23.10.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/6 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/6

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 October 2005

in Case C-23/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 2000/34/EC - Working conditions - Organisation of working time - Failure to transpose within the prescribed period)

(2005/C 330/12)

Language of the case: French

In Case C-23/05: Commission of the European Communities (Agents: G. Rozet and N. Yerrell) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to fulfil obligations, brought on 25 January 2005 — the Court (Sixth Chamber), composed of J.-P. Puissochet, acting for the President of the Sixth Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by failing to bring into force the laws, regulations and administrative provisions, except as regards those to be adopted in respect of doctors in training, necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2(1) of that directive; |
| --- | --- |

1.

Declares that, by failing to bring into force the laws, regulations and administrative provisions, except as regards those to be adopted in respect of doctors in training, necessary to comply with Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2(1) of that directive;

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

2.

Dismisses the remainder of the action;

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

3.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 82 of 02.04.2005.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/7 |
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24.12.2005

EN

Official Journal of the European Union

C 330/7

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 27 October 2005

in Case C-165/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Free movement of persons - Workers - Spouses - Requirement of a work permit for spouses who are nationals of non-member countries)

(2005/C 330/13)

Language of the case: French

In Case C-165/05 Commission of the European Communities (Agent: G. Rozet) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to fulfil obligations, brought on 8 April 2005 — the Court (Fourth Chamber), composed of J.N. Cunha Rodrigues (Rapporteur), acting as President of the Fourth Chamber, K. Lenaerts and E. Levits, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by imposing in its legislation an obligation on nationals of non-member countries married to migrant workers from the European Union to obtain a work permit and by failing to bring its legislation into line with Community law, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community; |
| --- | --- |

1.

Declares that, by imposing in its legislation an obligation on nationals of non-member countries married to migrant workers from the European Union to obtain a work permit and by failing to bring its legislation into line with Community law, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 132 of 28.05.2005.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/7 |
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24.12.2005

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Official Journal of the European Union

C 330/7

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Reference for a preliminary ruling from the VAT and Duties Tribunals, London by Direction of that court of 19 September 2005 in 1) J.P. Morgan Fleming Claverhouse Investment Trust plc 2) The Association of Investment Trust Companies v Commissioners of HM Revenue and Customs

(Case C-363/05)

(2005/C 330/14)

Language of the case: English

Reference has been made to the Court of Justice of the European Communities by Direction of the VAT and Duties Tribunals, London, of 19 September 2005, received at the Court Registry on 26 September 2005, for a preliminary ruling in the proceedings between 1) J.P. Morgan Fleming Claverhouse Investment Trust plc 2) The Association of Investment Trust Companies and Commissioners of HM Revenue and Customs, on the following questions:

| 1. | Are the words ‘special investment funds’ in Article 13B(d)(6) of the Sixth Directive (1) capable of including closed-ended investment funds, such as ITCs? |
| --- | --- |

1.

Are the words ‘special investment funds’ in Article 13B(d)(6) of the Sixth Directive (1) capable of including closed-ended investment funds, such as ITCs?

| 2. | If the answer to the first question is in the affirmative, does the phrase ‘as defined by Member States’ in Article 13B(d)(6):






  a. | allow Member States to select certain of the ‘special investment funds’ within their jurisdiction to benefit from the exemption of the supply of management services and exclude others from the exemption, or |
| --- | --- | --- |

2.

If the answer to the first question is in the affirmative, does the phrase ‘as defined by Member States’ in Article 13B(d)(6):

a.

allow Member States to select certain of the ‘special investment funds’ within their jurisdiction to benefit from the exemption of the supply of management services and exclude others from the exemption, or

| b. | does it mean that the Member States are to identify those funds within their jurisdiction which fall within the definition of ‘special investment funds’ and that the benefit of exemption should extend to all such funds? |
| --- | --- |

b.

does it mean that the Member States are to identify those funds within their jurisdiction which fall within the definition of ‘special investment funds’ and that the benefit of exemption should extend to all such funds?

| 3. | If the answer to the second question is that Member States can select which ‘special investment funds’ benefit from the exemption, how do the principles of fiscal neutrality, equal treatment and the prevention of distortion of competition affect the exercise of that discretion? |
| --- | --- |

3.

If the answer to the second question is that Member States can select which ‘special investment funds’ benefit from the exemption, how do the principles of fiscal neutrality, equal treatment and the prevention of distortion of competition affect the exercise of that discretion?

| 4. | Does Article 13B(d)(6) have direct effect? |
| --- | --- |

4.

Does Article 13B(d)(6) have direct effect?

---

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

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/8 |
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24.12.2005

EN

Official Journal of the European Union

C 330/8

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Reference for a preliminary ruling from the Supremo Tribunal Administrativo by order of that court of 6 July 2005 in Optimus — Telecomunicações, S.A. v Fazenda Pública

(Case C-366/05)

(2005/C 330/15)

Language of the case: Portuguese

Reference has been made to the Court of Justice of the European Communities by order of the Supremo Tribunal Administrativo of 6 July 2005, received at the Court Registry on 29 September 2005, for a preliminary ruling in the proceedings between Optimus — Telecomunicações, S.A. and Fazenda Pública on the following questions:

| 1. | Must Article 7(1) of Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC (2) of 10 June 1985, be interpreted restrictively so as to impose as a precondition for the obligation which it imposes on Member States to exempt certain transactions involving the raising of capital the requirement that the transactions in question must be those which, under the wording of the directive prior to 1985, could be exempted from the duty or taxed at a reduced rate — that is to say only those referred to in Article 4(2) and Article 8 — and which, in addition, were in that situation as at 1 July 1984? |
| --- | --- |

1.

Must Article 7(1) of Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC (2) of 10 June 1985, be interpreted restrictively so as to impose as a precondition for the obligation which it imposes on Member States to exempt certain transactions involving the raising of capital the requirement that the transactions in question must be those which, under the wording of the directive prior to 1985, could be exempted from the duty or taxed at a reduced rate — that is to say only those referred to in Article 4(2) and Article 8 — and which, in addition, were in that situation as at 1 July 1984?

| 2. | Must Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, and Article 10 thereof be interpreted to the effect that they prohibit the levying of stamp duty, by virtue of national legislation such as Decree Law No 322-B/2001 of 14 December 2001, which inserted paragraph 26 — Capital Duty — in the General Table of Stamp duty, on a limited company governed by Portuguese law when its capital is increased, by payments in cash, when, as at 1 July 1984, that transaction was subject to that duty but was exempted from it? |
| --- | --- |

2.

Must Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, and Article 10 thereof be interpreted to the effect that they prohibit the levying of stamp duty, by virtue of national legislation such as Decree Law No 322-B/2001 of 14 December 2001, which inserted paragraph 26 — Capital Duty — in the General Table of Stamp duty, on a limited company governed by Portuguese law when its capital is increased, by payments in cash, when, as at 1 July 1984, that transaction was subject to that duty but was exempted from it?

---

(1)  OJ L 249, p. 25.

(2)  O L 156, p. 23.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/8 |
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24.12.2005

EN

Official Journal of the European Union

C 330/8

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Appeal brought on 10 October 2005 by Bart Nijs against the order made on 26 May 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-377/04 between Bart Nijs and the Court of Auditors of the European Communities

(Case C-373/05 P)

(2005/C 330/16)

Language of the case: French

An appeal against the order made on 26 May 2005 by the Court of First Instance of the European Communities (Second Chamber) in Case T-377/04 between Bart Nijs and the Court of Auditors of the European Communities was brought before the Court of Justice of the European Communities on 10 October 2005 by Bart Nijs, represented by Fränk Rollinger, lawyer.

The applicant claims that the Court should:

| — | declare this appeal admissible in form; |
| --- | --- |

—

declare this appeal admissible in form;

| — | declare this appeal well-founded on the substance; |
| --- | --- |

—

declare this appeal well-founded on the substance;

| — | find that the subject-matter of Bart Nijs's complaint of 27 February 2004 is identical to the subject-matter of his application lodged on 16 September 2004 at the Registry of the Court of First Instance; |
| --- | --- |

—

find that the subject-matter of Bart Nijs's complaint of 27 February 2004 is identical to the subject-matter of his application lodged on 16 September 2004 at the Registry of the Court of First Instance;

| — | declare the application of Bart Nijs admissible; |
| --- | --- |

—

declare the application of Bart Nijs admissible;

| — | consequently, annul the order of the Second Chamber of the Court of First Instance of 26 May 2005 and refer this case back to the Court of First Instance with a different composition for a hearing. |
| --- | --- |

—

consequently, annul the order of the Second Chamber of the Court of First Instance of 26 May 2005 and refer this case back to the Court of First Instance with a different composition for a hearing.

Pleas in law and main arguments

The applicant submits that the Court of First Instance wrongly found that Bart Nijs's application was inadmissible, while he maintains that the pre-litigation procedure, and more specifically Article 90(2) of the Statute, was complied with.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/9 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/9

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Reference for a preliminary ruling from the Bundesverwaltungsgericht by order of that court of 23 August 2005 in Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen

(Case C-375/05)

(2005/C 330/17)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesverwaltungsgericht of 23 August 2005, received at the Court Registry on 12 October 2005, for a preliminary ruling in the proceedings between Erhard Geuting and the Direktor der Landwirtschaftskammer Nordrhein-Westfalen on the following questions:

| 1. | For the purposes of Article 4a(ii) of Regulation (EEC) No 805/68 of the Council of 27 June 1968 (1) as amended by Council Regulation (EEC) No 2066/92 of 30 June 1992 (2):






  (a) | Is an in-calf heifer only a suckler cow within the meaning of the first section of the regulation if it replaces a suckler cow for which an application for a premium has been made? |
| --- | --- | --- |

1.

For the purposes of Article 4a(ii) of Regulation (EEC) No 805/68 of the Council of 27 June 1968 (1) as amended by Council Regulation (EEC) No 2066/92 of 30 June 1992 (2):

(a)

Is an in-calf heifer only a suckler cow within the meaning of the first section of the regulation if it replaces a suckler cow for which an application for a premium has been made?

| (b) | Is an in-calf heifer also a suckler cow within the meaning of the first section of the regulation if, in the previous marketing year, it replaced a suckler cow for which an application for a premium had been made and was regarded as eligible for a premium? |
| --- | --- |

(b)

Is an in-calf heifer also a suckler cow within the meaning of the first section of the regulation if, in the previous marketing year, it replaced a suckler cow for which an application for a premium had been made and was regarded as eligible for a premium?

| (c) | Is an in-calf heifer for which application for a premium has been made to be regarded at any rate as eligible for a premium if it calves before the end of the period for lodging applications? |
| --- | --- |

(c)

Is an in-calf heifer for which application for a premium has been made to be regarded at any rate as eligible for a premium if it calves before the end of the period for lodging applications?

| 2. | The following questions are also referred to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of Article 33(2) and (4) of Commission Regulation (EEC) No 3886/92 of 23 December 1992 (3) as amended by Commission Regulation (EC) No 2311/96 of 2 December 1996 (4): |
| --- | --- |

2.

The following questions are also referred to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of Article 33(2) and (4) of Commission Regulation (EEC) No 3886/92 of 23 December 1992 (3) as amended by Commission Regulation (EC) No 2311/96 of 2 December 1996 (4):

| (a) | Has a producer not made use of premium rights during a marketing year if he has applied for a premium but his application has been rejected because the animals concerned were not eligible for premiums?
  Is this also the case if there is no indication of an improper application having been made?
  Would this be compatible with the Community principle of proportionality? |
| --- | --- |

(a)

Has a producer not made use of premium rights during a marketing year if he has applied for a premium but his application has been rejected because the animals concerned were not eligible for premiums?

Is this also the case if there is no indication of an improper application having been made?

Would this be compatible with the Community principle of proportionality?

| (b) | Should Article 33(2) of Regulation (EEC) No 3886/92 be interpreted as meaning that, in an instance such as this, premium rights are maintained because it constitutes a (duly justified) exceptional case? |
| --- | --- |

(b)

Should Article 33(2) of Regulation (EEC) No 3886/92 be interpreted as meaning that, in an instance such as this, premium rights are maintained because it constitutes a (duly justified) exceptional case?

| (c) | Should premium rights that are withdrawn from a producer under Article 33(4) of Regulation (EEC) No 3886/92 because he made use of more than 70 % but less than 90 % of his premium rights in the 1998 marketing year be granted to that producer on a preferential basis on the expiry of the two-year exclusion period? |
| --- | --- |

(c)

Should premium rights that are withdrawn from a producer under Article 33(4) of Regulation (EEC) No 3886/92 because he made use of more than 70 % but less than 90 % of his premium rights in the 1998 marketing year be granted to that producer on a preferential basis on the expiry of the two-year exclusion period?

---

(1)  OJ, English Special Edition 1968 (I), p. 187.

(2)  OJ L 215, p. 49.

(3)  OJ L 391, p. 20.

(4)  OJ L 313, p. 9.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/9 |
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24.12.2005

EN

Official Journal of the European Union

C 330/9

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Reference for a preliminary ruling from the Cour de cassation (Belgium) by judgment of that court of 9 September 2005 in Samotor SPRL v Belgian State

(Case C-378/05)

(2005/C 330/18)

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 (Belgium) of 9 September 2005, received at the Court Registry on 14 October 2005, for a preliminary ruling in the proceedings between Samotor SPRL and the Belgian State on the following questions:

| 1. | Where the recipient of a supply of goods is a taxable person who has entered into a contract in good faith without knowledge of a fraud committed by the seller, does the principle of fiscal neutrality in respect of value added tax mean that the fact that the contract of sale is void, by reason of a rule of domestic civil law which renders the contract incurably void as contrary to public policy on the ground of illegal basis of the contract attributable to the seller, cannot cause that taxable person to lose his right to deduct the tax? |
| --- | --- |

1.

Where the recipient of a supply of goods is a taxable person who has entered into a contract in good faith without knowledge of a fraud committed by the seller, does the principle of fiscal neutrality in respect of value added tax mean that the fact that the contract of sale is void, by reason of a rule of domestic civil law which renders the contract incurably void as contrary to public policy on the ground of illegal basis of the contract attributable to the seller, cannot cause that taxable person to lose his right to deduct the tax?

| 2. | Is the answer different where the contract is incurably void for fraudulent evasion of VAT itself? |
| --- | --- |

2.

Is the answer different where the contract is incurably void for fraudulent evasion of VAT itself?

| 3. | Is the answer different where the illegal basis of the contract of sale, which makes it incurably void under domestic law, is fraudulent evasion of value added tax of which both contracting parties had knowledge? |
| --- | --- |

3.

Is the answer different where the illegal basis of the contract of sale, which makes it incurably void under domestic law, is fraudulent evasion of value added tax of which both contracting parties had knowledge?

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/10 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/10

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden by order of that court of 14 October 2005 in Johan Piek v Netherlands State (Ministry of Agriculture, Nature and Food Quality, formerly Ministry of Agriculture, Nature Management and Fisheries)

(Case C-384/05)

(2005/C 330/19)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad der Nederlanden of 14 October 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Johan Piek and Netherlands State (Ministry of Agriculture, Nature and Food Quality, formerly Ministry of Agriculture, Nature Management and Fisheries) on the following question:

| 1. | Does Article 3(1) of Council Regulation (EEC) No 857/84 (1) of 31 March 1984 preclude a national rule laid down in implementation of that provision which is framed in such a way that producers who have incurred investment obligations, regardless of whether or not that occurred under a development plan, may obtain a special reference quantity only if they incurred those investment obligations after 1 September 1981 but before 1 March 1984? |
| --- | --- |

1.

Does Article 3(1) of Council Regulation (EEC) No 857/84 (1) of 31 March 1984 preclude a national rule laid down in implementation of that provision which is framed in such a way that producers who have incurred investment obligations, regardless of whether or not that occurred under a development plan, may obtain a special reference quantity only if they incurred those investment obligations after 1 September 1981 but before 1 March 1984?

| 2. | If Question 1 cannot be answered in the round, which criteria determine whether the temporal limitation referred to in Question 1 is consistent with Regulation No 857/84? |
| --- | --- |

2.

If Question 1 cannot be answered in the round, which criteria determine whether the temporal limitation referred to in Question 1 is consistent with Regulation No 857/84?

---

(1)  Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector. OJ 1984 L 90, p. 13.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/10 |
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24.12.2005

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Official Journal of the European Union

C 330/10

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Reference for a preliminary ruling from the Conseil d'État (France) by decision of that court of 19 October 2005 in Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.) and Confédération Générale du Travail — Force Ouvrière v Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement

(Case C-385/05)

(2005/C 330/20)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by decision of the Conseil d'Etat (France) of 19 October 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.), Confédération Générale du Travail — Force Ouvrière and Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement on the following questions:

| 1. | In view of the purpose of Directive 2002/14/EC of 11 March 2002, (1) which, as set out in Article 1(1) thereof, is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community, must the transfer to the Member States of responsibility for determining the method for calculating the thresholds of employees employed, which is set out in that directive, be regarded as allowing those States to defer taking account of certain categories of employees for the application of those thresholds? |
| --- | --- |

1.

In view of the purpose of Directive 2002/14/EC of 11 March 2002, (1) which, as set out in Article 1(1) thereof, is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community, must the transfer to the Member States of responsibility for determining the method for calculating the thresholds of employees employed, which is set out in that directive, be regarded as allowing those States to defer taking account of certain categories of employees for the application of those thresholds?

| 2. | To what extent may Directive 98/59/EC of 20 July 1998 (2) be interpreted as authorising an arrangement with the effect that some establishments normally employing more than 20 employees will be relieved, albeit temporarily, of the obligation to create a structure for the representation of employees because of rules for the calculation of staff numbers that exclude taking account of some categories of employees for the application of the provisions organising that representation? |
| --- | --- |

2.

To what extent may Directive 98/59/EC of 20 July 1998 (2) be interpreted as authorising an arrangement with the effect that some establishments normally employing more than 20 employees will be relieved, albeit temporarily, of the obligation to create a structure for the representation of employees because of rules for the calculation of staff numbers that exclude taking account of some categories of employees for the application of the provisions organising that representation?

---

(1)  Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29)

(2)  Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16)

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/11 |
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24.12.2005

EN

Official Journal of the European Union

C 330/11

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

(Case C-390/05)

(2005/C 330/21)

Language of the case: Greek

An action against the Hellenic 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 U. Wölker, legal adviser and M. Konstantinidis, of the Legal Service, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | Declare that the Hellenic Republic has failed to fulfil its obligations under Article 16(5), (6) and 17(1) of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer; |
| --- | --- |

1.

Declare that the Hellenic Republic has failed to fulfil its obligations under Article 16(5), (6) and 17(1) of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer;

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

2.

Order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The applicant considers that the Hellenic Republic failed to fulfil its obligations under Article 16(5) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer because it did not take the measures necessary for determining minimum qualification requirements for the personnel charged with the recovery, recycling, reclamation and destruction of controlled substances that deplete the ozone layer.

The applicant likewise considers that the Hellenic Republic infringed its obligations under Article 16(6) of Regulation No 2037/2000 given that the Hellenic Republic did not submit a report to the Commission in accordance with the requirements of that provision, concerning the facilities available and the quantities of used controlled substances recovered, recycled, reclaimed or destroyed.

Finally, the applicant alleges an infringement by the Hellenic Republic of Article 17(1) of the abovementioned regulation because it did not adopt, as provided for thereunder, all practicable measures to arrange for annual checks of leakages from fixed equipment with a refrigerating fluid charge of more than 3 kg.

---

(1)  OJ L 244 of 29.09.2000, p. 1

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/11 |
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24.12.2005

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Official Journal of the European Union

C 330/11

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Removal from the register of Case C-102/03 (1)

(2005/C 330/22)

(Language of the case: Italian)

By order of 6 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-102/03 (Reference for a preliminary ruling Tribunale di Brindisi): in criminal proceedings against v Gianfranco Casale, Giuseppe Eugenio Caroli.

---

(1)  OJ C 101, 26.4.2003.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/11 |
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24.12.2005

EN

Official Journal of the European Union

C 330/11

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Removal from the register of Case C-389/04 (1)

(2005/C 330/23)

Language of the case: French

By order of 5 October 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-389/04: Commission of the European Communities v French Republic.

---

(1)  OJ C 273, 6.11.2004.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/12 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/12

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Removal from the register of Case C-400/04 (1)

(2005/C 330/24)

Language of the case: Dutch

By order of 19 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-400/04: Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 273, 6.11.2005.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/12 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/12

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Removal from the register of Case C-402/04 (1)

(2005/C 330/25)

Language of the case: French

By order of 4 October 2005, the President of the Court of Justice (Fifth Chamber) of the European Communities has ordered the removal from the register of Case C-402/04: Commission of the European Communities v French Republic.

---

(1)  OJ C 273, 6.11.2004.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/12 |
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24.12.2005

EN

Official Journal of the European Union

C 330/12

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Removal from the register of Case C-450/04 (1)

(2005/C 330/26)

Language of the case: French

By order of 28 September 2005, the President of the Court of Justice (Fourth Chamber) of the European Communities has ordered the removal from the register of Case C-450/04: Commission of the European Communities v French Republic.

---

(1)  OJ C 314, 18.12.2004.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/12 |
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24.12.2005

EN

Official Journal of the European Union

C 330/12

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Removal from the register of Case C-472/04 (1)

(2005/C 330/27)

Language of the case: Italian

By order of 7 September 2005, the President of the Court of Justice (Fifth Chamber) of the European Communities has ordered the removal from the register of Case C-472/04: Commission of the European Communities v Italian Republic.

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(1)  OJ C 6, 8.1.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/12 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/12

---

Removal from the register of Case C-483/04 (1)

(2005/C 330/28)

Language of the case: Italian

By order of 8 September 2005, the President of the Court of Justice (Fifth Chamber) of the European Communities has ordered the removal from the register of Case C-483/04: Commission of the European Communities v Italian Republic.

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(1)  OJ C 19, 20.1.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/12 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/12

---

Removal from the register of Case C-485/04 (1)

(2005/C 330/29)

Language of the case: Italian

By order of 12 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-485/04: Commission of the European Communities v Italian Republic.

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(1)  OJ C 31, 5.2.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/13 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/13

---

Removal from the register of Case C-44/05 (1)

(2005/C 330/30)

Language of the case: Italian

By order of 6 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-44/05: Commission of the European Communities v Italian Republic.

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(1)  OJ C 82, 2.4.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/13 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/13

---

Removal from the register of Case C-55/05 (1)

(2005/C 330/31)

Language of the case: Finnish

By order of 16 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-55/05 Commission of the European Communities v Republic of Finland.

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(1)  OJ C 82, 2.4.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/13 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/13

---

Removal from the register of Case C-84/05 (1)

(2005/C 330/32)

Language of the case: Italian

By order of 7 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-84/05: Commission of the European Communities v Italian Republic.

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(1)  OJ C 93, 16.4.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/13 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/13

---

Removal from the register of Case C-86/05 (1)

(2005/C 330/33)

Language of the case: Italian

By order of 7 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-86/05: Commission of the European Communities v Italian Republic.

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(1)  OJ C 93, 16.4.2005.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/13 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/13

---

Removal from the register of Case C-95/05 (1)

(2005/C 330/34)

Language of the case: Greek

By order of 20 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-95/05 Commission of the European Communities v Hellenic Republic.

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(1)  OJ C 93, 16.4.2005.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/13 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/13

---

Removal from the register of Case C-123/05 (1)

(2005/C 330/35)

Language of the case: Italian

By order of 6 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-123/05 Commission of the European Communities v Italian Republic.

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(1)  OJ C 115, 14.5.2005.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/14 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/14

---

Removal from the register of Case C-156/05 (1)

(2005/C 330/36)

Language of the case: Greek

By order of 26 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-156/05: Commission of the European Communities v Hellenic Republic.

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(1)  OJ C 132, 28.5.2005.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/14 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/14

---

Removal from the register of Case C-160/05 (1)

(2005/C 330/37)

Language of the case: French

By order of 4 October 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-160/05: Commission of the European Communities v French Republic.

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(1)  OJ C 115, 14.5.2005.

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COURT OF FIRST INSTANCE

| 24.12.2005 | EN | Official Journal of the European Union | C 330/15 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/15

---

Judgment of the Court of First Instance of 19 October 2005 — Freistaat Thüringen v Commission

(Case T-318/00) (1)

(State aid - Misuse of aid - Likelihood of circumventing the recovery order - Recovery of aid from the companies which acquired the current assets from the initial recipient)

(2005/C 330/38)

Language of the case: German

Parties

Applicant(s): Freistaat Thüringen (Germany) (represented by: M. Schütte, lawyer)

Defendant(s): Commission of the European Communities (represented by: K.D. Borchardt and V. Kreuschitz, Agents, assisted by C. Koenig)

Intervener(s) in support of the applicant(s): Federal Republic of Germany, represented by W.-D. Plessing and T. Jürgensen, Agents, assisted by R. Bierwagen, lawyer

Intervener(s) in support of the defendant(s): ODS Optical Disc Service GmbH (Hamburg, Germany) (represented by I. Brinker and U. Soltész, lawyers)

Subject-matter of the case

Application for annulment of Commission Decision 2000/796/EC of 21 June 2000 on State aid granted by Germany to CDA Compact Disc Albrechts GmbH (Thuringia) (OJ 2000 L 318, p. 62),

Operative part of the judgment

The Court:

| 1) | Annuls Commission Decision 2000/796/EC of 21 June 2000 on State aid granted by Germany to CDA Compact Disc Albrechts GmbH (Thuringia) in so far as:






  — | in Article 1(1) it includes, as part of the aid granted to R. E. Pilz GmbH & Co Beteiligungs KG, Pilz & Robotron GmbH & Co. Beteiligungs KG and Pilz Albrechts GmbH for the establishment, operation and consolidation of the CD plant in Albrechts (Thuringia), an amount of DEM 54,7 million under the Land of Bavaria's guarantee, an amount of DEM 3 million as debt waiver, and an amount of DEM 63,45 million as part of the investment grants and allowances provided by the Land of Thuringia and the Land of Bavaria; |
| --- | --- | --- |

1)

Annuls Commission Decision 2000/796/EC of 21 June 2000 on State aid granted by Germany to CDA Compact Disc Albrechts GmbH (Thuringia) in so far as:

—

in Article 1(1) it includes, as part of the aid granted to R. E. Pilz GmbH & Co Beteiligungs KG, Pilz & Robotron GmbH & Co. Beteiligungs KG and Pilz Albrechts GmbH for the establishment, operation and consolidation of the CD plant in Albrechts (Thuringia), an amount of DEM 54,7 million under the Land of Bavaria's guarantee, an amount of DEM 3 million as debt waiver, and an amount of DEM 63,45 million as part of the investment grants and allowances provided by the Land of Thuringia and the Land of Bavaria;

| — | in Article 1(2) it includes as part of the aid granted for the restructuring of CDA Compact Disc Albrechts GmbH an amount of DEM 33 million in share capital in PA/CD Albrechts and an amount of DEM 21,3 million in interest-rate advantages; |
| --- | --- |

—

in Article 1(2) it includes as part of the aid granted for the restructuring of CDA Compact Disc Albrechts GmbH an amount of DEM 33 million in share capital in PA/CD Albrechts and an amount of DEM 21,3 million in interest-rate advantages;

| — | in Article 1(2) it states that the purchase price of DEM 3 million and the DEM 15 million loan granted by the LfA constitutes aid ‘for the restructuring of CDA Compact Disc Albrechts GmbH’; |
| --- | --- |

—

in Article 1(2) it states that the purchase price of DEM 3 million and the DEM 15 million loan granted by the LfA constitutes aid ‘for the restructuring of CDA Compact Disc Albrechts GmbH’;

| — | in Article 2 it orders the recovery of the aid referred to in Article 1 from CDA Datenträger Albrechts GmbH and LCA Logistik Center Albrechts GmbH, as well as any other undertaking to which R.E. Pilz GmbH & Co. Beteiligungs KG's, Pilz & Robotron GmbH & Co. Beteiligungs KG's and Pilz Albrechts GmbH's assets and/or infrastructure have been transferred or will be transferred in such a way as to evade the consequences of that decision. |
| --- | --- |

—

in Article 2 it orders the recovery of the aid referred to in Article 1 from CDA Datenträger Albrechts GmbH and LCA Logistik Center Albrechts GmbH, as well as any other undertaking to which R.E. Pilz GmbH & Co. Beteiligungs KG's, Pilz & Robotron GmbH & Co. Beteiligungs KG's and Pilz Albrechts GmbH's assets and/or infrastructure have been transferred or will be transferred in such a way as to evade the consequences of that decision.

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

2)

Dismisses the remainder of the action.

| 3) | Orders the Commission to pay its own costs and those of the Land of Thuringia and orders the Federal Republic of Germany and ODS Optical Disc Service GmbH to bear their own costs. |
| --- | --- |

3)

Orders the Commission to pay its own costs and those of the Land of Thuringia and orders the Federal Republic of Germany and ODS Optical Disc Service GmbH to bear their own costs.

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(1)  OJ C 355 of 9.12.2000

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/15 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/15

---

Judgment of the Court of First Instance of 19 October 2005 — CDA Datenträger Albrechts v Commission

(Case T-324/00) (1)

(State aid - Misuse of aid - Risk of circumvention of the order for recovery - Recovery of aid from the companies which acquired the operating assets from the original beneficiary)

(2005/C 330/39)

Language of the case: German

Parties

Applicant(s): CDA Datenträger Albrechts GmbH (Albrechts, Germany) (represented by: T. Schmidt-Kötters and D. Uwer, lawyers)

Defendant(s): Commission of the European Communities (represented by: K.-D. Borchardt and V. Kreuschitz, Agents, assisted by C. Koenig)

Intervener(s) in support of the applicant(s): Federal Republic of Germany (represented by: W.-D. Plessing and T. Jürgensen, Agents, assisted by R. Bierwagen, lawyer)

Intervener(s) in support of the defendant(s): ODS Optical Disc Service GmbH (Hamburg, Germany) (represented by: I. Brinker and U. Soltész, lawyers)

Application for

annulment of Commission Decision 2000/796/EC of 21 June 2000 on State aid granted by Germany to CDA Compact Disc Albrechts GmbH, Thuringia (OJ 2000 L 318, p. 62).

Operative part of the judgment

The Court:

| 1. | Annuls Article 2(3) of Commission Decision 2000/796/EC of 21 June 2000 on State aid granted by Germany to CDA Compact Disc Albrechts GmbH, Thuringia; |
| --- | --- |

1.

Annuls Article 2(3) of Commission Decision 2000/796/EC of 21 June 2000 on State aid granted by Germany to CDA Compact Disc Albrechts GmbH, Thuringia;

| 2. | Declares that there is no longer any need to adjudicate on the remainder of the action for annulment; |
| --- | --- |

2.

Declares that there is no longer any need to adjudicate on the remainder of the action for annulment;

| 3. | Orders the Commission to bear its own costs and the costs of CDA Datenträger Albrechts GmbH. The Federal Republic of Germany and ODS Optical Disc Service GmbH are to bear their own costs. |
| --- | --- |

3.

Orders the Commission to bear its own costs and the costs of CDA Datenträger Albrechts GmbH. The Federal Republic of Germany and ODS Optical Disc Service GmbH are to bear their own costs.

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(1)  OJ 2000 C 355.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/16 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/16

---

Judgment of the Court of First Instance of 25 October 2005 — Groupe Danone v Commission

(Case T-38/02) (1)

(Competition - Agreements and concreted practices - Fines - Guidelines for the calculation of the amount of fines - Communication on cooperation)

(2005/C 330/40)

Language of the case: French

Parties

Applicant(s): Groupe Danone (Paris, France) (represented by: A. Winckler and M. Waha, lawyers)

Defendant(s): Commission of the European Communities (represented by: A. Bouquet and W. Wils, Agents)

Application for

annulment of Commission Decision 2003/569/EC of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1) and, as a subsidiary plea, a reduction in the fine imposed on the applicant under Article 2 of that decision.

Operative part of the judgment

The Court:

| 1. | Sets the amount of the fine imposed on the applicant at EUR 42,4125 million; |
| --- | --- |

1.

Sets the amount of the fine imposed on the applicant at EUR 42,4125 million;

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

2.

Dismisses the remainder of the action;

| 3. | Orders the applicant to bear its own costs and three-quarters of those incurred by the Commission. The Commission shall bear a quarter of its own costs. |
| --- | --- |

3.

Orders the applicant to bear its own costs and three-quarters of those incurred by the Commission. The Commission shall bear a quarter of its own costs.

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(1)  OJ C 97, 20.4.2002.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/16 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/16

---

Judgment of the Court of First Instance of 25 October 2005 — Salvador García v Commission

(Case T-205/02) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Work done for another State or for an international organisation - Meaning of ‘habitually reside’ - Statement of reasons)

(2005/C 330/41)

Language of the case: Spanish

Parties

Applicant(s): Beatriz Salvador García (Brussels, Belgium) (represented by: J. García-Gallardo Gil-Fournier, J. Guillem Carrau, D. Domínguez Pérez and A. Sayagués Torres, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall, Agent, assisted by J. Rivas Andrés and J. Gutiérrez Gisbert, lawyers)

Application for

Annulment of the Commission's decision of 27 March 2002 refusing to grant the applicant entitlement to the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the parties to bear their own costs. |
| --- | --- |

2.

orders the parties to bear their own costs.

---

(1)  OJ C 219, 14.9.2002

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/17 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/17

---

Judgment of the Court of First Instance of 25 October 2005 — Herrero Romeu v Commission

(Case T-298/02) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Work done for another State - Meaning of habitual residence - Statement of grounds - Principle of equal treatment)

(2005/C 330/42)

Language of the case: Spanish

Parties

Applicant(s): Anna Herrero Romeu (Brussels, Belgium) (represented by: J. García-Gallardo Gil-Fournier, J. Guillem Carrau, D. Domínguez Pérez and A. Sayagués Torres, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall, Agent, and by J. Rivas-Andrés and J. Gutiérrez Gisbert, lawyers)

Application for

annulment of the Commission's decision of 10 June 2002 refusing to pay the applicant the expatriation allowance under Article 4 of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders the parties to bear their own costs. |
| --- | --- |

2)

Orders the parties to bear their own costs.

---

(1)  OJ C 289, 23.11.2002.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/17 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/17

---

Judgment of the Court of First Instance of 25 October 2005 — Dedeu i Fontcuberta v Commission

(Case T-299/02) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Work done for another State - Meaning of habitual residence)

(2005/C 330/43)

Language of the case: Spanish

Parties

Applicant(s): Carles Dedeu i Fontcuberta (Brussels, Belgium) (represented by: J. García-Gallardo Gil-Fournier, J. Guillem Carrau, D. Domínguez Pérez and A. Sayagués Torres, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall, Agent, assisted by J. Rivas Andrés and J. Gutiérrez Gisbert, lawyers)

Application for

annulment of the Commission's implied decision, rejecting the applicant's complaint of 23 September 2002, and its express decision to that effect of 14 November 2002, which refuse to pay the applicant the expatriation allowance under Article 4 of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

The Court:

| 1) | Annuls the Commission's memorandum of 25 February 2002 and the Commission's decision of 14 November 2002 in so far as they refuse to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the daily subsistence allowance under Article 5(1) of that annex; |
| --- | --- |

1)

Annuls the Commission's memorandum of 25 February 2002 and the Commission's decision of 14 November 2002 in so far as they refuse to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the daily subsistence allowance under Article 5(1) of that annex;

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

2)

Dismisses the remainder of the application;

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

3)

Orders the Commission to pay the full costs.

---

(1)  OJ C 289 of 23.11.2002.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/18 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/18

---

Judgment of the Court of First Instance of 18 October 2005 — Regione Siciliana v Commission

(Case T-60/03) (1)

(Action for annulment - Admissibility - Fourth paragraph of Article 230 EC - Natural or legal persons - Act of direct concern to them - European Regional Development Fund (ERDF) - Commission's decision cancelling and requiring repayment of financial assistance - Article 24 of Regulation (EEC) No 4253/88 - Manifest error of assessment)

(2005/C 330/44)

Language of the case: Italian

Parties

Applicant(s): Regione Siciliana (originally represented by G. Aiello, and subsequently by A. Cingolo, avvocati dello Stato)

Defendant(s): Commission of the European Communities (represented by: E. de March and L. Flynn, acting as Agents)

Application for

annulment of Commission decision C (2002) 4905 of 11 December 2002 relating to the cancellation of the aid granted to the Italian Republic by Commission Decision C (87) 2090 026 of 17 December 1987 concerning the provision of assistance by the European Regional Development Fund as infrastructure investment, for a sum no less than 15 million, in Italy (region: Sicily), and to the recovery of the advance on that assistance made by the Commission

Operative part of the judgment

The Court:

| 1) | Dismisses the objection of inadmissibility; |
| --- | --- |

1)

Dismisses the objection of inadmissibility;

| 2) | Dismisses the action as unfounded; |
| --- | --- |

2)

Dismisses the action as unfounded;

| 3) | Orders the applicant to bear its own costs and half of the costs incurred by the Commission, and orders the Commission to bear half its own costs. |
| --- | --- |

3)

Orders the applicant to bear its own costs and half of the costs incurred by the Commission, and orders the Commission to bear half its own costs.

---

(1)  OJ C 101, 26.4.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/18 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/18

---

Judgment of the Court of First Instance of 25 October 2005 — Salazar Brier v Commission

(Case T-83/03) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Work done for another State - Meaning of habitual residence - Statement of grounds - Principle of equal treatment)

(2005/C 330/45)

Language of the case: Spanish

Parties

Applicant(s): Tomás Salazar Brier (Brussels, Belgium) (represented by: J. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall, Agent, assisted by J. Rivas Andrés and J. Gutiérrez Gisbert, lawyers)

Application for

annulment of the Commission's implied decision, rejecting the applicant's complaint of 24 February 2003, and its express decision to that effect of 24 March 2003, which refuse to pay the applicant the expatriation allowance under Article 4 of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders the parties to bear their own costs. |
| --- | --- |

2)

Orders the parties to bear their own costs.

---

(1)  OJ C 101 of 26.4.2003.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/19 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/19

---

Judgment of the Court of First Instance of 27 October 2005 — Les Éditions Albert René v OHIM

(Case T-336/03) (1)

(Community trade mark - Opposition proceedings - Earlier Community and national word mark OBELIX - Application for Community word mark MOBILIX - Article 8(1)(b) and (2) of Regulation (EC) No 40/94)

(2005/C 330/46)

Language of the case: English

Parties

Applicant(s): Les Éditions Albert René (Paris, France) (represented by: J. Pagenberg, lawyer)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Laitinen, Agent)

Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Orange A/S (Copenhagen, Denmark) (represented by: J. Balling, lawyer)

Application for

annulment of the decision of the Fourth Board of Appeal of OHIM of 14 July 2003 (Case R 0559/2002-4) in opposition proceedings between Les Éditions Albert René and Orange A/S

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 85, 3.4.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/19 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/19

---

Judgment of the Court of First Instance of 25 October 2005 — De Bustamante Tello v Council of the European Union

(Case T-368/03) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Work done for another State - Meaning of ‘habitually reside’ - Principle of equal treatment)

(2005/C 330/47)

Language of the case: Spanish

Parties

Applicant(s): Rafael De Bustamante Tello (Brussels, Belgium) (represented by: J. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, lawyers)

Defendant(s): Council of the European Union (represented by: M. Sims and D. Canga Fano, Agents)

Application for

Annulment of the Council's decision of 28 July 2003, refusing to grant the applicant entitlement to the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the parties to bear their own costs. |
| --- | --- |

2.

orders the parties to bear their own costs.

---

(1)  OJ C 7, 10.1.2004

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/19 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/19

---

Judgment of the Court of First Instance of 25 October 2005 — Peek & Cloppenburg KG v OHIM

(Case T-379/03) (1)

(Community trade mark - Word mark Cloppenburg - Absolute grounds for refusal to register - Descriptive character - Geographical origin - Article 7(1)(c) of Regulation (EC) No 40/94)

(2005/C 330/48)

Language of the case: German

Parties

Applicant(s): Peek & Cloppenburg KG (Düsseldorf, Germany) (represented originally by U. Hildebrandt, subsequently by P. Lange, P. Wilbert and A. Auler and, subsequently by P. Lange, P. Wilbert, A. Auler and J. Steinberg, lawyers)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented originally by D. Schennen and G. Schneider, and subsequently by A. von Mühlendahl, D. Schennen and G. Schneider, Agents)

Application for

Annulment of the decision of the Fourth Board of Appeal of the OHIM of 27 August 2003 (R 105/2002-4), concerning the application for registration of the word sign Cloppenburg as a Community trade mark

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 27 August 2003 (R 105/2002-4); |
| --- | --- |

1)

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 August 2003 (R 105/2002-4);

| 2) | Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs. |
| --- | --- |

2)

Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

---

(1)  OJ C 35, 7.2.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/20 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/20

---

Judgment of the Court of First Instance of 19 October 2005 — Cofradía de pescadores de ‘San Pedro’ de Bermeo and Others v Council

(Case T-415/03) (1)

(Fisheries - Conservation of the resources of the sea - Relative stability of the fishing activities of each Member State - Fishing quota exchanges - Transfer to the French Republic of part of the fishing quota for anchovy allocated to the Portuguese Republic - Annulment of the provisions authorising that transfer - Reduction, for the Kingdom of Spain, of the effective fishing possibilities - Non-contractual liability of the Community - Rule of law conferring rights on individuals - Actual damage)

(2005/C 330/49)

Language of the case: Spanish

Parties

Applicant(s): Cofradía de pescadores de ‘San Pedro’ de Bermeo (Bermeo, Spain) (and the other applicants whose names appear in the Annex to the judgment, represented by: E. Garayar Gutiérrez, G. Martínez-Villaseñor, A. García Castillo and M. Troncoso Ferrer, lawyers)

Defendant(s): Council of the European Union (represented by: M. Balta and F. Florindo Gijón, Agents)

Intervener(s) in support of the defendant(s): Commission of the European Communities (represented by: initially T. van Rijn and S. Pardo Quintillán, and subsequently T. van Rijn and F. Jimeno Fernández, Agents) and French Republic (represented by: G. de Bergues and A. Colomb, Agents)

Application for

damages to compensate for the loss allegedly suffered by the applicants following the Council's authorisation of the transfer to the French Republic of part of the quota for anchovy allocated to the Portuguese Republic.

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders the applicants to bear their own costs and those of the Council; |
| --- | --- |

2)

Orders the applicants to bear their own costs and those of the Council;

| 3) | Orders the French Republic and the Commission to bear their own costs. |
| --- | --- |

3)

Orders the French Republic and the Commission to bear their own costs.

---

(1)  OJ C 47, 21.2.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/20 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/20

---

Judgment of the Court of First Instance of 25 October 2005 — Fardoom and Reinard v Commission

(Case T-43/04) (1)

(Officials - Career development report - Evaluation exercise 2001-2002)

(2005/C 330/50)

Language of the case: French

Parties

Applicant(s): Mohammad Reza Fardoom (Roodt-sur-Syre, Luxembourg) and Marie-José Reinard (Bertrange, Luxembourg) (represented by: G. Bouneou and F. Frabetti, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)

Application for

annulment, principally, of the evaluation exercise 2001-2002 in so far as it concerns the applicants and, in the alternative, of the applicants' career development reports in respect of that period

Operative part of the judgment

The Court:

| 1) | Annuls the decision adopting the career development report of Ms Marie-José Reinard in respect of the period from 1 July 2001 to 31 December 2002; |
| --- | --- |

1)

Annuls the decision adopting the career development report of Ms Marie-José Reinard in respect of the period from 1 July 2001 to 31 December 2002;

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

2)

Dismisses the remainder of the action;

| 3) | Orders the Commission to pay, in addition to its own costs, those incurred by Ms Reinard; |
| --- | --- |

3)

Orders the Commission to pay, in addition to its own costs, those incurred by Ms Reinard;

| 4) | Orders Mr Mohammad Reza Fardoom to bear his own costs. |
| --- | --- |

4)

Orders Mr Mohammad Reza Fardoom to bear his own costs.

---

(1)  OJ C 94, 17.4.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/21 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/21

---

Judgment of the Court of First Instance of 25 October 2005 — Micha v Commission

(Case T-50/04) (1)

(Officials - Reporting procedure for 1999/2001 - Staff report - Action for annulment - Obligation to state reasons - Manifest error of assessment - Delay in drawing up staff report)

(2005/C 330/51)

Language of the case: French

Parties

Applicant(s): Emmanuel Micha (Roeser, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant(s): Commission of the European Communities (represented by: C. Berardis-Kayser and L. Lozano Palacios, Agents)

Application for

Annulment of the decision drawing up a definitive staff report for the applicant for the period from 1 July 1999 to 30 June 2001

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

| 2) | Orders the Commission to pay its own costs in addition to two thirds of the costs incurred by the applicant. |
| --- | --- |

2)

Orders the Commission to pay its own costs in addition to two thirds of the costs incurred by the applicant.

---

(1)  OJ C 94, 17.4.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/21 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/21

---

Judgment of the Court of First Instance of 18 October 2005 — Leite Mateus v Commission

(Case T-51/04) (1)

(Officials - Career development report - Assessment period 2001/2002)

(2005/C 330/52)

Language of the case: French

Parties

Applicant(s): Carlos Alberto Leite Mateus (Zaventem, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant(s): Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)

Application for

Annulment of the appeal assessor's decision of 14 March 2003, setting out the applicant's career development report for the assessment period 2001/2002.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the parties to bear their own costs. |
| --- | --- |

2.

orders the parties to bear their own costs.

---

(1)  OJ C 94, 17.4.2004

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/21 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/21

---

Judgment of the Court of First Instance of 25 October 2005 — Cwik v Commission

(Case T-96/04) (1)

(Officials - Evaluation exercise 2001/2002 - Career development report - Application for annulment - Plea of illegality - Manifest errors of assessment - Errors of fact - Psychological harassment - Compensation for damage suffered - Non-material damage)

(2005/C 330/53)

Language of the case: French

Parties

Applicant(s): Michael Cwik (Tervuren, Belgium) (represented by: N. Lhoëst and E. de Schietere de Lophem, lawyers)

Defendant(s): Commission of the European Communities (represented by: L. Lozano Palacios and H. Krämer, Agents)

Application for

Annulment of the decision of the Commission confirming the applicant's career development report for the period from 1 July 2001 to 31 December 2002 and payment of symbolic damages for the non-material damage alleged

Operative part of the judgment

The Court:

| 1) | Dismisses the application; |
| --- | --- |

1)

Dismisses the application;

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

2)

Orders each party to bear its own costs.

---

(1)  OJ C 106, 30.4.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/22 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/22

---

Judgment of the Court of First Instance of 27 October 2005 — Eden v OHIM

(Case T-305/04) (1)

(Community trade mark - Olfactory mark: Smell of ripe strawberries - Absolute ground for refusal - Sign not capable of being represented graphically - Article 7(1)(a) of Regulation (EC) No 40/94)

(2005/C 330/54)

Language of the case: French

Parties

Applicant(s): Eden SARL (Paris, France) (represented by M. Antoine-Lalance, avocat)

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

Application for

annulment of the decision of the First Board of Appeal of OHIM of 24 May 2004 (Case R 591/2003-1) concerning registration of the olfactory sign, Smell of ripe strawberries, as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/22 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/22

---

Order of the Court of First Instance of 20 September 2005 — Makro Cash & Carry Nederland v Commission

(Case T-258/99) (1)

(State aid - Commission notice on the de minimis rule for State aid - Service stations - Risk of cumulation of aid - Aid covered by the notice - Legal interest in bringing proceedings)

(2005/C 330/55)

Language of the case: Dutch

Parties

Applicant(s): Makro Cash & Carry Nederland BV (Amsterdam, Netherlands) (represented by: I. Cath, K. Tattersall and R. Blaauboer, lawyers)

Defendant(s): Commission of the European Communities (represented by: initially G. Rozet and H. Speyart, Agents, assisted by J.C.M. van der Beek and L. Hancher, lawyers, and subsequently G. Rozet and H. van Vliet, Agents)

Application for

Annulment of Commission Decision 1999/705/EC of 20 July 1999 on the State aid implemented by the Netherlands for 633 Dutch service stations located near the German border (OJ 1999 L 280, p. 87)

Operative part of the Order

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

1.

The action is dismissed as inadmissible;

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

2.

The applicant shall bear the costs.

---

(1)  OJ C 34, 5.2.2000.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/23 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/23

---

Order of the Court of First Instance of 19 September 2005 — Air Bourbon v Commission

(Case T-321/04) (1)

(State aid - Decision to raise no objections - Action for annulment - Time-limit for bringing an action - Publication of a summary notice - Not admissible)

(2005/C 330/56)

Language of the case: French

Parties

Applicant(s): Air Bourbon SAS (Sainte-Marie, island of Réunion, France) (represented by: S. Vaisse, lawyer)

Defendant(s): Commission of the European Communities (represented by: C. Giolito and J. Buendía Sierra, Agents)

Application for

annulment of the Commission Decision (C(2003) 4708 final) of 16 December 2003 to raise no objections against aid N 427/2003 granted by the French authorities to Air Austral

Operative part of the Order

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

1.

The action is dismissed as inadmissible;

| 2. | There is no need to adjudicate on Air Austral's application for leave to intervene; |
| --- | --- |

2.

There is no need to adjudicate on Air Austral's application for leave to intervene;

| 3. | The applicant is ordered to pay the costs. |
| --- | --- |

3.

The applicant is ordered to pay the costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/23 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/23

---

Action brought on 26 September 2005 — Anheuser-Busch/OHIM

(Case T-366/05)

(2005/C 330/57)

Language in which the application was lodged: English

Parties

Applicant(s): Anheuser-Busch, Inc. (St. Louis, USA) [represented by: V. von Bomhard, A. Renck, A. Pohlmann, G. Burkhart, lawyers]

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

Other party/parties to the proceedings before the Board of Appeal: Budějovický Budvar, národní podnik (České Budějovice, Czech Republic)

Form of order sought

| — | Partially annul the decision of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 July 2005 (Case R 514/2004-2), namely insofar as the application was rejected for goods in class 33, and |
| --- | --- |

—

Partially annul the decision of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 July 2005 (Case R 514/2004-2), namely insofar as the application was rejected for goods in class 33, and

| — | Order that the costs of the proceedings be borne by the defendant. |
| --- | --- |

—

Order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘BUDWEISER’ for goods in classes 32 and 33 — application No 1 603 489

Proprietor of the mark or sign cited in the opposition proceedings: Budějovický Budvar, národní podnik

Mark or sign cited: The international figurative marks and word mark ‘BUDWEISER’ and ‘BUDWEISER BUDVAR’ for goods in classes 31 and 32

Decision of the Opposition Division: Opposition upheld for all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as there is no likelihood of confusion between the conflicting marks. The goods are sufficiently dissimilar to exclude any confusion on the part of the consumer.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/23 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/23

---

Action brought on 19 October 2005 — I.R.I.P.A. Abruzzo v Commission

(Case T-384/05)

(2005/C 330/58)

Language of the case: Italian

Parties

Applicant(s): Istituto Regionale per gli Interventi Promozionali in Agricoltura (Regional Institute for the Promotion of Agriculture) — I.R.I.P.A. Abruzzo (Pescara, Italy) (represented by: Gianluca Belotti, Nicola Pisani and Emanuele Dell' Elce, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission's decision set out in its letter of 9 August 2005 and, insofar as necessary, the decision in the Commission's letter of 12 August 2005, and declare that the Commission should award the applicant the grant in issue on the basis that it meets all of the other award criteria; |
| --- | --- |

—

annul the Commission's decision set out in its letter of 9 August 2005 and, insofar as necessary, the decision in the Commission's letter of 12 August 2005, and declare that the Commission should award the applicant the grant in issue on the basis that it meets all of the other award criteria;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against the decision of the Commission of the European Communities of 9 August 2005, received by the applicant on 12 August 2005, informing the applicant that its application for financial assistance under Regulation (EC) No 814/2000 from appropriations in the 2005 budget was not selected on the ground that it was alleged to lack financial capacity.

Contrary to the reasons put forward by the Commission in support of its refusal to grant the application for funding, the applicant submits that its financial capacity and that of its partners in the initiative far exceeded that required by the call for proposals, even on a strict interpretation of the liquidity criterion laid down by the Commission.

Moreover, the applicant submits that this liquidity criterion, as interpreted by the Commission, is clearly illogical and out of proportion to the intended objectives, and thus artificially limits the number of prospective candidates. In this regard, the applicant maintains that the condition of financial capacity was fully met in that its liquidity far exceeded 100 % of the total grant applied for (EUR 263 895,50 ) and that, during each of the three financial years for which the balance sheets and annual accounts were approved and closed, the applicant's liquidity and that of its partners clearly exceeded this figure.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/24 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/24

---

Action brought on 21 October 2005 — Transnáutica/Commission

(Case T-385/05)

(2005/C 330/59)

Language of the case: English

Parties

Applicant(s): Transnáutica — Transportes e Navegação, SA (Matosinhos, Portugal) [represented by: C. Fernández Vicién, I. Moreno-Tapia, D. Ortigão Ramos, B. Aniceto Silva, lawyers]

Defendant(s): Commission of the European Communities

Form of order sought

| — | Annul in its entirety the Decision of the Commission of 6 July 2005 (process REM 05/2004) regarding a procedure of remission and repayment of customs duties; |
| --- | --- |

—

Annul in its entirety the Decision of the Commission of 6 July 2005 (process REM 05/2004) regarding a procedure of remission and repayment of customs duties;

| — | order the Commission to pay the costs generated by this procedure. |
| --- | --- |

—

order the Commission to pay the costs generated by this procedure.

Pleas in law and main arguments

The applicant is a Portuguese company, primarily engaged in freight transportation. In 1994 another Portuguese company dispatched a certain number of consignments of tobacco and ethyl alcohol from Portugal to countries then outside the Community under the external Community transit procedure. The applicant was named as principal, in the terms of Article 96 of the Community Customs Code (‘CCC’), for these consignments. It was later revealed that, in fact, the applicant's management was fully unaware of these transactions, as one of its employees had been acting fraudulently, using the applicant's guarantee certificate in violation of internal instructions.

Because there was no evidence that the consignments in question had reached the customs office of their destination, the applicant, as principal, was requested to pay the relevant customs debts. The applicant later applied under Article 239 CCC for the repayment and remission of these debts, alleging that, being unaware of the unauthorised activities of its employee, it was not involved in any fraudulent activities and had collaborated with the authorities and that, further, the Portuguese customs authorities had never informed it about their suspicions of fraud in relation to the transactions in question. This application was rejected by the contested Decision.

In support of its application, the applicant contends that the Commission infringed essential procedural requirements, as it failed to consult the Customs committee and only requested the applicant to intervene in the procedure at a very late stage. The applicant also invokes an alleged manifest error of assessment by the Commission of the facts in question, as well as an infringement of the Commission's duty to state reasons for its decisions. The applicant further refers to alleged infringements of the principle of good administration and its rights of defence on the grounds that the Commission has failed to examine carefully and impartially all relevant aspects of the case. Finally, the applicant invokes an alleged infringement of the principle of proportionality, since its application was rejected even though the Commission and the Portuguese authorities had started an investigation to discover whether the operations in questions constituted smuggling.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/25 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/25

---

Action brought on 24 October 2005 — Commission/Reagecon Diagnostics

(Case T-391/05)

(2005/C 330/60)

Language of the case: English

Parties

Applicant(s): Commission of the European Communities [represented by: L. Flynn, agent]

Defendant(s): Reagecon Diagnostics Ltd

Form of order sought

| — | Condemn the defendant to pay to the Commission






  — | a) | the sum of 169 658,65 Euros (one hundred and sixty nine thousand, six hundred and fifty eight Euros and sixty five cents), corresponding to 161 953,99 Euros as the amount due and 7 704,66 Euros as late payment interest as of 21 October 2005, at a rate of 5,53 %; |
| --- | --- | --- | --- |

—

Condemn the defendant to pay to the Commission

—

a)

the sum of 169 658,65 Euros (one hundred and sixty nine thousand, six hundred and fifty eight Euros and sixty five cents), corresponding to 161 953,99 Euros as the amount due and 7 704,66 Euros as late payment interest as of 21 October 2005, at a rate of 5,53 %;

| — | b) | the sum of 24,53714 Euros per day by way of interest, at a rate of 5,53 %, from 16 November 2005 until the date on which the debt is repaid in full; |
| --- | --- | --- |

—

b)

the sum of 24,53714 Euros per day by way of interest, at a rate of 5,53 %, from 16 November 2005 until the date on which the debt is repaid in full;

| — | condemn the defendant to pay the costs of the present action. |
| --- | --- |

—

condemn the defendant to pay the costs of the present action.

Pleas in law and main arguments

The European Community, represented by the European Commission, concluded with the defendant contract no MAS3-CT-1998-0177 in the context of the specific programme for research and technological development, including demonstration, in the field of marine science and technology known as the ‘MAST III programme’ (1). The contract concerned the execution of a cooperative research project called ‘Development and test of an innovative ion selective electrodes monitoring and control system for total nitrogen in marine waters’, which was intended to run for 24 months, from 1 December 1998.

The contract provided that the Commission would make a financial contribution to the relevant project, and an advance of 268 000 ECU was paid to the defendant on 1 December 1998. A further interim payment of 134 417 EUR was made on 6 September 2000. The amounts thus paid by the Commission to the defendant totalled 402 417 EUR.

The Commission audited the contract on 24 and 25 September 2001. The audit concluded that the Commission's contributions up to that point exceeded 50 % of the costs of the project thus far. The audit also revealed that the cost statement submitted by another participant to the project had been signed, irregularly, by the defendant.

On 25 January 2002 the defendant submitted additional cost statements for the period between 1 December 1999 and 30 November 2000.

The Commission carried out two independent technical reviews of the project and exchanged correspondence with the defendant on the findings of the audit and those two reviews and the concerns they raised. Following that, the Commission issued a debit note to the defendant, requiring reimbursement of the amount of 161 953,99 EUR, being the difference between the total costs of 240 463,01, accepted by the Commission and the total amount the Commission had previously paid to the defendant.

By its action the Commission seeks repayment of the abovementioned amount, together with interest thereon, in accordance with the law of Ireland, which is applicable to the contract.

---

(1)  Decision of the Council no 94/804/CE, of 23 November 1994, JO L 334 p. 59.

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| 24.12.2005 | EN | Official Journal of the European Union | C 330/25 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/25

---

Order of the Court of First Instance of 20 October 2005 — Comitato ‘Venezia Vuole Vivere’ v Commission

(Case T-265/00) (1)

(2005/C 330/61)

Language of the case: Italian

The President of the Second Chamber (Extended Composition) has ordered that the case be removed from the register.

---

(1)  OJ C 335, 25.11.2000.

---

| 24.12.2005 | EN | Official Journal of the European Union | C 330/25 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/25

---

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

(Case T-410/04) (1)

(2005/C 330/62)

Language of the case: Italian

The President of the Second Chamber has ordered that the case be removed from the register.

---

(1)  OJ C 19, 22.1.2005.

---

III Notices

| 24.12.2005 | EN | Official Journal of the European Union | C 330/26 |
| --- | --- | --- | --- |

24.12.2005

EN

Official Journal of the European Union

C 330/26

---

(2005/C 330/63)

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

OJ C 315, 10.12.2005

Past publications

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

OJ C 229, 17.9.2005

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

---